General terms and conditions

GENERAL TERMS AND CONDITIONS

These General Terms and Conditions (“General Terms and Conditions”) dated 21 September 2026 are used by EMHA B.V. (CoC 24114611), EMHA Engineering B.V. (CoC 71992103), EMHA Monitoring B.V. (CoC 24165212), EMHA Noise Vibration Consultancy & Diagnostics B.V. (CoC 23027494) en Dutch Machining Group B.V. (CoC 30157081), each hereinafter individually referred to as a “User”.

 

Article 1. Definitions

The following terms shall also have the following meanings in these General Terms and ConditiSons:

1.1 Service(s): the work (including assignments and contracts for work) and/or services performed by the User for the Customer; these may include, for example, consultancy services, vibration and noise prevention and control, carrying out (3D) measurements, alignment, calculations, calibration, repairs, inspections, investigations, analyses, assembly, treatment, processing, maintenance, monitoring, design, manufacture and installation of (piping) structures, foundations, machinery and installations and related applications; where the term “work” is used in these General Terms and Conditions, this is also included within the definition of “Services”.

1.2 Defect: a demonstrable and reproducible failure (i) of a Product to comply with the agreed specifications or the specifications for that Product stated by the User or (ii) to comply with the agreements concerning (the results of) a Service.

1.3 Customer: the legal entity or natural person acting in the course of a profession or business with whom the User enters into an Agreement, whether or not through an intermediary.

1.4 Material: anything that the User creates or has already created and supplies in connection with the performance of the Agreement, other than Products, such as designs, drawings, reports and advice.

1.5 Agreement: the agreement between the User and the Customer for the performance of the Services and/or the supply and/or rental of the Products.

1.6 Product(s): the goods described in the Agreement and/or supplied to the Customer, such as (parts of) (technical) products, machinery, measuring systems and (pipe) structures.

 

Article 2. Formation of the Agreement

2.1 The User reserves the right to reject an order placed by the Customer, not to confirm it, or to cancel a confirmed order, where possible stating the reason for the rejection or cancellation.

2.2 If a quotation does not state a period of validity, it shall be valid for fourteen (14) calendar days.

2.3 In the event of any conflict between the Agreement and the General Terms and Conditions, the Agreement shall prevail, unless otherwise stipulated in the Agreement.

2.4 These General Terms and Conditions apply to all Agreements, including all subsequent and supplementary Agreements.

2.5 If other general terms and conditions also apply, these General Terms and Conditions shall prevail in the event of any conflict, unless these General Terms and Conditions (Article 9.2) or the User state that the other general terms and conditions (or parts thereof) shall prevail.

2.6 If the Agreement is entered into with or through an intermediary, the General Terms and Conditions shall, by being provided to the intermediary, be deemed to have been provided to the Customer.

 

Article 3. Prices and payment

3.1 Prices for Services shall only be regarded as “fixed” if the User expressly states this in writing. Prices for Products shall be those applicable at the time the Customer places the order or as confirmed in the order confirmation.

3.2 The amounts exclude travel time, remuneration for work outside regular working hours, travel and accommodation expenses, transport, shipping and delivery costs, costs of visa applications, waiting time, safety training, VAT and other government-imposed levies. These costs shall be charged separately. The User shall be entitled to add an administrative fee (calculated as a percentage) to costs incurred and charged. The User reserves the right to charge any costs associated with a quotation not accepted by the Customer.

3.3 Unless otherwise agreed, in the case of continuing Agreements, the User may adjust the amounts annually in line with the relevant CBS Price Index. In the event of circumstances that increase procurement and/or cost prices, the User shall also be entitled to pass on such increase during the calendar year. The price may change between orders.

3.4 One-off amounts shall be invoiced immediately following delivery of the Products or performance of the Services, as applicable. Products purchased at the User’s premises shall be paid for in the manner indicated by the User at the premises. Instalments shall, as a general rule, be invoiced monthly in arrears.

3.5 The User reserves the right to require advance payment, security or payment of outstanding invoices, or first to carry out a credit check, before performing an Agreement (or continuing to perform it, whether in whole or in part). The User may also impose credit limits before the Customer may place a new order.

3.6 The Customer must pay invoices, without set-off or discount, within thirty (30) calendar days of the invoice date or within the payment period stated on the invoice, in accordance with the instructions on the invoice. If no complaint regarding the invoice is made within fifteen (15) calendar days of the invoice date, the invoice shall be deemed to have been accepted as correct.

3.7 If the Customer fails to pay on time, the Customer shall immediately be in default. From that date, the Customer shall owe interest on the amount due at a rate of 12% per annum or, if the statutory commercial interest rate is higher, the statutory interest rate, together with the extrajudicial collection costs actually incurred, subject to a minimum of 15% of the invoice amount. Interest due in any year shall, after that year, be added to the outstanding invoice amount. The Customer shall also owe statutory (commercial) interest on the collection costs payable. If legal proceedings are necessary to recover the invoice amount, the Customer shall also be required to reimburse the legal costs actually incurred in connection with those proceedings if judgment is given wholly or substantially against the Customer. The User reserves the right to apply amounts paid by the Customer first towards payment of collection costs and legal costs, then towards due and payable (statutory commercial) interest and finally towards the invoice amount.

3.8 Anything that the User and/or its group companies is/are entitled to claim from, or owe to, the Customer and/or its group companies may be set off against anything that the Customer and/or its group companies is/are entitled to claim from, or owe to, the User and/or its group companies.

3.9 Everything owed by the Customer under the Agreement shall become immediately due and payable in full, even if the User has not fully performed the Agreement, if (a) the Customer fails to pay on time, (b) the Customer fails to fulfil its obligation to take delivery of the Products supplied, (c) the Customer fails to provide security at the User’s request, (d) the Customer applies for or is granted a suspension of payments, or an application is made for its bankruptcy or it is declared bankrupt, (e) the Customer’s assets are attached, or (f) the Customer’s business is dissolved or liquidated.

 

Article 4. Term and termination

4.1 If the Agreement does not specify a term, the Agreement shall apply (a) in the case of the supply of Services and/or Products, for the duration of the supply of the Services and/or Products and (b) in the case of a rental Agreement, for a period of one (1) year, automatically renewable for successive periods of one (1) year unless either party terminates the Agreement at least three (3) months before the end of the current period.

4.2 An Agreement for a fixed term may not be terminated early by the Customer without payment of compensation equal to 50% of the value of the Agreement, plus the costs incurred by the User in connection therewith. More specific provisions in these General Terms and Conditions concerning compensation for early termination shall take precedence.

4.3 Unless otherwise agreed, the User shall be entitled to terminate a fixed-term Agreement early subject to one (1) month’s notice, and other Agreements subject to one (1) week’s notice. However, in the case of a contract for services (including a contract for work), notwithstanding the foregoing, the User shall be entitled to terminate the Agreement in whole or in part with immediate effect. The User also reserves this right if it is unable to remedy Defects reported by the Customer in accordance with Article 10.2, after which it shall no longer be obliged to remedy those Defects. The User shall furthermore be entitled to terminate an Agreement with immediate effect if decisive control over the Customer’s business is acquired by a third party, other than as part of a restructuring.

4.4 Without prejudice to the provisions concerning Defects, if the User demonstrably fails, for reasons attributable to it, to perform the Agreement and does not remedy that failure within a reasonable period of at least fifteen (15) working days after receiving written notice of default setting out the (alleged) failure and the obligations in detail and allowing such reasonable period for performance, the Customer shall be entitled to terminate the Agreement by notice (and not to rescind it).

4.5 Either party shall be entitled to terminate the Agreement if the other party is affected by force majeure for a continuous period of more than sixty (60) calendar days.

4.6 Either party shall be entitled, at its discretion, to rescind or terminate the Agreement if the other party is declared bankrupt, is granted a suspension of payments, if the other party’s business is dissolved or liquidated (other than for the purpose of a reorganisation or restructuring), or if the other party ceases its operations.

4.7 If a supplier or subcontractor of the User terminates, fails to perform or suspends an agreement with the User, the User shall be entitled, if replacement is not commercially feasible, to terminate the Agreement in whole or in part with immediate effect.

4.8 The User shall not be obliged to refund amounts already paid, irrespective of the grounds on which the Agreement ends.

4.9 Termination of an Agreement shall not entitle the Customer to terminate any related Agreements.

4.10 Upon termination of the Agreement, all amounts outstanding from the Customer shall become immediately due and payable and any rights granted to the Customer shall lapse.

4.11 The User shall not be liable to pay compensation in connection with termination of the Agreement.

 

Article 5. Performance of the Agreement (general)

5.1 Unless otherwise agreed in writing, Services shall be performed during office hours, being Monday to Friday from 7:30 am to 4:15 pm, excluding rostered days off and public holidays generally recognised in the Netherlands. Services performed at the Customer’s request outside these office hours shall be regarded as additional work and may be invoiced as such.

5.2 The User shall determine which employees and any subcontractors are engaged in the performance of the Agreement.

5.3 The User shall perform the Agreement at its own discretion. In doing so, the User shall follow the Customer’s reasonable instructions insofar as, in the User’s opinion, this is justified for the purposes of performing the Agreement. The User shall not be under an obligation to achieve a particular result unless expressly agreed in writing.

5.4 The User shall use reasonable endeavours to supply the Products and/or Services in accordance with the agreed specifications and within the schedule and/or delivery/completion periods stated in the Agreement. Schedules and/or delivery/completion periods shall not constitute strict deadlines; exceeding them shall not place the User in default. Such periods shall not commence, and may be suspended, until the User has received the necessary information, files and items from the Customer, any advance payments have been received and the other applicable conditions under the Agreement have been satisfied. All costs associated with delays not attributable to the User shall be borne by the Customer. The User reserves the right to deliver a Service in stages and Products in partial deliveries.

5.5 Changes requested by the Customer to the specifications of Products and/or Services must be recorded in writing; the Customer accepts that changes may result in changes to the schedule and/or delivery period, the Products and/or Services and/or the prices. In the event of changed circumstances or circumstances that only become known to the User after the Agreement has been entered into, the User reserves the right to amend the Agreement accordingly after notifying the Customer.

5.6 Work falling outside the Services as specified in the Agreement which the User performs at the Customer’s request, or which is attributable to the Customer and/or is necessary for the proper performance of the Services, shall be classified as additional work and invoiced at the rate applicable at that time. The User can never be required to accept additional work or to perform additional work that has not been recorded in writing.

5.7 The User cannot be required to cooperate with third parties designated by the Customer. At the User’s request, the Customer shall specify the responsibilities of the third party and where the User’s responsibilities end.

5.8 The User reserves the right to withhold the return of information, documents, data and other items received from the Customer until all outstanding amounts have been paid (right of retention), and shall have a right of pledge over them.

5.9 Where this has been agreed or where necessary for the use of a Product that has been delivered or completed, the User shall provide the Material, always subject to payment of all outstanding amounts.

 

Article 6. Customer’s responsibilities

6.1 Unless otherwise agreed, the Customer shall itself provide the necessary (technical) facilities, infrastructure and resources required to put the delivered/completed Products into use.

6.2 The Customer warrants to the User: (a) that it will make available sufficient suitably qualified staff (employees and assistants); (b) that such staff will provide the necessary cooperation and input and make decisions in a timely manner; (c) that all information, documents, data and input supplied by the Customer that are relevant to the performance of the Agreement (i) are accurate, complete and up to date, (ii) do not infringe any third-party (intellectual) property rights and (iii) comply with applicable laws and regulations; (d) that it will comply with all instructions relating to the delivered/completed Products; (e) that it will provide the User with all facilities, tools, information and access, and all cooperation, required for the timely, safe, uninterrupted and unhindered performance of the Agreement; (f) that all relevant permits, consents and licences have been obtained; (g) that, in the case of deliveries outside the Netherlands, all formalities and costs related to importing the Products into the other country will be dealt with and paid; (h) that the person signing the Agreement or accepting an offer on behalf of the Customer is authorised to act on behalf of the Customer; the Customer waives any rights arising from unauthorised representation; and (i) that, where employees and/or third parties engaged by the User perform work at the Customer’s premises, the working conditions on site comply with Dutch standards.

6.3 If the Customer fails to comply with the foregoing or with any of its other obligations, the User shall be entitled to suspend performance of the Agreement and charge the costs incurred.

 

Article 7. Warranties

7.1 The provisions of Articles 7.2 to 7.4 shall apply only to Products or to (the results of) Services if and insofar as a warranty has been expressly agreed in writing.

7.2 All warranties shall be subject, as a minimum, to the following conditions: (a) the User never warrants that the Products and/or Services supplied will be error-free or that all Defects can be remedied; (b) no claim may be made under a warranty in any of the circumstances referred to in Article 8.2; (c) a claim may only be made under a warranty if the Customer has fulfilled all of its own obligations; (d) a claim may only be made under a warranty if the Customer cooperates, free of charge, with an investigation to determine whether the warranty claim is justified; (e) the warranty is non-transferable; (f) the warranty does not alter the User’s usual burden of proof in relation to the matter warranted; (g) Defects must be reported in accordance with Article 8.1; and (h) the warranty period shall be no more than 6 months unless expressly stated otherwise in writing by the User.

7.3 If the User provides warranties in respect of Products (including where a Product is the result of a Service), they shall be subject, as a minimum, to the following conditions: (a) any limitations contained in manufacturers’ warranties shall take precedence over the limitations of the User’s warranty; (b) the User provides no warranties in respect of Products that are not new; (c) warranties do not apply to visible Defects (see Article 9.5); and (d) in the case of non-visible Defects, the warranty period shall take precedence over the complaint period referred to in Article 9.6, but Articles 9.6, 9.7 and 9.8 shall otherwise apply.

7.4 If the User provides warranties in respect of (the results of) Services, they shall be subject, as a minimum, to the following conditions: (a) the warranty means that, where a claim is made under the warranty in accordance with the applicable conditions, the User will deploy the resources and personnel available to it in the Netherlands, at its own expense, to attempt to remedy Defects properly reported during the warranty period (for work performed outside the Netherlands, the User may charge the hours worked and costs incurred); (b) if inspection and approval have taken place, the warranty shall lapse unless the User expressly states otherwise in writing or otherwise agrees; (c) the warranty period shall take precedence over the periods set out in Article 10, but those articles shall otherwise apply mutatis mutandis to any Defects identified; and (d) the warranty period shall commence on the date on which the work is, or is deemed to have been, approved.

 

Article 8. Defects

8.1 Defects must be reported in writing to the User’s contact person, with sufficient substantiation and detail. The User shall be entitled to charge the Customer for costs associated with investigating a Defect if it proves not actually to constitute a Defect.

8.2 The User shall not be obliged to remedy Defects caused by: (a) improper or careless use; (b) use contrary to the terms of the Agreement, the specifications and/or instructions, such as incorrect assembly, improper use or overloading of a Product; (c) maintenance contrary to the terms of the Agreement, the specifications and/or instructions; (d) installation, assembly, modifications and/or repairs carried out by the Customer or a third party without the User’s consent; (e) connection to and/or use in conjunction with items, materials, resources, objects or software specified or selected by the Customer; or (f) normal wear and tear, normal consumption or normal ageing of the Product.

 

Article 9. Specific provisions for Products

9.1 Orders once confirmed by the User may not be cancelled by the Customer without payment of compensation equal to 25% of the value of the order, plus the costs incurred by the User in connection with the order.

9.2 Delivery shall take place in accordance with the stated INCOTERMS. If no specific INCOTERM is stated, delivery shall be Ex Works. In the event of any conflict between the provisions of the INCOTERMS relating to transport (including costs and insurance), delivery, import and transfer of risk in respect of the Products and the corresponding provisions of these General Terms and Conditions, the provisions of the INCOTERMS shall prevail. Delivery shall otherwise be governed by these General Terms and Conditions.

9.3 Delivery shall take place ex warehouse of the User or its supplier or subcontractor. The Customer is obliged to take delivery of the Products supplied and, if it fails to do so, must reimburse all costs incurred by the User in connection therewith. Unless expressly agreed otherwise in writing, and irrespective of whether the User arranges transport, the risk in the Products (including replacement Products) shall pass to the Customer as soon as the Products are ready for transport at the warehouse of the User or its supplier or subcontractor.

9.4 The Customer must, on pain of forfeiture of its rights, inspect the packaging of the Products upon receipt for visible Defects and record any Defects identified on the consignment note. Failing this, the consignment shall be deemed to have been accepted with any visible Defects in the packaging.

9.5 The Customer must also, on pain of forfeiture of its rights, inspect the Products supplied upon receipt for any visible Defects. If the Customer does not notify the User in writing of any visible Defects within five (5) calendar days of receipt of the Products, the consignment shall be deemed to have been accepted by the Customer with such visible Defects.

9.6 The Customer must, on pain of forfeiture of its rights, notify the User in writing of any non-visible Defects as soon as possible and in any event within one month of the date on which the Defect was discovered, or should have been discovered by the Customer, subject always to an ultimate time limit of three (3) months after delivery. If notice is not given in time, the Products shall be deemed to have been accepted by the Customer with any non-visible Defects.

9.7 If the Customer identifies visible or non-visible Defects and reports them to the User within the applicable periods referred to above, the Customer must comply with the User’s instructions and, upon request, provide evidence of the Defects identified. The User reserves the right to inspect the Products concerned. If the User determines, at its own discretion, that there are indeed Defects attributable to the User, it shall, at its option, repair the Products, supply new Products or issue a credit note in respect of the Products concerned. The Defects referred to in Article 8.2 shall not constitute Defects attributable to the User. If the User determines that the Defects are not attributable to it, the Customer shall bear the consequences of the Defect and the User shall not be obliged to take any action in relation to it.

9.8 The inspection periods and complaint periods referred to above shall also apply to Products supplied or resupplied.

9.9 If certain Products have to be recalled from the market, the Customer shall provide such cooperation as the User requests in connection with the recall.

9.10 The User may issue a credit note for Products that have been retrieved, returned or collected again, less any reduction in value due to damage, discolouration and/or the “age” of the Products, as reasonably determined by the User.

 

Article 10. Specific provisions for Services

Article 10.1 Services – general

10.1.1 Articles 10.1 and 10.2 apply to all types of Services. The subsequent articles relate to specific Services and apply in addition to the other provisions.

10.1.2 If the Customer terminates the Agreement for the specific Service before the work has been completed, other than in the event of a demonstrable failure attributable to the User, the compensation referred to in Article 4.2 shall apply, without prejudice to any other claims of the User.

10.1.3 As a general rule, the work shall be charged on the basis of time spent, calculated by multiplying the applicable hourly rate by the number of hours spent. If a fixed price has been agreed, the User reserves the right to charge for any additional work and/or costs required.

10.1.4 If, upon final settlement, the total amount attributable to any omitted work exceeds the total amount attributable to any additional work, the User shall be entitled to an amount equal to 10% of the difference between those totals.

10.1.5 The work shall be performed solely in respect of the items and other objects described in the Agreement. Any changes thereto shall fall within the scope of the work only after written confirmation by the User.

10.1.6 The Customer uses and applies the result of the work (including, for the sake of clarity, advice given by the User as well as the Materials) at its own risk and is itself responsible for implementing or applying the result as described therein or otherwise indicated by the User. The User shall never be liable for any loss or damage connected with the use of the result of the work. Without prejudice to the other complaint and limitation periods set out in these General Terms and Conditions, complaints must, on pain of forfeiture of rights, be notified to the User in writing no later than one (1) month after the work has been performed.

10.1.7 The fee for the work shall be payable irrespective of whether the Customer makes use of the results thereof.

10.1.8 Employees and third parties engaged by the User shall perform the work solely for the benefit of the Customer. They shall comply with the Customer’s reasonable instructions but cannot be required to perform work that is inconsistent with the assignment. The Customer is responsible for their safety and shall be liable for any loss or injury suffered by them while performing the work at the Customer’s premises.

10.1.9 If, in connection with the performance of the Services, the User brings items to the Customer and/or installs them at the Customer’s premises, the provisions of Article 9.3 shall apply to the delivery of and transfer of risk in those items.

 

Article 10.2 Completion of Services

10.2.1 The Customer is obliged, at the User’s request and in the User’s presence, to accept the Service (work) and its results. The Customer must proceed with acceptance on the day on which, in the User’s opinion, the work has been completed. The User shall inform the Customer of this verbally or, if expressly agreed, in writing.

10.2.2 If expressly agreed in writing, testing shall be carried out on installations/objects forming part of the completed work. The testing shall be carried out by the User in the Customer’s presence and is intended to establish whether the installations/objects and the work performed on them comply with what has been agreed. If the testing establishes that the installations/objects comply with what has been agreed, acceptance shall take place.

10.2.3 If expressly agreed, or at the User’s request, a certificate of acceptance shall be drawn up in respect of the acceptance, in the form specified by the User or as expressly agreed.

10.2.4 Following acceptance, the Customer shall inform the User – where applicable in the certificate of acceptance – whether or not the completed work, and thus the work performed, is approved. In doing so, the Customer shall state any minor Defects as referred to in Article 10.2.7, as well as any Defects forming the reason for withholding approval. If the Customer grants approval, the date of approval shall be the date on which notice of approval is given to the User.

10.2.5 If the Customer does not state on the date of acceptance that there are any Defects, or fails to carry out the acceptance on that date despite having been informed that the work has been completed, the completed work and the work performed shall be deemed to have been approved on that date.

10.2.6 If (i) the Customer is not obliged to accept the completed work, (ii) no acceptance has been agreed, or (iii) the completed work and the work performed have not already been approved or deemed approved under the preceding paragraphs, the completed work and the work performed shall in all cases be deemed approved if the Customer does not state, no later than eight (8) calendar days after the User has carried out the work or remedial work, that there is a non-minor Defect.

10.2.7 Minor Defects, being small Defects that do not prevent the completed work from being put into use, shall not constitute grounds for withholding approval.

10.2.8 If the Customer has reported non-minor Defects within the applicable period(s), with sufficient substantiation and detail, the User shall use reasonable endeavours to remedy those Defects reported by the Customer that are capable of being remedied, as soon as possible. The Customer must enable the User to remedy the Defects. Unless otherwise agreed in writing, the provisions of this Article 10.2 shall also apply to renewed completion following the aforementioned notification of non-minor Defects.

10.2.9 The date on which the completed work, and thus the work performed, is or is deemed to have been approved shall be deemed the date of completion. In all cases, the completed work shall be deemed approved once the Customer has put it into use.

10.2.10 The completed work shall be at the Customer’s risk once it has been approved or is deemed approved in accordance with the above. Unless expressly agreed otherwise in writing, the User shall no longer be liable after that time for the completed work or any Defects therein and shall not be obliged to remedy any Defects.

10.2.11 Unless expressly agreed otherwise, there shall be no maintenance period. In that context, the User shall not be obliged to remedy Defects, subject – in the case of a contract for work – to Article 10.5.3. If a maintenance period has been agreed, that period shall commence immediately after the date on which the work is deemed completed. In that case, the User shall be obliged to use reasonable endeavours to remedy Defects that become apparent during the maintenance period, except for Defects for which the Customer is liable or responsible.

10.2.12 Before the work has been completed, the Customer may only put, or have put, the completed work (or any part thereof) into use with the User’s written consent and after the parties have inspected the completed work or the part to be put into use. Without prejudice to the other provisions, any loss or damage arising from use contrary to the foregoing shall not be borne by the User.

 

Article 10.3 Maintenance, repairs and monitoring

If any part of the agreed Services consists of ongoing maintenance, repair, assembly, editing, modification or monitoring services in respect of, for example, (piping) structures, machinery and foundations, or comparable continuing work, the Customer must report any Defects or other problems relating to the relevant items or objects to the User as soon as possible and in any event within eight (8) calendar days after discovery thereof. The consequences of late notification shall be borne by the Customer. The User shall use reasonable endeavours to remedy Defects or other problems but cannot guarantee that Defects or other problems can be remedied in all cases.

 

Article 10.4 Consultancy services

In the case of consultancy services, the User shall determine their scope and purpose. The Customer may only use and apply the results of the work within those limits. The User gives no warranties regarding the results of the consultancy work, including their suitability for a particular purpose.

 

Article 10.5 Contracts for work

10.5.1 If the contract for work also includes design work, Article 10.4 shall apply to that work.

10.5.2 Article 10.2 shall apply to inspection and approval of the work.

10.5.3 The provisions of Article 10.2.10 shall only be subject to an exception in the case of a Defect: (a) that becomes apparent during the maintenance period referred to in Article 10.2.11, which the Customer notifies the User of within a reasonable period after discovery and which could not reasonably have been identified by the Customer upon completion, unless the User demonstrates that the Defect is highly likely to be attributable to a circumstance for which the Customer is responsible, including circumstances of the kind referred to in Article 8.2; or (b) that becomes apparent after expiry of the maintenance period and could not reasonably have been identified by the Customer upon completion, which the Customer notifies the User of within a reasonable period after discovery and in respect of which the Customer demonstrates that the Defect is attributable to a circumstance for which the User is responsible, whereby circumstances of the kind referred to in Article 8.2 shall be deemed attributable to the Customer and not to the User.

10.5.4 A legal claim arising from a Defect as referred to in Article 10.5.3(a) shall be inadmissible if brought more than six (6) months after the Customer complained, or should have complained, in respect thereof.

10.5.5 A legal claim arising from a Defect as referred to in Article 10.5.3(b) shall be inadmissible if brought more than one (1) year after the Customer complained, or should have complained, in respect thereof. However, if the Defect referred to there constitutes a serious Defect, the legal claim shall be inadmissible if brought more than one and a half (1.5) years thereafter. A Defect shall only constitute a serious Defect if the completed work has become, or is in danger of becoming, wholly unfit for the purpose for which it is intended under the Agreement and this can only be remedied or prevented by taking very costly measures.

10.5.6 Without prejudice to the other provisions of this Article 10, Article 14 concerning the User’s liability shall apply in addition to Articles 10.5.3 to 10.5.5; in the event of any conflict, the provisions of this article shall prevail.

10.5.7 The User shall, as far as possible, warn the Customer of any inaccuracies in information, documents, data, drawings and calculations supplied by the Customer that are required for the performance of the work, or of any defects and/or unsuitability in items supplied by the Customer. However, the User shall never be liable for any loss or damage resulting from failure to give such warning.

10.5.8 The User shall not be obliged to provide a file relating to the work supplied.

 

Article 10.6 Rental

10.6.1 The User reserves the right to require a security deposit in respect of damage to, destruction, loss and/or theft of the rented object. If the rented object is destroyed, lost, stolen or damaged to such an extent that it can no longer be used, or no longer be properly used, the Customer must notify the User immediately. In such a case, the User may retain or collect the security deposit, without prejudice to the User’s right to full compensation if the loss or damage exceeds the amount of the deposit. After the end of the rental period, the User shall refund the security deposit to the bank account specified by the Customer, less any compensation for loss or damage and any outstanding rental instalments.

10.6.2 The Customer must inspect the rented object for Defects before use, handle it with due care while allowing for normal use in the course of business, insure it adequately, and maintain and use it in accordance with the instructions. As soon as any Defects or other problems arise in relation to the rented object, the Customer must notify the User immediately. The consequences of late notification shall be borne by the Customer. The User shall, at its option, remedy Defects or other problems reported in time, make a replacement object available or, if this is not feasible, terminate the Agreement. If any of the circumstances referred to in Article 8.2 arise (except paragraph (f)), the User shall be entitled to charge the Customer the costs associated with repair and/or replacement. The User shall not be liable for any loss or damage connected with the use of the rented object, whether by the Customer or by a third party.

10.6.3 The rented object may not be taken outside the Netherlands without the User’s consent.

10.6.4 The rental period shall be specified in the Agreement and, if no fixed rental period has been agreed, the User shall be entitled to repossess the rented object after giving prior notice. At the end of the rental period, the Customer must return the rented object to the User.

 

Article 10.7 Secondment

10.7.1 The User shall make an employee available for the period and for the work specified in the Agreement. The User shall be entitled to replace a seconded employee with an employee having the same qualifications or, if the seconded employee is required for other work of the User, to terminate the relevant Agreement subject to one (1) week’s notice.

10.7.2 At the Customer’s request, the User shall use reasonable endeavours to replace the seconded employee if, in the Customer’s substantiated opinion, that employee does not possess the required qualifications, or if the employee is absent for an extended period or terminates their employment with the User. The User does not guarantee that it will be able to make a replacement employee available.

10.7.3 The employee shall perform the work during normal working hours (see Article 5.1) and as described in the Agreement. If, at the Customer’s request, the employee performs work outside those hours or outside the agreed scope of work, the User may charge for this as additional work in accordance with Article 5.6.

 

Article 10.8 Training and courses

10.8.1 The User reserves the right, upon notifying the Customer, to cancel or reschedule a training course or other course, combine it with another training course or other course, or change the location, depending on the number of registrations.

10.8.2 If a participant cancels or fails to attend a training course and/or other course, the User reserves the right to charge the full costs.

 

Article 11. Ownership (retention of title)

11.1 All Products and any other items supplied by the User, including samples and (electronic) files and the Material insofar as it is capable of being owned, shall remain the property of the User until the Customer has paid (i) the price of those Products and other items, (ii) the costs of any work performed or to be performed in connection with those Products and other items, and (iii) any claims against the Customer arising from failure to perform the Agreement, including interest, costs and any penalties. This retention of title shall not lapse merely because, at any particular time, the User no longer has any claim against the Customer. For the sake of clarity, Products rented by the User to the Customer shall at all times remain the property of the User.

11.2 The Customer undertakes, in respect of Products supplied subject to retention of title, rented Products and any other items: (a) to handle them with due care; (b) to insure them and keep them insured against damage, including theft; (c) to keep them separate from other items for as long as this is possible in the ordinary course of business; (d) not to remove and/or cover any ownership markings; (e) not to pledge them or otherwise encumber them in any way; (f) not to use them as a means of payment; and (g) not to attach them to other items, land or immovable property without the User’s written consent.

11.3 Products and other items supplied by the User that are subject to retention of title may only be resold or processed by the Customer in the ordinary course of business. Rented Products may never be resold or processed. If a third party levies attachment on Products supplied subject to retention of title, rented Products and/or other items, or seeks to establish or assert rights over them, the Customer must notify the User thereof as soon as reasonably possible.

11.4 Without prejudice to the User’s other rights, the User shall be entitled to repossess Products supplied subject to retention of title, rented Products and other items (including, where applicable, by detaching them from other items, land or immovable property): (a) if the Customer fails to pay on time; (b) if it is foreseeable that the Customer will be unable to meet its payment obligations; (c) if the Products and/or other items are attached; (d) if a substantial part of the Customer’s assets is attached; (e) if the Customer applies for or is granted a suspension of payments; (f) if the Customer becomes subject to proceedings under the Dutch Act on the Confirmation of Private Restructuring Plans (WHOA)  or other restructuring measures; or (g) if an application is made for the Customer’s bankruptcy or it is declared bankrupt.

11.5 Each Agreement under which Products and other items subject to retention of title have been supplied shall be deemed rescinded once the User has repossessed them; the User may then sell the repossessed Products and other items to another party. In the case of rented Products, the Agreement shall be deemed terminated upon repossession by the User. The Customer must compensate for any reduction in value due to damage, discolouration and/or age of the Products and/or other items.

11.6 If the User exercises any of the rights described in this Article, the Customer shall provide the cooperation requested by the User and hereby gives the User, or any third party designated by it, unconditional and irrevocable consent and authority to enter all places where the User’s property is located and to repossess that property.

11.7 Insofar as the retention of title referred to in paragraph 1 is not or is no longer valid or effective, the User reserves a non-possessory (undisclosed) pledge over the Products and items, or the parties shall be deemed to have created an undisclosed right of pledge over the Products and items.

11.8 If a Product supplied subject to retention of title or another item supplied by the User becomes incorporated into another item, that other item shall, to the extent permitted by law, become the property of the User, and the provisions of this article shall apply to it in full. To the extent that the foregoing is not permitted by law or otherwise has no effect, the User shall acquire an undisclosed right of pledge over the new item. If the Product or other item becomes part of immovable property, the User shall acquire a right of superficies and, to the extent permitted by law, a statutory priority right (voorrecht under Dutch law) over the relevant immovable property. At the User’s request, the Customer shall cooperate in further formalising the User’s aforementioned rights. The foregoing shall be without prejudice to the User’s right to detach the Product or item from the other item, land or immovable property, as described in Article 11.4.

11.9 The relevant provisions of this Article 11 shall have effect under property law.

 

Article 12. Intellectual property rights

12.1 All intellectual property rights (including applications) and related rights, including but not limited to trade mark rights, patent rights, database rights, design rights and copyright relating to the Products and the Material shall remain vested in the User or its licensors, unless expressly agreed otherwise in writing. The User shall therefore be entitled to use and exploit those intellectual property rights (and applications) at its own discretion.

12.2 Any arrangements to the contrary shall always be conditional upon payment of all outstanding amounts and, where applicable, any additional fees.

12.3 Subject to payment of the invoices relating to the delivery/completion of the Products or the performance of the work, the Customer shall obtain a perpetual right to use the Product or Material provided to it by the User within its own organisation, together with any embedded software supplied with it. The right to use such embedded software may pass together with ownership of the relevant Product or Material. However, Products or Materials specifically created for a particular assignment may not be reused without the User’s consent. In respect of non-embedded software, unless otherwise agreed, the Customer shall obtain a limited, non-transferable and non-sublicensable licence to use it for the purpose for which the software was provided and within its own organisation, and the Customer shall have no right to the source code. The software supplied is intended for use with certain specific Products and/or applications, and the User shall not be obliged to maintain the software or release new versions of it. This provision shall have effect under property law.

12.4 The User shall at all times be entitled to use any knowledge and know-how created or arising from the performance of the Agreement for its own purposes or for other purposes.

12.5 The Customer shall refrain from any acts that infringe, or may adversely affect, the User’s intellectual property rights, such as registering intellectual property rights of the User (including patents or patent applications) in its own name.

 

Article 13. Confidentiality

13.1 The User and the Customer undertake to keep confidential any confidential information relating to the other party that they obtain from each other or from another source in connection with the Agreement, for as long as they remain in possession of such information. Information shall be regarded as confidential if it has been designated as such by the other party or if its confidential nature follows from the nature of the information. Unless otherwise stated by the User, the Material and the User’s technical knowledge shall be regarded as confidential information.

13.2 The receiving party shall, within its own organisation, (i) treat the confidential information as confidential, (ii) not disclose it to third parties, except to advisers who are themselves subject to a duty of confidentiality or where disclosure is necessary in connection with legal proceedings, and (iii) use it only in connection with the performance of the Agreement.

13.3 Confidential information does not include information:

1. that is or becomes generally known or publicly available, provided that such knowledge or availability is not the result of a breach of a duty of confidentiality;
2. that is disclosed pursuant to and in accordance with a statutory obligation or court order, provided that the receiving party has informed the disclosing party of such obligation as soon as possible and has given the disclosing party an opportunity to prevent disclosure.

13.4 At the request of the party to whom the confidential information relates, the receiving party shall return or destroy the confidential information, unless it is legally required to retain the information or needs it for legal proceedings.

 

Article 14. Liability

14.1 The User’s liability for remedying Defects shall at all times be limited to that set out in Article 7 (Warranties, where applicable), Article 8 (Defects), Article 9 in respect of Products and Article 10 in respect of Services. The User shall not be liable for any other types of defects or shortcomings in anything supplied or completed by the User.

14.2 The User’s liability for loss or damage resulting from an attributable failure to perform the Agreement, or on any other basis whatsoever, shall be limited to loss or damage caused by the User’s employees responsible for performing the Agreement. However, those employees shall never be personally liable themselves for the loss or damage caused.

14.3 In all cases in which performance is still possible, including where the User has given a warranty, the User shall only be in default and liable after it has received a notice of default as referred to in Article 4.4 and has failed to remedy the (alleged) breach within the period stated there.

14.4 The User’s liability shall furthermore be limited to compensation for direct loss or damage and loss or damage resulting from death or personal injury. Direct loss or damage shall mean exclusively:

1. the reasonable and demonstrable costs of preventing or mitigating loss or damage;
2. the reasonable and demonstrable costs of establishing the loss or damage and liability, except where an award of legal costs is made, in which case that award shall apply;
3. the reasonable and demonstrable costs of repairing damage to the Customer’s property that is the direct and physical consequence of the event causing the damage.

The Customer is obliged to minimise the aforementioned costs as far as possible.

14.5 Accordingly, the User shall not be liable for, inter alia, consequential loss or damage, loss consisting of loss of profit, loss of turnover, lost savings or subsidies, tax disadvantages, wasted expenditure, loss of goodwill, internal costs, damage to or loss of data, documents or software, property damage (whether or not the property is in the User’s custody), penalties, loss of customers, claims by customers or other third parties, loss or damage caused by delay, loss or damage resulting from interruption, reduction or cessation of business operations, insurance excesses, transport costs, travel and accommodation expenses, storage costs, costs of replacement materials and labour, damage to property in the User’s custody, damage to or caused by equipment made available to the User, reputational damage, loss or damage resulting from infringement of any third party’s intellectual property rights, or non-material damage. In the case of construction or extension projects, the Customer must maintain adequate insurance against loss or damage (Extension – Construction All Risks (CAR) insurance) on market-standard terms; the Customer shall bear the consequences if it fails to do so.

14.6 The User’s liability shall in all cases be limited to the lowest of the following amounts:

1. the amount paid out by the User’s insurer in the case concerned;
2. if, for any reason whatsoever, the insurer does not make a payment, 15% (fifteen per cent) of the fees excluding VAT under the Agreement from which the loss or damage arises and, in the case of partial deliveries/completions, 15% of the fees for that partial delivery/completion; or, in the case of a continuing Agreement, 15% (fifteen per cent) of the fees paid by the Customer to the User during the twelve (12) months preceding the event causing the loss or damage, or, if the Agreement has not yet been in force for that long, the fees that the Customer would have paid if the Agreement had continued for twelve (12) months;
3. an amount of EUR 50,000 (fifty thousand euros) for all claims for compensation combined.

14.7 The above limitations of liability shall not apply if and insofar as the loss or damage is the result of intent or conscious recklessness on the part of the User’s employees responsible for performing the Agreement.

14.8 Without prejudice to the complaint and limitation periods set out elsewhere in these General Terms and Conditions, the Customer must, on pain of forfeiture of its right to compensation, notify the User as soon as possible and in any event within one (1) month after becoming aware of the cause of the loss or damage, and any claim for compensation shall lapse if the Customer does not bring legal proceedings in respect of the loss or damage no later than six (6) months after the date on which the Customer became aware, or could reasonably have become aware, of the existence of the loss or damage.

14.9 The User’s suppliers and subcontractors and third parties engaged by the User shall be entitled to invoke this article against the Customer. The User shall be entitled to invoke this article against any third parties involved by or on behalf of the Customer in the performance of the Agreement.

14.10 Force majeure, for which the User shall not be liable and in respect of which it shall not be obliged to perform, even where a warranty has been given, shall in any event include power failures, staff shortages, strikes, staff illness, failure by the User’s suppliers or subcontractors or third parties engaged by the User to perform their obligations properly, unforeseeable and/or extreme increases in the prices of costs and/or materials/supplies, loss, theft or destruction of tools, information or materials, import or trade restrictions, cybercrime, including where this occurs through the User’s systems or server(s) secured as far as reasonably possible, sabotage, machinery breakdowns, unforeseeable changes in applicable laws and/or regulations, and unforeseeable government measures or advice.

14.11 The Customer shall indemnify and hold the User harmless against claims by third parties, including costs of legal assistance, claims by employees or suppliers/subcontractors, penalties and settlement amounts, arising from acts and/or omissions of the Customer or otherwise attributable to the Customer, including breaches of the warranties referred to in Article 7.

14.12 The Customer shall be responsible and liable for damage to, destruction, loss and/or theft of all items (whether or not belonging to the User) located at the agreed location where the Services are performed – other than the User’s premises – unless caused by the User or its employees themselves.

 

Article 15. Miscellaneous provisions

15.1 If any provision of the Agreement and/or these General Terms and Conditions proves to be void or voidable, the remaining provisions shall remain in full force and effect. The affected provision shall be deemed replaced by a provision that approximates the purpose and intent of the original provision as closely as possible.

15.2 The User shall be entitled to amend these General Terms and Conditions during the term of the Agreement. The Customer shall be informed in writing of any such amendment at least one month before the amendment takes effect. During that month, the Customer shall have the opportunity to object to the amendment(s), failing which the Customer shall be deemed to have accepted the amendment as of the stated effective date. If the Customer objects, the User may elect either to continue the Agreement under the previous General Terms and Conditions or to terminate the Agreement, without being liable to pay compensation.

15.3 The legal relationship between the User and the Customer shall not constitute a partnership, general partnership, cooperative or other comparable form of cooperation.

15.4 The Customer may not assign or pledge any rights and/or obligations under the Agreement to a third party without the User’s prior written consent; this provision shall have effect under property law. The Customer hereby agrees in advance to the assignment by the User of its rights and obligations under an Agreement. Unless expressly stated otherwise in the Agreement and/or these General Terms and Conditions, third parties may not derive any rights from the Agreement or rely upon it.

15.5 “In writing”, as referred to in these General Terms and Conditions, shall also include communication by email or other electronic means.

15.6 During the term of the Agreement and for a period of twelve (12) months after its termination, the Customer shall not, directly or indirectly (including through affiliated natural or legal persons), employ one or more employees of the User who were involved in the performance of the Agreement. If the Customer breaches this prohibition, it shall owe a lump-sum payment of €100,000 (one hundred thousand euros).

15.7 The records from the User’s administration shall constitute prima facie evidence, subject to evidence to the contrary, of the performance rendered by the User.

15.8 These General Terms and Conditions may be translated. The Dutch text shall always prevail in the interpretation of the General Terms and Conditions.

15.9 Where the Customer is established outside the Netherlands, the Customer acknowledges that Articles 6:232, 6:234(1) (in conjunction with Article 6:230c) and (2), and Article 6:235(1) and (3) of the Dutch Civil Code apply.

15.10 The applicability of Articles 6:227b and 6:227c of the Dutch Civil Code is excluded to the extent permitted.

15.11 If a party does not invoke a particular provision of the Agreement or these General Terms and Conditions at any time, this shall not constitute a waiver of that provision.

 

Article 16. Governing law and dispute resolution

16.1 These General Terms and Conditions, the Agreement and any disputes arising out of or in connection with them shall be governed exclusively by Dutch law, excluding its private international law rules. The applicability of the 1980 Vienna Convention on Contracts for the International Sale of Goods is excluded.

16.2 The parties shall use reasonable endeavours to resolve any disputes amicably. If they are unable to do so, the parties may, by written agreement and on terms to be determined, submit their dispute to an arbitral tribunal in the Netherlands consisting of one (1) arbitrator or three (3) arbitrators. If the parties do not opt for arbitration, the court of the district in which the User has its registered office shall have exclusive jurisdiction to hear the dispute.