Terms of Delivery General terms of delivery and payment terms of AAA Lab Service B.V., deposited with the Chamber of Commerce 67434193 on 27-01-2017. Article 1 Definitions 1. In these terms of delivery, the terms below have the following meaning unless explicitly indicated otherwise: a. AAA Lab Service B.V.: the user of these terms of delivery (hereinafter: AAA Lab ); b. The Customer: the counterparty of AAA Lab, whether or not acting in the exercise of a profession or business; c. The Parties: The Customer and AAA Lab; d. Agreement: an agreement between the Customer and AAA Lab. Article 2 Applicability 1. These general terms of delivery shall apply to every offer, quotation, confirmation of order and every agreement between AAA Lab and the Customer unless these conditions have explicitly been deviated from by the Parties in writing. If the provisions of the agreement between the Parties conflict with these conditions, the provisions of the agreement take precedence over the provisions of these conditions. 2. The applicability of any other conditions by the counterparty are explicitly rejected. 3. The current conditions shall also apply to all agreements with AAA Lab, of which the execution requires the involvement of third parties. 4. If, at any time, one or more provisions of these conditions shall become invalid or void, the other provisions of these conditions shall continue to be fully applicable. AAA Lab and the Customer shall then consult with each other for the purpose of agreeing on new provisions that retain the objective and the essence of the original provisions to replace the invalid or voided provisions. 5. If there is confusion with respect to the explanation of one or more provisions of these terms of delivery, the provision should be interpreted in the spirit of these terms of delivery. 6. If AAA Lab does not require strict adherence to these conditions, this does not mean that its provisions do not apply or that AAA Lab would lose the right to require strict adherence to the provisions of these conditions in other cases. Article 3 Quotations and offers 1. All quotations and offers by AAA Lab shall be non-binding, unless a time period for approval has been set in the quotation. A quotation or offer shall lapse if the service or the product to which the quotation or offer is applicable is no longer offered or available. Offers or quotations do not automatically apply to future orders. 2. AAA Lab cannot be held to its quotation or offer if the Customer can reasonably understand that the quotation or offer, or a part of it, contains an obvious error or clerical error. 3. The prices listed in the quotation or offer are in Euros and exclude VAT and other levies by the government, any costs to be made in the context of the agreement, including costs for travel, accommodation, shipping and administration, unless indicated otherwise. 4. Any import rights/ levies shall be for the expense of the Customer. 5. If the approval, whether on minor points or not, deviates from the offer included in the quotation or offer, AAA Lab shall not be bound by it. The agreement will therefore not be made in accordance with this non-standard approval unless AAA Lab accepts this modified approval as a new offer. 6. A composite price quotation does not require AAA Lab to execute a part of the order at a price that is in agreement with the relevant part of the specified price.
Article 4 Advice and information provided 1. The Customer cannot derive any rights from advice and information acquired from AAA Lab if it has no relevance to the agreement. 2. If the Customer provides AAA Lab with data, drawings and such, AAA Lab may assume the correctness and completeness of these in the execution of the agreement. 3. The Customer indemnifies AAA Lab for any claim by third parties with respect to the use of advice, drawings, calculations, designs, materials, samples, models and such provided by or on behalf of the Customer. Article 5 Delivery date / implementation period 1. If a period has been agreed upon or specified for the execution of certain activities or for the delivery of certain goods, it shall never be a strict deadline. When a period is exceeded, the Customer shall put AAA Lab in default in writing, by which AAA Lab shall be offered a reasonable period in which to execute the agreement nevertheless at a later date. 2. In determining the delivery date and/or implementation period, AAA Lab shall assume that it may still execute the order under the circumstances known to it at that time. 3. The delivery date and/or implementation period commence(s) only once all commercial and technical details have been agreed upon, all necessary data, final and approved drawings and such are in the possession of AAA Lab, the agreed upon (periodic) payment has been received and the necessary condition for the execution of the agreement has been fulfilled. 4. If: a. there are circumstances other than those that were known to AAA Lab when it determined the delivery date and/or implementation period, it may extend the delivery date and/or implementation period with the time needed to execute the agreement under these circumstances. If the activities cannot be implemented into the Customer s schedule, the activities shall be executed as soon as its schedule allows it; b. there is additional work, the delivery date and/or implementation period shall be extended with the time that AAA Lab requires to deliver or have delivered the materials and parts and to execute the additional work. If the additional work cannot be implemented into the Customer s schedule, the activities shall be executed as soon as its schedule allows it; c. there is postponement of obligations on the part of the Customer, the delivery date and/or implementation period shall be extended by the duration of the postponement. If the continuation of the activities cannot be implemented into the Customer s schedule, the activities shall be executed as soon as its schedule allows it; 5. The Customer shall be required to pay for all costs that AAA Lab incurs as a result of a delay in the delivery date and/or implementation period as specified in paragraph 4 of this article. 6. At no time shall exceeding the delivery date and/or implementation period give entitlement to compensation or termination unless explicitly agreed upon in writing by the Parties. Article 6 Amendment to agreement 1. Should it become apparent during the execution of the agreement that a modification or supplement of the agreement is necessary in order to execute it properly, the Parties shall consult with each other with regard to the amendment to and/or modification of the agreement in a timely fashion. 2. In the event the nature, scope or content of the agreement is modified, whether or not at the request of or instructions by the Customer, the authorised bodies, etc., and the agreement is modified qualitatively and/or quantitatively, this may have consequences for that which was agreed upon originally. Because of this, the original amount agreed upon may be increased or decreased. To the best of its ability, AAA Lab shall submit an estimate of this in advance.
3. An amendment to the agreement may also result in a change in the period of delivery and/or implementation originally specified. 4. The Customer shall accept the possibility of amendment to the agreement, which may include an amendment in price and period of delivery and/or implementation. If the agreement is amended, including a supplement, then AAA Lab shall be entitled to execute it only after it has been approved by the AAA Lab person authorised to do so and the Customer has approved of the price specified for the delivery and/or implementation and other conditions, which in that case would include the time, yet to be determined, at which it would be implemented. Not implementing the amended agreement or not implementing it immediately shall not entail a breach of contract on the part of AAA Lab nor shall this be grounds for the Customer to cancel the agreement. Article 7 Amendments to prices 1. AAA Lab may pass on an increase of cost-determining factors that arose after the conclusion of the agreement to the Customer. 2. The Customer shall be required to comply with the increase in price as referred to in paragraph 1 of this article at one of the times listed below selected by AAA Lab: a. at the time that the price increase occurs; b. at the time of payment of the principal sum; c. at the first following agreed upon payment period. Article 8 Amendments to the provision of services 1. Amendments to the provision of services shall in any event result in additional or less work if: a. there is an amendment to the design, the specifications or the tender; b. the information provided by the Customer does not correspond with actual facts; c. the estimated quantities vary more than 10%. 2. Additional work shall be calculated on the basis of the price-determining factors that apply at the time that the additional work is carried out. Less work shall be calculated on the basis of the price-determining factors that applied at the time at which the agreement was concluded. 3. The Customer shall be required to comply with the increase in price as referred to in paragraph 1 of this article at one of the times listed below selected by AAA Lab: a. at the time that the price increase occurs; b. at the time of payment of the principal sum; c. at the first following agreed upon payment period. Article 9 Execution of the provision of services 1. The Customer shall ensure that AAA Lab can execute its activities undisturbed and at the time agreed upon and that, in carrying out its activities, it and/or its employees have access to the necessary provisions, such as: a. gas, water and electricity; b. heating; c. dry storage space that can be locked; d. provisions required on the basis of the Working Conditions Act (Arbowet) and relevant regulations. 2. The Customer shall bear the risk and shall be liable for damage in connection with loss, theft, fire and damage of goods belonging to AAA Lab, the Customer and third parties, such as tools, materials intended for the provision of services that are located where the activities are being executed or at another agreed upon location. 3. The Customer shall be required to insure itself adequately against the risk listed in paragraph 2 of this article. The Customer must provide AAA Lab with a copy of the relevant insurance and a proof of payment of the premium upon initial request. If there is damage, the Customer shall be required to report this forthwith to its insurer for further handling and settlement.
4. If the Customer does not perform its obligations as specified in the previous paragraphs of this article and the execution of the activities is delayed because of this, the activities shall be executed as soon as the Customer does perform all of its obligations and AAA Lab s schedule allows this. The Customer shall be liable for all damage on the part of AAA Lab arising from the delay. Article 10 Force Majeure 1. These terms of delivery understand force majeure to mean, in addition to that which is included in the law and case law, all causes that originate externally, whether or not anticipated, by which AAA Lab is unable to perform its obligations. This includes job strikes in AAA Lab s company or companies of third parties. AAA Lab shall also be entitled to invoke force majeure if the circumstance that impedes (further) compliance with the agreement occurs after AAA Lab should have executed the contract. 2. AAA Lab shall not be required to perform any obligation toward the Customer if it is impeded by force majeure. Throughout the period that the force majeure continues, AAA Lab may postpone the obligations arising from the agreement. If this period lasts for more than two months, each of the parties shall be entitled to terminate the agreement without any obligation to compensate the other party for damage. 3. Insofar as AAA Lab has in part performed or shall perform its obligations arising from the agreement at the time when the situation of force majeure occurs, and that part performed or to be performed respectively is of independent value, AAA Lab shall be entitled to invoice the part performed. The counterparty shall be required to pay this invoice as if there was a separate agreement. Article 11 Transfer of risk 1. The risk of loss, damage or depreciation shall be transferred to the Customer at the time that goods are transferred by AAA Lab to the control of the Customer. 2. Regardless of the provision in paragraph 1 of this article, the Customer and AAA Lab may agree that the Customer provide the transport. In that case, the risk of loading and unloading, storage and transport lies with the Customer. The Customer can insure itself against these risks. 3. If a trade-in is involved and the Customer continues to hold the goods to be traded in pending delivery of the new goods, the risk in relation to the goods to be traded shall continue to be borne by the Customer until the time at which they are transferred to the possession of AAA Lab. If the Customer is unable to deliver the goods to be traded in in the condition in which they were when the agreement was concluded, AAA Lab may terminate the agreement. Article 12 Premature termination of agreement 1. AAA Lab shall be entitled to postpone performing the obligation or to terminate the agreement if: a. The Customer does not perform the obligations of the agreement, does not perform them in full or does not perform them in a timely fashion; b. After the conclusion of the agreement, it has come to AAA Lab's notice that circumstances give it good reason to fear that the Customer will not perform its obligations; c. When concluding the agreement, the Customer was requested to provide security for the performance of its obligations and the agreement and that security remains forthcoming or is insufficient. 2. In the event that AAA Lab can no longer be required to perform the agreement under the conditions originally agreed upon due to the delay on the part of the Customer, AAA Lab shall be entitled to terminate the agreement.
3. AAA Lab shall also be entitled to terminate the agreement if circumstances are such that compliance with the agreement is impossible or if other circumstances are such that an unmodified sustainment cannot be expected on the part of AAA Lab. 4. If the agreement is terminated, AAA Lab s claims on the Customer shall be immediately due and payable. 5. If AAA Lab postpones compliance with the obligations, it retains its claim based on the law and agreement. 6. If AAA Lab proceeds with postponement or termination, it shall in no way whatsoever be required to compensate damage and costs that result from that in any way whatsoever. 7. If termination is attributable to the Customer, AAA Lab shall be entitled to compensation for damage, including costs, that arises directly and indirectly as a result. 8. If the Customer does not perform its obligations that arise from the agreement and this nonperformance justifies termination, AAA Lab shall be entitled to terminate the agreement forthwith and with immediate effect without any obligation on its part to pay any compensation for damages or other compensation whereas the Customer, on the basis of breach of contract, shall be required to pay compensation for damages or other compensation. 9. In the event of liquidation, (a request for) moratorium of payment or bankruptcy, of attachment at the expense of the Customer, of debt restructuring or any other circumstance by which the Customer no longer has free access to its property, AAA Lab shall be free to terminate the agreement forthwith and with immediate effect or to cancel the order or agreement without any obligation on its part of payment for any compensation for damages or other compensation. In that event, AAA Lab s claims on the Customer shall be immediately due and payable. Article 13 Payment and collection costs 1. Payment must take place within 14 days after the invoice date (= due date) by means of a legal method of payment at the office of AAA Lab or by transfer of the amount due to a bank or giro account under the name of AAA Lab. AAA Lab shall be entitled to invoice periodically. 2. AAA Lab shall always be entitled to invoice the Customer for an advance payment. The advance payment paid by the Customer shall be settled with the final invoice. 3. If the Customer defaults on the timely payment of an invoice, the Customer shall be in default by operation of law. The Customer shall then owe interest at the rate of 1% per month, unless the commercial interest rate pursuant to Article 6:119a of the Dutch Civil Code is higher, in which case the commercial interest rate is owed. The interest on the amount payable shall be calculated as from the time that the Customer is in default up until the time of payment of the entire amount owed. 4. AAA Lab shall be entitled to use the payments made by the Customer first to settle costs, then the interest that has fallen due and finally the principal and current interest. 5. The Customer shall never be entitled to settlement and/or compensation of the amount it owes to AAA Lab. 6. Objections against the amount of an invoice do not postpone the obligation of payment. The Customer that does not appeal to section 6.5.3 (Article 231 to 247 of Book 6 of the Dutch Civil Code) shall not be entitled to suspend the payment of an invoice for any other reason. 7. If the Customer is in default with respect to (the timely performance of) its obligations, all reasonable costs incurred to acquire an out-of-court settlement shall be for its expense. The out-of-court costs shall be calculated on the basis of that which is customary in debt collection practice in the Netherlands. If AAA Lab has incurred higher than reasonably necessary costs to collect payment, the actual costs incurred shall be eligible for compensation. Possible execution and judicial costs will also be invoiced to the Customer. The Customer shall also owe interest over the collection costs. Article 14 Title retention
1. All goods supplied by AAA Lab within the framework of the agreement shall remain the property of AAA Lab until the Customer has properly performed all obligations under the agreement(s) with AAA Lab. 2. Goods supplied by AAA Lab that are subject to the title retention under article 14.1 may not be resold and may never be used as a means of payment. The Customer shall not be entitled to pledge goods or mortgage them in any way if they are subject to title retention. 3. The Customer must always do that which can be reasonably required to protect AAA Lab s property rights. 4. If third parties impound goods supplied that are subject to title retention, or intend to establish or claim rights to such goods, the Customer shall be required to inform AAA Lab immediately. 5. The Customer shall be required to insure the goods subject to title retention and to keep them insured against fire, explosive and water damage as well as theft, and the policy of this insurance must be provided upon initial request by AAA Lab. In case of any possible payment on the insurance, AAA Lab shall be entitled to this insurance money. Insofar as required, the Customer shall undertake in advance to cooperate with AAA Lab in all that may (prove to) be necessary or desired in that context. 6. In the event AAA Lab wishes to exercise its property rights specified in this article, the Customer shall grant AAA Lab and third parties indicated by AAA Lab unconditional and irrevocable consent in advance to enter all locations where the property of AAA Lab can be found and to retrieve those goods. Article 15 Complaints and guarantee 1. The goods to be delivered by AAA Lab shall comply with the customary standards and requirements that can reasonably be made of them at the time of delivery and for which they are intended in normal use. The guarantee specified in these terms of delivery applies to goods that are intended for use within the Netherlands. For use outside of the Netherlands, the Customer itself shall verify whether their use is suitable for the use there and complies with the conditions imposed in the country concerned. In that event, AAA Lab may set other guarantees and other conditions in respect of the goods to be supplied or the activities to be performed. 2. The Customer shall be required to inspect the purchased goods carefully immediately after accepting delivery, with the Customer either inspecting the goods itself or commissioning a third party to act on the Customer s instructions to inspect them. 3. Complaints with respect to the delivery of the performance concerned or the goods must be submitted to AAA Lab in writing within 8 days after delivery, in the absence of which any claim by the Customer towards AAA Lab shall lapse. In order to process the complaint, it is necessary that the nature of the complaint be explained in detail. The assessment of the merits of the complaint lies entirely with AAA Lab. The Customer must grant AAA Lab the opportunity to investigate a complaint or have it investigated. 4. A complaint by the Customer regarding hidden defects must be made within 10 days after they could have been discovered or could reasonably have been discovered, but within 6 months at the latest following delivery. 5. All rights to submit a claim for damage compensation are invalid and lapse if the goods have been transported, handled, processed or stored by or on behalf of the Customer in a defective manner or in conflict with AAA Lab s instructions. 6. If the complaint has merit, it can only lead to the agreed upon performance being delivered. There can never be delivery of more than what was agreed upon. 7. The submission of a complaint can never postpone the Customer s payments obligation. 8. The goods delivered can only be returned after explicit prior written consent of AAA Lab, subject to such terms and conditions as set by AAA Lab. 9. A guarantee shall be issued for the goods and activities provided by AAA Lab under the following conditions.
a. A guarantee shall concern manufacturing errors only. No guarantee shall be issued for products that show defects as the result of wear and tear, use or incorrect use. b. No shall a guarantee be issued if goods have been amended by parties other than AAA Lab. c. For parts that have been delivered by third party suppliers and not by AAA Lab, the guarantee period shall be only that which the third party supplier issues to AAA Lab. 10. The Customer must deliver the goods eligible for replacement or repair at its own expense and risk to the address provided by AAA Lab unless otherwise agreed upon in writing. Any costs for disassembly or hoisting and lifting are for the expense of the Customer. 11. A guarantee shall be issued for a period to be agreed upon at a later date. If no period has been agreed upon, a period of 1 month shall apply. 12. The ownership of parts replaced by the guarantee shall go to AAA Lab. 13. If the Customer does not perform all obligations agreed upon with AAA Lab, AAA Lab shall not issue a guarantee up until the time that the Customer does perform its obligations toward AAA Lab. Article 16 Liability 1. If AAA Lab could be liable for any damage suffered, this liability shall be restricted to that which is arranged in this provision. 2. AAA Lab shall not be liable for damage of any kind whatsoever that arises because AAA Lab has made use of data provided by or on behalf of the Customer that is incorrect and/or incomplete. 3. If AAA LAB could be liable for any damage, then the liability of AAA Lab shall be restricted to the invoice value of the order, or at least to that part of the order to which the liability pertains. 4. AAA Lab's liability shall in any event always be restricted to the amount paid by its insurer in the relevant case. 5. AAA LAB shall be liable only for direct damage. By direct damage is meant: a. Reasonable extra costs in addition to the costs agreed upon in the agreement incurred by the Customer to have AAA Lab's performance conform to the agreement; however, this replacement damage shall not be compensated if the agreement has been terminated by or at the suit of the Customer; b. reasonable costs incurred to determine the cause and scope of the damage insofar as the determination is related to direct damage in the sense of these conditions; c. reasonable costs incurred to prevent or restrict the damage insofar as the Customer demonstrates that these costs have led to the restriction of direct damage in the sense of these conditions. 6. AAA Lab shall never be liable for indirect damage, consequential damage, lost profits, lost savings, loss of goodwill, damage through business interruptions, damage caused by claims from the Customer s customers, damage connected with the Customer s use of goods or materials prescribed by AAA Lab and damage relating to the suppliers that the Customer has instructed AAA Lab to use is excluded, including damage that was suffered by third parties in the first instance. Article 17 Intellectual and industrial property rights 1. All intellectual and industrial property rights with regard to delivered goods and/or all related know-how remain with AAA Lab or third parties holding title and, due to the agreement between the Parties, do not transfer to the Customer, not even if the accepted goods or associated know-how have been designed, developed or built specifically for the Customer. 2. The Customer shall warn AAA Lab immediately if it has knowledge of third parties infringing or threatening to infringe on AAA LAB's industrial or intellectual property rights or know-how or if third parties believe that AAA Lab's goods infringe on their own intellectual and industrial property rights and/or know-how.
Article 18 Indemnification 1. The Customer shall be required to indemnify AAA Lab for any claims by third parties to compensation for damage for which AAA Lab's liability is excluded in these conditions in relation to the Customer. 2. If AAA Lab does receive a claim by third parties, the Customer shall be required to assist AAA Lab with both extrajudicial and judicial support and act forthwith as may be expected from it in such case. In the event the Customer continues to default in taking adequate measures, then AAA Lab shall be entitled, without notice of default, to do so itself. All costs and damage that arises on the part of AAA Lab and third parties because of this shall be entirely for the expense and risk of the Customer. Article 19 Applicable right and disputes 1. All legal relationships in which AAA Lab is a party shall be governed exclusively by the law of the Netherlands, even if a contract is executed abroad in its entirety or in part or if the party involved in the legal relationship resides there. The Vienna Sales Convention is also excluded. 2. With respect to disputes that arise from or are related to an agreement to which these conditions apply, the court in The Hague shall have exclusive jurisdiction. 3. The Parties shall only submit a dispute to the court after they have done their utmost to resolve a dispute in mutual consultation. Article 20 Location and amendment to conditions 1. These conditions have been deposited with the Chamber of Commerce 67434193. The last deposited version, or the version that was valid at the time of the conclusion of the legal relationship with AAA Lab, shall always be applicable. 2. AAA LAB shall be entitled to introduce amendments to these conditions and shall inform the Customer of these amendments in a timely fashion.