issued by the Dutch Association of Enterprises in the Field of Refrigeration and Air Conditioning (NVKL), filed with the Registry of the District Court of The Hague on January 10, 2023 under number 3/2023.
© NVKL 2023 (www.nvkl.nl)
Section I. General Provisions
ARTICLE 1 Definitions
1.1 In these general terms and conditions, the following definitions apply: – consumer: the natural person, not acting in the exercise of a profession or business, who enters into an agreement regarding an installation.
– installer: the natural or legal person who is a member of NVKL and concludes an agreement concerning an installation.
– work: the total of the performances to be performed by the installer pursuant to an agreement with the consumer, such as sale and delivery of an installation and/or materials and/or performance of work, i.e. assembly, maintenance and/or repair.
– installation: a device to generate heat or cold, such as air conditioning units and heat pumps.
– additional and less work: additions to or reductions in the agreed work desired by the consumer that result in additional payments over or deductions from the agreed contract price.
– maintenance: all periodic work aimed at ensuring the reliable and safe operation of the installation.
– assembly: placing an installation ready for use at a place of use.
– repair: the entirety of actions aimed at investigating and/or remedying the cause of an unexpectedly occurring defect such as malfunction, blockage or leakage.
– maintenance/service subscription: the agreement that obliges the installer to regularly perform maintenance and/or service on an installation.
– Disputes Committee: Air Conditioning Disputes Committee of the Consumer Disputes Committee Foundation, PO Box 90600, 2509 LP The Hague.
1.2 All amounts mentioned in these terms and conditions are inclusive of VAT.
ARTICLE 2 Scope.
These general conditions apply to the work agreed between a con sumer and an installer regarding an installation, with the exception of maintenance and service performed within the framework of a maintenance/service subscription.
Section II. Offer
ARTICLE 3 Offer from the installer
3.1 The offer for work shall be made in writing or electronically, unless urgent circumstances make this impossible. The offer shall be dated and shall be irrevocable for 20 days after receipt. The following paragraphs of this article shall apply to each offer.
3.2 The offer includes a description of the devices and materials to be delivered and of the work to be performed, which is sufficiently detailed to allow a proper assessment of the offer by the consumer.
3.3 The offer shall state the time when or the period in which the work can be started and shall contain an indication of the duration of the work.
3.4 The offer provides insight into the pricing method that will be used: fixed price or direction.
– Under the fixed price pricing method, the parties agree on a fixed amount at which the work will be performed.
– In the case of the directional pricing method, the installer gives a precise specification of the price factors (including unit prices per hour of labor to be performed and unit prices of materials needed). If desired, if the situation allows, the installer will give an indication of the expected execution costs by stating a guide price.
3.5 The offer shall state the method of payment.
3.6 The drawings, technical descriptions, designs and calculations that are part of the offer, produced by the installer or on his behalf, remain the property of the installer. They may not be handed over or shown to third parties without the permission of the installer. Neither may they be handed out or shown to third parties without his permission.
copied or otherwise multiplied. If no order is granted, these documents must be sent to the installer free of charge within 14 days of a request made by the installer to that effect.
3.7 If the consumer does not accept the offer, the installer is entitled to charge the costs involved in producing the quotation, provided he has informed the consumer in writing of the existence of this obligation and of the amount of these costs immediately on or after requesting the offer. In the event that the installer makes use of the option referred to in this paragraph and the consumer has paid the relevant costs, the drawings accompanying the quotation will transfer ownership to the consumer, without prejudice to the intellectual and industrial property rights of the installer.
3.8 If the installer wants to use storage space of the consumer in the execution of the work, he should mention this in the offer.
3.9 The offer shall be accompanied by a copy of these general terms and conditions.
Section III. Establishment and
execution of the contract
ARTICLE 4 Establishment
The agreement is established by the consumer’s acceptance of the offer. Acceptance is preferably and where possible by written or electronic means. In the case of electronic acceptance by the consumer, the installer will confirm receipt of the order to the consumer electronically. If the consumer accepts the offer verbally, the installer will confirm the order, preferably in writing or electronically.
ARTICLE 5 Obligations of the installer 5.1 The installer delivers an installation that is good and sound and meets the terms of the contract. Assembly, maintenance and repair will be carried out with good workmanship. The work will be carried out within the installer’s normal working hours, unless otherwise agreed. If the consumer’s order to the installer is for maintenance or repair, the installer is obliged to make every effort to trace the cause of the defect and to remedy the cause of the defect.
5.2 During installation, maintenance and repair, the installer observes the regulations applicable to these, as they are or will be in force at the time of their execution. An increase in the price as a result of changes in the regulations may be passed on to the consumer, provided that the installer demonstrates that he could not have been aware of the change at the time of concluding the contract.
5.3 The installer is obliged to point out to the consumer the following reasonably known and relevant to assembly, maintenance or repair: – inaccuracies in the assigned work;
– inaccuracies in the methods and constructions required by the consumer;
– defects of the movable or immovable property on which assembly, maintenance or repair is performed;
– defects in or unsuitability of materials or tools provided by the consumer;
– inaccuracies in the data provided by or on behalf of the consumer; all the foregoing insofar as these are revealed to the installer before or during the execution of installation, maintenance or repair and the installer must be considered an expert in the matter.
5.4 The installer is liable for damage, unless it cannot be attributed to him, up to a maximum of € 500,000 per event.
5.5 The installer indemnifies the consumer against claims from third parties for compensation for damage, insofar as this has been caused by the execution of his work and is due to the negligence, carelessness or wrong actions of the installer himself or his subordinates or other assistants hired by him for the execution of the work.
NVKL GENERAL CONDITIONS FOR CONSUMER TRANSACTIONS
ARTICLE 6 Obligations of the consumer 6.1 The consumer gives the installer the opportunity to perform the work.
6.2 The consumer will ensure that the installer has timely access to the approvals required for the work (such as permits and exemptions) and the data to be provided by him for the work. If required, the installer will give instructions for this in his field.
6.3 The consumer shall provide the connection possibilities available to him for the purpose of the energy required for the work. The necessary electricity, gas and water shall be at his expense.
6.4 The consumer shall ensure undisturbed use of the storage space referred to in article 3 paragraph 8 and shall take care of the goods in the storage space as a good custodian.
6.5 The consumer must ensure that work and/or deliveries to be carried out by third parties, which are not part of the instal lateur’s work, are carried out in such a way and in such a timely manner that the execution of the work is not delayed as a result. If, nevertheless, a delay arises within the meaning of this paragraph, the consumer must notify the instal lateur in good time.
6.6 If the start or progress of the work is delayed due to a circumstance that is at the risk of the consumer, the consumer must compensate the installer for the resulting damage if it can be attributed to the consumer.
6.7 The consumer bears the risk for damage caused by: – inaccuracies in the assigned work;
– inaccuracies in the constructions and methods required by the consumer;
– defects in the movable or immovable property on which the work is performed;
– defects in materials or tools provided by the consumer;
– inaccuracies in the data provided by or on behalf of the consumer; all this without prejudice to the obligation of the installer to warn the consumer pursuant to Article 5 paragraph 3.
6.8 In case of a shortcoming on the part of the installer in the execution of the contract, the consumer will point this out to the installer in writing, with a clear description of the shortcoming and with a reasonable term to remedy the shortcoming, unless the installer is already in default due to the mere shortcoming.
ARTICLE 7 Delay in commencement or continuation of work
7.1 If the installer does not comply with his obligations regarding the commencement or continuation of the work, the consumer will summon him in writing to commence the execution or continue the work as soon as possible. The consumer can point out that he will consider the contract dissolved without judicial intervention if the installer remains in default 14 days after receipt of the letter. In that case, the consumer is authorized to have the work carried out or continued by a third party.
7.2 The consumer, if he makes use of the option referred to in the previous paragraph, is entitled to compensation for damages, including any reasonably incurred additional costs to have the work carried out or completed by others. The consumer may offset this against what he still owes the installer.
ARTICLE 8 Termination of work in unfinished state
8.1 The consumer may terminate the performance of the work in whole or in part at any time.
8.2 The parties shall mutually cooperate in a joint determination of the actual condition of the work at the time of completion in an unfinished state.
8.3 Up to the moment of delivery in an unfinished state, the installer is obliged to take measures for the prevention and limitation of damage, in return for payment.
8.4 The consumer will reimburse the installer for the fixed price to which he is entitled, increased by the cost of the fee(s) referred to in paragraph 3 as well as other costs incurred due to the termination and reduced by costs not incurred.
8.5 If a pricing method was used in which no fixed price was set, the consumer will reimburse the installer for the labor and material costs spent by the installer on the work, the fee(s) referred to in paragraph 3, the other costs incurred as a result of the termination, as well as the lost profit that the installer would have enjoyed over the entire work.
ARTICLE 9 Additional and less work
9.1 Under the fixed price pricing method, the consumer may order additional and less work after the contract has been concluded, provided that the balance of the resulting offsets does not exceed 15% of the fixed price.
9.2 In the event of additional work ordered by the consumer, the instal lateur may only claim an increase in the price if he has informed the consumer in good time of the resulting price increase, unless the consumer himself should already have understood this.
9.3 If the sum of expenditures charged to a line item proves to be greater or less than the amount of that line item, the
deviation settled as being more or less work.
9.4 Additional and less work in an amount exceeding €300 will be recorded in writing before or at the time of the order for this purpose, except in urgent circumstances.
9.5 The absence of a document does not affect the claims of the installer or consumer for settlement of more or less work. In that case, the proof of the order rests with the person making the claim.
ARTICLE 10 Unforeseen circumstances 10.1 When unforeseen circumstances arise, the instal lateur shall notify the consumer as soon as possible. 10.2 If the installer cannot reach the consumer, he must interrupt the work, except if the unforeseen circumstance requires immediate action.
10.3 Any additional costs incurred by the installer in connection with an unforeseen circumstance that requires immediate action and which are reasonable to mitigate damages will be reimbursed by the consumer.
10.4 If the unforeseen circumstance does not require immediate action, then the parties will jointly determine the further execution of the work.
ARTICLE 11 Force majeure
If the execution of the work becomes impossible for one of the parties due to a cause that cannot be attributed to him, he is entitled to terminate the execution of the work (or have it terminated) against reimbursement to the other party of the costs already actually incurred.
ARTICLE 12 Completion
12.1 The work is delivered when the installer has notified the consumer that the work is complete and the consumer has accepted the work.
12.2 The work shall be considered completed:
– or when 8 days have passed after the consumer has received notification from the installer that the work has been completed and the consumer has failed to accept the work within that period;
– or when the consumer takes the installation into use (again), on the understanding that by taking into use a part of the work, that part is considered delivered, unless the consequence associated with taking into use (delivery) is not justified.
12.3 If a fixed agreed delivery date is exceeded, the installer is obliged to compensate the damage suffered by the consumer as a result.
12.4 Where the parties have agreed on a probable date of completion, the work shall be completed on or about that date.
Section IV. Payment
ARTICLE 13 Prepayment/security
13.1 For an order, the installer is entitled to require advance payment of up to 35% of the final amount, on condition that he provides sufficient financial security for this if the consumer requests it.
13.2 The installer can stipulate security from the consumer when concluding the contract.
13.3 After concluding the contract, the installer can demand security if he has good reason to fear that the consumer will not fulfil his payment obligation. If and as long as the consumer refuses or is unable to provide security in that case, the installer is entitled to interrupt the execution of the work, insofar as this is justified.
ARTICLE 14 Payment by installments
14.1 The parties may agree that payment will be made in installments in proportion to the progress of the work. Payment shall in that case be made in each case no later than 14 days after receipt of the invoice.
14.2 If payment in installments is agreed upon and the installer does not meet his obligation regarding the continuation of the work, the consumer is authorized to suspend his payment of an installment, without prejudice to the provisions of Article 8.
ARTICLE 15 The final account
15.1 Within a reasonable time after completion, the installer shall submit to the consumer the final invoice.
15.2 In the event that the fixed price pricing method is applied, the final invoice shall contain a clear description of the original order and any additional and/or less work commissioned.
15.3 In the event that the cost-plus pricing method is applied, the final invoice shall contain a specification of the materials used and their costs, the hours worked and the hourly rates, and the
NVKL GENERAL CONDITIONS FOR CONSUMER TRANSACTIONS
other costs. If the installer has quoted a target price, the target price may not be exceeded by more than 10%, unless the installer has warned the consumer in a timely manner of a greater excess of the target price.
15.4 Payment of the final bill shall be made within 30 days of receipt of the bill.
ARTICLE 16 Failure to fulfill payment obligation 16.1 If the consumer does not pay on time, he is legally considered to be in default without any notice of default. Nevertheless, after the expiry of the payment date as referred to in Article 14 paragraph 1 and Article 15 paragraph 4, the installer will send one payment reminder free of charge, in which he informs the consumer of his default and still gives him the opportunity to pay within 14 days of receipt of this payment reminder, stating the extrajudicial collection costs owed as a result of non-payment within the aforementioned term.
16.2 The installer can charge interest on the payment that has not been made on time from the expiry of the payment date as referred to in Article 14 paragraph 1 and Article 15 paragraph 4 to the day of receipt of the amount owed. This interest is equal to the legal interest pursuant to Article 6:119 of the Civil Code.
16.3 After expiry of the period of 14 days referred to in paragraph 1, the installer is authorized to proceed to recovery of the amount owed to him without further proof of default. If the installer proceeds to this, the associated extrajudicial costs are reasonably payable by the consumer. The installer can charge a maximum of the collection costs stated below.
The installer may deviate from all of the above amounts and percentages for the benefit of the consumer.
16.4 The installer remains the owner of the delivered installation and materials until the consumer has fulfilled his payment obligation. 16.5 If the installer does not pay a payment or compensation owed by him to the consumer on time, the consu ment will inform him of his default by letter. If the installer has not paid within 14 days of receipt of this letter, he is deemed – without further notice of default – to be in default. Paragraphs 2 and 3 of this article apply accordingly in that case.
ARTICLE 17 Suspension of payment
17.1 If the completed work does not comply with the agreement, the consumer has the right to suspend payment, on the understanding that the amount to be suspended must be in reasonable proportion to the observed defect.
17.2 If the amount suspended is not in reasonable proportion to the observed defect, the installer is entitled to claim the interest referred to in Article 16.2 on the excess amount suspended.
Section V. Compliance and elimination of deficiencies.
ARTICLE 18 Compliance of work with agreement and removal of deficiencies
18.1 The work must comply with the agreement. The delivered installation must possess those properties which, taking all circumstances into account, are necessary for normal use, as well as for a special use insofar as this has been agreed and subject to expressly made different arrangements. If the yellow verde installation has digital elements and can be connected to the Internet, the installer shall ensure that the installation is cyber-secure and, if necessary and for a reasonable period of time, shall provide software updates to ensure such cyber-security in the use phase and to eliminate any quality problems. The obligations mentioned in the previous sentence do not apply if expressly agreed otherwise in writing.
18.2 If, after delivery of the installation delivered, a shortcoming appears in the installation or its assembly during the reasonably foreseeable period of use of the installation which causes
the installation does not conform to the contract, the provisions of paragraph 3 apply – without prejudice to the rights granted to the consumer by law. For defects in maintenance work carried out and repair work carried out other than on the basis of the first subparagraph of paragraph 3 is
the Supplier liable for 6 months after performance. 18.3 A defect in the sold installation will be eliminated by the installer. In doing so, the consumer will have the choice between repair or replacement. However, the installer will be able to deviate from the consumer’s choice if it is impracticable or results in disproportionate costs for the installer compared to the other option. If repair or replacement is not possible or if the installer does not proceed to do so within a reasonable time, the consu ment may rescind the contract in whole or in part. In the case of repair and replacement, the consumer is not obliged to pay the relevant costs, except in cases of unjust enrichment. In the event of full or partial dissolution of the contract, the installer is obliged to repay the amount paid by the consu ment for the performance of the installer for which dissolution takes place, except in the case of unjust enrichment.
If the shortcoming comes to light within twelve months of the delivery of the work, it is assumed that the work did not meet the contract upon delivery. In that case, the installer will remedy the shortcoming free of charge, unless he demonstrates that the shortcoming cannot be attributed to him. If the shortcoming comes to light after this 12-month period, the consumer is obliged to prove that the work does not meet the contract and that this was already the case at the time the work was delivered to the consumer. If the consumer does not succeed in providing the said proof, the installer is not obliged to repair or replace, nor is dissolution of the contract possible.
A deficiency proven by the consumer in the maintenance or repair work performed other than pursuant to the first paragraph of this subsection 3 shall be eliminated by redoing the maintenance or repair at no cost to the consumer.
In any case, there is no question of an attributable shortcoming if: – defects to the installation have not been reported in writing to the installer as soon as possible after they were covered;
– defects are caused by error, injudicious use or omission of the consumer who placed the order or his legal successor, or by external causes; – the defect is not a result of the work;
– during the period referred to in Article 18.2, without written permission from the installer, the consumer has given instructions of any kind to a third party to make provisions to the installation, or if such provisions have been made by the consumer himself, on the understanding that the obligations of the installer according to Article 18.3 do not lapse if this is not justified in view of the nature and extent of the provisions made;
– during the period referred to in Article 18.2, no inspection and periodic maintenance is performed on an installation that requires regular maintenance, after the consumer has been informed of this need;
– the consumer has not fulfilled his payment obligations, unless he exercises the right to suspend payment in accordance with Article 17, on the understanding that the installer’s obligations according to Article 18.3 do not lapse in the event that the consumer cannot be blamed in any way for not paying on time;
– the consumer does not take care to manage the installation in a way that prevents loss of refrigerant during operation.
18.4 The installer may set broader deadlines than those mentioned in the third paragraph.
Section VI. Complaints and disputes
ARTICLE 19 Complaints
Complaints about the conclusion or execution of the contract, in particular about shortcomings in the installation, must be submitted to the installer fully and clearly described within two months at the latest after the consumer has discovered the defects. Not submitting the complaint in time can result in the consumer losing his rights in the matter.
ARTICLE 20 Dispute resolution
20.1 Disputes between the consumer and the installer about the conclusion or execution of the contract can be brought before the disputes committee by both the consumer and the installer.
20.2 The Disputes Committee will only deal with a dispute if the consumer has first submitted his complaint in accordance with the provisions in
NVKL GENERAL CONDITIONS FOR CONSUMER TRANSACTIONS
Article 19 submitted to the installer and this did not result in a mutually satisfactory solution.
20.3 If the complaint does not lead to a solution, the consumer has 12 months, after the date on which the consumer submitted the complaint to the installer, to submit this complaint to the disputes committee in writing or in another form to be determined by the disputes committee.
20.4 A fee is payable for handling a dispute. 20.5 If the consumer submits a dispute to the disputes committee, the installer is bound to this choice.
20.6 If the installer wishes to present a dispute to the disputes committee, he must first ask the consumer in writing to say whether he agrees to this within one month. In doing so, the installer must announce that after the aforementioned period has elapsed, he considers himself free to submit the dispute to the ordinary court.
20.7 The Disputes Committee shall make its decision in accordance with the provisions of the regulations applicable to it. The decision of the Disputes Committee shall take the form of a binding opinion.
20.8 Only the ordinary courts or the aforementioned dispute committee shall have jurisdiction to hear disputes.
Section VII. Compliance Guarantee
ARTICLE 21 Compliance guarantee industry association 21.1 If an installer, insofar as he is a member of NVKL, does not fulfil the obligations imposed on him in a binding advice towards the consumer, NVKL will take over these obligations up to the maximum stated in paragraphs 2 and 3. The assumption by NVKL of the obligations of the installer will be suspended if and insofar as the binding advice is submitted to the court for review within two months of the date on which it was issued, and will lapse as a result of the court ruling declaring the binding advice non-binding.
21.2 In order to qualify for payment of the performance bond, the consumer must transfer his claim on the installer pursuant to paragraph 1 to NVKL. If the consumer’s claim on the installer is € 5,500 or less, NVKL will pay the full amount of the claim to the consumer all at once. If the consumer’s claim against the installer exceeds € 5,500, NVKL will pay € 5,500 in a lump sum to the consumer. NVKL will only pay out the excess amount to the consumer after NVKL has successfully collected the excess amount from the installer after deducting the demonstrable costs incurred.
21.3 In the event of suspension of payment, debt restructuring, bankruptcy and company closure of the installer, the fulfilment guarantee applies up to an amount of € 5500 per binding advice, on the understanding that: – the fulfilment guarantee only applies in these cases
if the consumer has brought the dispute and has met the formal requirements for the dispute to be handled by the disputes committee (payment of complaint fee, return of completed and signed questionnaire and any necessary deposit) prior to the installer’s suspension of payments, debt restructuring, bankruptcy or cessation of business, and
– the total amount to be paid by NVKL to consumers on the basis of the fulfillment guarantee in these cases does not exceed € 15,000 per installer. If the total of the written claims by consumers on the performance bond exceeds € 15,000 per installer, NVKL will pay € 15,000 in a lump sum to those consumers in proportion to the amount of the claims. NVKL will only pay the excess, after deducting demonstrable costs incurred, to those consumers if and after NVKL has successfully collected the excess from the installer. NVKL has a best-efforts obligation to collect the excess from the installer and to keep the consumers informed of the state of affairs at least once per quarter, for as long as this is useful.
Section VIII. Final Provisions
ARTICLE 22 Applicable law
Dutch law applies to the agreements concluded, modified or supplemented on the basis of these general terms and conditions, unless other law applies on the basis of mandatory rules.
ARTICLE 23 Designation
These general terms and conditions may be cited as NVKL general terms and conditions for consumer transactions (and in abbreviated form: AVC/ NVKL).
Need help?
We are here for you!
Luke and his colleagues can be reached by phone or email and will be happy to help you get started.
Pages
General conditions