Art. 1. Application – These Terms and Conditions apply to: a. all agreements contracted by Bruma, registered in Campo Raso, Candelária Pico, Azores, Portugal, hereinafter referred to as ‘Bruma’, b. every assignment or order placed by the other party, including, in as far as not already covered by the term, any intermediary, customer and/or third party employed by or on behalf of one or more of such parties, hereinafter referred to as ‘the addressee’. An assignment or order serves as an acceptance of these General Terms and Conditions, hereinafter referred to as ‘General Terms’. Departures from these General Terms may be made in writing only, c. the application of any General Terms and Conditions of the other party and/or addressee(s) and/or customer(s) is explicitly ruled out.
Art. 2. Tender and offers – Unless explicitly stated otherwise, all tenders and/or offers are without obligation and do not cover any work carried out by third parties, the use and/or hire of machinery and/or goods. Combined quotations do not give rise to any obligation to deliver part of the order for a proportional share of the price quoted for the entire order.
Art. 3. Agreement – An agreement for the sale of services and/ or goods becomes binding on Bruma through the written acceptance of the sale and/or the acceptance of a prepayment by Bruma. Information concerning the goods offered, such as characteristics, colour, dimensions etc. and information in printed materials, illustrations etc. is provided in good faith but is not binding on Bruma.
Art. 4. Indicative prices – All prices quoted by Bruma are indicative prices if: a. one or more factors that increase cost prices rises by more than 5 % after the agreement is contracted, b. the prices in the agreement are quoted in a foreign currency and the exchange rate for that currency against the Euro changes by more than 5 %; c. the prices are quoted in a foreign currency other than that of either party and this currency (selected by the parties) must be exchanged for that of the country of delivery as a result of external factors, in the event that this leads to a price change against the Euro in excess of 5 %. In the aforementioned cases (a. to c.), Bruma has the right to increase the agreed price accordingly, including when such factors arise as a result of foreseen circumstances. All prices are quoted exclusive of VAT and/or other government taxes on the sale and delivery, and are based on delivery at the warehouse of Bruma. All other forms of delivery will take place exclusively by order of the addressee.
Art. 5. Intellectual and physical property – In no case will Bruma transfer the intellectual and physical property rights to any ideas, designs, images, drawings, models, etc. that it provides, regardless of the costs charged for these. The latter remain the inalienable property of Bruma and must be returned on request without delay. Reproduction and/or any form of publication are permitted only with Bruma’s written consent. The addressee is liable for a penalty of € 10.000, payable on demand, for each action in contravention of this provision, without prejudice to Bruma’s right to full compensation. Bruma has the right to provide all delivered services and/or goods—including those delivered and/or traded through, for example, an intermediary or third parties—with product information, maintenance and usage instructions, warranty terms or warranty marks, certificates of authenticity, identification codes, dimensions or specifications, rights applicable to the product, registrations or protective structures, warranty marks, proprietary labels, brand(s) and other information relevant to Bruma. If Bruma services and/or goods are traded via e.g. an agent and/or third party, the relevant parties shall ensure that added information is not removed, partially or in full, lost, damaged, made illegible or otherwise unusable and is always included with deliveries to the other contract party.
Art. 6. Changes in the order – The addressee shall be charged for all changes to the original order of any kind whatsoever, if these are made by the addressee and give rise to costs in excess of those that could be assumed when the price was quoted. Bruma cannot be held responsible for delays in agreed delivery dates resulting from changes made by the addressee.
Art. 7. Prepayment – Prior to the contracting of an agreement, Bruma has the right to require a prepayment of at least 50 % of the final amount of the offer before accepting the order. After Bruma has issued written acceptance of the prepayment, a final date for physical delivery of the services and/or goods will be in accordance with the applicable payment terms.
Art. 8. Delivery term – Unless explicitly agreed otherwise, agreed final delivery dates are not subject to forfeiture of rights. In the event of failure to deliver on time, the addressee should serve Bruma with written notice of default. The services and/or products is deemed to have been delivered at such time as the order is made available to the addressee, in full or in part. If the addressee has not accepted the services and/or goods ordered after the final delivery date, they shall be available to the addressee at the addressee’s risk and expense.
Art. 9. Due care – Bruma gives notice that, for the delivery and/or pickup of physical goods, the recipient is obligated—under penalty of compensation for direct and/or indirect damages and costs, the addressee is required to ensure that: a. delivery can take place in the manner stated by Bruma, b. the delivery location should be properly accessible on foot, and secured, c. the delivery location is accessible and available, and everything possible is done to enable speedy delivery, d. surfaces are dry, level, free of chalk, cement and dirt residues and loose elements and/or are made available in clean condition, or are in any event in such condition and or such construction that a good result can be expected from the work, e. that sufficient power, lighting, heating, water and ventilation are available in the working area, f. in the event that damages are observed to full or part deliveries, these are noted on the receipt and/or delivery slip and furthermore, that Bruma is notified in writing thereof within two days of delivery. If the addressee fails to comply with these requirements, it will be deemed to have received the goods and/or services in undamaged condition. If there is no opportunity to check the delivered goods and/or (related) services on delivery, the addressee should note this on the receipt and/or delivery slip. In such cases, the relevant party has the opportunity to issue written notice of damages to the delivery within two working days. In the event of failure to comply with this requirement, the addressee shall also be deemed to have received the goods and/or (related) services in undamaged condition.
Art. 10. Part deliveries – The other party may be invoiced for every part delivery, including the delivery of services and/or goods from a combined order. In this case, payment should be made in accordance with the relevant provisions.
Art. 11. Exclusion of liability – Bruma cannot be held liable for costs, damages and/or interest arising as a direct or indirect consequences of: a. force majeure b. actions or negligence on the part of the addressee and/or other parties employed by or on behalf of the addressee c. negligence on the part of the addressee with regard to the maintenance of delivered goods and/or services d. damage to the delivered goods and/or (related) services resulting from external mechanical, chemical and/or biological influences, moulds, vermin etc., e. normal wear and tear of the delivered goods and/or (related) services resulting from regular or daily use f. exceptional air humidity conditions in the area where the goods and/or (related) services are installed and/or delivered g. discolouration of the delivered goods and/or services resulting from the effects of light h. any other external cause or influence. Bruma’s maximum liability is limited to the invoice value for the damages to the work, aids, materials and/or property of the addressee; in as far as this is attributable to Bruma or those employed by Bruma. Bruma is not liable for any loss of earnings and/or consequential loss on the part of the addressee or third parties, except in the event of gross culpability. As soon as materials, parts or tools required to fulfill the order have been applied at work, the addressee bears the risk of damages of any kind, without prejudice to the addressee’s right to prove that these resulted from negligence on Bruma’s part. Bruma cannot be held liable if defects arise in the sub-construction, surrounding construction or the building in which the product is installed or affixed, which lead to damage to the delivered goods and/or (related) services, such as rain damage, rising or spreading damp, flooding of crawl spaces, irregularities in construction, building defects, etc.
Art. 12. Inspection and reporting commitment – The addressee is required to inspect the goods and/or services thoroughly for defects, without delay, on delivery or at least within two working days of delivery, and need to notify Bruma in writing if any are found, in compliance with the provisions of Art. 9f. In the case provided for in Art. 9f, the addressee has a maximum of eight working days to submit a claim for compensation. Thereafter, the addressee will be deemed to have accepted the purchase in the condition in which it was delivered and all rights to claim compensation shall lapse. Bruma must be given an opportunity to inspect goods and/or services for which complaints have been submitted on location. If, in Bruma’s judgment, the claim is justified, by agreement with the addressee, Bruma will either pay fair compensation to a maximum of the invoice value for the delivered goods and/or (related) services, or will replace the delivered goods and/or (related) services free of charge, after the addressee has returned them to Bruma’s address in the original condition.
Art. 13. Minor defects – Bruma produces, processes and sells natural products and materials. This means that minor defects in quality, colour, hardness, thickness etc. cannot be ruled out. Defects within the range that does not exceed standards of reasonableness and fairness in the manufacturing industry will not serve as grounds to reject goods and/or services delivered and/or supplied.
Art. 14. Guarantee – A guarantee is provided for services and/or goods supplied by Bruma only by prior written agreement. The guarantee extends only to new deliveries of defective services and/or goods free of charge, or re-performance of inadequate work free of charge. The guarantee lapses if the services and/or goods supplied by Bruma are mistreated and/or improperly processed, if the facilities present and/or the condition of the structure and/or substrate is unsuitable or of reduced suitability, or in the event of improper use by the addressee.
Art. 15. Force majeure – Bruma is not liable for damages that the addressee suffers directly or indirectly as a result of force majeure. Force majeure is in any event taken to mean every independent circumstance occurring against Bruma’s will, which temporarily or permanently obstructs compliance with the agreement, and, in as far as the following are not already covered by the term, war, the threat of war, civil war, unrest or rebellion, strikes, lock-outs, transport problems, fire or other serious disruptions of the place of work of Bruma or its suppliers, even if these independent circumstances could have been foreseen at the time when the agreement was contracted. In the event of force majeure, Bruma has the right to annul, suspend or amend the agreement contracted, without any liability for compensation, until the exceptional circumstances cease to exist.
Art. 16. Cancellation – The addressee undertakes to indemnify Bruma for at least one third of the agreed price if the addressee cancels the agreement and/or refuses to accept receipt of the services and/or goods. The addressee is also required to indemnify Bruma from third party claims or damages resulting directly or indirectly from its actions. Without prejudice to the provisions of the preceding Clause of this Art., Bruma has the right to claim full compliance with the agreement and/or full compensation for damages.
Art. 17. Reservation of ownership – Bruma remains the owner of services and/or goods that it sells to the customer until such time as the addressee has paid the total amount due under the agreement. Until then, the addressee is required to provide for careful treatment of the delivered products and does not have the right to transfer the services and/or goods to third parties, to pledge them as security, to lend them or to (arrange to) remove them from the area to which they were delivered. Bruma has the right to reclaim and recover such items if the addressee fails to meet its commitments, if it goes into liquidation, applies for or is granted a moratorium on payments, is placed in compulsory receivership or if its goods become subject to garnishment. The addressee undertakes to allow Bruma unrestricted access to its property and to enable it to actually exercise its reservation of ownership. Bruma has the right to reclaim and take possession of these items as soon as the recipient fails to fulfill their obligations, if they go into liquidation, file for or are granted a stay of payments, are declared bankrupt, or have their assets seized.
Art. 18. Default – If the addressee defaults on its agreements in any way, Bruma has the right, without the need for notification of default and without prejudice to the provisions of the Civil Code, to suspend the contracted agreement or to annul it, wholly or in part, without the intervention of a court. Bruma has the same rights if the addressee applies for or is made subject to a compulsory winding up order, if it applies for or is granted a moratorium on payments, if its property Is seized, its business goes into liquidation or if the business is acquired by a third party. In all such cases, Bruma’s receivables from the addressee become payable on demand.
Art. 19. Payment – Invoices must, in principle, be paid in advance. Any agreed payment terms should be made within 15 days of the dispatch of the invoice unless otherwise agreed in writing. If payment of the amounts due is not received within the set term, Bruma has the right to charge the addressee a fixed sum of € 25 per incident and: a. in the case of domestic agreements, interest at the statutory rate, as fixed by De Nederlandse Bank, with a minimum of 1.25 % per month b. in the case of international agreements, the higher of interest at the statutory rate, as fixed by the central bank of the country of the currency in which the agreement is drawn up and the rate of inflation with a minimum of 1.25 % per month, determined as from the date on which the invoices are dispatched. Bruma also has the right to claim all legal and extra-legal costs resulting from the failure to pay, including the costs of lawyers, bailiffs, collection agencies etc. from the addressee, in addition to the principal, fixed costs and the associated interest.
Art. 20. Language – The original language of all Bruma agreements is Dutch. For international agreements, Bruma will provide the Portuguese and English translations thereof. In the event of differences of interpretation between the Dutch and the Portuguese and English version, the deciding factor shall be what Bruma could reasonably and fairly be deemed to have intended in the Dutch original.
Art. 21. Disputes – All disputes to which these General Terms are declared applicable, wholly or in part, are subject to Dutch law and jurisdiction shall lie exclusively with: a. in the case of domestic agreements, the court for the district in which Bruma has its head office, b. in the case of international agreements, the court in The Hague.
Art. 22. Safety net provision – In all cases in which a dispute arises for which these General Terms make no provision, compliance will be sought in the first instance with the General Terms and Conditions of the Central Housing Bureau and otherwise, if necessary, with general custom and practice in the service sector. if necessary, to what is generally regarded as standard practice in the service sector.
