General Terms and Conditions for the Contracting of Work 2013 (AVA 2013)Established by Bouwend Nederland on March 27, 2013, revised December 2014
Article 1: Quotation
1. The offer will be made in writing or electronically, subject to urgent circumstances.
2. The quote indicates, among other things:
a. the place of work;
b. a description of the work;
c. according to which drawings, technical descriptions, designs and calculations the work will be carried out;
d. the time of commencement of the work;
e. the period within which the work will be delivered. This is determined by either a certain day or a number of workable working days;
f. the price formation method that will be used for the work to be carried out: sum of contract or direction. In the price-forming method contracting sum, the entrepreneur mentions a fixed amount for the work described in the offer; In the pricing method, the entrepreneur makes a quotation of the price factors (such as hourly rates, storage and unit prices of the necessary materials). The sales tax due is stated separately in the quotation;
g. or payment of the sum of the contract will be made in installments;
h. whether a risk scheme will apply at work, and if so which;
i. whether set items have been taken into account, and if so which:
j. or quantities will be deductible, and if so which;
k. the applicability of these general terms and conditions to the quotation and to the resulting contracting agreement.
3. The quote will be dated and will be valid for thirty days as of that day.
4. Drawings, technical descriptions, designs and calculations, which have been produced by the contractor or on his behalf, remain the property of the contractor. They may not be provided to third parties or shown for the purpose of obtaining a comparable quotation. Nor may they be copied or otherwise multiplied. If no assignment is awarded, these documents must be returned to him at the client's expense within 14 days of a request made to do so by the contractor.
5. If the quotation is not accepted, the contractor is entitled to charge the costs involved in the establishment of the quotation to the person at whose request he issued the offer, if he has so stipulated for the submission of the offer.
Article 2: Agreement and contract documents
1. The agreement is concluded by acceptance of the offer by the client.
2. If an assignment is given by two or more principals, they are jointly and severally bound and the contractor has the right to performance against each of them for the whole.
3. Contradictions in or between contract documents are, subject to fairness, interpreted to the detriment of the person by or on whose behalf they were drawn up. This is without prejudice to the obligation of the parties to warn each other in the event of apparent contradictions.
Article 3: Obligations of the client
1. Unless otherwise agreed, the client shall ensure that the contractor can dispose of in a timely manner:
a. on the data and approvals required for the design of the work (such as public and private consents), if necessary in consultation with the contractor;
b. on the building, site or water in which or on which the work is to be carried out;
c. sufficient opportunity for supply, storage and/or disposal of building materials and aids;
d. about connection options for electrical machinery, lighting, heating, gas, air and water.
2. The necessary electricity, gas and water are at the expense of the client.
3. The client is not allowed to carry out (have) the work itself or carried out by the work before the day on which the work is deemed to have been delivered, subject to the constion of the contractor.
4. Without the prior written or electronic consent of the contractor, the client is not permitted to transfer his legal relationship with the contractor to a third party before the day on which the work is deemed to have been completed.
Article 4: Obligations of the contractor
1. The contractor is obliged to carry out the work well and properly and in accordance with the provisions of the agreement. The contractor must carry out the work in such a way that damage to persons, goods or the environment is limited as much as possible. The contractor is also obliged to follow the orders and instructions given by or on behalf of the client.
2. The execution of the work must be such that the creation of the work is ensured within the agreed period.
3. If the nature of the work gives rise to this, the contractor shall inform himself of the location of cables and pipes before the start of the work.
4. The contractor is deemed to be familiar with the legal regulations and government orders relevant to the performance of the work, insofar as they are on the day of
the quotation applies. The consequences associated with compliance with these regulations and decisions are at his expense.
5. The contractor is obliged to point out to the client imperfections in structures and methods prescribed by or on behalf of the client and in orders and instructions given by or on behalf of the client, as well as defects in building materials and tools made available or prescribed by the client, insofar as the contractor knew or reasonably should know them.
6. If the price formation method has been agreed to, the contractor prepares weekly reports and submits them to the client. The weekly reports include notes regarding the hours spent and the material processed. If the client objects to the content of a weekly report, he shall inform the contractor in writing or electronically, stating the reasons, as soon as possible, but no later than one week after receipt of the weekly report.
Article 5: Cost-incuring circumstances
1. Cost-enhancing circumstances are circumstances:
- those of such a nature that when the agreement is made, there is no need to take into account the chance that they would occur,
- which cannot be attributed to the contractor and
- which increase the cost of the work.
2. Cost-increasing circumstances entitle the contractor to reimbursement of the resulting consequences.
3. If the contractor considers that cost-enhancing circumstances have occurred, he must inform the client in writing or electronically as soon as possible. Subsequently, the parties will consult in the short term on whether cost-increasing circumstances have occurred and if so, to what extent the cost increase will be reimbursed in a reasonable and fair way.
4. The client is entitled to limit, simplify or terminate the work instead of agreeing to a fee. The amount that the client is owed in this case will be determined according to standards of reasonableness and fairness.
Article 6: More and less work
1. Settlement of more and less work takes place:
a. in the event of changes to the agreement or to the conditions of performance;
b. in the event of deviations from the amounts of the set items;
c. in the event of deviations from chargeable quantities;
2. In the event of changes to the agreement or in the conditions of performance desired by the client, the contractor can only claim an increase in the price if he has informed the client in time of the need for a resulting price increase, unless the principal should have understood that need for himself.
3. Changes to the agreement or the conditions of performance will be agreed in writing or electronically - except in emergency circumstances. The lack of a written or electronic assignment does not prejudice the claims of the contractor and the client for the settlement of more and less work. In the absence of a written assignment, the proof of the change rests on the person who makes the claim.
4. Set items are amounts specified in the agreement, which are included in the contract amount and which are intended for either
a. purchasing building materials;
b. purchasing and processing building materials;
c. the performance of work, which has not been sufficiently precise on the day of the contract and which must be completed by the client.
With regard to each set post, the agreement refers to which it relates.
5. The expenses to be charged to be charged to the set-ins shall be taken into account with the prices charged to the contractor or the costs incurred by him, to be increased by a contractor's fee of 10%.
6. If a set item relates solely to the purchase of building materials, the costs of processing them are included in the sum of the contract and will not be settled separately. However, these costs will be charged to the settlement post, on which the purchase of those building materials is settled to the extent that they are higher than the one the contractor has had to reasonably take into account by the interpretation given to the setting post.
7. If a fixed item relates to the purchase of building materials and their processing, the costs of processing are not included in the sum of the undertaking and are settled separately at the expense of the set item.
8. If the agreement includes any of the quantities that can be settled, and these quantities are too high or too low to complete the work, the additional or lower costs resulting from that deviation shall be offset.
9. If the client orders to carry out more work, the contractor may charge 25% of the agreed amount as an advance. The remaining part will be able to invoice the contractor first when the more work is completed or with the first installment invoice thereafter. Unless otherwise agreed, less work will be settled by the contractor at the final settlement.
10. If the final settlement of the work shows that the total amount of the less work exceeds the total amount of the more work, the contractor is entitled to an amount equal to 10% of the difference of those totals.
Article 7: Payment
1. If payment in installments has been agreed, the contractor sends the relevant installment invoice to the client each time at or after the appearance of a payment term. The sales tax due to the contractor by the client is stated separately.
2. Payment of a submitted invoice must take place no later than 14 days after the invoice date, on the understanding that on delivery all submitted forward invoices and the invoices in re-s to the agreed additional work must be paid, without prejudice to the applicability of Article 8 and Article 13 and provided that the contractor has submitted these invoices in time for delivery. The contractor is entitled to submit the invoice concerning the period due at delivery 14 days before the scheduled delivery.
3. Within a reasonable period of time after the day on which the work is deemed to have been completed, the contractor shall submit the final statement.
4. Payment of the amount of the final statement due to the contractor must take place no later than 30 days after the day on which the contractor submitted the final statement, without prejudice to the provisions of Article 13.
Article 8: 5% scheme
1. This article applies only to the acceptance of work that extends to the construction of a dwelling on behalf of a consumer, that is, a natural person who does not act in the exercise of a profession or business.
2. The consumer can withhold a maximum of 5% of the contract amount in the last term or final installments without having recourse to Article 6:262 of the Dutch Civil Code and deposit this amount in a deposit at a notary's office without having recourse to Article 6:262 of the Dutch Civil Code and subject to the contract.
3. The notary places the amount in the control of the contractor after three months have elapsed after the time of delivery, unless the consumer wishes to use his authority granted in Article 6:262 of the Dutch Civil Code. In that case, the consumer will inform the notary of the amount to which the deposit should be maintained.
4. The notary also brings the amount into the power of the contractor to the extent that the consumer agrees to it, the contractor provides a substitute security or, in a ruling binding on the parties, it is decided that a deposit is not or no longer justified.
5. If the consumer owes the contractor compensation due to the deposit malfunction or the replacement security provided by the contractor, this will be set at the statutory interest of Article 6:119 of the Dutch Civil Code. During the three months after delivery, it is not due, even if no defects are found.
6. The costs for the deposit calculated by the notary are borne by the consumer. The interest to be reimbursed by the notary on the deposit amount is in favor of the consumer.
Article 9: Delivery and maintenance period
1. The work shall be deemed to have been completed when the contractor has notified that the work is ready for delivery and the operator has accepted the work. A delivery report to be signed by both parties will be drawn up on the occasion of the delivery. A deficiency identified by the client that is not recognized by the contractor is mentioned as such in the delivery report.
2. If the contractor has notified that the work is ready for delivery and does not inform the client within 8 days thereafter whether or not he accepts the work, the work is deemed to have been completed.
3. If the client disapproved of the work, he must do so in writing or electronically, stating the defects that are the reason for disapproval. Small defects, which can be properly remedied within the maintenance period, should not be a reason for disapproval, provided that they do not stand in the way of any use.
4. If the client takes the work into use, the work is deemed to have been delivered.
5. If the parties determine that, given the nature or extent of the shortcomings, it is not reasonably possible to speak of delivery, the contractor will, after consultation with the client, name a new date on which the work will be ready for delivery.
6. After the day on which the work is deemed to have been completed, the work is at the client's risk.
7. Deficiencies recognized by the contractor will be remedied as soon as possible.
8. After the day on which the work is deemed to have been delivered, a maintenance period of 30 days will apply.
Article 10: Duration of implementation, postponement of delivery and compensation for late delivery
1. If the period within which the work will be delivered is expressed in workable working days, working day is understood to mean a calendar day, unless it falls on a general or on the spot of work recognized, or by the government or prescribed by or under a collective employment agreement, rest or holiday day or other non-individual day off. Working days, half working days respectively, are considered unworkable, when they are not at the expense of the contractor-conditions for at least five hours, respectively at least two hours, cannot be worked by most workers or machines.
2. The contractor is entitled to an extension of the period within which the work will be delivered if, due to force majeure, circumstances at the expense of the client, or as a result of more and less work, the contractor cannot be required to deliver the work within the agreed period.
3. If the agreed construction time is exceeded, the contractor shall owe a fixed compensation to the client of € 40 per working day until the day on which the work is delivered to the client, except to the extent that the contractor is entitled to a construction time extension. For the purposes of this paragraph, the day of delivery is the day on which the work was ready for delivery according to the contractor, provided that the work is then deemed to be delivered, or the day of commissioning of the work by the client.
4. The fixed compensation is due without notice of default and can be settled with what is still due to the contractor.
5. The fixed compensation shall be less than or equal to € 20,000 for an agreed contracting amount and a maximum of 25% of that contracting sum and for an agreed contracting sum greater than € 20,000, up to a maximum of 15% of that contracting amount.
6. If the start or progress of the work is delayed by factors for which the client is responsible, the resulting damage and costs for the contractor must be reimbursed by the client.
Article 11: Default of the client
1. If the client defaults with the payment of what he owes to the contractor under the agreement, he owes the statutory interest on this with effect from the due date. If no payment has yet been made after 14 days after the expiry day, the interest rate referred to in the preceding sentence will be increased by 2.
2. If the client does not pay in time, the contractor is entitled to collect the amount due, provided that he has advised the client in writing or electronically to pay within 14 days and that payment has not been made. If the contractor proceeds to recovery, the associated extrajudicial costs are borne by the client, provided that the amount of this is stated in the remand. The contractor is entitled to charge the amount for this in accordance with the Decree on compensation for extrajudicial collection costs.
3. If the client does not pay what the contractor is entitled to according to the agreement or does not pay in a timely manner, or the contractor has well-founded reasons to believe that the client will not pay the contractor's due or not in time, the contractor is entitled to demand sufficient security from the client.
4. If the client fails to comply with any obligation incumbent on him, the contractor is entitled to suspend the work until the moment the client has fulfilled this obligation, or to terminate the work in an unfinished state, provided that the contractor has informed the client in advance in writing or electronically of these consequences of non-comply. The provisions of the previous sentence are without prejudice to the contractor's right to compensation for damage, costs and interest.
5. If the client is declared bankrupt, or requests suspension of payment, or if any lawful attachment is made by a third party at his charge, unless this attachment is cancelled within a month, whether or not against security, the contractor is entitled to suspend the work without further reassurance, or to terminate the work in an unfinished state.
6. If there is a suspension of the respective termination in an unfinished state pursuant to this Article, the provisions of Article 14 shall apply.
Article 12: Default of the contractor
1. If the contractor does not comply with his obligations with regard to the start or continuation of the work and the client wishes to remand him in connection with this, the client will insue him in writing or electronically to start or continue the execution of the work as soon as possible.
2. The client is authorized to carry out or have the work continued by a third party, if the contractor defaults after the expiry of the period stated in the notice, provided that the seriousness of the shortcoming justifies this and provided that the client has stated this in the notice. In that case, the client is entitled to reimbursement of the damage and costs resulting from the failure of the contractor.
3. The client ensures that the costs arising for the contractor from the application of the previous paragraph remain within reasonable limits.
Article 13: Suspension of payment
If the work performed does not comply with the agreement, the client has the right to suspend payment in whole or in part. The amount involved in the suspension must be in reasonable proportion to the shortcoming. The client shall notify the contractor in writing or electronically of the suspension and the reason for it.
Article 14: Suspension, termination of the work in unfinished state and termination
1. The client is authorized to suspend the execution of the work in whole or in part. Provisions that the contractor must make as a result of the suspension, and damage suffered by the contractor as a result of the suspension, will be compensated to the contractor.
2. If damage to the work occurs during the suspension, it will not be borne by the contractor, provided that he has previously informed the client in writing or electronically of this consequence associated with the suspension.
3. In addition, if the suspension lasts longer than 14 days, the contractor may claim that he be made a proportionate payment for the part of the work performed. This takes into account building materials brought forward at work, not yet processed but already paid for by the contractor.
4. If the suspension of the work lasts longer than a month, the contractor is entitled to terminate the work in an unfinished state. In that case, it shall be settled in accordance with the following paragraph.
5. The client is at all times authorized to terminate the agreement in whole or in part. In that case, the contractor is entitled to the contract sum, plus the costs he had to incur as a result of the non-completion and reduced by the costs saved by the termination. The contractor is entitled to charge 10% of the value of the unperformed part of the work instead of the previous claim. The contractor will send the client a specified final statement of what the client owes as a result of the cancellation.
Article 15: Liability of the client
1. The client is responsible for the accuracy of the data provided by or on his behalf.
2. Differences between the apparent condition of existing buildings, works and sites during the execution, on the one hand, and the condition that the contractor should reasonably have expected, entitle the contractor to reimbursement of the resulting costs.
3. If it appears after the contification of the agreement that the construction site is contaminated or the building materials resulting from the work are contaminated, the client is liable for the consequences resulting from this for the execution of the work.
4. The client bears responsibility for the constructions and methods prescribed by or on his behalf, including the influence exerted on them by the soil condition, as well as for the orders and instructions given by or on his behalf.
5. If building materials or aids that the client has made available, or have been prescribed by him, are unsuitable or defective, the consequences of this will be borne by the client.
6. If the client has prescribed a subcontractor or supplier, and does not, not timely or improperly provide it, the consequences of this will be borne by the client.
7. The client is liable for damage to the work and the damage and delay that the contractor suffers as a result of work or deliveries carried out by the client or on his behalf by third parties.
8. The consequences of compliance with legal regulations or government orders that enter into force after the day of the offer are borne by the client, unless it must be reasonably assumed that the contractor could have foreseen those consequences already on the day of the offer.
Article 16: Liability of the contractor
16.1 Design Liability
1. In the event of deficiencies in the design, the contractor is only liable for this to the extent that these shortcomings can be attributed to him.
2. The liability of the contractor under the previous paragraph is limited to the amount agreed for the performance of the design work. If no amount has been agreed, the contractor's liability is limited to 10% of the contract price.
3. The legal claim under an attributable deficiency is inadmissible if it is brought after the expiration of five years after the expiry of the maintenance period.
16.2 Liability during the execution of the work
1. The work and its execution are the responsibility of the contractor with effect from the time of commencement to the day on which the work is completed or if completed.
2. Without prejudice to the liability of the parties under the agreement or the law, the contractor is liable for damage to the work, unless this damage is the result of extraordinary circumstances against the harmful consequences of which the contractor does not have to take appropriate measures in connection with the nature of the work and it would be unreasonable to cause the damage to be borne by him.
3. The contractor is liable for damage to other works and property of the client insofar as this has been caused by the execution of the work and is due to negligence, carelessness or wrong actions of the contractor, his staff, his subcontractors or his suppliers.
4. The contractor shall indemnify the client against claims by third parties for compensation for damage, insofar as this is caused by the out-
lining of the work has been done and is due to negligence, carelessness or incorrect actions of the contractor, his staff, his subcontractors or his suppliers.
16.3 Liability after completion
1. After the day on which the work is deemed to have been completed, the contractor is no longer liable for deficiencies at work.
2. The provisions of paragraph 1 are exempted from the exception if there is a defect:
a. that occurred in the maintenance period and that reasonably could not have been known by the client upon delivery, unless the contractor makes it plausible that the defect must be attributed with a high degree of probability to a circumstance, which can be attributed to the client;
b. that occurred after the end of the maintenance period, which could reasonably not have been recognized by the client upon delivery and which the client makes plausible that the defect should be attributed with a great degree of probability to a circumstance that can be attributed to the contractor.
3. The legal claim under the defect referred to in paragraph 2 (a) shall be inadmissible if it is brought after the expiration of two years after the expiry of the maintenance period.
4. The legal claim under the defect referred to in paragraph 2 (b) shall be inadmissible if it is instituted after five years after the expiry of the maintenance period. However, in the event that the defect referred to in paragraph 2(b) is to be classified as a serious defect, the legal claim shall be inadmissible if it is instituted within ten years after the expiry of the maintenance period. A defect can only be noted as a serious defect if the work has collapsed in whole or in part or threatens to collapse, or has become unfit or threatens to become unfit for the destination for which it is intended according to the agreement and this can only be remedied or prevented by making very costly provisions.
16.4 Other provisions
1. In the cases provided for in Articles 16.1 to 16.3, the client is obliged to make the contractor of the defect within a reasonable period of time after discovery and to give the contractor the opportunity to repair/recover any defects and/or defects that are liable for his account, within a reasonable period of time.
2. If the costs of recovery for a defect or of remedying a deficiency for which the contractor is liable are not in reasonable proportion to the interest of the client in the event of a repair, the contractor may be sufficient instead of repair by paying reasonable compensation to the contractor.
3. The limitations of liability arising from Articles 16.1 to 16.3 do not apply if the damage is the result of intent or gross negligence on the part of the contractor.
Article 17: Disputes and Applicable Law
1. All disputes, which may arise between the client and the contractor as a result of arbitration by the Board of Arbitration for Construction, including those considered as such by only one of the parties, which may arise as a result of this contract or agreements that may be a result thereof, shall be settled by way of arbitration by the Board of Arbitration for Construction in accordance with the rules described in the Arbitration Regulations of the Board of Arbitration for Construction, as it is three months before the establishment of the agreement, except insofar as far as another dispute resolution applies on the basis of the following members.
2. If the client is a natural person who does not act in the exercise of a profession or business - which client is hereinafter referred to as 'consumer client' - he has the right to refer a dispute to the Construction Arbitration Board or the ordinary court.
3. If the contractor intends to file a dispute against a consumer-client with the Board of Arbitration, the contractor shall inform the consumer-client in writing or electronically and shall give him a period of at least one month to choose to settle the dispute by the ordinary court.
4. The contractor is bound by the choice announced to the contractor in a timely manner by the consumer client pursuant to paragraph 3. If the consumer-client does not preferably notify the contractor of his choice in writing or electronically within the prescribed period, the contractor is free to have the dispute settled by the Construction Arbitration Board.
5. For the settlement of disputes between the contractor and the client that cannot be regarded as a consumer client, the parties expressly waive their right to invoke the intervention of the ordinary court.
6. By way of derogation from paragraphs 1, 4 and 5, disputes that fall within the competence of the subdistrict court, at the choice of the most competent party, may be submitted to the competent subdistrict court for settlement.
7. Dutch law is governed by Dutch law to the agreement of employment or to the agreement between the client and contractor that are a consequence of it.