GENERAL TERMS AND CONDITIONS OF DELIVERY OF STADION GROW LIGHTING (“SGL”)
B.V. with registered office in 2742 KX Waddinxveen, Abraham Kroesweg 44
Registered on 28 March 2008 as number 34157947 with the Trade Register of the Rotterdam
Chamber of Commerce
Article 1 Definitions
SGL:
Stadion Grow Lighting B.V., (private limited
company), the purchaser of the present
general terms and conditions, vendor, lessor;
Purchaser:
SGL’s co-contracting party under the present
agreement, purchaser, lessee;
Agreement:
The agreement in place between SGL and the
purchaser.
The work:
The whole of the work agreed between the
purchaser and SGL under the agreement and
the materials supplied by SGL for this
purpose.
Article 2 Applicability
2.1 The provisions of the present general terms
and conditions apply to agreements in place
between the purchaser and Stadion Grow
Lighting B.V., hereinafter referred to as
“SGL”, including agreements in the
negotiation stage, insofar as the parties have
not expressly departed from these terms and
conditions in writing;
2.2 The present general terms and conditions
also apply to all and any agreements with
SGL, for the execution of which SGL draws on
the services of third parties;
2.3 The purchaser’s general terms and
conditions are expressly declared
inapplicable, unless the parties have agreed
otherwise in writing. Should the general
terms and conditions of the parties apply
concurrently, SGL’s general terms and
conditions shall take precedence in the event
a conflict emerges between provisions in the
general terms and conditions of SGL and
those of the purchaser;
2.4 If one or more provisions in the present
general terms and conditions should be
invalis or declared null and void, the
remaining provisions of the present general
terms and conditions shall continue to apply
unabated. SGL and the purchaser shall agree
on new provisions to replace the invalid terms
and conditions or the terms and conditions
declared null and void, with due consideration
of the purpose and purport of the original
provisions.
2.5 In the event the Dutch text of the present
general terms and conditions is at odds with
translations thereof, the Dutch text shall take
precedence.
Article 3 Tenders/prices
3.1 All tenders, regardless of the form in which
they are presented, shall be non-binding
unless the tender specifies a time limit for
acceptance. SGL reserves the right to
consider an agreement as not concluded as
long as the order has not been confirmed in
writing by SGL. No-obligation tenders may
still be withdrawn immediately following
acceptance;
3.2 SGL shall only be bound by the tenders if the
acceptance thereof is confirmed by the
purchaser within 14 days and provided the
products referred to in the tender are still
available;
3.3 If a natural person concludes an agreement
for or on behalf of another natural person by
signing the contract, the said natural person
declares to be duly authorised to do so. Such
a person is jointly and severally liable,
together with the other natural person, for all
obligations arising from the agreement;
3.4 Should the acceptance differ from the price
quotation contained in the tender, SGL shall
not be bound by such acceptance. No
agreement then exists pursuant to such
divergent acceptance, unless SGL indicates
otherwise;
3.5 A combined quotation does not compel SGL
to supply part of the products listed in the
tender against a proportionate part of the
price quoted;
3.6 Quotations or tenders do not apply to
subsequent orders;
3.7 Delivery dates in SGL’s quotations and
tenders are indicative and if exceeded, do not
entitle the purchaser to compensation or
cancellation of the agreement, unless
expressly otherwise agreed;
3.8 Agreements to which SGL is a party to shall
be deemed as concluded only after SGL has
duly accepted the order from the purchaser
in writing or after the ex-works delivery of the
goods sold by SGL to the purchaser has
actually taken place;
3.9 Prices stated in the quotations and tenders
are for delivery ex-works, in euros, excluding
VAT, government-imposed duties and are
exclusive of forwarding and administration
charges, unless expressly agreed otherwise;
3.10 SGL shall be within its rights to charge on
price rises if price changes of more than 10 %
in respect of, e.g., exchange rates, wages,
raw materials, semi-finished products or
packaging materials, have occurred between
the time of the tender/acceptance and the
time of delivery;
3.11 Should SGL conclude agreements with the
purchaser on more than occasion, the
present general terms and conditions shall
apply to all subsequent agreements in each
case, irrespective of whether they are or are
not expressly declared applicable.
Article 4 Delivery
4.1 Deliveries are made ex-SGL works, unless
the parties agree otherwise;
4.2 The purchaser is obliged to take due receipt
of the goods upon delivery thereof by SGL at
his premises, or when the goods are made
available to the purchaser under the terms of
the agreement;
4.3 Should the purchaser refuse to take receipt
of the goods or fail to provide information or
instructions required for delivery, SGL shall
be entitled to store the products at the
purchaser’s risk and expense;
4.4 If the products are to be delivered, SGL shall
be entitled to charge delivery costs;
4.5 The delivery time takes effect when (i) the
agreement has been concluded, or (ii) all
formalities required for the execution and
delivery of the order have been complied with,
or (iii) details to be supplied by the purchaser
and all required documents have been
provided to SGL, in which for all cases
specified above, the deposit, if agreed, must
have been received by SGL. In case the
delivery time is exceeded, only article 4.6 of
the present general terms and conditions
shall apply;
4.6 Delivery dates specified by SGL are strictly
indicative. Delivery dates stated shall never
serve as final dates. If a delivery date is
exceeded, the purchaser shall be required to
serve notice of default to SGL in writing;
4.7 SGL shall be within its rights to supply the
products in portions. SGL shall be entitled to
separately invoice partial deliveries.
Article 5 Inspection, complaints, acceptance
5.1 It is incumbent upon the purchaser to examine
or have the goods examined at the time of
delivery and in all cases within 8 days following
delivery. In doing so, the purchaser should
examine whether the quality and quantity of
the goods delivered duly correspond with what
has been agreed;
5.2 If the purchaser has been shown a model, this
model shall be presumed to have been shown
only as an indication, without the product
supplied being required to match the model
shown, unless it has been expressly agreed
that the product supplied must correspond
with the model shown;
5.3 Any visible defects are to be reported to SGL in
writing within 8 working days following
delivery;
5.4 If a complaint is lodged pursuant to the
provisions of the above paragraph, the
purchaser shall be bound to accept the goods
and to remit payment for the goods purchased.
In the event the purchaser wishes to return
flawed or defective products, the said products
shall be dispatched only with prior written
consent from SGL and in in the manner
specified by SGL;
5.5 The purchaser must duly enable SGL to
investigate the complaint (or have the
complaint investigated).
Article 6 Payment
6.1 Payment must be made within fourteen (14)
days following the invoice date of the relevant
invoice in euros and in the manner to be
specified by SGL. Objections to the amount of
the invoices shall not suspend the obligation to
remit payment. Payments must be remitted
without deduction or set-off. The purchaser
shall not be entitled to set off payments or
suspend payments;
6.2 SGL shall be entitled to charge advance
payments;
6.3 If the purchaser defaults on his obligation to
make payment within a time span of fourteen
(14) days, by operation of law, the purchaser
shall be in arrears without requiring a
reminder or notice of default to be sent. In
addition, the purchaser shall owe a late
payment interest in the amount of 1% per
month or part thereof, unless the statutory
interest or the statutory commercial interest is
higher than the said amount, in which case the
higher interest rate shall apply. The interest on
the claimable amount shall be calculated as of
the date when the purchaser defaulted until
the date on which payment of the outstanding
amount is received in full;
6.4 In the event of winding up, (application for)
bankruptcy, admission of the purchaser to the
statutory debt restructuring settlement under
the Natural Persons Debt Rescheduling Act,
distraint or (provisional) suspension of
payment on the part of the purchaser, SGL’s
receivables against the purchaser shall
become due with immediate effect;
6.5 Before all else, payments shall be used to
cover the costs, before being applied to cover
the outstanding (late payment) interest and
finally, to cover the principal;
6.6 The above shall apply without prejudice to
SGL’s right to suspend all and any outstanding
obligations upon SGL in the event the
purchaser defaults on the payment of one or
more due instalments.
Article 7 Debt recovery costs
7.1 In the event the purchaser defaults on or is
remiss in the timely fulfilment of the
obligations incumbent upon him, SGL may
instruct a third party to collect payment on its
behalf, in which case the purchaser – in
addition to the principal – shall owe the (late
payment) interest as well as all and any costs,
both judicial and extra-judicial, incurred by
SGL for the recovery of its claims, as well as
for the purpose of upholding its rights and all
reasonable costs to recover its debts outside
the courts;
7.2 In the event SGL has incurred costs exceeding
the aforesaid, which were reasonably
necessary, the said costs shall equally qualify
for reimbursement;
7.3 In all cases, legal costs shall be understood to
include the fees of attorneys, solicitors,
experts and all those instructed by SGL to
provide assistance in the recovery of
outstanding debts or all those whom SGL has
charged to conduct legal proceedings, even if
the said fees exceed the sum budgeted by the
court during the procedure, as costs at the
expense of the unsuccessful party;
7.4 In all cases, extra-judicial costs shall be
understood to include the fees and charges of
(legal) consultants, debt recovery agencies,
bailiffs and all those instructed by SGL to
provide assistance in the recovery of the debt
outside the courts.
Article 8 Retention of title
8.1 Title to all and any products supplied to the
purchaser shall be retained by SGL until
payment of all sums and amounts owed by the
purchasers for the goods supplied or the
works performed / to be performed under the
agreement, as well as all and any further
amounts owed by the purchaser as a result of
the purchaser defaulting on his obligation to
remit payment, have been paid in full to SGL;
8.2 The products delivered may be used by the
purchaser as part of his normal business
operations. However, the purchaser shall not
be entitled to alienate products in any way
whatsoever, to encumber the said products
with restricted rights of pledge or rights of
enjoyment, or to disengage the said products
in any other manner from SGL’s right of
recourse;
8.3 In the event third parties should attach the
products delivered under retention of title or
exercise or assert rights over the said
products, the purchaser shall be obliged to
notify SGL thereof;
8.4 If the purchaser defaults on his obligation to
remit payment to SGL or if SGL has good
reason to fear the purchaser shall default on
the said obligation, SGL shall be within its
rights to repossess the goods delivered under
retention of title. The purchaser hereby awards
SGL or any parties assigned by SGL for this
purpose, unconditional and irrevocable
authorisation to enter all premises where
goods that are the property of SGL are located
and to repossess the said products;
8.5 Any and all costs arising from the
implementation of article 8.4 shall be at the
risk and expense of the purchaser.
Article 9 Warranty
9.1 The products supplied by SGL duly comply with
the technical requirements and specifications
established by the manufacturer and are free
from manufacturing flaws and defects and/or
material defects, and duly comply with the
customary standards and requirements that
may reasonably be made of the products at the
time of delivery and for which they are
intended under normal use conditions. If used
outside the Netherlands, the purchaser
himself must verify whether the products are
suitable for use in the country intended and
whether such use duly complies with the
requirements established in the country where
use is intended;
9.2 The warranty referred to under paragraph 1 of
the present article shall be valid for 12 months
following the date of delivery, unless otherwise
agreed by the parties or unless a different
warranty period should arise from the nature
of the products delivered. If the warranty
offered by SGL pertains to a product that is
manufactured by a third party, the warranty
shall be confined to the warranty offered by the
manufacturer of the product, unless otherwise
specified;
9.3 The liability pursuant to the warranty referred
to under paragraph 1 shall be confined to the
repair of flaws or defects occurring to
materials during the warranty period or
occurring as a result of wear and tear, by way
of e replacement of the goods concerned, at
the expense of SGL, with pertaining expenses
not exceeding the original invoice value of the
relevant products;
9.4 All and any warranties shall be forfeited if a
flaw/defect has arisen as a result of the
injudicious or improper use of the products, as
a result of inappropriate storage,
transportation or maintenance thereof by the
purchaser and/or by third parties if occurring
without written permission from SGL, if the
purchaser or any third parties have modified or
have attempted to modify the products, have
attached other products or elements to the
products, which should not be attached or if
the products have been processed or
machined in any other manner than the
manner prescribed. Nor shall the purchaser
be entitled to the warranty if the flaw has
occurred as a result of circumstances over
which SGL has no control, including weather
conditions such as, albeit not confined to,
extreme precipitation or temperatures;
9.5 The provisions established under article 9.1
shall apply in a similar manner to prototypes,
studies, and investigations/inspections, on the
understanding that the only obligation
incumbent upon SGL in this respect is an
obligation to bring to bear its best efforts;
9.6 SGL guarantees that the staff made available
has the promised professional expertise. If the
purchaser makes a reasonable case for his
position that specific members of staff do not
have the professional expertise that was
promised, the said staff shall be replaced by
SGL as soon as possible;
9.7 Flaws and defects as detailed under article 9.1
shall be rectified by SGL by means of repair or
replacement of the flawed part, at the
discretion of SGL, either at the purchaser’s
premises or by dispatch of the relevant spare
part(s). All costs arising from the obligation
detailed in the above sentence, such as, albeit
not confined to, transportation costs, travel
and accommodation expenses, labour costs,
as well as the costs of assembly and
disassembly, shall be defrayed by SGL within
the warranty period;
9.8 If SGL replaces parts in order to comply with
its warranty obligation, the replaced parts shall
become the property of the purchaser;
9.9 In all cases, the following flaws that have
occurred as a result of:
a. the non-observance of operating and
maintenance instructions;
b. the use of the products supplied in a
manner other than the use for which it is
normally intended;
c. normal wear and tear;
d. assembly/installation or repair by third
parties, including the purchaser;
e. the application of any government
regulations in connection with the nature
or the quality of the materials used;
f. regulatory materials; designs; devised
criteria; methods of operation used by
the purchaser, as well as materials and
products supplied by or on behalf of the
purchaser,
shall fall outside of the warranty.
Article 10 Suspension and dissolution
10.1 SGL shall be entitled to suspend performance
of its obligations or to dissolve the
agreement, if:
– the purchaser fails to honour the
obligations incumbent upon him under the
agreement, or to honour said obligations on
time or not in full;
– following the conclusion of the
agreement, circumstances that have come to
the attention of SGL give just grounds to fear
that the purchaser shall fail to honour the
obligations incumbent him, or to honour the
said obligations on time or not in full. In the
event there are just grounds to fear that the
purchaser shall honour his obligations only
partially or inappropriately, any suspension of
the agreement shall be permitted only insofar
as this is duly justified by the failure to
comply;
– the purchaser upon conclusion of the
agreement has been requested to provide
surety to meet the obligations incumbent
upon him under the agreement and the said
surety is not forthcoming or proves
inadequate. As soon as the surety has been
provided, SGL shall no longer be entitled to
suspend the agreement for this reason;
10.2 In addition, SGL shall be within its rights to
dissolve the agreement or have it dissoved,
should circumstances occur that render due
execution of the agreement impossible or
execution of the agreement cannot
reasonably or fairly be required, or if any
other circumstances occur such that the
agreement cannot reasonably be expected to
be upheld in unaltered form;
10.3 If the agreement is dissolved, SGL’s claims
against the purchaser shall become due with
immediate effect. If SGL should suspend the
fulfilment of the obligations, it shall retain its
claims and entitlements under the law and
under the agreement;
10.4 SGL reserves the right to claim compensation
at all times;
10.5 Should the agreement be cancelled in the
interim by SGL, SGL shall ensure – in joint
consultation with the purchaser – that any
activities and duties remaining to be
performed are duly transferred to third
parties, unless the cancellation is attributable
to the purchaser. Should the transfer of
activities involve supplementary outlays for
SGL, these shall be charged to the purchaser.
The purchaser shall be obliged to remit
payment of the said costs within the time
span specified for this purpose, unless
otherwise specified by SGL;
10.6 In the event of (application for) liquidation,
suspension of payment or bankruptcy, or
distraint – if and insofar the said distraint is
not lifted within three months – against the
purchaser, or statutory debt restructuring
settlement or any other circumstance
preventing the purchaser from freely
disposing of his assets, SGL shall be free to
cancel the agreement with immediate effect
or to cancel the order or the agreement
without any obligation on its part to pay any
compensation or damages. In such an event,
the claims held out by SGL against the
purchaser shall become due with immediate
effect.
Article 11 Cancellation
11.1 If, after an agreement has been established,
the purchaser wishes to cancel the said
agreement, 10% of the order price (including
VAT) shall be charged by way of cancellation
fees, without prejudice to SGL’s right to claim
full compensation, including loss of profits;
11.2 If, upon cancellation, the purchaser refuses
to purchase the goods already acquired by
SGL, such as products and materials,
whether or not the said products or materials
have been processed or machined or
otherwise, the purchaser shall be obliged to
remit payment to SGL for any and all costs
incurred;
11.3 Cancellation is to occur by letter sent by
recorded delivery.
Article 12 Liability
12.1 In the event products supplied by SGL are
flawed or defective, SGL’s liability vis-à-vis
the purchaser shall be confined to what has
been established under the “Warranty” article
of the present terms and conditions;
12.2 SGL shall be exclusively liable for direct
losses. In the event that SGL is held duly
liable for direct loss, the said liability shall be
limited to a maximum of the amount paid out
by SGL’s insurer, that is to say, to a maximum
of the invoiced amount, with reference to the
part of the agreement to which the
challenged liability pertains;
12.3 In no case shall SGL ever be liable for indirect
losses, including consequential damage, loss
of profits, loss of savings and losses as a
result of business interruption;
12.4 The limitation of liability for indirect losses
included as part of the present terms and
conditions, do not apply if the loss is due to
wilful intent or gross negligence on the part
of SGL or its subordinates;
12.5 Direct loss shall exclusively be taken to mean
the reasonable costs of establishing the
cause and scope of the loss, insofar as the
said determination pertains to the loss as
intended under the present terms and
conditions, any reasonable costs incurred to
rectify the flawed performance on the part of
SGL in line with the agreement, insofar as the
said costs can be attributed and charged to
SGL and reasonable costs were incurred to
prevent or limit any loss or damage, insofar
as the purchaser duly demonstrates that said
costs have resulted in the limitation of the
direct loss as intended under the present
general terms and conditions.
Article 13 Transfer of risk
The risk of loss or damage to the products that are
the object of the agreement shall transfer to the
purchaser when the said products are legally and/or
effectively supplied to the purchaser, thereby entering
the control of the purchaser or a third party to be
assigned by the purchaser.
Article 14 Force majeure
14.1 The parties are not obliged to honour any
obligations if they are prevented from doing
so as a result of a circumstance that is not
due to gross negligence or wilful intent on the
part of the party invoking it, and which cannot
be attributed to them, either under the law, or
as a result of a legal act or conceptions that
customarily apply in commerce and trade;
14.2 Under the present general terms and
conditions, and in addition to what is
understood by force majeure under the law
and in jurisprudence, force majeure shall be
taken to mean all extraneous causes,
anticipated or unanticipated, which are
beyond the control of SGL, but as a result of
which SGL is unable to honour its obligations.
Industrial action at SGL or its suppliers shall
also be included as part thereof;
14.3 Amongst other things, albeit not exclusively
confined to the instances listed below, force
majeure shall be said to apply in the event of
fire, flooding, industrial action, epidemics,
(civil) war, terrorism, government decisions,
the untimely availability or unavailability of
permits, trade embargoes, labour unrest,
outage of electrical power supply,
interruption of operations, dereliction of duty
or delays on the part of SGL’s supplier (s) and
subcontractors and the unavailability or
untimely availability of materials,
transportation, fuel, energy resources and
manpower;
14.4 SGL shall equally be entitled to invoke force
majeure if the circumstance preventing
(further) fulfilment takes effect after SGL
should have fulfilled its obligation;
14.5 The parties may suspend the obligations
arising from the agreement as long as the
force majeure continues. If the said time span
exceeds two months, either of the parties
shall be within its rights to dissolve the
agreement, without being obliged to pay the
co-contracting party any compensation. Or,
as soon as it has been established with
certainty that the time shall exceed three
months, either of the parties shall be within
its rights to require, by letter sent by
recorded delivery, that the agreement be
amended in line with the circumstances, or
dissolved with immediate effect for the
affected part of the agreement, without the
parties being obliged to pay of reciprocal
sums in compensation;
14.6 Insofar as SGL has already fulfilled or shall
be able to fulfil part of its obligations arising
from the agreement at the time when the
force majeure occurs and individual value
attaches to the part fulfilled or to be fulfilled,
SGL shall be within its rights to separately
invoice the part already fulfilled or to be
fulfilled. The purchaser shall be bound to
remit payment for this invoice as if it were a
separate agreement.
Article 15 Intellectual property and copyrights
15.1 The intellectual property rights over drawings
and technical descriptions as well as the
tender, as made available to the principal
prior to the agreement, shall remain with
SGL. None of the above shall be allowed to be
used, copied, reproduced, passed on to or
made available in any way to third parties
without written consent from SGL. All of the
above are to be returned to SGL on the first
request;
15.2 All intellectual property rights over (parts of)
the products supplied by SGL or made
available by SGL in any other manner
(including any documentation, designs,
sketches, drawings, software) rest with SGL
or its supplier(s). Insofar as (parts of) these
products and items are protected by any
intellectual property rights or equivalent
rights, the purchaser shall exclusively
acquire the rights of use and the
authorisations expressly awarded to him
under the present article. The purchaser
shall exclusively have the right of use over the
relevant (parts of) products and items within
his organisation in a manner that is deemed
customary for such types of organisation;
15.3 The purchaser is not permitted to remove or
modify any markings made on or inside the
relevant products or items in connection with
copyrights, patents, labels, brands,
trademarks or any other intellectual property
rights. SGL hereby declares that to the best of
its knowledge, none of the products and
items constitutes an infringement of third
party intellectual property rights valid in the
Netherlands. The purchaser shall promptly
notify SGL of any claims against its liability or
court decisions implicating SGL, based on the
tenet that the use of the relevant products
and items infringes any intellectual property
rights valid in the Netherlands. SGL shall be
within its rights, albeit not be under
obligation, to run the exclusive defence in a
court procedure on an alleged infringement
as intended under the previous paragraph, or
to arrive at any type of negotiated settlement.
In such cases, SGL shall pay any costs and
sums in compensation ordered by court
ruling or agreed under the settlement;
15.4 SGL shall not accept any liability vis-à-vis the
purchaser for any infringements as referred
to under the previous paragraphs of the
present article if the infringement is
connected with the fact that the purchaser
has adjusted or modified the products or
items in question, or has called on third
parties to perform the said actions, or is
using the products or items in question
together or in combination with products that
have not been made available by SGL or has
used them in a manner that differs from the
way outlined in the documentation and the
like;
15.5 SGL reserves the right to use the know-how
that has been accrued as a result of the
execution of the activities and operations for
other purposes, insofar as this does not
involve confidential information being passed
on to third parties;
15.6 Reports, drawings and the like, that are the
result of the activities as instructed, shall fall
to or become the property of SGL.
Article 16 Indemnification
16.1 The purchaser indemnify SGL against all
claims from third parties concerning
intellectual property rights over materials or
data supplied by the purchaser, which are
used in the execution of the agreement;
16.2 If the purchaser provides SGL with
information carriers, electronic files or
software, etc., the former duly guarantees
that the said information carriers, electronic
files and software are free from viruses and
defects;
16.3 The purchaser indemnify SGL against all
claims from third parties for product liability
as a result of a flaw in a product that was
supplied by the purchaser to a third party and
which in part consisted of products or items
supplied by SGL, except if and insofar as the
purchaser furnishes proof that the damage
was caused by the products or items supplied
by SGL.
Article 17 Rights to results
17.1 The purchaser has the right of use over all
know-how and data that are specifically
connected with the assignment. The
purchaser may exclusively use the know-how
and data within his own company or
organisation;
17.2 SGL has the right to use the specific knowhow
acquired as a result of the execution of
the assignment for its own purposes and to
allow said know-how to be used by and for
third parties;
17.3 The right of use is non-transferable. The
purchaser is not permitted to sell, lease out,
sublicense, or alienate the specific know-how
and data, software and carriers on which said
know-how and data have been recorded or to
offer limited rights thereon or to make the
above available to any third party, in any way
or for any purpose whatsoever. The same
shall apply if the third party concerned
exclusively uses the specific know-how and
data strictly for the benefit of the purchaser;
17.4 Immediately upon termination of the right of
use of the specific know-how and data as
referred to under the present article, the
purchaser shall return all copies, data
carriers, reports, drawings and the like in his
possession to SGL.
Article 18 Confidentiality
18.1 Each of the parties hereby guarantees that all
data received from the co-contracting party
that are known or which should be known to
be confidential in nature, shall be kept
confidential, unless statutory provisions exist
to compel publication of the said data. The
party receiving confidential data shall only
use these data for the purpose for which they
were provided. In all cases, data shall be
considered confidential if they have been
designated as such by either of the parties;
18.2 Save with the prior and written consent from
SGL, the purchaser shall not be permitted to
publicise, by way of duplication,
advertisements or in any other written or
verbal form, that he is in business or has
been in business with SGL – the same applies
to the way in which such business was
conducted;
18.3 All details, specifications and any other data
made available to the purchaser for the
purpose of the execution of the present
agreement, shall be considered confidential
information;
18.4 If requested, the purchaser is to transfer the
confidential information as well as all copies
or other reproductions thereof to SGL without
delay.
SPECIFIC PROVISIONS REGARDING THE
CONTRACTING OF WORK
Article 19 Survey, approval,
complaints/investigation
19.1 The work is deemed to have been approved if
and insofar as it is taken into operation. The
day the work or part thereof is taken into
operation shall serve as the day of approval of
the work or of the part concerned;
19.2 Minor flaws shall not constitute grounds to
withhold approval, provided such flaws do not
stand in the way of the work being taken into
operation. SGL shall repair any minor flaws
as soon as possible;
19.3 Any visible flaws and/or defects are to be
reported to SGL in writing within eight
working days after they have been
established;
Article 20 Maintenance
20.1 The substance and scope of the maintenance
services to be supplied by SGL shall be
determined between the parties in writing.
Such arrangements shall be subject to the
present general terms and conditions, unless
it is agreed in writing to depart from them;
20.2 Failing any arrangements laid down in
writing, SGL shall be obliged to bring every
effort to bear to remedy, within a reasonable
time span, any breakdowns and defects that
were duly reported to SGL by the purchaser.
For the purposes of the present article,
“breakdowns and defects” shall be
understood to describe the failure to comply,
or to comply without interruption, with the
specifications of the equipment as expressly
communicated by SGL in writing. There shall
only be question of a breakdown and/or
defect if the purchaser is able to duly
demonstrate this;
20.3 Parts shall be replaced if deemed necessary
by SGL to repair or to prevent breakdowns
and/or defects. The replaced parts shall
become or remain the property of SGL,
unless otherwise agreed by the parties;
20.4 Immediately following the occurrence of a
breakdown and/or defect to the equipment,
the purchaser shall notify SGL thereof by way
of a detailed description of the breakdown
and/or defect compiled by a member of the
purchaser’s staff who is duly knowledgeable
about the matter. The purchaser shall be
obliged to provide SGL staff or a third party
assigned by SGL due access to the location
where the equipment is set up, to offer every
required assistance and to make the
equipment available to SGL for the purpose
of the maintenance operations;
20.5 The costs involved in investigating and
remedying breakdowns and/or defects
arising from the use of equipment that was
not supplied by SGL or from the installation
of software that was not supplied by SGL,
shall be charged to the purchaser;
Article 21 Disputes
Disputes shall exclusively be brought before the
courts of law in the legal district where SGL has its
registered office. However, SGL shall be within its
rights to present the dispute to a court that has
jurisdiction under statutory law.
Article 22 Applicable law
All and any agreements in place between SGL and the
purchaser and/or lessee shall be governed by Dutch
law. The Viennese Sales Convention is expressly
excluded.
SPECIFIC PROVISIONS REGARDING
LEASING
Article I General
I.1 SGL undertakes to lease to the lessee items
specified in detail in the same manner as the
lessee undertakes to accept in lease the said
products from SGL;
I.2 The lessee undertakes to pay the agreed
lease price and the fees and costs arising
from the present agreement and to return the
leased items upon termination of the lease
period, in due observance of the provisions
below. Under the present specific provisions,
‘return’ shall be understood to describe the
fact that the leased items are made available
by the lessee to the lessor in their original
condition.
Article II The Lease period
II.1 The lease contract is concluded for a period
that is determined by the parties,
commencing on the agreed date of delivery
and terminating on the agreed date of return;
II.2 In the event the leased items are returned
early during the course of the agreed lease
period, the lease amount shall remain
payable for the entire duration of the lease
period agreed;
II.3 In the event the items are not accepted by the
lessee on the date agreed, regardless of the
reason, the lessee shall nonetheless owe the
lease amount for the entire duration of the
lease period agreed, whilst the leased items
shall be kept available at the expense and
risk of the lessee. In the event the lessee fails
to promptly accept the leased items further to
reminders, SGL shall be entitled to freely
dispose of the items, whilst the agreed lease
price shall remain payable uncurtailed.
Article III Provision
III.1 SGL shall ensure that the leased items duly
comply with any statutory regulations in place
in The Netherlands;
III.2 The lessee shall be within his rights to
inspect or have inspected the leased items
prior to the said goods being taken into
operation. If the lessee does not avail himself
of the said right, the leased items shall be
deemed to have been supplied complete, in
good condition and in accordance with the
arrangements made.
Article IV Risk
IV.1 For the entire duration of the lease period,
the full risk of the leased items shall be borne
by the lessee, regardless of whatever damage
may be caused to the products for any
reason, event, action or non-action
whatsoever, which therefore also includes
force majeure. The lessee is obliged to
reimburse all and any damage to the leased
items on the basis of their replacement value;
IV.2 The lessee shall indemnify SGL against any
and all claims from third parties in
connection with the leased items.
Article V Use
V.1 During the lease period, the lessee shall be
obliged to use the leased items as a prudent
tenant, in the way and for the purpose
intended, and to duly maintain and protect the
leased items from theft and damage;
V.2 During the lease period, all and any repairs
required shall be performed by or on behalf
of SGL. The lessee shall be permitted to
repair items or have repairs performed by
expert staff, only after prior written consent
has been obtained from SGL and using only
original parts;
V.3 During the lease period, SGL shall be within
its rights to check the condition of the leased
items and the manner in which they are used
at all times;
V.4 Without express written consent from SGL,
the lessee shall not be permitted to sell,
sublease or give the use of the leased items
to any third party, nor to transfer any rights
arising from the lease agreement, either in
part or as a whole, to any third parties.
Article VI Return
VI.1 Upon termination of the lease period, the
lessee shall be obliged to return the leased
items complete, in their original and properly
cleaned condition;
VI.2 In the event the lessee fails to comply with
the obligation to return the leased items, he
shall be duly liable for all damage and costs
arising from this, including the loss of
revenue to SGL. Under the same terms and
conditions, the lessee shall be obliged to
hand back to SGL all records, documents and
accessories pertaining to the leased items,
upon the return thereof to SGL;
VI.3 In the event the lessee fails to return the
leased items on the agreed date, SGL shall be
entitled – without serving notice of default
and without resorting to the courts – to
cancel the agreement and take possession
(or have possession taken) of the leased
items, without prejudice to SGL’s right to
charge the lessee for any resulting damage. If
this situation should occur, SGL shall
promptly inspect the leased items for damage
and defects. SGL shall communicate its
findings on the condition of the leased items
to the lessee in a timely manner, enabling the
latter to inspect the leased items.
Article VII Liability
VII.1 During the lease period, the leased items
shall be exclusively and entirely at the risk of
the lessee;
VII.2 SGL shall carry no further liability other than
what has been specified under the present
terms and conditions;
VII.3 SGL shall not be liable for any loss or damage
suffered by the lessee or any third parties as
a result of force majeure, business
interruption at SGL, negligence or delays in
the delivery, replacement or repair if any such
are required as a result of the normal wear
and tear of the leased items;
VII.4 Any liability of SGL vis-à-vis the lessee shall
be limited to the amount paid out under the
lessee’s insurance policy in connection with
said liability. Any liability exceeding the
aforesaid amount or any liability that is not
covered under an insurance policy is
expressly excluded;
VII.5 Any loss or damage claims must be
submitted to SGL immediately following the
occurrence of the damage;
VII.6 The limits on damage or loss liability
established under the present terms and
conditions shall not apply if the loss or
damage is attributed to wilful intent or gross
negligence on the part of SGL or its
subordinates;
Article VIII Complaints
VIII.1 Any complaints shall be considered only if
they have reached SGL directly in writing
within 3 days following the delivery of the
products or services concerned, with a
detailed specification of the nature and
grounds for the complaint;
VIII.2 Complaints relating to invoices must likewise
be submitted in writing within 8 days
following the invoice date;
VIII.3 Following the expiry of the aforesaid time
limits, the lessee shall be deemed to have
approved the products/services or the
invoice;
VIII.4 If SGL finds the complaint to be well founded,
SGL shall take adequate measures forthwith;
VIII.5 Complaints from the lessee shall suspend
the lessee’s obligation to remit payment.
Article IX Dissolution
Upon dissolution of the lease agreement, the lessee
is obliged to return the leased items forthwith.