General Terms & Conditions

BLUBASE

GENERAL TERMS AND CONDITIONS OF SALE

Filed with the Dutch Chamber of Commerce under number 0010-7820 on 30 January 2024.

1. COMPANY DETAILS

BluBase B.V.

Siegenstraat 5

8028 PT Zwolle, the Netherlands

Registration number Dutch Commercial Register (Handelsregister): 56828462

VAT number: NL852320553B01

• DEFINITIONS AND INTERPRETATION

In these Terms and Conditions, terms written with an initial capital have the meaning set out in Schedule 1 (Definitions) to these Terms and Conditions.

• SCOPE AND APPLICABILITY
  • These Terms and Conditions apply to every Offer and Agreement, except to the extent expressly deviated therefrom in the Offer or Agreement. In the event of a conflict between the provisions in these Terms and Conditions and the provisions in an Offer or Agreement, the provisions in the Offer or Agreement will prevail. In the event of a conflict between the Warranty Conditions and the other provisions in these Terms and Conditions, the Warranty Conditions will prevail to the extent of such conflict.
  • The application to an Offer or Agreement of any general terms and conditions of procurement or other general terms and conditions used by a Customer (regardless of whether such terms and conditions are referenced in any purchase order, invoice, or in any correspondence between the Parties, or are implied by trade, custom, practice or course of dealing) is excluded unless such terms and conditions have expressly been accepted by BluBase in writing.
  • The Customer acknowledges and agrees that, in the context of each Offer and Agreement, the Customer is acting in the exercise of its profession or business, and not as a Consumer.
  • BluBase may change these Terms and Conditions at any time and shall use its reasonable efforts to notify the Customer thereof in a timely manner (which may include by way of a general notification through the Website). Any such changes shall apply to Offers and Agreements issued or concluded after the date such changes are stated to take effect. Any amendment to an Agreement after its conclusion shall require to be agreed in writing by the authorized representatives of each Party.
  • Should any provision of these Terms and Conditions or of an Agreement be or become invalid or unenforceable in whole or in part, such shall not affect the validity and enforceability of the remaining provisions of these Terms and Conditions or the Agreement. The Parties shall in such event in good faith negotiate to promptly replace such invalid or unenforceable provision with a valid and enforceable provision, which insofar as possible reflects the original intent. A failure to exercise or delay in exercising a right or remedy provided under these Terms and Conditions, an Agreement, or applicable law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies, and no single or partial exercise of such a right or remedy prevents further exercise of the right or remedy or the exercise of another right or remedy.
• OFFERS AND AGREEMENTS
  • Any Offer, even if it contains an acceptance period, is not binding upon BluBase until an Agreement has been concluded in accordance with these Terms and Conditions.
  • Without prejudice to Clause 4.3 and Clause 8, BluBase shall use its reasonable efforts to ensure that the information provided by it in an Offer is complete and correct, but shall not be bound to apparent errors in an Offer.
  • BluBase shall use its reasonable efforts to ensure that depictions of Products and general information on Products on its Website (including in brochures and product documentation made available by BluBase through its Website or otherwise) are accurate but shall not be liable for any variations of the actual Products provided from such depictions or information.
  • The Customer may submit written purchase orders for the provision of Products and shall, where applicable, use the form for such purchase orders prescribed by BluBase.

• DELIVERY
  • BluBase is entitled to deliver the Products under an Agreement in parts and require payment of a partial delivery prior to proceeding to the subsequent partial delivery.
  • 5.1. Legal title to Products will pass to the Customer only upon payment in full by the Customer of the purchase price due in respect of such Products, and until such time the respective Products are subject to the retention of title (eigendomsvoorbehoud) and the Customer (i) is obliged to ensure that the Products are not further processed or transferred, remain identifiable as deriving from BluBase, are traceable to the Agreement under which they were purchased, and are identified as the property of BluBase in the Customer’s records and accounts, and (ii) shall provide BluBase all reasonable cooperation (including access to Customer controlled premises) to identify and reclaim the Products upon any default in payment for such Products by the Customer. In the event that BluBase cannot reclaim the Products due to specification (zaaksvorming), confusion (vermenging), accession (natrekking) or assignment (overdracht), the Customer shall be required to procure a pledge on the newly formed objects for the benefit of BluBase.
  • 5.4           If a third party seizes the Products that are subject to the retention of title (eigendomsvoorbehoud) pursuant to Clause 5.3, or wishes to establish or enforce any rights with respect to such Products, the Customer shall be required to inform BluBase thereof immediately.
  • on the correctness of delivered Product types and models against the Agreement, (b) on the correctness of quantities delivered against the Agreement, and (c) of the Products against the Specifications. If the Customer cannot collect the Product delivery, it may agree with BluBase that BluBase shall drop off the delivery on the Customer’s doorstep or drop it off at a nearby property. If this is not possible, or if BluBase has good reasons not to leave the Products for delivery at such alternative location, BluBase shall take back the entire delivery. In such a case, BluBase will charge costs to the Customer.
  • 5.5 within 2 (two) Business Days of delivery, thereby including reasonable evidence (e.g., photographs or video recordings) of the deficiencies. In the event that the Customer does not notify BluBase of deficiencies within the aforementioned timeframe, the Products delivered shall, without prejudice to BluBase’s warranty obligations under the Agreement and these Terms and Conditions, be deemed accepted by the Customer. In case of a deficiency reported in accordance with this Clause 5.6, BluBase shall, insofar as it is responsible for such deficiency and subject to the Warranty Conditions, at its cost remedy the deficiency as soon as reasonably possible and practicable.
  • The Customer shall compensate BluBase for all reasonable costs incurred by BluBase as a result of any failure by the Customer to take delivery of Products at the agreed time and location (including the costs of returning the Products). The Customer acknowledges and agrees that, unless otherwise agreed in writing between the Parties, the returned Products will not temporarily be stored by BluBase for the Customer and that BluBase may, without further notice to the Customer and without excusing Customer from its obligations under the Agreement, destroy, resell or otherwise dispose of the Products as it deems appropriate.
• Timing and delays
  • 6.1           BluBase shall use its reasonable efforts to deliver Products on the date agreed between the Parties in or pursuant to the Agreement, however, unless expressly agreed otherwise in writing between the Parties, (a) each such delivery date shall be deemed an estimated date and not a final date (fatale termijn), and (b) any failure to meet a delivery date shall not entitle the Customer to claim any compensation of damages or costs resulting from such delay.
  • 6.1, each Party shall, without undue delay upon becoming aware thereof, notify the other Party of any circumstances that causes or may cause a delay in the performance of its obligations under an Agreement.

• Prices and payment
  • All prices for Products are stated in Euros on an Ex Works (Incoterms 2020) basis, and are payable in Euros. Insofar as the Parties have agreed that BluBase shall invoice amounts due in any other currency than Euros, the invoiced amounts shall be calculated in the relevant local currency using the exchange rate published by the European Central Bank at the date of invoicing.
  • All amounts payable pursuant to an Agreement are stated exclusive of any VAT, excise and export/import duties, and other taxes and levies, all of which (other than taxes levied on BluBase’s income) are payable by the Customer unless expressly agreed otherwise in writing between the Parties. If any such taxes (other than reverse charge VAT) are properly chargeable on any provision of Products under an Agreement, the Customer shall pay to BluBase, in addition to the prices for the Products, an amount equal to the amount of the applicable taxes against delivery of an invoice that is appropriate and valid under the applicable tax rules. The Parties shall cooperate to minimise any VAT or other taxes and duties due in relation to an Agreement to the extent legally permitted.
  • The Customer shall pay amounts due in full, without set-off, deduction or withholding, in the currency in which they are invoiced, to the designated bank account of BluBase within 14 (fourteen) days from the date of the invoice or such other payment term as is agreed in the Agreement or set forth in the invoice. BluBase shall at all times be entitled to demand full or partial payment for Products in advance of delivery, or to demand security for payment.
  • If the Customer is in default in respect of any payment obligation towards BluBase, BluBase shall, without prejudice to its other rights and remedies, be entitled to charge and the Customer shall be obliged to pay: (i) the higher of the statutory interest under Dutch law (wettelijke rente bij handelstransacties) or, if different, any maximum interest permitted under the law governing the Agreement on any overdue amounts, which interest shall accrue daily from the due date to the date of actual payment in full, and (ii) the extrajudicial costs of collection of all amounts owed to BluBase. In the event of the Customer’s payment default under any Agreement, BluBase shall additionally be entitled to suspend (further) performance of any and all of its obligations under all Agreements until the Customer has fully complied with all payment obligations.
  • The Customer is not entitled to set off amounts due by it to BluBase under an Agreement against amounts due to the Customer by BluBase under that Agreement or any other agreement between the Parties.
  • 7.6           BluBase may, at its sole discretion and at any time, unilaterally discontinue or change the Products, and change the List Prices or the Specifications of Products, that are available for purchase by the Customer. BluBase shall use its reasonable efforts to provide the Customer advance written notice (including by way of a general notice through its Website or customer account) of any such material changes in a timely manner. Any such change to the Products, Specifications, and List Prices shall not affect any purchase orders that were confirmed by BluBase and are existing at the date that such change takes effect, unless (i) otherwise agreed between the Parties in writing or (ii) any factor on which the price was based changes between the date of confirmation of the order and the delivery date, including, but not limited to, any changes to (a) the Agreement, (b) the Specifications or (c) labor costs, raw material prices, taxes, and other legal charges or obligations.
• • , the Customer shall be solely responsible for its use of and reliance on any such advice, instructions, training and support, and any specifications, calculations, drawings, designs, and other information provided in the context thereof.
  • While BluBase may provide guidance and instructions on, and (software) tools for, the inspection of sites and structures for installation of the Products, the calculation of load bearing pressure, and the installation and maintenance of the Products, BluBase is never involved in the installation of the Products and the Customer is solely responsible for such inspection, calculations, installation, and maintenance, including by validating any such aforementioned guidance and instructions, and the results of any such aforementioned tools. The Customer, nor any other party, can derive any rights from any such advice, guidance, or instructions provided by BluBase, including (but not limited to) any calculations performed by BluBase.
  • The Customer hereby indemnifies BluBase and its Affiliates and shall hold them harmless from any and all Losses that they may incur as a result of any claims with respect to the use of designs, drawings, calculations, or other tools provided by BluBase in connection with the Products.
  • In the event that BluBase engages a third party for inspection of a site to determine the cause of any defects, BluBase shall be entitled to pass on any reasonable costs for such inspection to the Customer, or to any other party responsible for the installation of the Products, in the event that the third-party inspector determines that the cause of the defects lies in an installation error or any other non-compliance with instructions, guidance or advice provided by BluBase in connection with the use of the Products.
• Intellectual Property Rights
  • The Customer shall not alter any of the Products, deface, remove, conceal or otherwise alter BluBase Trademarks used on, in or in relation to the Products, or attach any other trademarks or markings than the BluBase Trademarks to any Product. The Customer shall furthermore not (i) act in any manner which may invalidate or is inconsistent with any Intellectual Property Rights of BluBase, or which may harm the BluBase Trademarks’ distinctive qualities, or BluBase?s reputation or goodwill in this regard, or harm BluBase?s business or trade name, or (ii) oppose the validity of BluBase Trademarks or seek (directly or indirectly) to register or assert any ownership rights to any BluBase Trademarks (in whole or in part) in any jurisdiction, or seek (directly or indirectly) to register, assert ownership of, or use trade names, trademarks, product and service names, brands, logo’s, domain names, or any other marks which are, in BluBase’s sole opinion (acting reasonably), identical or confusingly similar to (any element of) the BluBase Trademarks.
  • 9.1 within the reasonable time as set by BluBase.
• • The Receiving Party shall take all reasonable measures to protect the Confidential Information of the Disclosing Party against unauthorized disclosure to or access by third parties, and shall in any event use such care in respect of that Confidential Information as it would use in respect of its own Confidential Information and never less than a reasonable standard of care.
  • 10.1 does not apply to any information which the Receiving Party can demonstrate:
    • 10.1;
  • 10.1 shall not restrict any disclosure of Confidential Information (a) which is required for the purposes of defending or enforcing a Party’s rights under an Agreement at law, or (b) which is required by law or by a rule of a listing authority or stock exchange to which any Party is subject or submits, or by any court, arbitrator, supervisory authority or governmental authority with relevant powers to which any Party is subject or submits.
• • 11, the terms “personal data”, “controller”, and “process” (including conjugations thereof) have the meanings given in the GDPR.
• • • upon delivery, the Products shall be new (not used or refurbished), and title to the Products shall be free and clear of all liens, security interests, charges, encumbrances and other restrictions except as set out in Clause 5.3; and
    • 12.3, be free from material deficiencies in materials or workmanship and materially comply with their relevant Specifications.
  • 12.3       The warranties given by BluBase under Clause 12.2 in respect of the Products are subject to the Warranty Conditions and the further provisions of this Clause 12, and the Customer shall follow the warranty procedure set out here. (Warranty Conditions) in order to be entitled to any remedy in respect of Defects. The remedies set forth in the Warranty Conditions shall, to the fullest extent permitted under applicable law, constitute BluBase’s sole liability and the Customer’s sole remedies in respect of Defective Products.  

1. To the extent permitted under applicable law and except as otherwise provided in an Agreement or these Terms and Conditions, all express or implied representations, warranties, and conditions in respect of the Products, including as regards their conformity to the Agreement, quality, fitness for any particular purpose, merchantability, or non-infringement are expressly excluded.
2. 1. Without prejudice to the provisions of Clause 12 and subject to the further provisions of this Clause 13, BluBase’s aggregate liability under any Agreement for damages incurred by the Customer shall be limited to the lower of the amount (a) paid by the Customer under the Agreement in relation to the Products in respect of which the damages are claimed, or (b) received by BluBase under any insurance of BluBase in relation to the damages concerned.
   1. BluBase’s liability under any Agreement for any loss of profits, loss of revenues, loss of anticipated savings, loss of goodwill, loss of business opportunities, business interruptions or any other indirect damages or loss is excluded.
   1. Nothing in these Terms and Conditions or in an Agreement shall operate to exclude or restrict a Party?s liability for any damages or loss resulting from its wilful misconduct (opzet), fraud (bedrog) or gross negligence (bewuste roekeloosheid), or which can otherwise not lawfully be excluded or limited under mandatory provisions of applicable law.
3. Force Majeure
   1. 14.1       If a Party is delayed or prevented from complying with its obligations under an Agreement by a Force Majeure Event, then the requirement to comply with those obligations shall be suspended to the extent that performance is delayed or prevented by that event. As soon as reasonably practicable after becoming aware of the Force Majeure Event, the respective Party shall notify the other Party in writing of the Force Majeure Event and the effects of the Force Majeure Event on its ability to perform its obligations under the Agreement.

1. Termination
   1. if the other Party:
      1. has an administrator, receiver or administrative receiver appointed to it or any substantial part of its assets;
      1. is dissolved or passes a resolution or makes a determination for its dissolution or liquidation (other than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;
      1. becomes subject to an administration order or petition for its insolvency or bankruptcy;
      1. is unable is to pay its debts when they fall due; or
      1. ceases (or threatens to cease) to carry on business.
   1. The termination or expiry of an Agreement shall not affect (i) any accrued rights or liabilities of a Party under the Agreement existing at the time of such termination or expiry, or (ii) the continuance of those provisions of the Agreement which are necessary for the interpretation or enforcement of the Agreement or which by their wording or nature are reasonably intended to continue.
2. Governing law and jurisdiction
   1. These Terms and Conditions and, except as otherwise provided in an Agreement, each Agreement are governed by the laws of the Netherlands. The application to any Agreement of the United Nations Convention on Contracts for the International Sale of Goods is excluded.
   1. Unless expressly agreed otherwise between the Parties in writing, any dispute, claim, or controversy relating to these Terms and Conditions or an Agreement, or to the breach, termination, enforcement, interpretation or validity thereof, whether contractual or non-contractual, that cannot be resolved amicably shall be exclusively referred for adjudication in first instance (in eerste aanleg) by the competent courts of Overijssel, the Netherlands, provided that in urgent matters BluBase shall additionally be entitled to seek injunctive relief or provisional measures (voorlopige voorzieningen) in any court of competent jurisdiction under applicable law.

Lastly amended: 30 January 2024.