General Terms and Conditions of Sale

I. GENERAL PROVISIONS

Applicability
  1. These general terms and conditions apply to all offers prepared by Elma B.V., hereinafter referred to as Elma, and to all agreements concluded between Elma and the Client. They also apply to all obligations arising from agreements subsequently concluded between the parties. The application of any general terms and conditions invoked by the Client is expressly rejected.
Definition
  1. In these terms and conditions, the work is understood to mean: the total of the agreed activities (including any design) and/or deliveries.

II OFFER

  1. Elma’s offer is without obligation.
  2. The documents forming part of the offer (such as drawings, technical descriptions, etc.) are as accurate as possible, but not binding, and remain the (intellectual) property of Elma. They may not be used, copied, or handed over to third parties or otherwise made public without Elma’s consent.
  3. Other documents and/or aids belonging to offers, such as models, molds, stamps, dies, tools, and software, also remain the property of Elma, even if the costs for these have been charged to the Client, and must be returned to Elma upon first request.

III FORMATION OF THE AGREEMENT

  1. If Elma’s offer is accepted, the agreement is only formed at the moment that Elma:
    – either confirms the acceptance within a reasonable period,
    – or commences the execution of the work.
  2. Elma cannot be required to commence the execution of the work until all necessary data for that purpose are in its possession and it has received the agreed (installment) payment.

IV EXECUTION OF THE AGREEMENT

Obligations of Elma
  1. Elma shall observe the regulations declared applicable to the execution of the work. Any financial consequences of changes in the regulations between the date of the offer and the completion of the work will be settled as additional work.
  2. In appropriate cases, Elma shall instruct and teach the Client or the persons designated by the Client regarding the commissioning and operational maintenance of the completed work. The scope, date, start, and duration of said obligations shall be determined reasonably by Elma.
Obligations of the Client
  1. The Client is obliged towards Elma to make the execution of the work possible within Elma’s normal working hours and under conditions that comply with statutory safety requirements and other government regulations.
  2. The Client shall ensure that Elma can timely access the approvals required for the work (such as permits and exemptions) and the data to be provided by the Client for the work.
  3. The Client must ensure that work to be performed by third parties (such as architectural work) and/or deliveries that do not belong to Elma’s work are performed in such a way and so timely that the execution of the work is not delayed. If a delay as referred to in this article nevertheless occurs, the Client must immediately notify Elma in writing.
  4. If the commencement and progress of the work are delayed by circumstances for which the Client is responsible (such as, among others, referred to in Article 13), the resulting damage for Elma must be compensated by the Client.
  5. The Client shall ensure the timely presence of adequate and safe auxiliary equipment and the accessibility of the place of execution of the work, as well as the suitability of the access roads to the site of the work.
  6. The Client bears the risk for damage to and loss of materials, parts, or tools that have been brought to the work site.
  7. The Client bears the risk for damage caused by defects or unsuitability of items originating from the Client or prescribed by the Client, or items that must be obtained from a prescribed supplier, and for the non-delivery or late delivery of said items.
  8. The Client bears the risk for damage caused by errors or defects in the drawings, calculations, constructions, specifications, and execution instructions provided by the Client.
  9. The Client bears the risk for the improper performance of the agreement attributable to auxiliary persons prescribed by the Client.
  10. The Client bears the risk for damage attributable to unlawful acts of co-contractors and their auxiliary persons.
  11. The Client indemnifies Elma against all claims from third parties regarding damage which, under these terms and conditions, remains for the account of the Client,

including damage resulting from infringements of intellectual and industrial property rights.

  1. The Client allows Elma to place name designations and advertising on the work site or on the work itself.

V CONTENT OF THE AGREEMENT

Prices
  1. Prices quoted by Elma are ex-works, excluding freight, packaging, insurance, and any duties or taxes to be levied by the government or other levies.
  2. If, after the date of the offer, one or more cost price factors, including materials, aids, parts, raw materials, wages, and government charges, undergo an increase, regardless of whether this was foreseeable at the time of the offer, Elma is entitled to increase the offered or agreed price accordingly.
  3. If Elma provides assistance with assembly, or performs assembly work not included in the order, these assembly activities will, unless otherwise agreed, be charged to the Client as additional work based on Elma’s usual hourly rate.
  4. If the assembly is carried out on the basis of an hourly rate, the costs of transporting personnel and tools, as well as subsistence costs, insofar as Elma personnel are forced to stay elsewhere than in their place of residence in connection with the assembly work, will also be passed on to the Client. Finally, any expenses regarding the use of tools that cannot be considered part of the normal equipment of the technicians involved in the work will be passed on to the Client.
Settlement of additional and omitted work
  1. Settlement of additional and omitted work takes place:
  2. in case of changes to the specifications (changes in the specifications, the work, or the conditions of execution of the work);
  3. in case of deviations from the amounts of provisional sums and from settleable and/or estimated quantities;
  4. in cases as determined in these terms and conditions.
  5. Settlement of additional work occurs all at once upon the appearance of the next payment installment. If no installment payment has been agreed, then after the completion of the work.
  6. The lack of a written order for additional work does not affect Elma’s claims for the settlement thereof. If no clear consideration has been agreed, the additional work will be charged based on the number of hours and materials involved in the additional work, multiplied by Elma’s usual hourly rates and prices.
Completion
  1. The agreed delivery time will be observed as much as possible but shall never count as a strict deadline. If this delivery time is exceeded, Elma will consult with the Client.
  2. The work is considered completed:
    – either when Elma has notified the Client that the work is finished, tested, and ready for operation, and the Client has approved or accepted the work;
    – or when at most eight days have passed after Elma has declared in writing to the Client that the work is finished, tested, and ready for operation, and the Client has failed to approve or accept the work within that period;
    – or when the Client takes the work into use (prematurely), with the understanding that by (prematurely) taking a part of the work into use, that part is considered completed.
  1. Minor defects that can be repaired within the warranty period and that do not affect the functioning of the work shall not prevent completion.
  2. Completion releases Elma from all liability for defects that the Client should reasonably have discovered at that time.
  3. As a result of completion, the risk for the work passes from Elma to the Client.
Force Majeure
  1. In case of force majeure, Elma is authorized, without judicial intervention, either to suspend the execution of the work for a maximum of six months or to terminate the work in an unfinished state, without being held to any compensation for damages. All costs incurred by Elma up to that point shall be immediately and fully due and payable.
  2. Force majeure refers to circumstances that Elma reasonably did not have to take into account when concluding the agreement and which Elma did not know. This also includes the failure of Elma’s suppliers to meet their obligations, transport difficulties, fire, strikes or work stoppages, loss of parts to be processed, and import or trade bans.
Dissolution
  1. Without prejudice to its other rights, Elma is authorized, without judicial intervention and without notice of default, either to suspend the execution of the work or to terminate the work in an unfinished state, if the Client:
  2. has applied for a suspension of payments or if this has been granted to the Client;
  3. has been declared bankrupt or an application for bankruptcy has been filed;
  4. has failed to fulfill an obligation, or if it is foreseeable for Elma that the Client will fail to do so.

Termination and suspension occur by means of a written statement without Elma being held to any compensation or warranty.

  1. All claims that Elma may have or obtain against the Client in these cases shall be immediately and fully due and payable.

VI PAYMENT

Payment
  1. Payment shall be made in the manner and at the times agreed upon by the parties or established in the order confirmation, without the right to discount or set-off. If nothing has been agreed between the parties in this regard, the purchase price or contract sum shall be paid in three installments: 1/3 upon order, 1/3 when the items are ready for testing, inspection, or shipment, and 1/3 within one month after the second payment installment has become due.
  2. Payment for additional work must be made within 30 days after it has been charged to the Client, unless otherwise agreed in writing.
Client Default
  1. If the Client does not pay within the agreed terms, the Client is deemed to be in default by operation of law, and Elma is entitled, without any notice of default or judicial intervention, to charge interest at 1% per month, as well as all costs incurred by Elma for the collection of the purchase price or contract sum, without prejudice to its other rights. Elma may choose to set the extrajudicial costs at a flat rate of 15% of the amount to be claimed.
  2. A payment made by the Client serves in the first place to reduce all costs and interest due and finally to reduce the claims that have been outstanding the longest, even if the Client states that the payment relates to later invoices.
Retention of Title
  1. Elma remains the owner of all items delivered by it and/or held by it for the Client (such as materials and parts) as long as the Client has not fulfilled its payment obligations towards Elma in the broadest sense of the word, including what the Client may owe Elma in connection with the failure to fulfill its obligations.

VII WARRANTY

  1. Within the limits of the following provisions, Elma guarantees the soundness of the materials delivered by it for 12 months after delivery or completion, unless otherwise agreed in writing. Defective materials will be replaced free of charge. However, any travel, accommodation, and labor costs are entirely for the account of the Client. Regarding repair or overhaul work carried out by Elma, a six-month warranty is given after completion on the soundness of the execution of the assigned operations.
  2. The warranty obligation mentioned in Article 44 extends only to defects that were not reasonably observable at the time of completion and that manifest under normal operating conditions and with proper use of the work. It does not extend to defects resulting from insufficient maintenance by the Client, changes made without Elma’s written permission, or repairs carried out by the Client, nor to normal wear and tear or defects for which the Client is liable pursuant to Articles 17 to 19.
  3. To invoke the rights arising from Article 44, the Client must:
    – immediately notify Elma in writing of the observed defects;
    – make it plausible that the defects must be attributed to the poor quality or defective execution of the work or – if and insofar as the design of the work originates from Elma – are the direct result of a culpable error by Elma;
    – provide all cooperation to enable Elma to remove the defects within a reasonable period.
  4. Defective parts replaced by Elma pursuant to the warranty obligation become Elma’s property.
  5. If, in Elma’s opinion, the costs of repair are disproportionate to the Client’s interest in repair, the Client is entitled to compensation.

VIII LIABILITY

Before Completion
  1. Elma shall repair at its own expense damage to the work that occurred before the work was completed, unless this damage was not caused by Elma or it is otherwise unreasonable for this damage to be for its account, without prejudice to the provisions of Article 16.
  2. Elma is liable for damage suffered by the Client to persons and items other than the work, insofar as this damage was caused by the execution of the work and is the result of fault on the part of Elma or auxiliary persons engaged by Elma, if and insofar as this liability is covered by its insurance.
  3. The two preceding articles apply correspondingly if Elma performs work to fulfill its warranty obligations pursuant to Article 44.
After Completion
  1. After completion, Elma is not further liable for shortcomings in the work other than for the fulfillment of its warranty obligations described in Articles 44 to 48.
  2. Elma is otherwise only liable for damage suffered by the Client as a result of the defects referred to in Article 44, if and insofar as this liability is covered by its insurance.
Scope of Compensation
  1. If Elma is held to compensate the damage suffered by the Client pursuant to Articles 50 and 53, this compensation shall not exceed the total of the deductible amounts of its insurance and the payment made by the insurance. If Elma is not insured for the claimed damage, the compensation shall not exceed the consideration owed by the Client for the work performed by Elma.
  2. Elma is never liable for damage other than that referred to in the preceding articles that the Client may suffer.
  3. The limitations included in the preceding articles do not apply if the damage is the result of intent or gross negligence on the part of Elma or its management-level subordinates.
  4. Every claim for compensation or repair of damage suffered before or after completion expires if this claim is not made known at the latest on the day of completion or on the day the warranty period expires, respectively.
  5. The legal action for compensation or repair by the Client against Elma pursuant to these terms and conditions expires by the lapse of one year after the Client has protested in this regard.

IX FINAL PROVISION

  1. The agreement and all agreements arising therefrom are exclusively governed by Dutch law.
  2. All disputes that may arise as a result of agreements to which the present terms and conditions apply in whole or in part shall be submitted to the absolutely competent court in Utrecht, the Netherlands.