standard terms and conditions

Van Kleef Engineering standard terms and conditions

GENERAL

Article 1 – General

1.1 In these standard terms and conditions ‘VAN KLEEF ENG.’ means VAN KLEEF ENGINEERING and/or its subsidiaries and/or its participating interests. In these standards terms and conditions ‘client’ means every legal or natural person who enter into negotiations and/or concludes contracts with VAN KLEEF ENG. for services to be delivered by or to VAN KLEEF ENG.

1.2 These standards terms and conditions apply to all offers made, orders obtained and contracts concluded by VAN KLEEF ENG. VAN KLEEF ENG. expressly stipulates that any terms and conditions used by clients are not applicable.

1.3 Derogations from these standard terms and conditions are binding on VAN KLEEF ENG. only if this has been expressly agreed in writing. An agreed derogation from these standard terms and conditions applies only to the relevant contract for which the derogation has been agreed.

Article 2 – Contract

2.1 All offers of VAN KLEEF ENG. are without engagement. A contract is concluded if an offer made by VAN KLEEF ENG. is accepted by the client within 30 days in writing in its entirety and without any reservation or amendment.

2.2 A different order placed by the client with VAN KLEEF ENG. shall be binding on VAN KLEEF ENG. only after it has been confirmed in writing by VAN KLEEF ENG. to the client. If the client has not notified his objections to VAN KLEEF ENG.’s order confirmation in writing to the dispatch address of VAN KLEEF ENG. within 8 days, this order confirmation is deemed to correctly reflect the content of the contract.

2.3 Amendments to the contract, of any kind whatever, shall take effect only if they have been agreed in writing between VAN KLEEF ENG. and the client.

2.4 It is for VAN KLEEF ENG. to decide whether and, if so, on what (further) terms and conditions these amendments can be accepted.

2.5 If amendments of any kind whatever are made to the contract, VAN KLEEF ENG. is entitled to charge the higher costs entailed by these amendments to the client and, if necessary, to extend the term within which the contract must be performed.

Article 3– VAN KLEEF ENG. General Business Principles

3.1 VAN KLEEF ENG. commits to and carries out its business in accordance with the VAN KLEEF ENG. General Business Principles.

Article 4 – Prices and rates

4.1 All offers made by VAN KLEEF ENG. and the resulting contract are based (in part) on the data supplied by the client. The client warrants that these data are correct and complete and will be supplied in time.

4.2 The quoted and agreed prices shall be denominated in euros and are exclusive of VAT. The other taxes, levies and fees, travelling expenses, transport and insurance costs owed by law are not included in the price.

Article 5 – Payment

5.1 The client shall pay the entire amount owed by him within thirty (30) days of the date of the invoice by depositing it in or transferring it to a bank account designated by VAN KLEEF ENG.

5.2 If the client fails to pay any amount owed by him to VAN KLEEF ENG. within the prescribed period he shall be deemed by law to be in default, without any further notice of default being required. The client shall owe the statutory interest, plus 3%, on any still outstanding amount from the due date of the invoice, calculated per month (or part of a month).

5.3 Any costs, whether judicial or extrajudicial, which are incurred by VAN KLEEF ENG. in enforcing performance of the client’s (payment) obligations shall be borne by the client. The extrajudicial costs are hereby fixed at 15% of the invoice amount, subject to a minimum of 500 euro, without any proof of this having to be provided. The above-mentioned costs are owed from the moment when a lawyer, bailiff or debt collection agency is instructed to recover the claim, regardless of whether the client has been informed of this.

5.4 The client may not deduct any amount from the amount owed by him, set off against the amount owed by him any counterclaim which he may have or believe he has against VAN KLEEF ENG., or suspend his payment obligation.

Article 6 – Delivery period

6.1 Delivery period means the period specified in the contract within which the obligation must be performed.

6.2 Agreed or quoted delivery periods are not to be treated as vital terms of the contract. Failure to make delivery within the agreed delivery period shall not confer any right to compensation of any damage, except where there has been intent or gross negligence on the part of VAN KLEEF ENG..

6.3 VAN KLEEF ENG. shall notify the client if it becomes clear that it cannot perform the contract within the agreed delivery period and shall, if possible, specify the length of time by which the delivery period is expected to be exceeded.

Article 7 – Third parties used by VAN KLEEF ENG.

7.1 If, at the request of the client, VAN KLEEF ENG. works together with one or more other parties or uses one or more other parties, VAN KLEEF ENG. shall not be liable for the part of the order performed by such third parties.

7.2 VAN KLEEF ENG. is entitled to have work performed by third parties under its direction, and also to allow parts of the work to be performed under the direction of third parties, without prejudice to its responsibility for the proper performance of the contract.

Article 8 – Liability

8.1 If VAN KLEEF ENG. fails to perform its obligations, thereby committing an imputable breach, and, after being given notice of default and summoned to rectify the consequences of the non-performance within a reasonable period, fails to comply with this summons in good time, VAN KLEEF ENG. shall be obliged only to pay compensation for the direct damage resulting from the breach, up to a maximum of the value of a sum equal to one time the order or amount of the consultancy costs, as the case may be. The amounts described in the previous sentence are exclusive of turnover tax. The total compensation to be paid by VAN KLEEF ENG. per contract shall not exceed the amount of EUR 500,000 (half million euro).

8.2 Direct damage shall not under any circumstances include consequential loss, loss of production, loss of turnover or profit, depreciation of products or amounts that would have been included in the execution costs if the contract had been performed properly from the outset.

8.3 VAN KLEEF ENG. shall not be liable for damage to property of the client or third parties, no matter what the cause, which occurs during or in connection with the performance of the contract, unless there was intent or gross negligence on the part of personnel in the employ of VAN KLEEF ENG.

8.4 The right of action in respect of an imputable breach shall lapse two years after the written notice of default, which states the reasons. A claim in respect of an imputable breach shall not be admissible if it is instituted more than five years after the first day on which the contract ends by completion or termination.

Article 9 – Insurance

9.1 The client is obliged to take out with a reputable insurance company a usual Contractors All Risks Insurance (CAR) Policy or comparable insurance, which provides primary cover for contract works. The parties should be designated in the policy as third parties in relation to each other.

9.2 The client is obliged to include VAN KLEEF ENG. (or arrange for it to be included) in the policy as co-insured and for it to be mentioned as such by name in the policy, and to provide information about the policy (terms) before the start of the works. If and in so far as the client has insured any risk attached to the contract, he shall be obliged to claim any damage under the policy and indemnify VAN KLEEF ENG. against claims of the insurer for recovery. If the activities of VAN KLEEF ENG. relate to the execution of contract of works, VAN KLEEF ENG. shall be liable only for damage that is not covered by the usual CAR insurance or some other comparable insurance.

Article 9 – Assignment

9.1 Without the written consent of VAN KLEEF ENG. the client may not assign the rights resulting from any contract with VAN KLEEF ENG. to a third party.

Article 10 – Intellectual property rights

10.1 VAN KLEEF ENG. is entitled to all possible intellectual and industrial property rights relating to services provided and/or goods delivered by VAN KLEEF ENG. VAN KLEEF ENG. has the exclusive right to disclose, realise and reproduce its designs, drawings, sketches, photographs and all other depictions of its design, of models and scale models and of all objects or information carriers which form a depiction or representation of its design or are referred to in the Copyright Act (Auteurswet) 1912 or in the Uniform Benelux Act on Designs and Models (Eenvormige Beneluxwet inzake Tekeningen en Modellen).

Article 11 – Personnel

11.1 The client undertakes, during the period of the performance of the contract and within a year after its termination, not to take into its employ or in any other way use any persons in the service or subcontractors of VAN KLEEF ENG. who are responsible for performing the contract, other than with the prior written consent of VAN KLEEF ENG.

11.2 The client shall owe VAN KLEEF ENG. a penalty of EUR 25,000 (twenty-five thousand euro), due and payable forthwith, for each breach of this provision. This is without prejudice to the right of VAN KLEEF ENG. to claim full compensation for the damage suffered as a result of the breach, in so far as this exceeds the amount of the penalty or penalties owed.

Article 12 – Termination

12.1 If the client fails to perform his obligations under the contract or fails to do so properly or in good time, is declared or is likely to be declared bankrupt, is granted a suspension of payments, is the subject of a debt management plan or otherwise loses the capacity to freely dispose of his assets or parts thereof, VAN KLEEF ENG. shall be entitled to terminate the contract without recourse to the courts and without a notice of default.

12.2 Without prejudice to the provisions of article 12.1, VAN KLEEF ENG. shall also have the right to claim compensation from the client for the damage, costs, interest and so forth incurred by it.

Article 13 – Consequences of delay in the performance of the contract

13.1 Any costs incurred or damage suffered by VAN KLEEF ENG. as a consequence of:

– delay in the supply of data by or on behalf of the client; and/or

– delay as a consequence of weather conditions; and/or

– delay in general which is beyond the control of VAN KLEEF ENG, shall be borne by the client and invoiced at the rates applicable at that time.

Article 14 – Force majeure

14.1 If VAN KLEEF ENG. is prevented by force majeure from performing its obligations or if such performance is thereby changed or, as the case may be, made more onerous or more expensive, VAN KLEEF ENG. may suspend the performance of its obligations under the contract or terminate all or part of the contract, at its sole discretion, without the client thereby becoming able to enforce any right to compensation for damages, costs, interest and so forth.

14.2 The following shall be deemed to constitute force majeure: war, danger of war, civil disturbance, fire, business disruption, strike, flooding, stagnation, limitation or discontinuance of supplies by public utilities, obstructive measures by any government authority, of any nature and/or scope whatever, prohibition of delivery by any private or government authority, failure by third parties (including suppliers and subcontractors) to perform their obligations or to perform them in time, abnormal weather conditions, traffic disruptions, obstructions to or closure of shipping, lack of raw materials, auxiliary materials and fuel and all circumstances that occur beyond the control of VAN KLEEF ENG. as a result of which it is unable to perform its obligations temporarily or otherwise.

Article 15 – Order of precedence

15.1 The following order of precedence of documents shall apply to all offers made by VAN KLEEF ENG. and all orders and contracts executed or yet to be executed by it:

a) the offer, order and/or contract;

b) these standard terms and conditions;

c) the other sets of rules declared applicable in these standard terms and conditions.

15.2 In the event of an inconsistency between the documents referred to above or if any such documents are incomplete, they shall apply in the order referred to in article 15.1, having regard to the intention of the parties.

Article 16 – Conversion

16.1 If a provision of these standard terms and conditions proves to be invalid, the other provisions shall remain fully in force. In such a case, the provision that is invalid shall be replaced by a provision whose meaning is as close as possible to that of the invalid provision.

Article 17 – Choice of law and competent court

17.1 All offers of VAN KLEEF ENG. and the contract(s) between VAN KLEEF ENG. and clients shall be governed exclusively by Dutch law.

17.2 All disputes that result from this legal relationship shall be referred exclusively to the District Court in ‘s-Hertogenbosch.

DELIVERY AND EXECUTION OF WORK

Article 18 – Application

18.1 All offers made by VAN KLEEF ENG. to a client and contracts of delivery and works contracts concluded by VAN KLEEF ENG. with a client shall be subject not only to the General provisions (articles 1-17) but also to the provisions of articles 19-20.

Article 19 – Prices and rates

19.1 The total amount of the offer shall be binding on both parties. Exceptions to this are:

a) set-off of any variation in the amount of work (extra/reduced work);

b) set-off of other additional payments and deductions in cases in which this is specifically stipulated;

c) set-off of the change in the costs as referred to in article 19.2.

19.2 The prices quoted in the offer are based on the cost determinants applicable on the date of offer, unless agreed otherwise. If, after the date of the offer, changes occur in:

a) the wage costs referred to articles 19.3 and 19.4;

b) the prices of the materials to be supplied and/or the fuels needed for the performance of the work, as referred to in articles 19.5 and 19.6, the higher and/or lower costs resulting from this shall be set off.

19.3 For the purposes of article 19.2 the wage costs are fixed at a predetermined percentage of the total amount of the price offer (= wage costs component).

19.4 Wage costs mean salaries and the related social charges of the persons employed for the purpose of the work.

Article 20 – Completion

20.1 The work is deemed to be completed when VAN KLEEF ENG. notifies the client in writing that the works have been completed or when the client actually puts the works into commission, whichever event occurs first.