General Terms and Conditions of: 
Bermeltec B.V. trading as Europe Dairy Systems
Jupiterweg 32
3893 GD Zeewolde
Holland

Registration number at the Chamber of Commerce for Gooi-, Eem- and Flevoland: 301427300000

Article 1:          Applicability, Definitions

 

  1. These conditions are applicable to all offers and to all agreements of purchase and sale, rental and lease as well as all agreements for professional services, including all agreements for the installation of dairy systems, stable designs and related items, or all agreements for the performance of work for aforesaid installations, of Bermeltec B.V. trading as Europe Dairy Systems, established at Zeewolde, hereinafter to be referred to as “E.D.S.”.
  2. The purchaser, hirer or the client shall hereinafter be referred to as “the counter-party”.
  3. Under “writing" it is particularly understood in these General Terms and Conditions: by e-mail, by fax or any other means of communication which in view of the prior art and generally accepted standards can be considered the same.
  4. The drawings, calculations, designs, reports, recommendations and suchlike to be produced by E.D.S., or provided by or to be provided by or on behalf of the counter-party shall hereinafter be referred to as "the documents". Under “the documents” it is particularly understood in these General Terms and Conditions: written documents. The “written” documents shall also be understood to mean the works recorded on other media, such as computer disks, CD-ROMs, DVDs or whichever data carriers. All this, unless parties have explicitly agreed otherwise in writing.
  5. Any provisions that deviate from these conditions shall only form part of the agreements concluded between parties if and insofar as parties have explicitly agreed so in writing.
  6. Inapplicability of any (part of a) provision of these General Terms and Conditions shall not affect the applicability of the remaining provisions.
  7. If E.D.S. omits to require performance of what was agreed between parties at any time, this shall not affect E.D.S.'s right to require performance at a later date.
  8. The counter-party shall not be able to rely on the fact that the General Terms and Conditions were not made available if E.D.S. has made the same General Terms and Conditions available to the counter-party several times and has referred to them.

 

Article 2:          Agreements, Instructions

 

  1. The agreement shall come into effect at the time that E.D.S. has received a confirmation of the instruction in return signed by the counter-party.
  2. Oral agreements shall only bind E.D.S. after these have been confirmed in writing by E.D.S. or as soon as E.D.S. has made a start with the implementing acts with the consent of the counter-party.   
  3. Amendments to an instruction already given by the counter-party must occur in writing and be accompanied by a clear description of the changes. Amendments shall only be binding to E.D.S. if they have been confirmed in writing by E.D.S..
  4. Additions or amendments to the General Terms and Conditions or other amendments or additions to the agreement shall only be binding after written confirmation by E.D.S.

 

Article 3:          Offers, Proposals

 

  1. All offers, proposals, price or fee lists etc. of E.D.S. are without obligation, unless they contain a term for acceptance. If a proposal or offer contains an offer without obligation and this offer is accepted by the counter-party, E.D.S. shall be entitled to withdraw the offer within 2 working days after receipt of the acceptance. 
    1. Price and fee lists provided or shown by E.D.S. are subject to changes. No rights can be derived from these lists by the counter-party, unless a specific price or a specific fee has been explicitly agreed in writing with the counter-party.
    2. A composed quotation shall not oblige E.D.S. to supply or lease part of the items included in the offer or proposal, or to perform part of the instruction agreed against a corresponding part of the price.
    3. The prices, fees and/or delivery terms stated in the proposals or offers are based on the information provided by the counter-party when the instruction or order was given and the requirements made known. In the event that this information and these requirements are changed at a later stage, it may have consequences for the offered or agreed prices, fees and/or delivery terms.
    4. Offers, proposals, prices and fees shall not automatically apply to future instructions or future orders.
    5. Unless parties have explicitly agreed otherwise in writing, the offered prices shall never include:
      1. The costs for ground, cutting, breaking, carpentry, recovery or other constructional work;
      2. The costs for connecting gas, water, electricity or other infrastructural facilities;
      3. Any costs to prevent damage to items at the other parties’ premises during the carrying out of the agreed work;
      4. The costs for the temporary milk facility;
      5. The costs for dry storage and insurance of the materials from delivery up to and including their installation;
      6. The costs for loading or unloading the container(s) with the items to be delivered;
      7. The costs for discharging materials and waste.
  2. If the acceptance by the counter-party differs from the offer, E.D.S. shall not be bound to it. It then means that no agreement has come into effect, unless parties have explicitly agreed otherwise in writing.
  3. The samples and models shown and/or provided, examples of the documents as well as specified dimensions, capacities and weights as well as pictures and other descriptions in brochures, promotion material and/or on the E.D.S. website are as accurate as possible, but are given as indication only. It may happen that the actual performance differs from the aforesaid specifications, pictures and descriptions due to constructional changes. Therefore, no rights can be derived from this, unless parties have explicitly agreed otherwise in writing.
  4. The samples, models and examples referred to in the previous paragraph shall remain the property of E.D.S. at all times and must be returned on E.D.S.’s demand, unless parties have explicitly agreed otherwise in writing.

10.  E.D.S. shall assume no responsibility when submitting an offer for documents detailed by or on behalf of the counter-party and/or third parties, nor for any specifications of dimensions, sizes and materials possibly provided.

11.  E.D.S. is entitled to charge the costs related to the offer or proposal to the counter-party, provided that E.D.S. has notified the counter-party of these costs beforehand.

12.  If the counter-party does not accept an offer or proposal, it shall be obliged to return all documents supplied with the offer or proposal to E.D.S. on E.D.S.’s demand.

 

Article 4:          Prices, Fees, Expenses

 

  1. The amount to be charged as a fee for the work to be performed by E.D.S. to the counter-party is, unless parties have explicitly agreed otherwise in writing, calculated on a time-spent basis subject to the regular hourly fees of E.D.S.
  2. In the framework of these General Terms and Conditions the time-spent basis is also understood to mean the travelling time (hours spent travelling) in the framework of the execution of the agreement.
  3. The hourly fees apply on normal working days, which are understood to mean: Mondays to Fridays (with the exception of recognized public holidays) from 08.00 to 17.00 hours.
  4. If the work needs to be carried out beyond the working days referred to in paragraph 3 of this Article or if the services need to be supplied beyond the working days referred to in paragraph 3 of this Article and/or in the event of emergency work, E.D.S. shall be entitled to add a surcharge to the agreed or standard hourly fee.
  5. The prices and fees charged by E.D.S. as well as the prices or fees stated in the offers, proposals, price or fee lists are exclusive of Dutch VAT and any expenses. These expenses may include travel and accommodation expenses, transport costs, administration costs and expense claims from third parties engaged. All this, unless explicitly stated otherwise in writing.
    1. In the event of a dispute about the hours spent and/or the hours charged, the E.D.S. time recording shall be binding. All this unless the contrary is proved on the part of the counter-party.
    2. If between the date of concluding the agreement and the execution of the agreement changes are made in wages, employment conditions or social security and suchlike by the government and/or collective industrial organizations, or if the costs of components, materials and suchlike have increased, E.D.S. shall be entitled to charge on the increases arising from this to the counter-party.

Article 5:          Engagement of Third Parties

 

If and insofar as required for the proper execution of the agreement, E.D.S. shall be entitled to have specific deliveries made or work performed by third parties. All this at the discretion of E.D.S.

 

Article 6:          Obligations of the Counter-Party

 

  1. The counter-party must ensure that:
    1. Any information and approvals (such as licenses, exemptions and decrees and suchlike) required for the execution of the agreement shall be made available to E.D.S. in time and in the shape required by E.D.S.
    2. E.D.S. shall be given access to the location or the installation at which, in which or to which work needs to be performed during the working hours previously made known. The location or the installation must fulfil the statutory safety requirements and other government regulations;
    3. The data carriers, electronic files, software and suchlike provided to E.D.S. by the counter-party shall be free from viruses and/or defects;
    4. Third parties engaged by the counter-party shall perform the work or deliveries to be carried out by them in time and in such a way that E.D.S. shall not be hindered by this and shall not be delayed in the execution of the agreement.
    5. E.D.S. shall be warned within a reasonable period before the date on which the work should start in accordance with the agreement if E.D.S. cannot perform its work at the agreed period of time;
    6. E.D.S. shall have sufficient opportunity to supply, store and/or discharge materials and tools in time;
    7. The location where the work is to be performed shall be free from surplus materials.
    8. E.D.S. can dispose of connections for electricity, gas, water and suchlike possibly required being able to perform the work. The costs for these facilities shall be charged to the counter-party. Lost working hours due to water, gas or power failure shall be charged to the counter-party;
    9. E.D.S. shall have free access to toilets, cafeterias or canteens on or near the workplace;
    10. Sufficient facilities shall be available at the location concerned to collect waste;
    11. Other facilities reasonably required by E.D.S. and/or third parties engaged by E.D.S. shall be present at the counter-party's premises where E.D.S. and/or the third parties engaged need to perform work in the framework of the execution of the agreement, without them having to pay the cost involved;
    12. E.D.S. is familiar with the location of cables, pipes and suchlike at the location where the work needs to be performed;
    13. The location where equipment, machinery, materials and suchlike belonging to E.D.S. have to be stored or kept is such that no damage in whatever form and in whatever way can be caused and theft cannot occur.
  2. The counter-party is obliged to provide all information to E.D.S., which E.D.S. needs to be able to give adequate advice, in its own opinion, to the counter-party, in the required form and at a time to be decided later.
  3. The counter-party shall ensure that the information to be provided is correct and complete. The counter-party shall indemnify E.D.S. against consequences arising from the information being incorrect or incomplete.
  4. The counter-party shall inform E.D.S. in time about developments that are going on within its organisation and which are relevant or could be relevant to provide advice.
  5. E.D.S. shall treat the information provided by the counter-party in confidence and shall not make it available to third parties without the permission of the counter-party.
  6. The counter-party is liable for loss of and/or damage to the items, materials, tools and machinery and suchlike that E.D.S. has stored with the counter-party during the performance of the work.
  7. The counter-party permits E.D.S. to use its name and advertising material at the workplace or to attach it to the work.
  8. The counter-party shall make the stable available as a reference milking stable of “Dairymaster” or other installations supplied by E.D.S. and permits E.D.S. to use pictures of the installed machinery as promotion material.
  9. If the obligations under this Article are not complied with in time, E.D.S. shall be entitled to suspend the execution of the agreement until the moment that the counter-party has met its obligations. The costs related to the delay incurred or the costs to perform additional work or other consequences arising from this shall be at the expense and risk of the counter-party.

 

Article 7:          Delivery, Delivery/Completion Periods

 

  1. The periods specified within which the items or documents must be delivered or the work must be performed, can never be considered as strict deadlines, unless parties have explicitly agreed otherwise in writing. If E.D.S. fails to meet its obligations under the agreement in time, it shall have to be given notice of default in writing accordingly whereby E.D.S. shall be given a reasonable period to remedy the breach.
  2. In the event of delivery or performance of the work in stages, each delivery or stage shall be considered a separate transaction and may be invoiced by E.D.S. per transaction.
  3. The risk concerning the delivered items shall pass to the counter-party at the time of delivery. Under “delivery” it is understood in the framework of these General Terms and Conditions: The time at which the items leave the premises or the warehouse of E.D.S. or are ready for collection by the counter-party.
  4. Dispatch or transport of the items ordered shall occur in a manner to be decided by E.D.S., however at the expense and risk of the counter-party. All this, unless parties have explicitly agreed otherwise in writing.
  5. If it appears impossible to perform the work or to deliver the items or documents to the counter-party due to a reason within the sphere of the counter-party, E.D.S. shall remain the right to store the items or documents and/or materials purchased for execution of the agreement at the expense and risk of the counter-party. After storage, a period of 1 month shall be applicable within which the counter-party must enable E.D.S. to perform the work at a later date or to deliver the items or documents at a later date. All this unless E.D.S. has explicitly fixed a different period in writing.
  6. If the counter-party still fails to meet its obligations after expiry of the term referred to in paragraph 5 of this Article, the counter-party shall be in default and E.D.S. shall be entitled to fully or partially terminate the agreement in writing and with immediate effect, without prior or further notice of default, without judicial intervention and without being obliged to pay damages, costs and interest. E.D.S. shall then be entitled to sell the items and/or materials to third parties as well as to destroy the documents already produced.
  7. The aforesaid shall not affect the counter-party’s obligation to pay the agreed or stipulated or due price, as well as any possible storage and/or other costs.
  8. E.D.S. is entitled to request advance payment or security from the counter-party – in connection with the fulfilment of the counter-party’s financial obligations - before it proceeds to deliver or starts to perform the work.
  9. If the period, within which the work shall be completed, is expressed in working days, it shall be understood to mean calendar days not including weekend days or public holidays.

10.  If it is not possible to perform work for at least 5 hours respectively 2 hours on working days respectively half days by the majority of the employees or machines, due to circumstances that cannot be attributed to E.D.S., those days shall be considered as unworkable. The consequences arising from this, such as a delay in the completion or cost for the performance of additional work, shall be at the expense of the counter-party.

11.  If the work needs to be completed on a day that is not a working day, such as described in paragraph 9 of this Article, the next working day shall be the agreed day of completion.

12.  If E.D.S. is not able to complete the work within the fixed period due to force majeure or circumstances chargeable to the counter-party, E.D.S. shall be entitled to an extension of the period within which the work had to be completed, of such a duration as reasonably arises from the force majeure or the circumstances chargeable to the counter-party.

13.  If the start or the continuation of the work is delayed due to factors that shall be at the expense and risk of the counter-party, the costs and damage arising from this for E.D.S. must be compensated by the counter-party.

 

Article 8:          Progress, Execution of Agreement

 

  1. E.D.S. cannot be obliged to start to perform the work or deliver the items and/or documents until it has all essential information in its possession and has received any agreed (advance) payments. If delays should arise, the specified delivery/completion periods shall be adjusted accordingly.
  2. When the work or the deliveries cannot take place in a normal way or without interruptions by causes through no fault of E.D.S., E.D.S. shall be entitled to charge the costs arising from this to the counter-party.
  3. If it appears during the execution of the agreement that it is unfeasible - either as a result of circumstances unknown to E.D.S. or due to whatever force majeure – E.D.S. shall hold consultations with the counter-party about amending the agreement in such a way that the execution of the agreement will be possible. E.D.S. shall then inform the counter-party about any possible consequence that the amendment will have for the agreed prices or fees and/or the agreed delivery/completion periods. All this unless it is never possible to execute the agreement due to the unknown circumstances or force majeure.  E.D.S. shall then in any case be entitled to full compensation for the work already performed or deliveries already made by E.D.S.
  4. If additional or extra work needs to be performed (contract extras) – outside the agreed work – E.D.S. shall notify the counter-party thereof in writing and also specify which (additional) costs are involved.

 

Article 9:          Contract Variations

 

  1. Contract variations must be agreed between E.D.S. and the counter-party orally or in writing and be confirmed in writing if necessary.
  2. Settlement of contract variations shall in any case take place:
    1. In the event of amendments to the original instruction;
    2. In the event of unforeseen cost increases or decreases.
  3. The costs for the additional work shall be calculated by E.D.S. on the basis of the prices of the materials required for the additional work, components and suchlike as well as the standard fees of E.D.S. as applicable at the time of the carrying out of the additional work.
  4. The costs for less work shall be calculated by E.D.S. on the basis of the prices of the materials involved in the contract reductions, components and suchlike as well as the standard fees of E.D.S. as applicable at the time the contract came into effect.
  5. Settlement of contract variations shall occur at once upon payment, unless parties have explicitly agreed otherwise.

 

Article 10:        Rental and Lease of Movable Items

 

  1. This Article is applicable to each agreement for the lease of movable items concluded between E.D.S. and the counter-party or each agreement in which an element of lease or giving into use of the movable items is involved.
  2. The lease period, any price, any cancellation provision and specific arrangements with regard to the rented items shall be incorporated in the agreement.
  3. E.D.S. is entitled to establish a deposit which should be paid by the counter-party to E.D.S. before the start of the term of the lease.
  4. The rented item shall be delivered by E.D.S. to the counter-party and E.D.S. shall also collect the rented item at the counter-party, unless parties have explicitly agreed otherwise in writing.
  5. Delays that occur through no fault of E.D.S. during loading, unloading and transport as well as repairs as a result of negligence by the counter-party, are also included in the rental period.
  6. The counter-party must inspect the rented item for defects after receipt. Any defects must be notified to E.D.S. by the counter-party immediately. If defects are not notified, the rented item is considered to have been received in good order.
  7. The counter-party is obliged to maintain the rented item in good condition during the rental period and shall be liable for any damage arising during the rental period.
  8. The counter-party is obliged to return the rented item in the condition it was delivered, after expiry of the rental period.
  9. The counter-party is entitled to be present during the inspection to be carried out by E.D.S. at the end of the rental period. Any costs for loss, cleaning and repairs among other things, which are needed to put the rented item back to the condition it was in when received, shall be at the expense of the counter-party.

10.  The counter-party is not permitted to make changes to or on the rented item unless with the prior permission of E.D.S.

11.  Defects to the rented item as well as damage and loss or theft must immediately be notified to E.D.S. in writing stating all particulars.

12.  The damage may only be repaired by E.D.S. or with the explicit prior written permission and on instruction of E.D.S.

13.  The counter-party shall be due compensation, to be reasonably fixed by E.D.S.,  for any delay in returning the rented item after expiry of the agreed rental period, without prejudice to E.D.S.’s right to full compensation.

14.  The rented item shall remain the property of E.D.S. at all times. The counter-party is not permitted to grant any right to the rented item to third parties.

15.  The counter-party is not permitted to dispose of the rented item other than as a custodian on behalf of E.D.S. and he must at all times prevent that the expectation is raised or the impression is given to third parties that he is entitled to further disposal of the rented item.

16.  If the rented item is seized – including attachment to the property on the premises or if there is a grounded fear that such shall happen – the counter-party must immediately notify E.D.S. thereof.  Furthermore, the counter-party must immediately notify the seizor that the rented item is the property of E.D.S.

 

Article 11:        Completion, Approval and Defects Liability Period

 

  1. In view of the installation and other work to be performed by E.D.S., E.D.S. is obliged to inform the counter-party when the agreed work has been completed and the item and/or items on which the work was performed is or are ready for use.
    1. The work is deemed to have been completed in accordance with the agreement, if all has been made available to the counter-party in a ready-to-use condition, if the counter-party has inspected the work, and if the completion statement or workslip has been signed by the counter-party.
    2. The work is also deemed to have been completed in accordance with the agreement if the counter-party has taken the work – insofar as possible – into use and has not put in a complaint within a term of 2 weeks after the aforesaid notification stating that the work was and ready for use.
    3. Work not yet performed or not yet completed by third parties engaged by the counter-party, which would affect the appropriate use of the work, shall not affect the work agreed with the counter-party and performed by E.D.S. being ready for use.
    4. Small defects that can be repaired in a simple manner during the defects liability period agreed between parties, shall not be a reason to withhold approval, provided that these defects do not hinder that the work is put into use. If parties have not agreed a specific defects liability period, a defects liability period of 30 days after completion shall be applicable. E.D.S. is obliged to (have) repair(ed) defects which come to light during the defects liability period and are chargeable to E.D.S. as soon as possible.
    5. If the counter-party still finds defects, imperfections and suchlike with regard to the completed work after the completion referred to in this Article, the provisions under Article 12 of these General Terms and Conditions shall be applicable to these defects, imperfections and suchlike.

Article 12:        Complaints and Returns

 

  1. The counter-party is obliged to proceed to checking the items immediately upon receipt thereof. Any visible faults, errors, imperfections, defects, deviations in numbers as well as deviations with regard to the agreed quality requirements must be noted on the consignment note or on the accompanying note as soon as possible, yet to be reported to E.D.S. ultimately within 1 week after receipt of the items by a written confirmation thereof to E.D.S.
  2. Any fault, error, imperfection, defect in or on the items delivered and/or deviations with regard to the agreed quality requirements that cannot be detected by the counter-party immediately upon the inspection referred to in paragraph 1 of this Article must be notified by the counter-party to E.D.S. immediately after its discovery, followed by a written confirmation thereof. All consequences of not immediately reporting these are at the risk of the counter-party. These complaints must in any case be notified to E.D.S. within 1 year after delivery at the latest.
  3. Any visible errors and/or imperfections in documents delivered by E.D.S. which can reasonably be detected upon a first inspection of these documents must be notified to E.D.S. in writing within 1 week after receipt of these documents at the latest.
  4. Complaints relating to invoices of E.D.S. must be notified to E.D.S. in writing within 1 week after the invoice date. 
  5. Complaints in view of the work performed by E.D.S. must be notified to E.D.S. within 10 working days after performance of the work, followed by a written confirmation thereof.
  6. If the above-mentioned claims and/or complaints have not been made known to E.D.S. within the periods referred to above, the items or documents will be deemed to have been delivered in accordance with the agreement and/or the work will be deemed to have been performed in accordance with the agreement and the counter-party is deemed to have approved of the invoice.
  7. It's not possible to file complaints in view of the deviations permissible in the branch industry or technically unavoidable differences regarding quality, quantity, dimensions, colours, finishes, size finishes and suchlike.
  8. Claims or complaints shall not defer the payment obligation of the counter-party.
  9. E.D.S. has to be enabled to investigate the complaint. If it appears essential that the items must be returned for the benefit of the investigation of the complaint or if it appears essential that E.D.S. is given the opportunity to investigate the complaint on location, it shall only occur at the expense and risk of E.D.S. if the latter has explicitly agreed to this in writing beforehand.

10.  In all cases, returning the items shall take place in a manner to be determined by E.D.S. and in the original packaging or deposit packaging.

11.  If the items have changed in nature and/or composition after delivery or have been fully or partially treated or processed, any right of recovery shall have lapsed.

12.  In the event of justified claims and/or complaints the damage will be settled pursuant to the provisions referred to in Article 13 of these Terms and Conditions.

 

Article 13:        Liability and Guarantee

 

  1. E.D.S. discharges its duty as may be expected from a company in its branch of industry, however, E.D.S. disclaims any liability for damage, including loss of dependency, personal injury, consequential damage, trading loss, loss of profits and/or stagnation damage, which is the result of the acts or omissions of E.D.S., its staff or third parties engaged by it, unless it is against mandatory provisions to do so.  
  2. The liability restrictions included in this Article do not apply if the damage is due to intention and/or wilful recklessness by E.D.S., its board and/or its management.
  3. Subject to the provisions referred to in the other paragraphs of this Article, the liability of E.D.S., for whatever reason, is limited to the invoice amount of the items and/or documents delivered or the invoice amount of the work performed.
  4. Subject to the provisions referred to in the other paragraphs of this Article, the liability is limited to the amount of the payment to be granted by the insurer of E.D.S. if appropriate, insofar as E.D.S. is covered by insurance for this.
  5. E.D.S. guarantees that the items delivered and installed by it shall be free from design, material and production faults during a period of 3 years after completion/delivery. During the first year of this period a full guarantee shall be given, all essential repairs shall be for free. The time, labour costs and the costs for any replacement components shall be at the expense of E.D.S. During the second and third year only call-out charges and labour costs shall be charged to the counter-party, the costs for any replacement components shall be at the expense of E.D.S. Normal wear of plastics and mechanical components do not fall under the guarantee.
  6. If E.D.S. purchases materials, components and suchlike from third parties on the execution of the agreed work, E.D.S. shall rely on the information provided about this to E.D.S. by the producer or supplier of those materials, components and suchlike in view of the behaviours and characteristics of those materials, components and suchlike. Pursuant to the aforesaid E.D.S. is not liable for damage, of whatever nature, arisen in connection with or arising from incorrect information about the behaviours, characteristics and suchlike of the aforesaid materials, components and suchlike.
  7. The counter-party cannot derive any rights from recommendations, information and suchlike which it has received from E.D.S., which recommendations, information and suchlike is or are not directly related to the execution of the agreement.
  8. If visible errors, imperfections and/or defects occur in the items delivered which must have been there at the time of delivery, E.D.S. undertakes at its own discretion to replace or repair those items for free.
  9. E.D.S. shall not guarantee and shall never be deemed to have guaranteed that the delivered items are suitable for the purpose for which the counter-party wishes to use these or have them used, unless E.D.S. has explicitly confirmed this in writing to the counter-party.

10.  The counter-party shall lose its rights towards E.D.S., is liable for all damage and shall indemnify E.D.S. against any claim from third parties relating to damages if and insofar as:

  1. The above-mentioned damage has arisen due to unprofessional use and/or with instructions, advice and suchlike from E.D.S. contradictory to the use of the items delivered by the counter-party;
    1. The above-mentioned damage has arisen due to errors, incompleteness or incorrectness of details, materials, data carriers and suchlike, which have been provided or prescribed by or on behalf of the counter-party to E.D.S. (including recommendations, reports, document and suchlike from third parties);
    2. The above-mentioned damage has arisen because the counter-party provided insufficient or incorrect information to E.D.S. and E.D.S. has based and/or executed the deliveries or the work to be performed on the aforesaid information;
    3. The above-mentioned damage has arisen because the counter-party has installed the delivered items itself in its role as reseller of these items or had them installed;
    4. The above-mentioned damage has arisen because the counter-party in its role as reseller of the delivered items advised the end-buyer  incorrectly or incompletely about the use, maintenance and suchlike of the delivered items.

Article 14:        Payment

 

  1. E.D.S. is entitled to invoice the agreed payment to the counter-party for items to be delivered and/or installed by E.D.S. in the following manner:
    1. 10% of the agreed payment upon giving the instruction;
    2. 80% of the agreed payment upon delivery of the items or the materials required;
    3. 5% after completion of the tests to be carried out;
    4. 5% 14 days after the operational use of the installation.
  2. If the counter-party is a reseller, 20% of the agreed price must be paid upon the conclusion of the agreement, the remaining 80% must be paid upon delivery.
  3. Payment must take place within fourteen days after the invoice date, unless parties have explicitly agreed otherwise in writing.
  4. If one of the invoices has not been paid fully after expiration of the period referred to in paragraph 3:
    1. The counter-party shall have to pay to E.D.S. a default interest amounting to 2% per month to be calculated cumulatively on the principal sum. Parts of a month shall be counted as full months in this agreement;
    2. At the option of E.D.S., the agreement may be fully or partially terminated, whether or not combined with a claim for compensation, in preceding circumstances or corresponding circumstances, without further notice of default or judicial intervention being required.
    3. If the counter-party has not fulfilled its payment obligations in time, E.D.S. shall be authorised to suspend the fulfilment of the obligations entered into towards the counter-party to deliver and/or to perform the work until the payment has been made or proper security has been furnished to that end. The same is applicable prior to the moment of being in default if E.D.S. has reasonable suspicion that there are reasons to doubt the creditworthiness of the counter-party.
    4. Payments made by the counter-party always serve to settle all interest and costs due and then serve to settle the invoices due and payable that are outstanding longest, unless the counter-party explicitly states in writing upon payment that the settlement relates to a later invoice.
    5. If the counter-party, for whatever reason, has one or more counterclaims against E.D.S., the counter-party shall abandon its right to settlement. The aforesaid abandonment of the right to settlement also applies if the counter-party applies for a (temporary) moratorium or is declared insolvent.
  1. The counter-party shall, after having been demanded by E.D.S., be due at least 15% of the sum of the principal sum and the default interest with an absolute minimum of € 150,00 relating to extrajudicial costs;
  2. E.D.S. shall be entitled to charge to the counter-party an amount of at least € 20,00 relating to administration costs, for each payment reminder, demand and suchlike sent to the counter-party. E.D.S. shall state this in the agreement and/or on the invoice.

 

Article 15:        Intellectual Property Rights

 

  1. E.D.S. is and shall remain the party entitled to all intellectual property rights vested in or relating to or belonging to the items delivered by E.D.S. as well as all rights of intellectual property vested in or related to or belonging to the documents that are the basis thereof, irrespective of whether these items and/or documents have been developed by order of the counter-party.  All this, unless parties have explicitly agreed otherwise in writing.
  2. The exercise of the rights referred to in the previous paragraph have been explicitly and exclusively reserved for E.D.S. both before and after the delivery of the items or documents. The counter-party is in any case forbidden to multiply, to provide to third parties or to make  the documents available for inspection to third parties without the written permission from E.D.S., unless a necessity to this end arises from the nature of the agreement or the nature of the documents.
  3. By providing information/and or documents to E.D.S. the counter-party declares that no infringement is made on the copyright or any other intellectual property right of third parties and it indemnifies E.D.S. against all consequences at law and otherwise, both financial and other, that may arise from this.

 

Article 16:        Retention of Title

 

  1. E.D.S. shall retain title of the items delivered and to be delivered until the time that the counter-party has fulfilled all its payments obligations to E.D.S. related thereto. Those payment obligations consist of payment of the purchase price, multiplied by claims relating to activities performed in connection with that delivery, as well as claims relating to any damages due to the counter-party failing to meet its obligations.
  2. All E.D.S.’s items subject to retention of title may only be resold by the counter-party in the framework of the normal business operations.
  3. If E.D.S. relies on its retention of title, the agreement concluded to that effect will be considered as terminated, without prejudice to E.D.S.'s right to claim compensation, lost profit and interest.
  4. The counter-party is obliged to immediately notify E.D.S. in writing of the fact that third parties lay claim on items subject to retention of title pursuant to this Article.
  5. The counter-party is obliged to keep the items subject to retention of title with due care and recognisable as property of E.D.S. until the time at which the counter-party has fulfilled all its payment obligations towards E.D.S.
  6. The counter-party must insure and keep insured the items delivered subject to retention of title at least against fire, explosion and water damage as well as against all theft and destruction during the period that these items are subject to retention of title. The counter-party must make the policy of this insurance available for inspection on demand of E.D.S..

 

Article 17:        Premises

 

  1. Until the time at which the counter-party has fully fulfilled its payment obligations towards E.D.S., the counter-party shall not be authorised to:
    1. Give the items as security to third parties;
  2. Should the counter-party act in conflict with the previous paragraph, it shall be considered an attributable failure on its part. E.D.S. may then, without being obliged to any notice of default, suspend its obligations under the agreement or terminate the agreement, without prejudice to E.D.S.’s right to payment of damage, lost profit and interest.
  1. Vest a non-possessory pledge in the items;
  2. Bring items in the actual control of one or more financers for storage.

 

Article 18:        Bankruptcy, No Power of Disposition and Suchlike

 

  1. Subject to the provisions referred to in the other articles of these conditions, the agreement concluded between the counter-party and E.D.S. shall be terminated without judicial intervention or further notice of default being required, at the time that the counter-party:
    1. Is declared bankrupt;
  2. The provisions referred to in paragraph 1 of this Article are applicable, unless the guardian or the administrator recognises the obligations arising from the agreement as executor debts. 
  1. Applies for a (temporary) moratorium;
  2. Suffers executorial attachment;
  3. Is placed under guardianship or put under administration;
  4. Otherwise loses the power of disposition or legal capacity regarding its assets or parts thereof.

 

Article 19:        Force majeure

 

  1. In the event of force majeure, E.D.S. is entitled to terminate the agreement or to suspend the fulfilment of its obligations towards the counter-party for a reasonable term without being obliged to pay any compensation.
  2. Under “force majeure” is understood in the framework of these General Terms and Conditions: A non-attributable breach on the part of E.D.S., the third parties or suppliers engaged by it or another serious cause on the part of E.D.S.
  3. If force majeure occurs when only part of the agreement has been executed, the counter-party shall be obliged to fulfil its obligations towards E.D.S. until that moment.
  4. Circumstances which are considered force majeure include: War, riot, mobilisation, riots at home and abroad, government measures, strikes and lockouts by employees or a threat of these and other circumstances, disruption of existing exchange rates at the time the agreement was concluded, operational failures due to fire, natural phenomena and suchlike as well as by weather conditions, roadblocks, accidents and suchlike, transport problems arisen, delivery difficulties and problems upon the performance of the work.

 

Article 20:        Cancellation

 

  1. The counter-party relinquishes all rights to terminate the agreement in accordance with Article 6:265 et seq. of the Dutch Civil Code and other statutory provisions, unless it is against mandatory provisions to do so. All this is applicable subject to the right to cancel or terminate the agreement pursuant to the current Article.
  2. Under “cancellation” it is understood in the framework of these General Terms and Conditions: To terminate the agreement by one of the parties before the start of the execution of the agreement.
  3. Under “termination” is understood in the framework of these General Terms and Conditions: To terminate the agreement by one of the parties before the start of the execution of the agreement.
  4. If the counter-party terminates or cancels the agreement, it shall be due to E.D.S. a compensation to be further determined by E.D.S. The counter-party is obliged to compensate to E.D.S. all costs, damage as well as lost profit. E.D.S. is entitled to fix the costs, damage and lost profit and – at its discretion and dependent on the work already performed or deliveries made – to charge 20 to 100% of the agreed price to the counter-party.
  5. The counter-party is liable towards third parties for the consequences of the cancellation or termination and indemnifies E.D.S. for that purpose.
  6. Amounts already paid by the counter-party shall not be refunded.

 

Article 21:        Applicable Law/Competent Court

 

  1. The agreement concluded between E.D.S. and the counter-party is exclusively governed by Dutch law.  Any disputes arising from this agreement shall be settled by the Dutch court.
  2. Any disputes shall be settled by the competent Dutch court, although E.D.S. is entitled to take a matter to the competent court in the place where E.D.S. is established, unless the district court is competent in this matter.
  3. With regard to disputes arising from the agreement concluded with a counter-party established outside the Netherlands, E.D.S. is entitled to act in accordance with the provisions referred to in paragraph 2 of this Article or - at its choice - to take the matter to the competent court in the country or state in which the counter-party is located.

 Date: 1st of February 2010 

 

 

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