Terms and Conditions

1. Terms and Conditions

DiagnosES is an organization that trades, maintains and updates diagnostic equipment for automotive companies, wholesalers (resellers), schools and related companies/individuals.

All activities are carried out from the sole proprietorship DiagnosES, Chamber of Commerce no. 01181169 located in Winsum at Aewal 21. These general terms and conditions expressly apply to all activities of DiagnosES, which will be referred to as “DiagnosES†hereafter.

2. Applicability and exclusions

These general terms and conditions apply to all assignments, quotations and/or agreements between DiagnosES and its clients and also serve the benefit of the persons working for DiagnosES.

All assignments are accepted and carried out exclusively by DiagnosES. This also applies if it is the explicit or implicit intention that an assignment is carried out by one or more specific person or persons. The applicability of Articles 7:404 of the Dutch Civil Code, 7:407 paragraph 2 of the Dutch Civil Code and 7:409 of the Dutch Civil Code is expressly excluded.

An assignment is only considered to have been accepted if the assignment has been confirmed in writing by DiagnosES to a client, or has been laid down in a written agreement for services. No rights can be derived from e-mail traffic and the limitations of the powers of persons as stated in the trade register are strictly observed.
An assignment cannot be validly executed on behalf of DiagnosES by subordinate personnel, being the personnel at DiagnosES who do not have an attorney in the trade register. Every agreement entered into with DiagnosES contains the resolutive condition that sufficient creditworthiness of the client can be demonstrated, exclusively and entirely at the discretion of DiagnosES.
Client is obliged to demonstrate its creditworthiness to DiagnosES at the first request of DiagnosES.
Acceptance of third-party terms and conditions of delivery can only take place if this has been explicitly stated in writing by DiagnosES at the time of entering into an agreement. Such applicability relates only to the specific transaction and cannot therefore have any effect on future deliveries by or agreements with the third party in question.
In the event of a conflict or ambiguity between the provisions of these terms and conditions of delivery and any terms and conditions of delivery of third parties, the terms and conditions of delivery of DiagnosES shall prevail explicitly.

3. Offers

All offers and/or quotations are without obligation, unless expressly agreed otherwise in writing. The prices quoted are for delivery ex company or warehouse of DiagnosES, excluding sales tax and excluding packaging.
Data in printed materials provided by DiagnosES may be unilaterally changed by DiagnosES without prior notice; the data provided are therefore not binding on DiagnosES.
Information regarding the offer, such as properties, sizes, color, et cetera, as well as information in printed matter, drawings, images, etc. provided by DiagnosES, cannot bind the parties and only contain an indication for further negotiations between the parties. The Client can therefore derive no rights from such communications.
All rights of action and other powers of the client against DiagnosES, the (individual) partners and the persons working for the company in connection with the work performed by DiagnosES lapse if they have not been submitted to DiagnosES in writing and with reasons, in any case as soon as a period of 30 days has elapsed after the day on which the client became aware or could reasonably have become aware of the existence of those rights and powers.

4. Involvement of third parties

DiagnosES will exercise due care when engaging third parties (including suppliers, loss adjusters, experts, etc.) that do not belong to its organization.
However, DiagnosES is not liable for any shortcomings of these third parties. DiagnosES is authorized by the client to accept any limitations of liability of third parties on behalf of the client.
Costs incurred by DiagnosES on behalf of the client — for example due to the engagement of an expert — can be charged separately to the client, which costs can also be passed on to the client if no positive result is achieved as a result of the activities of these third parties.

5. Prices

All agreements are concluded on the basis of the prices in force at the time of conclusion.

Price lists and advertisements are subject to change and are not binding on DiagnosES.
If, as a result of the conclusion of an agreement with DiagnosES, the prices of wages, social security contributions, sales tax, etc. are increased, DiagnosES has the right to pass on these increases to its client. This also applies emphatically if it turns out that the increase(s) in question were foreseeable for DiagnosES and/or its client at the time of the conclusion of an agreement.
If the price change is more than 10%, the client has the right to dissolve the agreement by means of a written statement, whereby the client remains obliged to reimburse any costs incurred by DiagnosES in full.

6. Partial delivery

Any partial delivery, including the delivery of goods from a composite order, may be invoiced. If an interim or partial invoice has been issued, Article 22 of these terms and conditions (“paymentâ€) applies in full.

7. Packaging

If necessary, packaging will be charged to the client at cost price and will not be taken back. The necessity or desirability of the use of packaging is at the discretion of DiagnosES.

8. Deposit

DiagnosES is always entitled to demand from the client the payment of an advance in the amount of 25% of the assignment. An advance payment will be deducted from the final settlement of the order. DiagnosES is entitled to set off funds due to the client, which it holds for the benefit of the client, against outstanding invoices.

9. Delivery times

A delivery time announced by DiagnosES is only approximate, or as an indication.
All delivery times have been set by DiagnosES on the assumption that there are no impediments for DiagnosES to deliver the goods on time.
Goods ordered by DiagnosES on behalf of a client, which are not collected by the client immediately after the expiry of the delivery period at the business address of DiagnosES, are stored at the disposal of the client at the expense and risk of the client from the end of the delivery period.
DiagnosES is entitled to charge reasonable, market-based storage costs to the client, if the client does not come to collect the spent goods within 4 working days after the expiry of the delivery period.

10. Transport

Shipment of goods is at the expense and risk of the client. The transmission is made in the manner indicated by DiagnosES. If the client wishes to receive a shipment in a different way, such as by express or express shipping, the additional shipping costs will also be borne by the client.

11. Additional and less work

The work only includes what has been agreed in writing between DiagnosES and the client. Additional work before or during the execution of the work by DiagnosES, which work was either commissioned by the client or if these additional activities were necessary or desirable to bring the agreement to a successful conclusion, must be fully reimbursed by the client on the basis of the already existing agreements between the parties, or on the basis of market-based price determination.
Contract reductions do not have to be compensated by DiagnosES to the client, except insofar as this contract reduction relates to the (numbers of) goods to be delivered by DiagnosES to the client.
Costs to be incurred by DiagnosES, which costs are caused through no fault or responsibility of DiagnosES, must be paid by the client.
The applicability of Section 7:755 of the Dutch Civil Code is expressly excluded.

12. Modification of the assignment

Changes to the original order, of whatever nature, made in writing or orally by or on behalf of the client, which entail higher costs than could be counted on by DiagnosES in the quotation, will be charged to the client.
Changes to the contract requested by the client after the assignment has been issued.
implementation thereof, must be notified to DiagnosES by the client in a timely manner and in writing. If the changes are communicated verbally or by telephone, the risk for the implementation of the changes is borne by the client.
Changes made may have the effect of delaying the changes agreed upon for the

delivery time may be exceeded by DiagnosES, without any responsibility resting on DiagnosES in this regard. DiagnosES is therefore no longer responsible if the client still requires a change after the conclusion of the agreement.

13. Cancellation

If the client cancels the assignment and/or refuses to take delivery of the goods, or refuses to pay the invoice after delivery, the client is obliged to pay the materials and raw materials and raw materials already purchased and/or delivered by DiagnosES, as well as the hours worked in full and on time.

In that case, the Client will also owe DiagnosES an amount equal to 33% of the agreed assignment. In that case, the Client also indemnifies DiagnosES against claims from third parties as a result of the cancellation of the assignment and/or refusal of the goods (or delivery thereof).

Without prejudice to the foregoing arrangements, DiagnosES reserves the right to demand full compliance with the agreement and/or to claim full compensation of its damage from the client.

14. Advertising

The Client is obliged immediately after the delivery of the goods and to thoroughly inspect them for defects and, if they are present, to inform DiagnosES immediately in writing about these defects. If the Client does not report defects in writing within 8 days of the day of delivery that would have been noticed during a thorough investigation, the Client will be deemed to agree with the condition in which the delivered goods were received and will thus lapse any right to complain on the part of the Client.

DiagnosES must be enabled by the client to check the correctness of submitted complaints and must also be able to remedy any defects within a reasonable period of time.
If DiagnosES, or an independent expert, is of the opinion that a reported advertisement is correct, the client will receive a written notification from DiagnosES.

If DiagnosES is able to remedy the defects within a reasonable period of time, the client is obliged to pay the invoices of DiagnosES in full and on time. In that case, the Client does not have any right to set off or mitigate the invoices.
If DiagnosES is unable to remedy the defect within a reasonable period of time, as well as is unable to deliver a replacement item within a reasonable period of time, the parties are entitled to dissolve the agreement and DiagnosES will be allowed to take possession of the goods or parts that have already been delivered. In that case, DiagnosES is only obliged to pay a reasonable compensation to the client up to a maximum of the invoice amounts actually paid by the client to DiagnosES for the delivered goods. DiagnosES is not obliged to pay any further damage or costs to the client.

15. Warranty

During a period to be agreed upon after delivery, DiagnosES grants the client a written guarantee against material and manufacturing defects that arise during normal use. The warranty of DiagnosES does not apply if the defects are the result of improper use, from causes other than material and manufacturing defects or if DiagnosES delivers used material or used goods after consultation with the client.

He does not provide any warranty for all items and materials that DiagnosES does not manufacture itself, except insofar as any warranty is given to DiagnosES by the supplier of DiagnosES. Warranty is only given on delivered goods, but not on wages or hours, which are charged.

16. Right of retention

When DiagnosES has goods of the client in its possession, it is entitled to keep these goods in its possession until payment of all outstanding invoices and costs that DiagnosES has incurred for the execution of all assignments of the same client, unless security is provided by this client for the fulfilment of its obligations towards DiagnosES.

17. Liability

DiagnosES is not liable for the costs, damages and interests that may arise as an indirect or direct result of:
a. Force majeure, as described in these terms and conditions;
b. Acts or omissions of the client, his subordinates, or other persons employed by or on behalf of him.
In the unlikely event that an event occurs during the execution of the assignment that leads to liability of DiagnosES or (formerly) employed persons (whether or not as employees), then the joint liability of DiagnosES and those persons is always limited to the amount paid out in the case in question by the liability insurer of DiagnosES, if any, increased by the amount of the deductible that is to be borne by DiagnosES according to the conditions.

If and insofar as for whatever reason no payment should be made under the liability insurance or in which case such liability insurance is not applicable, any joint liability, as referred to in the previous sentence, is limited to a maximum of the invoice amount (paid by the client), or limited to the amount that DiagnosES actually pays in the context of the relevant assignment of the client has been given.

The limitation of liability of this article also applies in the event that DiagnosES has wrongfully refused an assignment or has terminated it prematurely and damage has arisen as a result.
In addition, DiagnosES is only liable up to a maximum of the invoice value, for damage to the work, accessories, equipment and materials, as well as to the work and/or the property of the client and/or third parties, insofar as it is caused by gross negligence on the part of DiagnosES or of those employed by DiagnosES.

DiagnosES will not be obliged to compensate a client for any business and/or consequential damage suffered, except in the event of demonstrable gross negligence and gross negligence on the part of DiagnosES.

18. Force Majeure

Extraordinary circumstances, such as storm damage and other natural disasters, obstructions by third parties or by the government, obstruction in transport in general, full or partial strikes by third parties or the government, riots, war or danger of war both in the Netherlands and in the country of origin of the materials, lockouts, loss or damage of goods during transport to DiagnosES or the client, non-proper or non-timely delivery of goods by suppliers of DiagnosES, export and/or import bans or restrictions, full or partial mobilization, obstructive measures of any government, fire, malfunctions and accidents in the company or in the means of transport of DiagnosES, or in the means of transport of third parties, the imposition of levies or other government measures, which entail a change in the factual circumstances, constitute force majeure for DiagnosES, which release it from its obligation to deliver without the client being able to assert any right to compensation of any kind or by whatever name.

In these or similar cases, DiagnosES is entitled, entirely at its own discretion, to dissolve the agreement with the client or to suspend or amend it, until the force majeure situation has disappeared.

19. Retention of title

As long as DiagnosES has not received full payment regarding an agreement from a client, all delivered goods remain the property of DiagnosES.
This retention of title also extends to all items that have been delivered to the client by DiagnosES on the basis of a previous (purchase) agreement (extended retention of title).

The Client is not entitled to dispose of the delivered goods or to encumber them (or have them encumbered) with any security right for the benefit of itself or third parties.
In the event of bankruptcy, suspension of payment or application of the statutory debt settlement (WSNP) on the part of the client, as well as in the event that it is plausible that the client will not be able to fulfil its obligations under any agreement with DiagnosES (in full and in a timely manner), DiagnosES is entitled to take possession of all goods delivered by it on the basis of its (extended) retention of title without judicial intervention and without any announcement.

DiagnosES is also expressly entitled to this right if the goods delivered by DiagnosES have been seized by third parties (under the client) or if such an attachment is imminent, or if DiagnosES has the fear that the delivered goods will be embezzled from the business address of the client.

20. Breach of contract and dissolution

If the client fails in any way in the fulfilment of its obligations towards DiagnosES, or if it is plausible that the client will not be able to fulfil its obligations towards DiagnosES in a timely and comprehensive manner, then the client will be in default by operation of law. Without prejudice to the provisions of the Dutch Civil Code, in that case DiagnosES has the authority to dissolve the agreement with the client extrajudicially, or to opt for the demand for compliance and the suspension of its own obligations under the agreement with the client.

DiagnosES is also entitled to this right in the event of bankruptcy, suspension of payment or application of the statutory debt settlement (WSNP) to the client, or in the event that his goods have been seized or are about to be seized, the client’s company has gone into liquidation or is/has been taken over by third parties, or if the client has the intention to leave the Netherlands. In all these cases, the claims of DiagnosES against the client will be immediately due and payable and DiagnosES will be entitled to either dissolve all agreements, or to suspend its own obligations pending correct compliance and/or security by the client.

21. Payment

The fee on account of an assignment to DiagnosES cannot be moderated or settled in any way whatsoever by the client and must be credited in full to DiagnosES’ bank account within 21 days, failing which the client is in default by operation of law. The Client is never entitled to set-off.

Invoicing is done weekly, unless otherwise agreed in writing or DiagnosES deems a different periodic invoicing desirable. Payment of invoices must be made within twenty-eight©©(21) days of the invoice date, if the term is exceeded by which the client is in default without further notice of default.

After the payment term has expired, the client owes DiagnosES an interest of 2% per month, calculated from the invoice date.
DiagnosES reserves the right at all times to prematurely discontinue the delivery or (additional) work and to suspend all work if payment of a sent invoice has not been paid in full within the payment term. Such termination shall take place without the Client being entitled to any indemnification or compensation.

If DiagnosES takes collection measures against the client who is in default, all extrajudicial and judicial costs will be borne by the client. The costs to be reimbursed amount to at least 15% of the outstanding balance at the first moment of default. In addition, the costs of the third parties engaged by DiagnosES (lawyer, attorney or collection agent) are fully borne by the client.

A payment by the client is first deducted by DiagnosES from the costs, then from the outstanding interest and finally from the principal amount and accrued interest.

22. Applicable law, partial declaration and dispute resolution

The legal relationship between the client and DiagnosES is governed by Dutch law. If a provision or part thereof in these terms and conditions should not be upheld in law, or turns out not to be legally valid, this does not affect the validity of the remaining provisions in these terms and conditions. Any omission in these terms and conditions will be interpreted in accordance with the other provisions and the agreements between DiagnosES and the client.

The District Court of Groningen is exclusively competent to take cognizance of any dispute between DiagnosES and a client.