General terms and conditions of:

Europe Dairy Systems
Marconiweg 17
3899 BR  Zeewolde

Gooiland, Eemland & Flevoland Chamber of Commerce registration no. 30142730
Version 3.1, October 2015

 

Clause 1: Scope of application and definitions

  1. These terms and conditions apply to all offers and to all contracts of purchase and sale and to all hire agreements, as well as to all commission contracts, including under this all agreements for the installation of milking plant, stalls and cowshed equipment and related matters and/or to all agreements for the performance of work in relation to the aforementioned installations, by Europe Dairy Systems B.V., having its registered office in Zeewolde, referred to hereinafter as "EDS".
  2. The buyer, hirer and/or commissioning client will be designated hereinafter as "the other party".
  3. Use of the terms "written/in writing" in these general terms and conditions will also be taken to mean: by email, by fax or by any other means of communication which can be equated to this bearing in mind the state of technology and generally accepted opinion in society.
  4. The drawings, calculations, designs, reports, recommendations, etc. to be produced by EDS and/or furnished or to be furnished by or on behalf of the other party will be designated hereinafter as "the documents". The term "the documents" as used in these general terms and conditions is understood to mean written documents or records in particular. The term "written documents or records" is also understood to mean work set down by means of other media, such as computer disks, CD-ROM, DVD or any other type of data carrier. All the above applies unless the parties should expressly agree otherwise in writing.
  5. The commission or order placed by the other party will be taken as acceptance of the EDS general terms and conditions.

 

Clause 2: Deviation clauses

  1. Provisions that depart from these terms and conditions will form part of the agreement concluded between the parties only if and insofar as the parties have agreed to them expressly in writing.
  2. These general terms and conditions will prevail over the other party’s general terms and conditions if EDS has not expressly disclaimed their applicability. A referral by the other party to the other party’s own purchase conditions, conditions of tender or other terms and conditions will not be accepted by EDS and will be expressly rejected.
  3. Any instance where a (part of a) provision in these general terms and conditions might not be applicable is without prejudice to the applicability to the remainder of the provisions.
  4. The other party cannot invoke the fact that the general terms and conditions have not been submitted if EDS has already submitted and referred to the same general terms and conditions to the other party several times.
  5. EDS reserves the right to incorporate amendments to the general terms and conditions, especially if there should be reason to do so in light of new developments relating to the methods, technology and/or rates employed by EDS.

 

Clause 3: Offers, tenders

  1. All offers, tenders, price lists and/or lists of rates, etc. on the part of EDS are without prejudice and subject to contract unless they contain a period for acceptance. If an offer and/or tender contains an offer without prejudice and subject to contract, and if this offer is accepted by the other party, EDS will then be entitled to revoke the offer within 2 working days of receipt of such acceptance.
  2. Price lists and lists of rates as furnished or declared by EDS are subject to alteration. The other party cannot derive any rights from this unless a particular price or particular rate was expressly agreed with the other party in writing.
  3. A composite quotation does not oblige EDS to deliver and/or rent out a part of the goods concerned in the offer or tender, nor does it oblige EDS to perform a part of the agreed commission for an equivalent share of the price.
  4. Prices, rates and/or delivery periods in offers or tenders are based on information furnished and wishes expressed by the other party at the time of the commission or order. In the event that such information and wishes should be changed at a later date, this may have consequences on the quoted and/or agreed prices, rates and/or delivery periods.
  5. Offers, tenders, prices and rates do not apply automatically to future commissions and/or future orders.
  6. Unless expressly otherwise agreed in writing by the parties, a quoted price never includes:
    a) the cost of earthworks, demolition work, carpentry, repairs or other construction-related work;
    b) the cost of sewerage work and conduits;
    c) the cost of connecting gas, water, electricity or other infrastructure-related facilities;
    d) the cost of earthing the entire installation;
    e) any costs involved in preventing damage from being caused to property present at the other party’s premises during execution of the agreed work;
    f) the cost of temporary milk supply;
    g) the cost of provisions made for work activities in excess of 2.5 metres in height;
    h) the cost of dry storage and insurance of materials from the date of delivery up to and including the installation;
    i) the cost of loading and/or unloading the container(s) concerning the goods to be supplied;
    j) travel and subsistence expenses during assembly;
    k) the cost of setting out materials at the specified time and place in connection with assembly time;
    l) the cost of removing materials or waste.
  7. EDS will not be under contractual obligation should the other party’s acceptance depart from the offer. An agreement will not have concluded in such an event, unless the parties have expressly agreed otherwise in writing.
  8. Displayed and/or supplied samples and models, examples of the documents, as well as specifications of dimensions, capacities and weights, and including illustrations and other descriptions in brochures, promotional material and/or on the EDS website will be as precise as possible but serve only as an indication. Bearing construction alterations in mind, it may arise that the actual execution differs from the aforementioned specifications, illustrations and descriptions. No rights can be derived from this as a result, unless the parties have expressly agreed otherwise in writing.
  9. The samples, models and examples referred to in the previous paragraph will remain the property of EDS at all times and should be returned at the first request of EDS, unless the parties have expressly agreed otherwise in writing.
  10. When submitting an offer, EDS accepts no responsibility for the documents detailed by or on behalf of the other party and/or third parties, nor does it accept responsibility for any specifications of dimensions, sizes and materials submitted in that regard.
  11. EDS is entitled to charge the other party for the costs attached to the offer and/or tender, provided that EDS has given the other party advance notice in writing about such costs.
  12. If the other party should not accept an offer and/or tender, the other party is obliged at the first request of EDS to return to EDS all of the documents supplied for the offer and/or tender.

 

Clause 4: Agreements, commissions

  1. The agreement will be concluded as soon as EDS has received returned a signed confirmation of the commission.
  2. Verbal agreements will be binding on EDS once these have been confirmed in writing by EDS or once EDS has initiated execution of the work with the consent of the other party.
  3. If EDS should not issue any written confirmation, either the written instructions of the other party or else the delivery note or invoice from EDS will then serve as proof of the existence and of the content of the agreement subject to proof to the contrary.
  4. If EDS should at any time neglect to require fulfilment of whatever has been agreed between the parties, this is without prejudice to EDS being entitled to require such fulfilment nevertheless at a later time.
  5. Changes to a commission already submitted by the other party should be made in writing and should be accompanied with a clear description of the changes. Changes are binding on EDS only if these changes have been confirmed by EDS in writing.
  6. The risk of errors and/or inaccuracies in orders and commissions not confirmed in writing is entirely for the account of the other party. If orders and commissions confirmed in writing should contain errors and/or inaccuracies, EDS will be entitled to rectify them.

 

Clause 5: Execution of the agreement

  1. EDS cannot be obliged to commence with execution of the work and/or the delivery of the goods and/or documents until after all of the information necessary for this is in its possession and EDS has received any agreed (advance) payment. In the event of delays arising from this, the stated delivery (completion) period(s) will be readjusted in proportion.
  2. In the event that the work or deliveries cannot be performed as usual or without interruption through no fault of EDS, EDS is entitled to charge to the other party the costs arising from this.
  3. If, during execution of the agreement, the agreement should prove unfeasible – whether as a result of circumstances of which EDS was unaware, or owing to any form of force majeure whatsoever – EDS will enter into consultation with the other party concerning amendments to the agreement such that execution of the agreement should become possible. Further to this, EDS will notify the other party about any consequences that such amendment will have on the agreed prices and/or rates and/or on the agreed (completion) delivery periods. All of the above is notwithstanding an instance in which the execution of agreement can never be possible owing to unforeseen circumstances or force majeure. In such a case, EDS will be entitled in all events to remuneration in full for work and/or deliveries that EDS has already performed.
  4. If – beyond the scope of the agreed work – supplementary and/or additional work needs to be performed (extra work), EDS will notify the other party about this in writing and, moreover, will also state the (additional) costs that will be involved in that regard.

 

Clause 6: Engagement of third parties

If and insofar as proper execution of the agreement should so require, EDS is entitled to have third parties perform certain deliveries and/or work. All of this will be at the discretion of EDS.

 

Clause 7:Delivery

  1. Stated periods within which the goods and/or documents must be delivered and/or the work must be performed can never be regarded as firm dates, unless the parties have expressly agreed otherwise in writing. If EDS should fail to fulfil its obligations in the agreement or should fail to fulfil them on time, this should result in EDS being given notice of default, whereby EDS will nevertheless be given a further reasonable period within which to fulfil its obligations.
  2. In the event of delivery and/or execution of the work in parts, each delivery and/or phase will be regarded as a separate transaction and can be invoiced by EDS for each transaction.
  3. The risk relating to the delivered goods transfers to the other party at the time of delivery. The term delivery within the context of these general terms and conditions is understood to mean: the time at which the goods to be delivered depart the EDS premises or EDS warehouse or else are at the other party’s disposal awaiting collection.
  4. Dispatch and/or transport of the ordered goods will be performed in a manner to be determined by EDS, but this will be at the other party’s own expense and risk. The above will apply unless the parties should have expressly agreed otherwise in writing.
  5. If it should prove impossible to perform the work or to deliver the goods and/or documents to the other party owing to a cause originating within the scope of the other party, EDS reserves the right to store at the other party’s own expense and risk the goods and/or documents and/or materials purchased for the execution of the agreement. After placement in storage, a one-month period will apply within which the other party must put EDS in a position whereby it is able to resume performance of the work and/or once again to deliver the goods and/or the documents. The above will apply unless EDS has expressly established a different period in writing.
  6. If the other party should fail to fulfil its obligations even once the aforementioned period in paragraph 5 of this clause has lapsed, the other party will be in default and EDS will be entitled to dissolve the agreement in writing, either wholly or in part, with immediate effect, without prior or further notice of default, without judicial intervention and without obligation to pay compensation for loss, costs and interest. EDS will then be entitled to sell the goods and/or materials to third parties, as well as to destroy the documents already produced.
  7. The above is without prejudice to the other party’s obligation to pay the agreed and/or demanded and/or due price, as well as any storage and/or other costs.
  8. For the purpose of the other party’s fulfilment of its financial obligations, EDS has the authority to require advance payment or security on the part of the other party prior to proceeding with delivery and/or starting on the work to be performed.
  9. If the period within which the work is to be completed has been expressed in working days, this will be taken to mean calendar days not including Saturdays and Sundays or generally recognised public holidays.
  10. Working days and half working days on which work cannot be performed by the greater part of the employees or machinery throughout a minimum of 5 hours or 2 hours, respectively, as a result of circumstances non-attributable to EDS, will be regarded as impossible to work on. Consequences arising from this, such as a delay to (completion) delivery or costs for the performance of additional work, will be for the account of the other party.
  11. If completion of the work is scheduled to occur on a date that is not a working day such as described in Clause 7, paragraph 9, the next working day to follow this will apply as the agreed date of completion.
  12. If EDS is unable to complete the work within the stated period owing to force majeure or a circumstance on the other party’s account, EDS will be entitled to extend the period within which the work was to be completed by a period of duration commensurate with the force majeure or circumstance on the other party’s account.
  13. If the commencement or progress of the work is delayed owing to factors that are at the other party’s expense and risk, the other party should pay compensation to EDS for the costs and loss for EDS arising from such a delay.
  14. In no case will exceeding the agreed delivery period give entitlement to compensation, unless this has been agreed in writing.

 

Clause 8: Completion, approval and maintenance period

  1. In respect of the installation or other work to be performed by EDS, EDS is obliged to inform the other party that the agreed work has been completed and that the item and/or goods with regard to which work was performed is/are and/or have been made ready for use.
  2. The work will be deemed completed in conformity with the agreement if it has been placed at the disposal of the other party in its entirety and ready for use, if the other party has inspected the work and if the completion statement and/or job sheet has been signed for approval by the other party.
  3. The work is also deemed completed in conformity with the agreement if the other party has put the work into use – insofar as is possible – or if the other party has not submitted a complaint to EDS within a period of 2 weeks of the aforementioned notification that the work has been completed and is ready for use.
  4. Work by third parties engaged by the other party and not yet completed and/or not yet ended which affect proper use of the work will have no effect on work being declared ready for use in relation to work performed by EDS and agreed with the other party.
  5. Minor faults that can be rectified in a straightforward manner within a maintenance period agreed may not constitute any reason for withholding approval provided that such faults pose no obstruction to the work being put into any operational service. In the event that the parties have not agreed to any specific maintenance period, a 30-day maintenance period will apply following the date of completion. EDS is obliged to repair (or have repaired on its behalf) as soon as possible faults that become apparent during the maintenance period and are for the account of EDS.
  6. In the event that the other party should notice further faults, deficiencies, etc. in relation to the completed work following the completion referred to in this clause, the provisions in Clause 15 of these general terms and conditions will apply to such faults, deficiencies, etc.

 

Clause 9: Obligations on the part of the other party

  1. The other party should ensure that:
    a) any information and approvals required for the execution of the agreement (such as permits, exemptions and dispositions, etc.) are placed at the disposal of EDS on time and in the form requested by EDS;
    b) EDS is given access at the working hours announced in advance to the site and/or installation at which, in which or on which the work should be performed.  The site and/or location should comply with statutory safety requirements and other government regulations;
    c) the data carriers, electronic files, software, etc. furnished by the other party to EDS are free of viruses and/or defects;
    d) the third parties engaged by the other party perform the work and/or deliveries that they are to execute in such a manner and with such promptness that EDS is neither hindered by them as a result, nor experiences any delay in execution of the agreement;
    e) in the event that EDS may not perform its work at the agreed time, EDS is alerted within a reasonable period of time prior to the date on which work is set to commence according to the agreement;
    f) EDS can avail itself in due time of sufficient opportunities for the supply, storage and/or removal of materials and resources;
    g) the site where the work should be performed is free of superfluous materials;
    h) for the purpose of executing the work, EDS can avail itself of utility connection points for any electricity, gas, water, etc. such as may be required for the work. The cost of these facilities is for the account of the other party. Working hours lost as a result of water, gas or electricity outages will be for the account of the other party;
    i) EDS has free access to toilets, canteens or cafeterias at or near the work site;
    j) adequate facilities are available at the site concerned for the collection of waste;
    k) at the other party’s site where EDS and/or the third parties engaged by EDS should be performing work within the context of the execution of the agreement, miscellaneous other facilities are available such as requested in reasonableness by EDS and/or the aforementioned third parties without costs attaching to such facilities for them;
    l) EDS is updated about the position of cables, pipes, etc. at the site where the work must be executed;
    m) the location where equipment, machinery, materials, etc. brought by EDS must be stored or stowed is of such a nature that neither damage, whatever its form and whatever its cause, nor theft can occur.
  2. The other party is obliged to furnish EDS with all of the information required by EDS in order for EDS in its view to provide the other party with effective recommendations, furnishing such information in the desired form and at a time to be subsequently determined.
  3. The other party will ensure that the information to be furnished is correct and complete. The other party indemnifies EDS for consequences arising from the incorrectness and/or incompleteness of the information.
  4. The other party will notify EDS promptly about current developments within the other party’s organisation and about those that are or may be of relevance with regard to recommendations.
  5. EDS will treat the information entrusted to it by the other party with confidentiality and will not place it at the disposal of third parties without the consent of the other party.
  6. The other party is liable for loss of and/or damage to the goods, materials, equipment and machinery, etc. that EDS has placed in storage at the other party’s premises during execution of the work.
  7. The other party will ensure that the rooms in which the dairy technology is installed are kept frost-free between milking and flushing times. The lowest temperature in the building will be no lower than 0°C.
  8. The other party will permit EDS to install nameplates and advertising at the work site or to attach such to the work.
  9. The other party will make the shed available as a reference milking shed made by "Dairymaster". This applies equally to other installations supplied by EDS.
  10. The other party will permit EDS to use photographs of the installation(s) as promotional material.
  11. If the obligations referred to in this clause are not fulfilled on time, EDS will be entitled to suspend execution of the agreement until such time as the other party does fulfil the obligations. Costs in connection with the incurred delay, or costs for the performance of additional work, or else for other consequences arising from this, will be at the expense and account of the other party.

 

Clause 10: Contract variations in respect of work

  1. Contract variations in respect of work should be agreed verbally or in writing between EDS and the other party, and, if necessary, should be confirmed in writing.
  2. In all cases, the settlement of contract variations will occur:
    a) in the event of changes to the original commission;
    b) in the event of unforeseeable increases or reductions.
  3. The cost of additional work will be calculated by EDS based on the price of the materials, components, etc. involved in the additional work, as well as based on the customary rates employed by EDS such as apply at the time of executing the additional work.
  4. The cost of a reduction to work will be calculated by EDS based on the price of the materials, components, etc. involved in the reduced  work, as well as based on the customary rates employed by EDS such as applied at the time of concluding the agreement.
  5. Settlement of contract variations will occur immediately by means of payment, unless the parties have expressly agreed otherwise in writing.

 

Clause 11: Hire and renting out of moveable property

  1. This clause applies to every agreement concluded between EDS and the other party for the hire of moveable property and/or to every agreement containing an element of hire and/or loan of moveable property.
  2. The hire period, the price such as the case may be, any cancellation provisions and specific arrangements in relation to the hired property will be included in the agreement.
  3. EDS is entitled to set a deposit that must be paid to EDS by the other party prior to commencement of the hire period.
  4. This deposit will be returned to the other party at the end of the hire period, subject to deduction of anything that the other party still owes to EDS pursuant to the hire agreement.
  5. The hired property will be placed by EDS at the other party's disposal at the premises of EDS, or by means of delivery at the address agreed by EDS and the other party.
  6. EDS will deliver the hired property to the other party, and EDS will also collect the hired property from the other party again, unless the parties have expressly agreed otherwise in writing.
  7. The stated date of delivery is an approximation only. EDS can never be held liable for exceeding the date of delivery.
  8. Delays not attributable to EDS, arising during loading, unloading and transport, as well as repairs resulting from negligence on the part of the other party, are also included under the hire period.
  9. At the time that the hired property is made available, or at least immediately thereafter, the other party should inspect the hired property carefully for its reliability, soundness and completeness. Should the other party discover defects or deficiencies further to this, the other party should report this in writing to EDS within no more than two working days of the discovery. Defects that the other party has not discovered promptly, because of the other party's failure to perform the aforementioned inspection and failure to report this promptly in writing to EDS, cannot constitute any ground for a reduction of the rent, dissolution of the hire agreement or compensation for loss.
  10. The other party is obliged to inform EDS about the location where the hired property is located; the property may not be moved by the other party.
  11. The other party is obliged to keep the hired property in good condition throughout the hire period and is responsible for damage arising to it during the hire period.
  12. The other party is obliged to return the hired property in the condition in which it was supplied following termination of the hire period.
  13. The other party is entitled to be present at the inspection to be conducted by EDS at the end of the hire period. Any costs for matters including loss, cleaning and repair, which are necessary in order to return the hired property to the condition in which it was received by the other party will be for the account of the other party.
  14. The other party is not permitted to introduce changes to the hired property other than with the prior written consent of EDS.
  15. Defects in the hired property, as well as damage and loss and/or theft, should be reported to EDS in writing without delay, submitting a statement of all the particulars.
  16. Repairs to damage may be performed only by EDS, unless with express prior consent in writing and according to the instructions of EDS.
  17. The other party is obliged to keep the hired property in good condition throughout the hire period. The other party should purchase original components for service and have servicing performed by a dealer approved by EDS. This servicing should be performed in conformity with the EDS maintenance schedule.
  18. For as long as the hired property is located at the agreed address, the other party is obliged to insure the hired property with a respectable firm against all insurable loss and to maintain such insurance until return of the hired property to EDS. The rights of the other party in respect of the insurer arising from this contract of insurance will be supplied to EDS by the other party in advance.
  19. During the hire period, all risk to the hired property will rest with the other party, including insofar as the hired property might be wholly or partially under the control of a third party.
  20. The other party will be liable to pay compensation for every delay to the return of the hired property following termination of the agreed hire period, which compensation is to be determined in reasonableness by EDS without prejudice to the entitlement of EDS to compensation in full.
  21. The hired property will remain the property of EDS at all times. The other party is not permitted to furnish third parties with any rights to the hired property.
  22. EDS has the right to inspect the hired property (or to have it inspected) at any time. At all times, the other party is obliged to lend full cooperation with this.
  23. The other party is forbidden from availing itself of the hired property other than as its custodian on behalf of EDS, and at all times the other party should prevent expectations from being raised or the impression from arising among third parties that the other party has the authority otherwise to dispose of the hired property.
  24. In the event of attachment of the hired property - including under this fiscal attachment of the property found on the premises or if good reason should exist that such action is to occur - the other party should report this to EDS without delay. Furthermore, the other party should notify the judgment creditor immediately that the hired property is the property of EDS.
  25. Should the other party not have paid within the agreed period, the other party will be deemed to be in default by operation of law and, without any notice of default being so required, EDS will be entitled to compensation for the interest on the outstanding sum equal to 1.5% a month starting from the due date. The daily interest will be calculated pro rata.
  26. At all times, extrajudicial costs will be equal to at least 15% of the overdue payment, with a minimum sum payable of € 300.00, this being in addition to the costs as referred to in Clause 11.25.
  27. Loss of the hired property: if, during the course of the agreement, the hired property is lost or the other party loses control over the hired property, whatever the cause may be of such loss or loss of control, the other party should notify EDS about this immediately. The other party is obliged to compensate EDS within eight days for the loss that EDS suffers as a consequence of this. The loss will be calculated on the basis of replacement value. The other party should also make payment to EDS of the rent up to the end of the hire period as referred to in the hire agreement, including under this any extensions. In the event that an offence is involved, the other party promises to make a report immediately to the competent authorities subject to submission of a copy of the report to EDS.
  28. In the event of premature termination of the agreement, the rent instalments will be due up to the end of the term of the contract unless agreed otherwise.

 

Clause 12: Third-party clause

  1. The other party recognises and, insofar as it should be necessary, agrees that the ownership of the hired property can (come to) rest with a third party or that the hired property can be pledged to a third party as security for the payment of any claim that such a third party has or might have against EDS.
  2. Notwithstanding the existence of the present hire agreement, the other party will surrender the hired property to the third party on first request without the other party being able to invoke any right of retention in that regard, if and once the third party demands surrender of the hired property on the ground of non-compliance with an obligation in respect of the third party. As a consequence of this demand, the present hire agreement will be dissolved by operation of law with immediate effect. The aforementioned surrender should be performed at the offices of the third party or at a location indicated by that third party.
  3. If the situation under paragraph 12.2 should arise and the third party should wish to continue with the use of the hired property, the other party will be obliged at the third party's first request to conclude a hire agreement with the third party for the remainder of the term of the present hire agreement and under identical conditions.
  4. The parties rule out entirely the applicability of Articles 7:226 and 7:227 of the Netherlands Civil Code.
  5. The third-party clause included above in paragraphs 12.1 to 12.5 inclusive cannot be revoked by either the other party or EDS.

 

Clause 13: Prices, rates, costs

  1. Unless expressly agreed otherwise in writing by the parties, the sum charged to the other party as a fee for work performed by EDS will be calculated on the basis of the number of hours worked, applying the customary hourly rates employed by EDS.
  2. Within the context of these general terms and conditions, the term ‘number of hours’ worked is also understood to mean the journey time incurred (hours taken while travelling) by EDS within the context of executing the agreement.
  3. The hourly rates apply to normal working days, which are taken to mean: Monday to Friday inclusive (with the exception of generally recognised public holidays) from 8.30 am until 5.00 pm.
  4. In the event that work activities are intended to take place outside of the working days as referred to in paragraph 3 of this clause, and/or the services are intended to be supplied outside of the working days referred to in paragraph 3 of this clause and/or in the event of urgent assignments, EDS is entitled to add a surcharge to the agreed and/or customary hourly rate.
  5. The prices and/or rates employed by EDS, as well as the prices and/or rates referred to in the offers, tenders, price lists and lists of rates, do not include VAT or any costs. Such costs may include items such as travel and subsistence expenses, transport costs, administration expenses and declarations of engaged third parties. All the above will apply, unless expressly stated otherwise in writing.
  6. In the event of disagreement about the number of hours worked and/or charged, the hours recorded by EDS on its timesheets will be binding. All the above will apply subject to proof to the contrary on the part of the other party.
  7. If, between the date of concluding the agreement and its execution, the government or trade unions should bring changes to the wages, terms and conditions of employment or social insurance schemes, etc. or if the cost of components, materials, etc. should rise, EDS will be entitled to pass on to the other party the increases arising from this.

 

Clause 14: Payment

  1. EDS is entitled to invoice the other party in the manner as follows below with regard to the agreed fee for goods to be supplied and/or to be installed:
    a) 15% of the agreed fee at the time of assigning the commission/order;
    b) 75% of the agreed fee on delivery of the goods and/or required materials;
    c) 10% when milking commences.
  2. If the other party is a retailer, 10% of the agreed price should be paid on concluding the agreement, and the remaining 90% should be paid on delivery.
  3. Payment should be made within 14 days of the invoice date, unless the parties have expressly agreed otherwise in writing.
  4. If an invoice has not been paid in full following expiry of the period referred to in paragraph 3:
    a) the other party will be liable to pay to EDS interest for overdue payment amounting to 2% per month over the principal calculated cumulatively. Parts of a month will be calculated in this regard as whole months;
    b) and after EDS has requested payment from the other party in that regard, the other party will be liable to pay at least 15% of the principal in respect of extrajudicial costs and the interest for overdue payment amounting to a sum no lower than an absolute minimum of € 150.00. If the Extrajudicial Collection Costs (Standardisation) Act should apply, the percentages deriving from that Act will be in force;
    c) EDS will be entitled to charge the other party for each sent reminder of payment, demand, etc. amounting to a sum of at least € 20.00 in respect of administration costs. EDS will state this in the agreement and/or on the invoice.
  5. At the discretion of EDS, the agreement can be dissolved either wholly or in part under the above or comparable circumstances and without further notice of default or judicial intervention, whether combined with a demand for compensation or otherwise.
  6. If the other party has not met its payment obligations on time, EDS is authorised to suspend performance of its obligations entered into in respect of the other party for the purpose of supplying and/or performing work until payment has been made or proper security for such payment has been furnished. The same applies even before defaulting on payment occurs if EDS has reasonable grounds to doubt the creditworthiness of the other party.
  7. Payments made by the other party will always go towards settlement of all due interest and costs, and subsequently they go towards settlement of due and payable invoices which have been outstanding the longest, unless the other party expressly states in writing at the time of payment that the settlement relates to a more recent invoice.

 

Clause 15: Set-off

  1. Set-off and/or suspension by the other party is expressly ruled out, unless EDS has granted its express consent to the other party in that regard.

 

Clause 16: Claims and goods returned

  1. The other party is obliged to proceed with inspection of the goods immediately upon taking receipt for them. Any visible defects, faults, deficiencies, flaws, anomalies in terms of quantities, as well as anomalies in relation to the agreed quality requirements should be recorded where possible on the consignment note and/or receipt, and should be reported to EDS no later than 1 week after receipt of the goods, followed by written confirmation of this to EDS.
  2. Any defects, faults, deficiencies, flaws in or to the delivered goods and/or anomalies in relation to the agreed quality requirements that cannot be identified immediately by the other party at the time of inspection referred to in paragraph 1 of this clause should be reported to EDS by the other party immediately upon their discovery, followed by written confirmation of this. Any consequences arising from failure to report such instances immediately are at the other party’s own risk. In all cases, these claims should be reported to EDS no later than 1 week after delivery.
  3. Any visible faults and/or deficiencies in documents supplied by EDS, which can be identified in reasonableness at the time of an initial inspection of such documents, should be reported to EDS in writing within 1 week of receipt of these documents.
  4. Claims in respect of invoices from EDS should be reported to EDS in writing within 1 week of the invoice date.
  5. Complaints in respect of the work performed by EDS should be reported to EDS no later than 10 working days afters execution of such work, followed by written confirmation of this.
  6. If EDS has not been informed about the aforementioned claims and/or complaints within the periods of time as stipulated, the goods and/or documents will be regarded as having been received in good condition and to have been supplied in accordance with the agreement and/or the work will be regarded as having been performed in accordance with the agreement and/or the other party will be regarded as having approved the invoice.
  7. No claims are possible in respect of anomalies regarded in the sector as admissible or technically unavoidable in terms of quality, quantity, dimensions, colours, finish, finished size, etc.
  8. Claims and/or complaints do not exempt the other party from the obligation to pay.
  9. EDS should be given the opportunity to investigate the complaint. If it should prove necessary for the goods to be returned for the purpose of investigating the complaint, or if it should prove necessary for EDS to be given the opportunity to investigate the complaint on site, this will be performed solely at the expense and risk of EDS, if EDS has expressed its express consent to this in advance in writing.
  10. In all cases, the return of goods will be made in a manner to be determined by EDS and in the original packing and/or packaging.
  11. If, following their return, the goods are found to have been altered in nature and/or composition or else have been adapted or converted either wholly or in part, any right to claim back goods will be void.
  12. In the event of justifiable claims and/or complaints, the loss will be settled pursuant to the provisions in Clause 16 of these terms and conditions.

 

Clause 17: Liability and warranty

  1. EDS discharges its duties as might be expected of a company in its sector, but it accepts no liability whatsoever for loss, including loss resulting from death and injury, consequential loss, trading loss, loss of profit and/or stagnation loss, which is the result of action or negligence on the part of EDS, its personnel or third parties that it has engaged, unless mandatory provisions should dictate otherwise.
  2. The limitations on liability included in this clause do not apply if the loss can be attributed to an intentional act and/or conscious recklessness on the part of EDS, its board of directors and/or its managerial staff.
  3. Notwithstanding the provisions in the other paragraphs of this clause, the liability of EDS, whatever its nature, is limited to the invoice amount for the supplied goods and/or documents or, as the case may be, the invoice amount for executed work.
  4. Without prejudice to the provisions in the other paragraphs of this clause, liability is limited at all times to no more than the amount of the payment to be issued by the insurer of EDS in such cases as arise, insofar as EDS is insured in that regard.
  5. EDS guarantees that the goods which it supplies and installs will be free of design, material and manufacturing faults throughout a period of 1 year following (completion) delivery. A full warranty applies throughout this period; all necessary repairs are free of charge. The time involved in this, labour costs and the cost of any replacement parts will be for the account of EDS. Normal wear and tear of synthetic materials and mechanical components do not come under this warranty. This warranty lapses when no original brand components are in use, when no regular maintenance is being undertaken and/or when the maintenance is not being undertaken by a dealer or service point recognised by EDS.
  6. EDS is not responsible for external magnetic interference fields affecting automatic recognition devices for cows and will pass on to you any costs arising from this.
  7. The use of generator sets and/or other temporary electrical facilities for the milking installation is not permitted. The other party will lose its rights in respect of EDS, will be liable for all loss and indemnifies EDS against all third-party claims in respect of compensation.
  8. If EDS should involve materials, components, etc. from third parties when executing the agreed work, then with regard to the behaviour and properties of these materials, components, etc., EDS will rely on the information that has been furnished to EDS by the manufacturer or supplier of such materials, components, etc. Pursuant to the above, EDS is not liable for loss, whatever its nature, arising in connection with or stemming from incorrect information concerning the behaviour, properties, etc. of the aforementioned materials, components, etc.
  9. The other party cannot derive any rights from recommendations, information, etc. that the other party has received from EDS where such recommendations, information, etc. do not have any direct relationship to the execution of the agreement.
  10. If visible faults, deficiencies and/or flaws should be evident in the supplied goods which must have been present at the time of delivery, EDS undertakes, at its own discretion, to repair such goods free of charge or else to replace them.
  11. EDS does not guarantee and can never be regarded as having guaranteed that the supplied goods are suitable for the purpose for which the other party wishes to use them or to have them used, unless EDS has expressly confirmed this in writing to the other party.
  12. All forms of guarantee are void in the event that the other party incorporates non-original components in products supplied by EDS without the written consent of EDS.
  13. The other party will lose its rights in respect of EDS, will be liable for all loss and indemnifies EDS against all third-party claims in respect of compensation if and insofar as:
    a) the aforementioned loss has arisen as a result of the other party’s inexpert use of the supplied goods and/or use conflicting with instructions, recommendations, operating instructions, etc. from EDS;
    b) the aforementioned loss has arisen as a result of faults, deficiencies or inaccuracies in information, materials, data carriers, etc. that have been provided and/or prescribed (including under this recommendations, reports, documents, etc. from third parties) by the other party or on its behalf to EDS;
    c) the aforementioned loss has arisen owing to the other party having furnished EDS with inadequate or incorrect information, and EDS has based and/or executed the deliveries and/or the work to be performed on the aforementioned information;
    d) the aforementioned loss has arisen owing to the other party having installed these goods itself or else having had them installed in its role as a retailer of the supplied goods;
    e) the aforementioned loss has arisen owing to the other party having incorrectly or incompletely advised the end user about the use, maintenance, etc. of the supplied goods in its role as a retailer of the supplied goods.

 

Clause 18: Intellectual property rights

  1. EDS is and remains the party entitled to all intellectual property rights that are vested in and/or are connected with and/or belong to the goods supplied by EDS, as well as all intellectual property rights that are vested in and/or are connected with and/or belong to the documents forming the basis of this, regardless of whether these goods and/or documents have been developed on the instructions of the other party. The above will apply, unless the parties have expressly agreed otherwise in writing.
  2. Exercise of the rights referred to in the previous paragraph is reserved expressly and exclusively for EDS both before as well as after delivery of the goods and/or documents. In all cases, and unless with the express written consent of EDS, the other party is forbidden from duplicating, furnishing to third parties or allowing third parties to inspect the documents, unless an emergency should so require, arising from the nature of the agreement or the nature of the documents.
  3. By furnishing EDS with information and/or documents, the other party declares that there is no infringement of copyright or any other third-party intellectual property rights and also indemnifies EDS judicially and extrajudicially against all consequences that (might) arise from this, whether financial or otherwise.

 

Clause 19: Retention of title (not applicable to and excluded from the hire agreement)

  1. EDS retains right of ownership to the goods delivered and to be delivered up until the date on which the other party has met all of its payment obligations in respect of EDS connected with such goods. These payment obligations consist of payment of the purchase price plus claims in respect of work performed in connection with such deliveries, as well as claims in respect of any compensation owing to failures on the part of the other party to perform its obligations.
  2. Goods in which retention of title is vested may be resold by the other party only within the context of the normal conduct of business.
  3. In the event that EDS should invoke the retention of title, the agreement concluded in that respect will be deemed dissolved without prejudice to the right of EDS to claim compensation for loss, loss of profit and interest.
  4. The other party is obliged to inform EDS immediately in writing in cases where third parties lay claim on goods in which pursuant to this clause retention of title is vested.
  5. Up until the date on which the other party has met all of its payment obligations in respect of EDS, the other party is obliged to act with due care as custodian of the goods in which a retention of title is vested, ensuring they are recognised as the property of EDS.
  6. With regard to the goods that have been delivered under retention of title, the other party should ensure that they are insured and remain insured against, at the least, fire damage, explosion damage and water damage, as well as against theft and destruction, throughout the period that the retention of title remains vested in these goods. The other party should submit this insurance policy for inspection at the first request of EDS.

 

Clause 20: Pledge

  1. Up until the date on which the other party has met its payment obligations in full in respect of EDS in connection with goods, the other party will not be authorised:
    a) to pledge the goods to third parties;
    b) to establish a non-possessory right of pledge on the goods;
    c) to place the good for storage under the de facto control of one or more financiers.
  2. If the other party should act in breach of the previous paragraph, it will be considered an attributable failing on the other party’s part. Without being obliged to issue any notice of default, EDS can then suspend its obligations in the agreement or else dissolve the agreement, without prejudice to the right of EDS to compensation for damage, loss of profits and interest.

 

Clause 21: Bankruptcy, lack of authority to dispose of property, etc.

  1. Without prejudice to the provisions in the other clauses of these terms and conditions, the agreement concluded between the other party and EDS will be dissolved without judicial intervention and without any notice of default being required on the date on which:
    a) the other party is declared to be in a state of bankruptcy;
    b) the other party applies for a (provisional) suspension of payments;
    c) execution is levied against the other party;
    d) the other party is placed under tutelage or under administration;
    e) the other party otherwise loses the authority to dispose of property or capacity to contract in relation to the other party’s assets or parts thereof.
  2. The stipulations in paragraph 1 of this clause will apply, unless the bankruptcy trustee or administrator recognises the obligations stemming from the agreement as claims against the estate.

 

Clause 22: Force majeure

  1. In the event of instances of force majeure, EDS is entitled to dissolve the agreement or else to suspend its obligations in respect of the other party for a reasonable period without being liable for any compensation.
  2. Force majeure within the context of these general terms and conditions is understood to mean: a non-attributable failing on the part of EDS, on the part of third parties or suppliers engaged by EDS or some other serious cause on the part of EDS.
  3. If an instance of force majeure arises when the agreement has been executed in part, the other party is obliged to perform its obligations up to that time in respect of EDS.
  4. Instances of force majeure are understood to include such circumstances as: war, riot, mobilisation, internal or foreign civil commotions, government measures, strike action and lockouts by employees or the threat of this and of similar circumstances, disturbance to the exchange rates existing at the time of entering into the agreement, interruption of operations owing to fire, natural phenomena, etc., as well as owing to weather conditions, roadblocks, accidents, etc., transport problems that have arisen, delivery problems and problems in executing the work.

 

Clause 23: Dissolution and cancellation

  1. The other party waives all rights to dissolve the agreement pursuant to Article 6:265 et seq. of the Netherlands Civil Code or other statutory regulations, unless mandatory provisions should dictate otherwise. The above will apply without prejudice to the right to cancel and/or to give notice to terminate the agreement pursuant to the present clause.
  2. Cancellation within the context of these general terms and conditions is understood to mean: termination of the agreement by one of the parties prior to commencing execution of the agreement.
  3. Notice to terminate within the context of these general terms and conditions is understood to mean: the termination of the agreement by one of the parties after commencing execution of the agreement.
  4. In the event that the other party gives notice to terminate and/or cancels the agreement, the other party will be liable to pay compensation to EDS yet to be determined by EDS. The other party is obliged to compensate EDS for all costs, loss and loss of profit. EDS is entitled to fix the costs, loss and loss of profit and – at its discretion and depending on the work already performed and/or deliveries already made – to charge the other party 20 to 100% of the agreed price.
  5. The other party is liable for the consequences of the cancellation and/or notice of termination in respect of the third parties, and the other party indemnifies EDS in that regard.
  6. Sums already paid by the other party will not be refunded.

 

Clause 24: Applicable law/competent court

  1. Dutch law applies exclusively to the agreement concluded between EDS and the other party. Disputes arising from this agreement will also be settled according to Dutch law.
  2. In departure from the provisions in paragraph 1 of this clause, the consequences pertaining to property law of a retention of title for goods intended for export, in the event that the judicial system in the country and/or state for which the goods are destined is more favourable for EDS, will be governed by that country and/or state’s law.
  3. Any disputes will be settled by the competent court in the Netherlands, albeit that authority is conferred upon EDS to bring a matter before the competent court in the town/city where EDS has its registered office, unless the subdistrict court should have jurisdiction on the matter.
  4. In relation to disputes arising from an agreement where the other party to the agreement has its registered office outside of the Netherlands, EDS is entitled to act pursuant to the provisions in paragraph three of this clause or – at the discretion of EDS – to bring the disputes before the competent court in the country and/or state where the other party has its registered office.

 

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