GENERAL TERMS AND CONDITIONS
February 1, 2021
EDS-Mechanical Solutions (EDS) and the customer or person or entity purchasing services (the Services) and products required for or designed as a result of Services (the Products) from EDS is referred to as the Buyer. Unless otherwise provided herein, the term Services include the term Products. Affiliate is herein referred to as a company which is directly or indirectly controlled by the ultimate parent company of EDS and which supplies Services and Products to EDS. These Services Terms and Conditions, any price list or schedule, quotation, acknowledgment, EDS’s scope of work, or invoice from EDS relevant to the provision of Services and all documents incorporated by specific reference herein or therein, constitute the complete and exclusive statement of the terms of this agreement (the Agreement) governing the sale of Services and Products by EDS to Buyer and any contrary terms and conditions from Buyer shall not apply, unless otherwise agreed in writing by EDS. EDS reserves the right in its sole discretion to refuse orders. The Agreement shall become effective only on the date of EDS’s acknowledgement order of Buyer’s order.
These General Terms and Conditions apply in addition to the De Nieuwe Regeling (DNR 2011). However, in the event of any conflict between these General Terms and Conditions and the DNR 2011, these General Terms and Conditions will prevail. The Buyer is deemed to be familiar with the DNR 2011. The DNR 2011 has been filed with the registry of the District Court in Amsterdam under number 78/2011 on 3 July 2013. The DNR 2011 is available for inspection at the office or can be sent by post or e-mail on request.
Unless otherwise specified in writing by EDS, the price quoted or specified by EDS for the Services and Products shall remain in effect for thirty (30) days after the date of EDS’s quotation, EDS’s scope of work or acknowledgment of Buyer’s order for the Services and Products, whichever occurs first, provided an unconditional authorization from Buyer for the performance of the Services and Products is received and accepted by EDS within such time period. If authorization is not received by EDS within such thirty (30) day period, EDS shall have the right to change the price for the Services and Products. All prices are exclusive of taxes, which are to be borne by Buyer. Unless otherwise specified by EDS, all Services and Products will be furnished at EDS’s then prevailing prices.
Any current or future tax or governmental charge (or increase in same) affecting EDS’s costs of Services or costs of production, sale, delivery or shipment of Products, or which EDS is otherwise required to pay or collect in connection with the provision of Services and Products, shall be for Buyer’s account and shall be added to the price or billed to Buyer separately, at EDS’s election.
3. TERMS OF PAYMENT
Unless otherwise specified by EDS, terms of payment are thirty (30) days from date of EDS’s invoice in currency specified by EDS. EDS shall have the right, among other remedies, either to terminate this Agreement or to suspend further performance under this Agreement and/or other agreement with Buyer in the event Buyer is or in EDS’s reasonable opinion Buyer is likely to become in default with payment under this Agreement or any other agreement and under the same conditions require reasonable security for payment or advance payment for future Services and all other confirmed Service and Product orders not yet rendered. Buyer shall be liable for all expenses, including attorneys’ fees, relating to the collection of past due amounts. If any payment owed to EDS is not paid when due, it shall bear interest, at a rate in accordance with applicable law from the date on which it is due until it is paid.
4. SHIPMENT AND DELIVERY
While EDS will use all reasonable commercial efforts to maintain the performance dates acknowledged or quoted by EDS, all performance dates are approximate and not guaranteed. EDS, at its option, shall not be bound to tender delivery of any Products for which Buyer has not provided shipping instructions and other required information. If the provision of Services or shipment of the Products is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse EDS for any and all storage costs and other additional expenses resulting therefrom. Any and all costs for delivery are for the Buyer. Notwithstanding the above, risk of loss and legal title to Products shall transfer to Buyer (i) when delivered by the individual providing the Services, or (ii) at the time Products are placed in storage due to Buyer’s delay or postponement. Any claims for shortages or damages suffered in transit are the responsibility of Buyer and shall be submitted by Buyer directly to the carrier.
Without receipt by EDS of a written notice or a stamped return receipt within two (2) weeks after delivery, Products delivered to Buyer on trial are deemed to be delivered definitively. EDS will not take back any Product (supplied on trial) that has been treated or manipulated in any manner by Buyer. In the event EDS provides any goods to Buyer in connection with the execution of the Agreement, EDS shall remain owner of such goods. Buyer will take the utmost care of such goods. This means among other things that the Buyer shall refrain from any conduct that may lead to loss of those goods (for example by specification, accession, amalgamation or otherwise), or taxation or encumbrance with rights of third parties, or damages of such goods. Buyer shall insure such goods, mentioned in the previous two sentences, at its own expense under the usual conditions against any damage arising as a result of total or partial loss or damage, irrespective of the cause. Buyer shall use these goods at its own risk, for the purpose for which they were made available. This means among other things that EDS is not liable for damages – in any form and for whatever reason – which the Buyer sustains as a result of use, unless the damage is a result of intentional or deliberate recklessness of EDS.
5.LIABILITY FOR DEFECTS
Subject to the limitations of section 6, EDS warrants that it will perform the Services and design the Products as described in this Agreement and will exercise all reasonable skill, care and due diligence in the performance of the Services and shall perform the Services in accordance with professional practice. Minimal, in the industry or technically unavoidable deviations in quality, color, size or finish are not considered to be a defect and are not grounds for rescission or damages. EDS warrants that all Services and/or Products performed shall be free from all defects in workmanship for a period of ninety (90) days from completion of Services and/or Products. To the extent assignable, EDS assigns to Buyer any warranties that are made by manufacturers and suppliers of Products. The sole and exclusive remedy for breach of contract or any warranty hereunder shall be limited to, at EDS’s sole option, either correct performance for that portion of the services found by EDS to be defective or refund of the price paid for services. The warranty set forth in this section 5 is the sole and exclusive remedies of Buyer and warranties given by EDS with respect to the Services and Products and are in lieu of and exclude all other remedies and warranties, express or implied, arising by operation of law or otherwise. Upon lapse of the ninety (90) warranty period any and all costs for repair and/or replacement shall be invoiced to Buyer.
This warranty does not extend to any losses or damages due to misuse, accident, abuse, neglect, normal wear and tear, negligence (other than EDS’s), unauthorized modification or alteration, use beyond rated capacity, unsuitable power sources or environmental conditions, improper installation, repair, handling, maintenance or application or any other cause not the fault of EDS. To the extent that Buyer or its agents have supplied specifications, information, representation of operating conditions or other data to EDS that is used in (i) the selection and execution of the Services and/or Products and (ii) the preparation of EDS’s quotation and/or scope of work, and in the event that actual operating conditions or other conditions differ from those represented by Buyer, any warranties or other provisions contained herein that are affected by such conditions shall be null and void.
Buyer assumes all other responsibility for any loss, damage, or injury to persons or property arising out of, connected with, or resulting from the use of Services or Products, either alone or in combination with other Products.
6. LIMITATION OF LIABILITY
Except for willful misconduct or gross negligence of EDS’s executive management: (i) EDS’s and its Affiliates’ total liability for any and all damages, claims or causes of action howsoever arising (including, without limitation, damage, claims or causes of action by virtue of tort, by breach of contract, warranty statutory duty, negligence, strict liability or infringement of Patent and Copyrights) shall not exceed the price paid by Buyer for the specific Services performed ; and (ii) EDS and its Affiliates shall not be liable to Buyer in any circumstances for any consequential or indirect loss or damages which shall include, but not be limited to, loss of anticipated profits, business interruption, loss of use, revenue, reputation and data, costs incurred, including without limitation, for capital, fuel, power and loss or damage to property or equipment.
Buyer expressly acknowledges and agrees that EDS has set its prices and entered into this Agreement in reliance upon the limitations of liability and other terms and conditions specified herein, which allocate the risk between EDS and Buyer and form a basis of this bargain between the parties.
7. INTELLECTUAL PROPERTY RIGHTS
Upon the execution of this Agreement, EDS reserves all intellectual property rights and database rights related to the supply of the Services and Products within the framework of the implementation of this Agreement. Only upon explicit agreement will EDS grant a non-exclusive license for its intellectual property rights on the Products. EDS reserves all rights, including but not limited to intellectual property rights and database rights in all items made available to Buyer by EDS or third parties, such as – but not limited to – documents, titles, logos, articles, copy, sketches, drawings, models, photographs, lithographs, films, data carriers, computer software, address files and/or data files. Buyer is only entitled to use these items in the context of the execution of its obligations under the Agreement.
All copies, sketches, drawings, models, photographs, lithographs, films, data carriers, computer software and/or data files, suitable or rejected, will at EDS’ request be returned by Buyer to EDS or at the request of EDS archived or with the written consent of EDS destroyed in which case Buyer will provide proof the destruction. Buyer is not entitled to publicize or reproduce in any form without prior written approval of EDS. Returns are performed at the expense and risk of the Buyer.
Buyer guarantees that it will not infringe any intellectual property rights of third parties and indemnifies EDS and EDS and its clients in respect of any breach, similar claims relating to know-how, unlawful competition, etc.
8. FORCE MAJEURE
EDS shall not be liable for delays in performance or for non-performance due to acts of God; acts of Buyer; war; epidemic; pandemic, fire; flood; weather; sabotage; strikes or labor disputes; civil disturbances or riots; governmental requests, restrictions, allocations, laws, regulations, orders or actions (including but not limited to prohibition of exports or re-exports or the failure to grant or the revocation of applicable export licenses); unavailability of or delays in transportation; default of suppliers; or unforeseen circumstances or any events or causes beyond EDS’s reasonable control. Performance of Services and deliveries of Products may be suspended for an appropriate period of time or canceled by EDS upon notice to Buyer in the event of any of the foregoing, but the balance of this Agreement shall otherwise remain unaffected as a result of the foregoing.
If EDS determines that its ability to supply the total demand for the Services or Products or to obtain material used directly or indirectly in the manufacture of the Products is hindered, limited or made impracticable due to causes set forth in the preceding paragraph, EDS may delay performance of Services or allocate its available supply of the Products among its purchasers on such basis as EDS determines to be equitable without liability for any failure of performance which may result therefrom.
Buyer may cancel orders only upon reasonable advance written notice and upon payment to EDS of EDS’s cancellation charges, which include, among other things, all costs and expenses incurred and to cover commitments made by the EDS, and a reasonable profit thereon. EDS’s determination of such cancellation charges shall be conclusive.
Buyer may request changes or additions to the Services and Products. In the event such changes or additions are accepted by EDS, EDS may revise the price and performance dates. EDS reserves the right to change designs and specifications for the Products without prior notice to Buyer, except with respect to Products being made-to-order for Buyer. EDS shall have no obligation to install or make such change in any Products manufactured prior to the date of such change.
Buyer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of EDS, and any such assignment or delegation, without such consent, shall be void. Buyer hereby agrees that EDS may without Buyers written consent assign its rights and duties hereunder or any interest herein to an Affiliate.
Buyer may subject the Services and Products within ten (10) days from the date of completion of each part of the Services or Products to an inspection. In case of nonconformity Purchaser shall so indicate in writing by EDS. This report must contain a detailed description of the defect, so EDS is able to and react adequately. Buyer must grant EDS the opportunity to investigate the complaint. If the Buyer’s complaint is submitted timely and it is shown that such defects or failures are attributable to EDS in the fulfillment of its existing obligations towards the Buyer, EDS will – at its discretion – arrange for free repair or replacement the products. Complaints by the Buyer do not suspend its payment obligation. In that case Buyer remains obliged to accept and pay for the ordered Services and Products. In the absence of this notification, the Buyer shall be deemed to have been accepted the Services or Products unconditionally.
Termination of the Agreement by the Buyer is only possible to the extent that EDS is not able to eliminate or repair the shortcomings or defects. In case of replacement, the Buyer is obliged to return the initial Product to EDS and grant EDS possession, unless indicated otherwise by EDS.
13. BILLABLE SERVICES
Additional charges will be billed to Buyer at EDS’s then prevailing labor rates for any of the following: (i) any Services not specified in EDS’s quotation, EDS’s order acknowledgement, EDS’s scope of work, or other documents referenced herein and therein; (ii) any Services performed at times other than EDS’s normal service hours; (iii) if it is necessary, due to local circumstances, to use union labor or hire an outside contractor, EDS personnel will provide supervision only and the cost of such union or contract labor will be charged to Buyer.
Buyer, its personnel and any contracted third party are obliged to maintain strict confidentiality regarding all information concerning EDS which it may obtain in connection with the Agreement or the execution thereof, including the existence, the reason and the nature of the Agreement, and the outcome of the work performed. The confidentiality obligation remains in force after the execution of the Agreement. In case of violation of the provisions of this article by the Buyer, its personnel and/or and any contracted third party engaged by him, Buyer shall forfeit ipso jure, without warning and/or notice being required, a fine of € 50,000.00 at once and furthermore amount of € 5,000.00 for each day that the violation continues, without prejudice to EDS’s right to full compensation of the damage suffered by it.
With regard to the information provided by EDS to Buyer, Buyer agrees to: (I) take all reasonable measures to ensure safe and reliable storage; (ii) disseminate the information obtained only on the basis of the “need to know principle”; and (iii) keep the information in its possession no longer than is reasonably necessary for the performance of the Agreement. Buyer shall ensure that its personnel and contracted third parties sign a confidentiality agreement, which includes the provisions of this article. At the request of EDS, Buyer will provide copies of that confidentiality agreement(s) to EDS.
In the event that the Buyer does not properly perform or exceeds a deadline for the execution of the Agreement, as a result of which EDS establishes that the Buyer does not or will not properly perform and execute its obligations under the Agreement, EDS is entitled, notwithstanding its other rights, and without warning being required, to (fully or partially) terminate this Agreement by a single notice the Buyer. EDS is entitled to terminate the Agreement immediately, without observing any notice period or paying any compensation in the event that Buyer: (i) has been requested (provisional) suspension of payments or bankruptcy, or if Buyer is in a moratorium or bankruptcy; (ii) the company is shut down or if the company is in liquidation; (iii) any necessary permits have been lost; (iv) attachments are placed on (some of) the company’s property or goods intended for the execution of the Agreement; (v), is in a (legal) merger; (vi) loses a substantial amount of control of the business to a third party; or (vii) in the event Buyer is a natural person, the Buyer is deceased. If EDS terminates the Agreement, the Buyer must immediately return at its cost any Products that are subject to EDS’s right of retention, unless Buyer has fulfilled all its obligations as a result of which there is no longer a right of retention on the Products. A termination as set out in this article will not result in a termination of the rights of EDS, which by their nature are designed, in the reasonable judgment of EDS, to continue in full force and effect after the termination.
16. GENERAL PROVISIONS
These Terms and Conditions supersede all other communications, negotiations and prior oral or written statements regarding the subject matter of these Services Terms and Conditions. No change, modification, rescission, discharge, abandonment, or waiver of these Terms and Conditions shall be binding upon EDS unless made in writing and signed on its behalf by a duly authorized representative of EDS. No conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, or supplement this Agreement shall be binding unless hereafter made in writing and signed by the party to be bound, and no modification or additional terms shall be applicable to this Agreement by EDS’s receipt, acknowledgment, or acceptance of purchase orders, shipping instruction forms, or other documentation containing terms at variance with or in addition to those set forth herein. Any such modifications or additional terms are specifically rejected and deemed a material alteration hereof. If this document shall be deemed an acceptance of a prior offer by Buyer, such acceptance is expressly conditional upon Buyer’s assent to any additional or different terms set forth herein. No waiver by either party with respect to any breach or default or of any right or remedy, and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound. All typographical or clerical errors made by EDS in any quotation, acknowledgment or publication are subject to correction.
The validity, performance, and all other matters relating to the interpretation and effect of this Agreement shall be governed by the laws of the Netherlands. Buyer and EDS agree that the proper venue for all actions arising in connection herewith shall be only in the competent court of Amsterdam, Netherlands and the parties agree to submit to such jurisdiction. No action, regardless of form, arising out of transactions relating to this contract, may be brought by either party more than two (2) years after the cause of action has accrued. The U.N. Convention on Contracts for the International Sales of Goods shall not apply to this Agreement.
These Terms and Conditions are applicable as of 1 February 2021 and have been registered with the Chamber of Commerce of Amsterdam. The latest registered version of these Terms and Conditions or the version applicable at the commencement of the legal relationship with EDS are applicable. The version of the Terms and Conditions set out in the Dutch language determines the explanation hereof.