General Terms and Conditions Smolenaers Egg Lifts Article 1. Applicabilitya.ThesetermsandconditionsapplytoalltheoffersSmolenaersEggLifts(registeredattheChamberofCommercewithnumber 14122270)makes,alltheagreementsitconcludesandarederivedfromit,andthisinsofarasSmolenaersEggLiftsisboth supplier and contractor.b.Smolenaers Egg Lifts is designated as the contractor. The other party is designated as the client.c.Intheeventofaconflictbetweenthecontentoftheagreementconcludedbetweentheclientandthecontractorandtheseterms and conditions, the provisions of the agreement shall take precedence.Article 2. Offersa.All offers are without obligation. The contractor has the right to revoke its offer within two days after it has received acceptance.b.When the client provides information to the contractor, the contractor may assume the correctness and completeness of this information and the contractor shall base its offer on this information.c.Thestatedpricesintheofferareexpressedineuros,exclusiveofsalestax(VAT)andotherstatutorychargesortaxes.Ifnotravel andassemblycostsarestatedintheoffer,thepricesaretherebyexclusiveoftravel,accommodation,packaging,storageand transport costs as well as the costs of loading/unloading and adherence to customs formalities.Article 3. Confidentialitya.Alloftheinformationprovidedbyoronbehalfofthecontractortotheclient(including,forexample,offers,designs,images, drawingsandknow-how)ofanynatureandinanyform,isconfidentialandshallnotbeusedbytheclientforanyotherpurpose that the execution of this agreement.b.The information stated in sub a of this Article shall not be made public or reproduced by the client.c.IftheclientviolatestheobligationsstatedinsubaandbofthisArticle,theclientshalloweanimmediatelypayablepenaltyof€ 25,000 per each violation. By law, this penalty can be charged in addition to a damage compensation.d.Uponfirstrequest,theclientmustreturnordestroytheinformationstatedinsubaofthisArticlewithinaperioddeterminedby thecontractorandaccordingtoitswishes.Uponviolationofthisprovision,theclientshallowethecontractoranimmediately payable penalty of € 1,000 per day. By law, this penalty can be charged in addition to a damage compensation.Article 4. Recommendations and information provideda.Theclientcannotderiveanyrightsfromtherecommendationsandinformationprovidedbythe contractor that do not directly concern the assignment.b.When the client provides information to the contractor, the contractor can assume the correctness and completeness in the execution of the agreement.c.Theclientindemnifiesthecontractoragainstallclaimsmadebythirdpartiesinregardtotheuseoftherecommendations, drawings,calculations,designs,materials,brands,samples,modelsandsuchprovidedbyoronbehalfoftheclient.Theclient shall compensate the contractor for all damage, including the costs incurred in full for defence against these claims.Article 5. Delivery time / execution perioda.The delivery time or the execution period provided are indicative.b.In the event of:1.Othercircumstancesthanwereknowntothecontractorwhensubmittingthedeliverytimeorexecutionperiod,the deliverytimeortheexecutionperiodshallbeextendedwiththetimethecontractorneedstocarryouttheassignmentunder these circumstances and also while respecting its schedule/planning.2.Additionalwork.Thiswillextendthedeliverytimeorexecutionperiodthatthecontractorneedstohavethematerialsand parts delivered and to carry out customised work while respecting its schedule/planning.3.Suspensionofobligationsbythecontractorshallextendthedeliverytimeorexecutionperiodwiththetimeitneedsto carryouttheassignmentafterthereasonsforsuspensionhavecometolapseandwhilerespectingitsschedule/planning. Exceptwithcounterevidencefromtheclient,thedurationoftheextensionofthedeliverytimeorexecutionperiodshall consist of the time expected to be necessary and the result of a situation as intended in 1 through 3 stated above.
c.The client is bound to reimburse all of the costs incurred by the contractor or damage the contractor suffers as a result of a delay in the delivery time or execution period as stated in sub c of this Article.d.Innoeventdoesexceedingthedeliverytimeortheexecutionperiodentitletheclienttoadamagecompensationordissolutionof theagreement.Theclientindemnifiesthecontractoragainstanypossibleclaimsmadebythirdpartiesasaresultofexceeding the delivery time or execution period.Article 6. Commissioning and risk-transfera.Commissioningshalltakeplaceatthemomentthecontractormakestheobjectavailabletotheclientatitslocationandthe contractorhasinformedtheclientthattheobjectisavailable.Fromthatmomenton,theclientshallcarry,amongstothers,the risk involved for the storage, loading, transport and unloading the object.b.Theclientandthecontractormayconcludethatthecontractorshallprovidethetransport.Theriskof,amongstothers,the storage,loading,transportandunloadingwill,inthiscase,alsobefortheclient.Theclientcanchoosetotakeoutinsurance against these risks.c.Intheeventofanexchangeandtheclientstorestheobjecttobeexchangedinwaitingforthedeliveryofthenewobject,therisk willcontinuetobefortheaccountoftheclientuntilthemomentit receives possession from the contractor. If the client is unable to deliver the object in the condition it was in when the agreement was concluded, the contractor can dissolve the agreement.Article 7. Price changeThe contractor may charge an increase in cost-determining factors that arises after the conclusion of the agreement to the client. The client is bound to the price increase.Article 8. Force majeurea.A shortcoming in the compliance with its obligations cannot be attributed to the contractor if this shortcoming is the result of force majeure.b.Forcemajeureisdefinedas,amongothers,thecircumstancesthatcausethenon-oruntimelyfulfilmentoftheobligationsofthe thirdpartiersengagedbythecontractor,suchassuppliers,subcontractorsandtransportersoranyotherpartythatthecontractor isdependentonandwhichincludesweatherconditions,naturaldisasters,terrorism,cyber-crime,disruptionofthedigital infrastructure,fire,powerfailure,loss,theftorlossoftools,materialsorinformation,roadblocks,strikes,workinterruptionsand import/export trade restrictions.c.Thecontractorisentitledtosuspendthefulfilmentofitsobligationsifitistemporarilyhinderedindoingsoduetoforcemajeure.If the force majeure situation lapses, the contractor shall fulfil its obligations as soon as its schedule permits.d.Intheeventofforcemajeureinwhichcomplianceisnolongerpossibleonapermanentbasis,oriftheforcemajeuresituation lastslongerthansixmonths,thecontractorisentitledtocompletelyorpartiallydissolvetheagreementimmediately.Inthese cases,theclientisentitledtoimmediatelydissolvetheagreementbutonlyforthoseobligationsthathavenotyetbeenfulfilledby the contractor.e.The parties are not entitled to a compensation for damage suffered or future damage as intended in this Article as the result of force majeure, suspension or dissolution.Article 9. Scope of the worka.Unless concluded otherwise in writing, the scope of the work does not include:ground,hedge,fence,demolition,foundation,concrete,carpentry,plaster,paint,wallpaper, renovation or other construction workinstalling the connections for gas, water, electricity, Internet or other infrastructural facilitiesmeasures to prevent or limit damage, loss or theft of objects at the work locationdisposal of any materials including construction materials and wastevertical or horizontal transport Article 10. Additional worka.Changes in the work shall in any case result in additional work when:there are changes to the design or the building specificationsthe information provided by the client does not correlate to the actual situationestimated amount deviates more than 5%b.Additionalworkiscalculatedonthebasisoftheprice-determiningfactorsatthemomentthe additional work is carried out. The client is bound to the price of the additional work.
Article 11. Work performancea.Theclientshallensurethatthecontractorcancarryouttheworkundisturbedandattheconcludedtimeandshallalsoensure that the contractor has necessary facilities to be able to carry out the work, including:gas, water, electricity and Internetheatingclosed, dry storage spacethe facilities prescribed on the grounds of the Working Conditions Act and related regulationsb.Theclientcarriestheriskandisliablefordamage,theftorlossofthepropertyofthecontractor,theclientandthirdparties,as wellasmaterialsintendedorusedfortheworkthatarelocatedatorneartheplacewheretheworkactivitiesarecarriedoutorat another concluded location.c.UndiminishedthatwhichisdeterminedinsubbofthisArticle,theclientisboundtotakeoutadequateinsurancefortherisks statedinsubb.Theclientmustalsohaveinsurancefortheoperatingriskofthematerialsused.Uponfirstrequest,theclient shallprovideacopyoftheseinsurancepoliciesandaproofofpremiumpaymenttothecontractor.Intheeventofdamage,the client is required to report this immediately to the insurer for further handling.Article 12. Commissioning of the worka.The work shall be considered as commissioned in the following cases:when the client has approved the workwhen the client has started using the work. If the client has started using a part of the work, that part shall be considered as commissionedifthecontractorhasinformedtheclientinwritingthattheworkiscompletedandtheclienthasnotrespondedinwriting within 14 days after being informed that the work has not been approvedif the client does not approve the work on the grounds of minor flaws or missing parts that can be repaired or backordered within 30 days and which do not prevent the use of the work.b.If the client does not approve of the work, the client is required to provide reasons for this in writing to the contractor. The client must give the contractor the opportunity to still complete the work.c.The client indemnifies the contractor against claims made by third parties for damage to the noncommissioned parts of the work resulting from the use of recently commissioned parts of the work.Article 13. Liabilitya.In case of an attributable shortcoming, the contractor is still bound to fulfil its contractual obligations while respecting Article 14.b.Theobligationofthecontractortoreimburseanydamageonanygroundsislimitedtothedamageamountthatthecontractor hasconcludedwiththeinsurer.Thescopeofthisobligationisneverlargerthantheamountthatispaidoutbytheinsurerinthis particular case.c.IfthecontractordoesnotappealtosubbofthisArticleforwhateverreason,theobligationtoreimbursethedamageislimitedto amaximumof15%ofthetotalcontractvalue(exclusiveofVAT).Iftheagreementconsistsofpartsandpartialdeliveries,this obligationislimitedtoamaximumof15%(exclusiveofVAT)ofthecontractvalueofthatpartorpartialdelivery.Intheeventof fixedtermagreements,theobligationtoreimbursedamageislimitedtoamaximumof15%(excludingVAT)oftheowed contract value over the last twelve months prior to the event that caused thedamage.d.The following cannot be designated for reimbursement:consequential damage. Consequential damage is defined as stagnation damage, product loss, lost revenue, penalties, transport costs and travel and accommodation costsdamagetopropertyinthecare,custodyorcontrolof,butnotownedbytheinsured.Thisdamageoccursduetoorduringthe carrying out of the work activities to property that is located near the work location.damagecausedintentionallyorwithwilfulrecklessnessonthepartofauxiliarystafforsubordinatesofthecontractor.The client may be able to take out an insurance against this kind of damage.e.The contractor is not bound to reimburse damage done to materials supplied by or on behalf of the client that results from inadequate operation.f.Theclientindemnifiesthecontractoragainstallclaimsmadebythirdpartiesduetoproductliabilityasaresultofafaultina productthattheclienthassuppliedtoathirdpartyandwhichconsistsofproductsandmaterialssuppliedbythecontractor.The client is bound to reimburse all of the damage suffered by the contractor in this regard, including the (full) costs of defence.
g.Thecontractorshallatalltimesassumethattheroofconstructionoftheclientussolidenoughtohangfrom,anypossible liabilities in regard to the roof construction are expressly excluded by the contractor.Article 14. Warranty and other agreementsa.Unlessconcludedotherwiseinwriting,foraperiodofsixmonthsafterthecommissioning,thecontractorshallwarrantythe proper functioning of the concluded performance, such as is furtherdescribed in the following paragraphs of this Article.b.If the parties conclude deviating warranty conditions, that which is determined in this Article shall apply undiminished unless this is in conflict with those warranty conditions.c.Iftheconcludedperformanceisnotadequatelycarriedout,thecontractorshalldecidewithinareasonabletermwhetherornotit shall still carry it out adequately or shall credit the client with a fair portion of the contract value.d.Ifthecontractordecidestocarryouttheperformanceadequately,thecontractorisfreetodecidethemannerandtimeof performance.Theclientmustofferthecontractoreveryopportunitytodosoinallcases.Iftheconcludedperformance(partially) consisted of adapting materials supplied by the client, the client is required to supply new materials at its own expense and risk.e.Parts or materials that are repaired or replaced by the contractor must be sent to the contractor by the client.f.Thefollowingarefortheaccountoftheclient:a.alltransportanddeliverycosts,b.costsfor disassembly and assembly, c. travel and accommodation costs and travel hours.g.The contractor is only bound to execute the warranty when the client has met all its obligations.h.The warranty is excluded for faults that are the result of:normalwearandtear;unprofessionaluse;non-orincorrectmaintenance;installation,assembly,adaptationorreparationby theclientorthirdparties;faultsorflawsinthepropertyoforprescribedbytheclient;faultsorflawsinthematerialsortools used by the clientThereisnowarrantyon:suppliedpropertythatwasnotnewatthetimeofdelivery;theinspection and repair of the client’s property; parts that have a factory guaranteei.That which is determined in sub c through h of this Article also applies to any possible claims made by the client on the grounds of failure, non-conformity or any other grounds.Article 15. Obligation to complaina.The client cannot claim failure to perform if the client fails to inform the contractor in writing within fourteen days after having discovered or could reasonably have discovered, the failure.b.Theclientmustsubmitcomplaintsabouttheinvoiceinwritingwithinthepaymentperiodtothecontractoronpenaltyofthe lapsingofallrights.Ifthepaymenttermislongerthanthirtydays,theclient must have submitted the complaint in writing ultimately within thirty days after the invoice date.Article 16. Uncollected goodsa.The client is required, after the expiry of the delivery time or the execution period, to actually collect the object or goods concluded in the agreement and at the place concluded.b.The client is required to collaborate free of charge in order to make is possible for the contractor to make delivery.c.Uncollected goods are stored for the account and risk of the client.d.UponviolationofthatwhichisdeterminedissubaorbofthisArticle,theclientshalloweafter notification by the contractor an immediately payable penalty for each violation for the amount of €250per day with a maximum of € 25,000. This penalty can be claimed in addition to a legal damage compensation.Article 17. Paymenta.Payment occurs on the premises of the client or on a bank account designated by the contractor.b.Unless concluded otherwise, payment shall take place within 14 days after the invoice date.c.If the client does not fulfil its payment obligation, the client is required to fulfil a request from the contractor in lieu of payment, (instead of payment of the concluded amount).d.Therightoftheclienttosettleitsclaimswiththecontractororsuspenditsfulfilmentofobligationsisexcluded,unlessintheevent of suspension of payment or bankruptcy on the part of the contractor or statutory debt rescheduling applies.e.Regardless of whether the contractor has fully carried out the concluded performance, all that the client owes by way of the present agreement shall be immediately payable if:a payment period has been exceeded
the client does not fulfil its obligations from Article 16the bankruptcy or suspension of payment is requested for the clientseizure of property or claims are made on the clientthe client (company) is dissolved or liquidatedthe client (natural person) applies for statutory debt rescheduling, goes into guardianship or has deceasedf.Intheeventofdelayinthefulfilmentofpaymentofanamount,theclientshalloweinterestonthatamountstartingfromthe dayaftertheultimatedateofconcludedpaymentandthisinterestshallapplyuntiltheclienthasmadepaymentinfull.Ifthe partieshavenotconcludedanultimatepaymentdate,theinterestshallbeowedafter30daysofexigibility.Theinterestis12% peryear,butisequaltothestatutoryinterestifthisishigher.Incalculatingtheinterest,partofamonthisconsideredasafull month. At the end of every year the amount on which the interest is owed is increased with the owed interest of that year.g.Thecontractorisentitledtosettleitsdebtswiththeclientbywayofmakingclaimsoftheclient’saffiliatedcompanies.In addition,thecontractorisentitledtosettleitsclaimsmadeoftheclientwithdebtsitowestotheclient’saffiliatedcompanies. Thecontractorisalsoentitledtosettleitsdebtsowedtotheclientbywayofmakingclaimsoftheclient’saffiliatedcompanies. Affiliatedcompaniesaredefinedas:allcompaniesthatbelongtothesamegroupasdefinedinArticle2:24boftheDutchCivil Code (BW) and a participation as intended in Article 2:24c of the Dutch Civil Code (BW).h.Ifpaymenthasoccurredinanuntimelyfashion,theclientshallowethecontractoralloftheextrajudicialcostswithaminimum of € 75. These costs are calculated on the basis of the following table (principle amount incl. interest):15% on the first € 3,00010% on higher and up to € 6,0008% on higher and up to € 15,0005% on higher and up to € 60,0003% on amounts exceeding € 60,000Theactualextrajudicialcostsincurredshallalsobeowedifthesearehigherthanthetable abovei.If a court procedure partially or fully favours the contractor, all costs the contractor incurs in relation to the legal procedure shall be for the account of the client.Article 18. Assurancesa.Regardlessoftheconcludedpaymentconditions,theclientisrequired,uponfirstrequestofthecontractorandaccordingtothe contractor’sjudgement,toprovidesufficientassuranceforpayment.Iftheclientdoesnotfulfilthisobligationwithinthestated term,theclientshallbeindefault.Inthiscase,thecontractorisentitledtodissolvetheagreementandclaimdamagefromthe client.b.The contractor remains the owner of the supplied goods as long as the client:has not fulfilled its obligations from any of the agreements with the contractorhas not fulfilled claims that arise from the compliance to the above-stated agreements, such as damage, penalties, interest and costsc.As long there is a retention of title on the supplied goods, the client may not encumber or alienate these outside its normal operations. This clause has consequences pursuant to property law.d.After the contractor has revoked its retention of title, the contractor may retrieve its supplied goods. The client shall extent its collaboration in this.e.Afterthegoodshavebeenreturnedaccordingtotheagreement,andiftheclienthasfulfilleditsobligations,theretentionof titleshallenterintoforceagaininregardtothesegoodsiftheclientdoesnotfulfilitsobligationsfromanagreementconcluded later.f.The contractor has a leasehold and a right retention on all goods he has received or shall receive from the client and for all claims he makes or can make of the client.Article 19. Intellectual property rightsa.Thecontractorisdesignatedatthemaker,designerorinventoroftheworks,modelsandfindingscreatedinthecontextofthe agreement. That is why the contractor is entitled to request exclusive patent, brand or model rights.b.Thecontractordoesnottransferanyintellectualpropertyrightstotheclientincarryingoutthe agreement.c.Iftheperformancetobesuppliedbythecontractor(partially)consistsofthedeliveryofcomputerprogrammes,thesource codesarenottransferredtotheclient.Theclientonlyreceivestheworldwideandpermanentuserlicenceforthecomputer programmes for the benefit of the normal
useandproperfunctioningofthegoods.Theclientisnotpermittedtotransferthelicenseortopassonasub-license.Uponthe sale of the goods by the client to a third party, the license shall be legally transferred to the purchaser of the goods.d.Thecontractorisnoliablefordamagetheclientsuffersduetoanyclaimsmadebythirdpartiesasaresultofaninfringementof intellectualpropertyrightsbythirdparties.Theclientindemnifiesthecontractoragainstanyclaimsmadebythirdpartiesinregard to an infringement of intellectual property rights.Article 20. Transfer of rights or obligationsTheclientcannottransferorpledgerightsorobligationsfromanyArticleofthegeneraltermsandconditionsofthepresent agreement(s) except with the prior written permission of the contractor. This clause has consequences pursuant to property law.Article 21. Termination or annulment of the agreementa.Theclientisnotentitledtoterminateorannultheagreement,unlessthecontractoragrees.Ifthecontractoragrees,theclient shalloweanimmediatelypayablepenaltyfortheamountoftheconcludedprice,minusthesavingsthatariseforthecontractor due to termination. The compensation shall be at least 20% of the concluded price.b.Whenthepriceismadeindependentoftheactuallyincurredcosts(cost-plus)ofthecontractor,thecompensationasintendedin subaofthisArticleincreasesthetotalcosts,labourhoursandprofitsthatthecontractorwouldhaveexpectedtoearnoverthe duration of the assignment.Article 22. Applicable law and competent courta.Dutch law applies to this agreement.b.TheUnitedNationsConventiononContractsfortheInternationalSaleofGoodsdoesnotapply; neither do other international rules which permit exclusion.c.Any disputes shall be brought before a Dutch civil court in the location of founding of the contractor. The contractor may deviate from this jurisdictional rule and implement statutory jurisdictional rules.