These general conditions are applicable to all offers made by ELMA bv, hereinafter referred to as ELMA, and the agreements such concluded between it and the client. These general conditions are also applicable to all obligations which arise from subsequently concluded agreements between the parties. The application of general conditions invoked by the client is specifically excluded.
In these terms and conditions there is under the work implied: the entirety of the agreed upon work (including any design) and/or deliveries.
The offer from ELMA is without commitment.
The documents which from part of the offer (such as drawings, technical descriptions etc.) are as accurate as possible, though not binding and remain the (intellectual) property of ELMA. These may not be used, replicated or be submitted to third parties or in any manner whatsoever be made public, without the express written permission from ELMA.
Also that of any documents and/or auxiliary materials such as models, templates, stamps and/or seals, moulds and/or dies, tools and software which form part of an offer(s), remain the property of ELMA and such also where the costs for these have been charged to the client and they are required to be returned to ELMA on its demand thereto.
III FORMATION OF THE AGREEMENT
If the offer from ELMA is accepted, then the agreement will become effective at that moment when ELMA: – Has either confirmed the acceptance within a reasonable period of time, – Or commences with implementing the work.
ELMA can not be held to commence with the implementation of the work than after that it has all the requisite information in its possession and is in receipt of the agreed upon (periodic) payment.
IV EXECUTION OF THE AGREEMENT
Obligations of ELMA
ELMA observes by the implementation of the work the thereover deemed applicable prescriptions. Any financial consequences due to a change or amendment in the prescriptions between the date of the offer and the delivery of the work will be charged on the basis of contract extras.
In appropriate cases, ELMA instructs the client, or the by it designated persons, in the making and maintaining operational of the delivered work. The extent, date, commencement and point in time of the referred to obligations will be determined in all reasonableness by ELMA.
Obligations of the client
The client is obligated towards ELMA to make the implementation of the work possible within the normal working hours of ELMA and under those conditions such which meet statutory safety requirements and other governmental provisions.
The client will ensure that ELMA can timely be in possession of the requisite approvals for the work (such as permits and exemptions) and the information furnished by it for the work.
The client is required to ensure that work to be effectuated by third parties (such as constructional) and/or deliveries, which do not form part of the work of ELMA, is effectuated as such and in a timely manner, so that the execution of the work is not delayed by this. If a delay such as referred to in this clause should nevertheless arise, then the client is required to immediately inform ELMA of this in writing.
If the commencement and the progress of the work should be delayed due to circumstances attributable to the client (such as, amongst other things, as referred to in clause 13), then any damage to ELMA such which arises from this, will be duly compensated by the client.
The client will ensure the timely presence of adequate and safe auxiliary equipment and for the accessibility of the place where work is being implemented, as well as the suitability of access roads to the place of work.
The client bears the risk for the damage of materials and equipment and the components of tools such delivered to the place of work.
The client bears the risk for damage caused by the defects or the inadequateness of objects such which originate from it, or are prescribed, or required to be employed by a prescribed supplier and for the non and untimely delivery of the referred to objects.
The client bears the risk for damage caused by errors or defects in the drawings as furnished by it, and likewise the calculations, constructions, specifications and implementing regulations.
The client bears the risk for the faulty observance of the agreement which is attributable to the auxiliary person as provided by the client.
The client bears the risk for damage which is attributable to wrongful acts from other contractors and their auxiliary persons.
The client indemnifies ELMA against all claims from third parties with respect to damage which pursuant to these conditions remains for the account of the client, such which includes damage due to infringements of intellectual and industrial property rights.
The client permits ELMA to apply or affix name signs and advertising at the work site or to the work.
V SUBSTANCE OF THE AGREEMENT
The prices given by ELMA are ex factory, and excludes freight, packaging, insurance, and any by government levied dues, duties or taxes or other levies.
If after the date of offer one or more cost price factors, including materials, equipment, components, raw materials, pay and government charges are subject to an increase, irrespective as to whether this was foreseeable at the time of the offer, ELMA is entitled to increase the offered or agreed price accordingly.
Where ELMA renders assistance by assembly, or effects assembly work such which is not included in the order, then unless agreed otherwise, these assembly activities be charged to the client on the basis of the at ELMA effective hourly rate.
If the assembly is effected on the basis of an hourly rate there will in addition to the costs of transport of personnel and equipment and tools as well as the subsistence expenses, insofar that the personnel of ELMA is in relation to the assembly work necessitated to sojourn elsewhere than that of their place of residence, such costs be charged to the client. Finally, any expenses incurred by the use of tools which are not deemed to form a part of the normal equipment of the technical engineers involved in the work, will be charged to the client.
Charging of contract variations [extra work/ less work]
The charging of contract variations takes place:
In the event of changes or modifications to the specification (changes in the specification, the work or the changes or amendments to the implementing conditions of the work);
in the event of divergences in the amounts of the provisional sums and of deductible/ offsettable and/or estimated amounts;
In those events as stipulated and agreed upon in these conditions.
The settlement of additional work effects as a lump sum at the proximate point in time of the payment term. If no periodic payment term has been agreed upon, such then after the completion of the work.
The absence of a written order for additional work unimpairs the claims from ELMA for the settlement thereof. If no clear quid pro quo has been agreed upon, then the additional work will be charged on the basis of the number of hours and materials involved in the additional work, such increased with the usual hourly rates and prices as charged by ELMA.
The agreed upon delivery date will, insofar as possible, be duly observed but will at no time apply as a firm date. By a passing of this delivery date, ELMA will enter into consultation with the client.
The work will be deemed to have been delivered: – Either when ELMA has notified the client that the work has been completed, tested and is in working order and the client has approved or accepted this; – Either when, at the latest, eight days have expired after that ELMA has stated in writing to the client that the work has completed, been tested and is in working order and the client has omitted to approve or accept the work within the aforesaid period; – Either when the client takes the work (prematurely) into service, subject to, that for the (premature) taking into service of a part of the work, that part will be deemed to have been delivered.
Minor defects which can be repaired within the guarantee period and which do not affect the functioning of the work, will not form a hindrance to delivery.
A delivery discharges ELMA from all claims for defects which the client had in all reasonableness to have determined at that point in time.
As the consequence of a delivery, the risk for the work transfers from ELMA to the client.
In the event of force majeure, ELMA is entitled, such without judicial intervention, to either suspend implementation of the work for not more than six months, or to end the work in an unfinished state, without it being held to any whatsoever compensation therefor. All the up to that point in time costs such incurred by ELMA, will be immediately due and payable.
Under force majeure there is implied those circumstances with which ELMA could not reasonably take into account on the concluding of the agreement and of which it was also unaware. Under this there is also implied the non-fulfilment of the obligations by suppliers to ELMA, transportation problems, fire, industrial actions (strikes) or work stoppages (walkouts), loss of components to be processed, import or trading bans.
Without prejudice to its further entitled rights, ELMA is empowered, without judicial intervention and without a notice of default, to either suspend the implementing of work, or to end the work in an unfinished state, where the client:
Has filed for a suspension of payment(s) or has been granted same;
Has been put into liquidation or petitioned same;
Has failed to discharge an obligation, or ELMA can foresee that it will fail to comply with same.
Termination and suspension effects by means of a written statement without ELMA being held to any whatsoever compensation or guarantee.
All claims which ELMA may in these events have over or come to have over the client, will be immediately and fully exigible.
The payment effects in that manner and at those points in time such as agreed upon by the parties or as cited on the confirmation of the order, such without entitlement to discount or deduction. If with respect to this nothing has been agreed upon by the parties, then the purchase prise or, as the case may be, the contract price, will be settled over three terms: 1/3 by the order, 1/3 by the testing, on inspection, respectively, the being ready for forwarding of objects, and 1/3 within one month after that the second payment term has materialised.
The payment for additional work is required to effect within 30 days after that this has been invoiced to the client, unless agreed otherwise in writing.
Default of client
If the client forbears to make payment within the agreed upon periods, it will by operation of law (ipso jure) be deemed to be in default and ELMA will be entitled, without any notice of default or judicial intervention, to charge interest at 1% per month, as well as recover all the costs incurred by it for the collection of the purchase price or, as the case may be, the contract price, such without prejudice to its further entitled rights. ELMA can opt to determine extrajudicial costs fixed at 15% of the amount claimed.
A payment made by the client covers in the first instance a deduction of all outstanding costs and interest and finally as a deduction over those claims such which are longest outstanding, this even where the client notifies that the settlement concerns later invoices.
Retention of title
ELMA at all times remains the owner of all objects such delivered by it and/or reserved for the client (such as materials and components) for as long that the client has not fully met its payment obligations towards ELMA in the broadest sense of the word, such including all that which the client, in relation to a non-fulfilment of its obligations, may be due ELMA.
Within the limits of the following stipulations, ELMA guarantees the soundness of materials delivered by it for a period of 12 (twelve) months after completion/ delivery, unless agreed otherwise in writing. Defective materials will be replaced without charge. Any travel, accommodation and labour costs will also be entirely for the account of the client. Repair or renovation work effectuated by ELMA will be guaranteed for a period of six months after delivery for that concerning the soundness of the instructed implementative processing.
The guarantee obligation as referred to in clause 44 solely cover defects which at the time of delivery were not, in all reasonableness, observable and which arise under normal operational conditions and by a correct use of the work. This does not cover defects such which have arisen due to insufficient maintenance by the client, any changes applied without the express written permission from ELMA, or repairs effectuated by the client or the normal wear and tear of defects for which the client is liable such pursuant to clauses 17 up to and including 19.
In order to invoke those rights such arising from clause 44, the client is towards ELMA required: – To immediately notify it of the defects as observed; – To make plausible that the defects are required to be attributed to a lesser capacity or defective construction of the work or – if and insofar the design of the work originates from ELMA – are a direct result of an attributable error of ELMA; – To afford all cooperation to allow it to remedy any defects within a reasonable period of time.
The defective components replaced by ELMA, such pursuant to the guarantee obligation, will become its property.
If in the opinion of ELMA the costs for repair are disproportionate to the interests of the client by a repair, the client will be entitled to compensation.
ELMA will make good for own account any damage to the work, such arisen before the work has been delivered, unless this damage has not been caused by it or it is otherwise unreasonable that this damage will be for its account, such without prejudicing that as stipulated in clause 16.
ELMA is liable for damage suffered by the client to persons and other objects than the work, insofar this damage was caused through the implementation of the work and is the result of a fault attributable to ELMA or the auxiliary persons engaged by it, if and insofar this liability is covered by its insurance.
Both foregoing clauses apply by analogy such where ELMA effects work in fulfilment of its guarantee obligations pursuant to clause 44.
After delivery, ELMA will no longer be liable for defects to the work than that of complying with its guarantee obligations as set out in clauses 44 up to and including 48.
ELMA is otherwise only liable for damage suffered by the client due to defects as referred to in clause 44, if and insofar this liability is covered by its insurance.
Extent of the compensation
If ELMA is, pursuant to clauses 50 and 53, held to compensate the damage suffered by the client, then this compensation will not amount to more than that total of the amounts of the own risk of its insurance and the payment effected by the insurance company. If ELMA is not insured for the damage as claimed, then the compensation will not amount to more that the quid pro quo which the client is payable in respect of the work such effectuated by ELMA.
For damage other than the damage referred to in the foregoing clauses such which the client may suffer, ELMA is at no time whatsoever liable for this.
The limitations included in the foregoing clauses do not apply, if the damage is a result of an intentional act or omission or gross negligence committed by ELMA or its managerial employees.
Each claim for compensation or repair of before, respectively, after the delivery, suffered damage lapses if this claim has not been notified at the latest on the day of delivery, respectively, on that day when the guarantee period expires.
The claim for compensation for damages or repair by the client towards ELMA such pursuant to these conditions, lapses by the passage of one year after that the client has uttered protest in this matter.
IX FINAL STIPULATION
Solely the law of the Netherlands is applicable over the agreement and over all agreements such arising from this.
All disputes which may arise in connection with or as a result of agreements over which the present conditions are wholly or partially applicable, will be submitted to the competent court in Utrecht, The Netherlands.
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