Terms and conditions

Art. I General

1. Where these terms and conditions form part of offers and agreements for the provision of supplies and/or services by the contractor, all provisions of these terms and conditions shall apply between the parties insofar as they have not been deviated from by an express written agreement between the parties. Any reference by the client to its own purchasing or other conditions is expressly rejected by the contractor.
2. In these conditions, the following definitions shall apply:
   – product: goods, as well as services, such as maintenance, advice and inspection;
   – in writing: by means of a document signed by both parties or by means of a letter, telefax or e-mail or any other technical manner agreed upon by the parties;
   – the contractor: the one who refers to these terms and conditions in his offer and/or order confirmation;
   – the customer: the party to whom the offer and/or order confirmation is addressed;
   In these terms and conditions, the following definitions shall also apply:
   – service: the contracting of work.

Art. II Offer

1. Any offer made by the contractor is without obligation.
2. Each offer is based on performance of the agreement by the contractor under normal conditions and during normal working hours

Art. III Agreement

1. If the agreement is entered into in writing, it comes into effect on the day the contract is signed by the contractor or on the day the written order confirmation is sent by the contractor.
2. As additional work is considered all that is delivered and/or installed by the contractor in consultation with the principal, whether or not recorded in writing, during the execution of the agreement in excess of the quantities explicitly laid down in the contract or order confirmation, or is performed in excess of the activities explicitly laid down in the contract or order confirmation.
3. Verbal promises by and agreements with employees of the contractor shall bind the contractor only insofar as they have been confirmed by him in writing.

Art. IV Price

1. The prices quoted by the contractor are exclusive of turnover tax and other government charges applicable to the sale and delivery and are based on delivery ex works in accordance with Incoterms applicable on the date of offer, except as otherwise provided in these terms and conditions. ‘Factory’ means the contractor’s premises.
2. If after the date of conclusion of the agreement one or more of the cost price factors undergoes an increase – even if this occurs as a result of foreseeable circumstances – the contractor is entitled to increase the agreed price accordingly.
3. The agreement includes the authority of the contractor to charge separately for additional work done by him, as soon as the amount to be charged for it is known to him. For the calculation of additional work, the rules given in paragraphs 1 and 2 of this article shall apply mutatis mutandis.
4. Cost estimates and plans will not be charged separately, unless otherwise agreed. If any repeat orders require the contractor to make new drawings, calculations, descriptions, models or tools, etc., costs will be charged.
5. Packaging is not included in the price and will be charged separately. Packaging will not be taken back.
6. Costs of loading and unloading and transport of raw materials, semi-finished products, models, tools and other items made available by the client are not included in the price and shall be charged separately. Costs paid by the contractor for this purpose shall be considered as advance payments at the client’s expense.
7. If the contractor has accepted to assemble/install the product, the price is calculated including assembly/installation and delivery of the product in working order at the place mentioned in the offer and including all costs, except for costs not included in the price according to the preceding paragraphs or those mentioned in Art. VII are listed. Costs incurred due to unworkable weather will be passed on.

Art. V Drawings, calculations, descriptions, models, tools etc.; intellectual property

1. Data mentioned in catalogues, illustrations, drawings, dimensional and weight specifications, etc. are only binding if and insofar as they are explicitly included in a contract signed by the parties or an order confirmation signed by the contractor.
2. The offer made by the contractor as well as the drawings, calculations, software, descriptions, models, tools and the like produced or provided by him shall remain his property, even if costs have been charged for them. The intellectual property on the information contained in or underlying the manufacturing and construction methods, products, etc., shall remain exclusively reserved to the contractor, even if costs have been charged for it. The client guarantees that said information, except for the performance of the agreement, will not be copied, shown to third parties, disclosed or used other than with the written consent of the contractor.

Art. VI Delivery time

1. The delivery period commences on the later of:
   a. the day of formation of the agreement;
   b. the day of receipt by the contractor of the documents, data, permits etc. necessary for the execution of the order;
   c. the day of fulfilment of the formalities required for commencement of the work;
   d. the day of receipt by the contractor of the amount payable in advance according to the agreement before the commencement of the work.
   If a delivery date or week is agreed, the delivery time shall be the period between the date of conclusion of the agreement and the delivery date or the end of the delivery week, respectively.
2. The delivery time is based on the working conditions prevailing at the time the agreement is concluded and on timely delivery of the materials ordered by the contractor for the performance of the work. If a delay arises through no fault of the contractor due to a change in the said working conditions or because materials ordered in time for the execution of the work are not delivered on time, the delivery time shall be extended to the extent necessary.
3. With regard to the delivery time, the product shall be deemed delivered when it is ready for inspection, if inspection in the premises of the contractor has been agreed, and in all other cases when it is ready for shipment, all this after the purchaser has been informed thereof in writing and without prejudice to the contractor’s obligation to fulfil any assembly/installation obligations.
4. Without prejudice to the provisions elsewhere in these conditions for extension of the delivery time, the delivery time shall be extended by the duration of the delay which arises on the side of the contractor as a result of the failure of the purchaser to comply with any obligation arising from the agreement or to require his cooperation with regard to the performance of the agreement.
5. Exceeding the delivery time shall not entitle the Client to rescind the agreement in whole or in part, unless such exceeding exceeds 16 weeks or will exceed 16 weeks according to the Contractor’s notification. If the latter is exceeded or notified, the client may dissolve the agreement by written notice to the contractor and shall then be entitled, where applicable, to reimbursement of the part of the price already paid for the product and to compensation for the damage he has suffered, up to a maximum of 15 per cent of the price agreed for the product delivered. Unless the client exercises its aforementioned right of rescission, exceeding the delivery time – for whatever reason – does not entitle the client to perform or have work performed to execute the agreement without judicial authorisation.

Art. VII Assembly/installation

1. If it has been agreed by the parties that the Contractor will provide the assembly/installation of the product to be supplied, the Client shall be responsible to the Contractor for the correct and timely implementation of all fixtures, provisions and/or conditions, which are necessary for the erection of the product to be assembled/installed and/or the correct functioning of the product in its assembled/installed state. This does not apply if and insofar as such performance is carried out by or on the instructions of the contractor according to drawings and/or data produced or provided by or on the instructions of the latter.
2. Without prejudice to the provisions of paragraph 1, if the parties have agreed that the contractor shall take care of the assembly/installation of the product to be delivered, the purchaser shall in any case see to it at his own expense and risk that:
   a. the Contractor’s employees, once they have arrived at the assembly/installation site, may commence and continue to perform their work during normal working hours and, in addition, if the Contractor deems it necessary, outside normal working hours, provided that it has notified the Client in good time.
   b. suitable accommodation and all facilities required under government regulations, the contract and usage are available for the Contractor’s employees;
   c. access roads to the installation site are suitable for the necessary transport;
   d. the designated installation site is suitable for storage and assembly/installation;
   e. necessary lockable storage places for materials, tools and other items are available;
   f. the necessary and usual auxiliary persons, auxiliary tools, auxiliary and operating materials (fuels, oils and greases, cleaning and other small equipment, gas, water, electricity, steam, compressed air, heating, lighting etc. including) and the measuring and testing equipment normal for the Client’s business are at the Contractor’s disposal on time and free of charge at the right place;
   g. all necessary safety and precautionary measures have been taken and are maintained and that all measures have been taken and are maintained to comply with the applicable government regulations in the context of assembly/installation;
   h. at the start of and during assembly/installation, the products sent are in the right place.
3. Damages and costs, which arise because the conditions stipulated in this article are not or not timely met, shall be borne by the client.
4. With regard to assembly/installation time, Article VI shall apply mutatis mutandis.

Art. VIII Inspection and takeover tests

1. The principal shall inspect the product at the latest within 14 days after delivery as referred to in Article VI paragraph 3 or – if assembly/installation has been agreed – at the latest within 14 days after assembly/installation. If this period has expired without written and specified notification of justified complaints, the product is deemed to have been accepted.
2. If takeover tests have been agreed, the purchaser shall, after delivery as referred to in Article VI subsection 3 or, if assembly/installation has been agreed, after assembly/installation, give the contractor the opportunity to carry out the necessary preliminary tests and to make such improvements and changes as the contractor deems necessary. Takeover tests will be carried out in the presence of the client immediately after the contractor’s request to do so. If the takeover tests have been carried out without specified and justified complaints, as well as if the client does not fulfil the aforementioned obligations, the product is deemed to have been accepted.
3. The client shall provide the necessary facilities, including those referred to in Art. VII subsection 2 f., and representative samples of any materials to be worked or processed in sufficient quantity, in good time and free of charge at the appropriate place at the Contractor’s disposal, so that the conditions of use envisaged by the parties for the product can be replicated as far as possible. If the client does not comply, paragraph 2 last sentence applies.
4. In case of minor defects, in particular those that do not or hardly affect the intended use of the product, the product will be deemed accepted regardless of these defects. The contractor will still remedy the shortcomings as soon as possible.
5. Without prejudice to the Contractor’s warranty obligations, acceptance under the preceding paragraphs shall exclude any claim by the Client in respect of any shortcoming in the Contractor’s performance.

Art. IX Transfer of risk and ownership

1. Immediately after the product is deemed delivered in the sense of Art. VI clause 3, the purchaser bears the risk for all direct and indirect damage that may be caused to or by this product, except insofar as the damage is attributable to intent or conscious recklessness on the part of the contractor’s employees forming part of the company management. If the client remains in default of taking delivery of the product after notice of default, the contractor shall be entitled to charge the client for the resulting costs.
2. Without prejudice to the provisions of the previous paragraph and art. VI paragraph 3, ownership of the product shall not pass to the purchaser until all amounts due by the purchaser to the contractor for deliveries or work, including interest and costs, have been paid to the contractor in full.
3. Where appropriate, the contractor will be entitled to unhindered access to the product. The customer shall lend the contractor all cooperation in order to enable the contractor to exercise the retention of title included in paragraph 2 by taking back the product, including any disassembly required for that purpose.

Art. X Payment

1. If not agreed otherwise, payment of the agreed price will be made in 2 instalments:
   1/3 (one-third) at the latest within 7 days after the conclusion of the agreement;
   2/3 (two-thirds) at the latest within 14 days after delivery according to art. VI(3).
2. Payment for additional work shall be made as soon as it is charged to the client.
3. All payments shall be made without any deduction or set-off in the manner determined by the contractor.
4. If the assignor fails to pay within the agreed periods, he shall be deemed to be in default by operation of law and the assignee shall be entitled, without any notice of default being required, to charge him interest from the due date at a rate of 3 points above the legal interest rate in force in the Netherlands, as referred to in art. 6:119a and art. 6:120 paragraph 2 of the Civil Code, as well as all judicial and extrajudicial costs relating to the collection of his claim.

Art. XI Warranty

1. Without prejudice to the following restrictions, the contractor warrants both the soundness of the product he delivered (not being a service) and the quality of the materials used and/or delivered for it, insofar as this concerns defects to the delivered product which cannot be detected at inspection or acceptance tests respectively, of which the purchaser proves that they have arisen within 6 months after delivery according to article VI sub 3 solely or predominantly as a direct consequence of a defect in the construction applied by the contractor or as a result of poor workmanship or use of bad materials.
2. Paragraph 1 shall apply mutatis mutandis to defects not observable during an inspection or takeover test, respectively, which find their cause exclusively or predominantly in faulty assembly/installation by the contractor. If assembly/installation of the product is carried out by the contractor, the 6-month warranty period referred to in paragraph 1 shall commence on the day the assembly/installation is completed by the contractor, provided that in that case the warranty period shall in any case end if 12 months have elapsed since delivery in accordance with Article VI paragraph 3.
3. Defects covered by the guarantee referred to in paragraphs 1 and 2 will be eliminated by the contractor by repairing or replacing the defective part, whether or not at the contractor’s premises, or by sending a part for replacement, all at the contractor’s discretion. All costs, which go beyond the mere obligation as described in the previous sentence, such as but not limited to transport costs and travel and accommodation costs, as well as costs of disassembly and assembly/installation, shall be borne by the customer. For repaired or replacement parts respectively, a new warranty period of 6 months shall apply, it being understood that any warranty lapses as soon as 12 months have elapsed since the delivery of the product in accordance with Article VI paragraph 3 or, in the event of the applicability of paragraph 2, as soon as 18 months have elapsed since the latter delivery.
4. For repair, overhaul and maintenance work and similar services carried out by the contractor outside of warranty, unless otherwise agreed, warranty is only given on the soundness of the execution of the assigned work, for a period of 6 months. This guarantee includes the sole obligation of the contractor to redo the relevant work, if defective, in case of defects. The second sentence of paragraph 3 applies mutatis mutandis. In that case, a new warranty period of 6 months applies, it being understood that any warranty lapses once 12 months have elapsed since the original work.
5. No warranty is given for inspections, consultancy and similar services performed by the contractor.
6. In any case, the guarantee does not cover defects occurring in or wholly or partially resulting from
   a. non-observance of operating and maintenance instructions or other than the intended normal use;
   b. normal wear and tear;
   c. assembly/installation or repair by the principal or by third parties;
   d. the application of any government regulation regarding the nature or quality of the materials used;
   e. used materials or goods used in consultation with the principal;
   f. materials or goods provided by Client to Contractor for processing;
   g. materials, goods, working methods and constructions, insofar as applied on the explicit instruction of Client, as well as materials and goods supplied by or on behalf of Client;
   h. parts procured by the contractor from third parties, to the extent that the third party has not provided a warranty to the contractor or the warranty provided by the third party has expired.
7. If the client does not, does not properly or does not timely fulfil any obligation arising for him from the agreement entered into with the contractor or from a related agreement, the contractor is not bound to any guarantee – by whatever name – with regard to any of these agreements. If the client proceeds to dismantle, repair or perform other work on the product without the prior written approval of the contractor, any claim under the warranty shall lapse.
8. Complaints concerning defects shall be made in writing as soon as possible after their discovery but not later than 14 days after the expiry of the guarantee period, failing which any claim against the contractor for such defects shall lapse. Legal actions must be brought within 1 year of the timely claim under penalty of expiry.
9. If the contractor replaces parts/products to fulfil its warranty obligations, the replaced parts/products shall become the property of the contractor.
10. Alleged non-compliance by the contractor with its warranty obligations shall not relieve the purchaser from the obligations, which arise for him from any agreement entered into with the contractor.

Article XII Liability

1. The contractor’s liability is limited to fulfilment of the warranty obligations described in Article XI of these conditions. If the contractor fails to fulfil his obligations arising from art. XI has been fulfilled, the customer may, in a written communication, set a final appropriate deadline for the contractor to fulfil these obligations. If the contractor fails to fulfil its obligations within the latter period, the client may, at the contractor’s risk and expense, carry out the necessary remedial work himself or have it carried out by a third party. If remedial work is thus successfully carried out by the client or by a third party, the contractor shall be released from all liability for the defect in question by reimbursing the reasonable costs incurred by the client, provided that such costs shall not exceed 15 per cent of the price agreed for the delivered product.
2. If the remedial work according to paragraph 1 is not successfully carried out,
   (a) the purchaser shall be entitled to a discount on the price agreed for the delivered product in proportion to the reduction in value of the product, provided that such discount shall not exceed 15 per cent of the price agreed for the delivered product; or
   b) where the defect is so serious as to significantly deprive the purchaser of the benefit of the contract, the purchaser may rescind the contract by written notice to the contractor. The customer is then entitled to a refund of the price paid for the delivered product and compensation for the damage suffered by it, up to a maximum of 15 per cent of the price agreed for the delivered product.
3. Unless there is intent or deliberate recklessness on the part of the contractor’s employees belonging to the company management and subject to the provisions of Art. VI paragraph 5 and in paragraph 1 and paragraph 2 of this article, all liability of the contractor for defects in the delivered product and in connection with the delivery, such as for damage caused by exceeding the delivery time and by non-delivery, for damage as a result of liability towards third parties, for trading loss, consequential and indirect damage and for damage as a result of any wrongful act or omission of (employees of the) contractor, is excluded.
4. The contractor is therefore also not liable for:
   – infringement of patents, licences or other rights of third parties;
   – damage or loss, through whatever cause, of raw materials, semi-finished products, models, tools and other items made available by the Client.
5. If the contractor, without having the assembly/installation under contract, does provide help and assistance – of whatever kind – during the assembly/installation, this shall take place at the client’s risk.
6. The client shall be obliged to indemnify or hold the contractor harmless from all third-party claims for compensation.

Art. XIII Force majeure

In these general conditions, ‘force majeure’ means every circumstance independent of the will of the contractor
– even if this could already be foreseen at the time the agreement was concluded – which permanently or temporarily prevents performance of the agreement, as well as, insofar as not already included, war, threat of war, terrorism, civil war, riots, strikes, lock-outs, transport difficulties, fire and other serious disruptions in the business of the contractor or his suppliers.

Art. XIV Suspension and dissolution

1. In the event of prevention of performance of the agreement due to force majeure, the contractor shall be entitled, without judicial intervention, either to suspend performance of the agreement for a maximum of 6 months or to dissolve the agreement in whole or in part, without being liable for any compensation. During the suspension, the contractor shall be entitled and at the end of it shall be obliged to opt for performance, if possible, or for full or partial termination of the agreement.
2. Both in the event of suspension and dissolution under paragraph 1, the contractor shall be entitled to demand immediate payment for the raw materials, materials, parts and other items purchased, reserved, processed and manufactured by him for the performance of the agreement, such for the value that must reasonably be assigned thereto. In the event of dissolution pursuant to paragraph 1, after payment of the amount due pursuant to the previous sentence, the purchaser shall be obliged to take possession of the items included therein, failing which the contractor shall be entitled to have these items stored at the purchaser’s expense and risk or to sell or destroy them at the purchaser’s expense.
3. If there is good reason to fear that the Client is or will be unable or unwilling to fulfil his contractual obligations towards the Contractor, as well as in the event of bankruptcy, suspension of payments, cessation, liquidation or full or partial transfer of the Client’s business, the Contractor shall be entitled to require appropriate security in respect of all contractual obligations of the Client (whether due or not) and to suspend performance of the agreement pending such security. Failure to provide security within a reasonable period set by the contractor shall entitle the contractor to dissolve the agreement in whole or in part. The contractor has these powers in addition to his other rights under the law, the agreement and these terms and conditions.
4. If the client does not, does not timely or does not properly fulfil any obligation arising for him from the agreement concluded with the contractor or from a related agreement, the contractor is equally entitled to suspend the performance of the agreement and/or to dissolve the agreement.
5. In the event of suspension pursuant to paragraph 3 or paragraph 4, the contractor shall be entitled to have the raw materials, materials, parts and other items purchased, reserved, processed and manufactured by him for the performance of the agreement stored at the client’s expense and risk. In the event of dissolution pursuant to paragraph 3 or paragraph 4, the previous sentence shall apply mutatis mutandis, on the understanding that, instead of storage, the contractor may also opt for sale or destruction at the principal’s expense. In the event of suspension or termination under paragraph 3 or paragraph 4, the contractor shall be entitled to full compensation, but shall not be liable for any damages himself.

Art. XV Disputes

All disputes that may arise as a result of an agreement, to which these terms and conditions apply in full or in part, or as a result of further agreements arising therefrom, shall be settled by the competent Dutch court. If the law does not provide for the jurisdiction of a Dutch court, the court of the district of the contractor shall have jurisdiction.

Art. XVI Applicable law

All agreements, to which these conditions apply in full or in part, shall be governed by Dutch law, valid for the Kingdom in Europe. The applicability of the Vienna Sales Convention is excluded.