General Terms and Conditions regarding assignments given to energy-IO B.V.
General conditions of delivery of energy-IO B.V., registered with the Chamber of Commerce under number 04075664
Article 1: Applicability
1.1. These terms and conditions apply to all offers made and all agreements concluded by energy-IO B.V. as well as on all agreements that may result therefrom.
1.2. The offeror/supplier is the operating company using these terms and conditions. This party is referred to as the contractor. The other party is referred to as the client.
1.3. In the case of conflict between the contents of the agreement concluded between the client and the contractor and these general terms and conditions, the provisions of the agreement will apply.
These terms and conditions may only be used by operating companies of energy-IO B.V.
Article 2: Offers
2.1. All offers are without obligation.
2.2. If the client provides the contractor with data, drawings, etc., the contractor may assume the accuracy of this information and will base his offers on it.
2.3. All prices quoted in the offer are based on delivery “ex works”, in accordance with Incoterms 2000. The prices are exclusive of turnover tax and packaging.
If his offer is not accepted, the contractor will be entitled to charge the client for the costs the contractor had to incur for making his offer.
Article 3: Intellectual property rights
3.1 The contractor reserves all rights regarding products of the mind which he has used or which he develops in the context of the performance of the client’s assignment, insofar as such rights arise from the law.
The contractor reserves the right to use the knowledge acquired through the performance of the assignment for other purposes, insofar as this does not involve the disclosure of confidential information to third parties.
3.2 The client is expressly prohibited from disclosing and/or exploiting those products, including computer programmes, system designs, working methods, advice, (model) contracts and other products of the mind of the contractor, all in the broadest sense, with or without the involvement of third parties.
3.3 The client is not permitted to make tools of those products available to third parties for purposes other than for obtaining an expert opinion on the work of the contractor. The client shall inform the contractor about this.
3.4 If the client breaches and/or fails to comply with the provisions of paragraph 3 and/or 4 of this article, the client will forfeit to the contractor an immediately due and payable penalty of € 25,000 for every breach, as well as a penalty of € 1,000 for every day – regardless of whether or not this is a day on which work is usually carried out – during which the breach/failure to comply continues. The penalty will be owed by the mere fact of the breach or failure to comply, but is without prejudice to the contractor’s right to demand performance and without prejudice to the contractor’s right to claim full compensation.
Article 4: Confidentiality
4.1 The contractor is obliged to maintain the confidentiality of information towards third parties, unless he is under a legal or professional obligation to disclose.
Information is confidential if this has been stated by the other party or if this arises from the nature of the information.
4.2 The contractor is not entitled to use the information or documents provided to him by the client for purposes other than for which they were obtained. However, an exception to this rule will apply in case the contractor acts on behalf of himself in disciplinary, civil or criminal proceedings for which the documents may be of importance.
Unless the contractor has given prior written permission for this purpose, the client will not publish the contents of reports, advice or other statements, whether or not in writing, drawn up or made by the contractor with the intention of providing third parties with the information laid down therein. The client will also ensure that third parties will not be able to take note of the contents referred to in the previous sentence.
4.3 The contractor will impose his obligations under this article to any third parties engaged by him.
4.4 If the client breaches and/or fails to comply with the provisions of the previous paragraphs, the client will forfeit to the contractor an immediately due and payable penalty of € 25,000 for every breach, as well as a penalty of € 1,000 for every day – regardless of whether or not this is a day on which work is usually carried out – during which the breach/failure to comply continues. The penalty will be owed by the mere fact of the breach or failure to comply, but is without prejudice to the contractor’s right to demand performance and without prejudice to the contractor’s right to claim full compensation.
Article 5: Advice, designs and materials
5.1. The client cannot derive any rights from advice and information obtained from the contractor if such advice and/or information does not relate directly to the assignment.
5.2. The client is responsible for the drawings, calculations and designs made by or on behalf of the client, as well as for the functional suitability of the materials prescribed by or on behalf of the client.
5.3. The client indemnifies the contractor against all claims by third parties with regard to the use of drawings, calculations, designs, materials, samples, models, etc. provided by or on behalf of the client.
5.4. The client is permitted to examine the materials the contractor wants to use, or have them examined, at its own expense before such materials are processed. If the contractor suffers any damage as a result, such damage will be at the client’s expense.
Article 6: Delivery period
6.1 The delivery period and/or implementation period will be established by the contractor and are always approximate.
6.2. When establishing the delivery period and/or implementation period, the contractor assumes that he will be able to perform the assignment under the circumstances known to him at the time.
6.3. The delivery period and/or implementation period will only commence when an agreement has been reached about all commercial and technical details, all necessary data, final, approved drawings, etc. are in the possession of the contractor, the agreed payment or instalment has been received, and the necessary conditions for the performance of the assignments have been met.
a. If there are any circumstances other than those that were known to the contractor when he established the delivery period and/or implementation period, the contractor may extend the delivery period and/or implementation period by the time required for performing the assignment under these circumstances. If the work cannot be fitted into the contractor’s schedule, it will be carried out as soon as the schedule allows.
b. If there is additional work, the delivery period and/or implementation period will be extended by the time required for supplying the materials and parts, or having them supplied, and for carrying out the additional work. If the additional work cannot be fitted into the contractor’s schedule, it will be carried out as soon as the schedule allows.
c. In the case of suspension of the obligations of the contractor, the delivery period and/or implementation period will be extended by the duration of the suspension. If the continuation of the work cannot be fitted into the contractor’s schedule, the work will be carried out as soon as the schedule allows.
d. In the event of unworkable weather, the delivery period and/or implementation period will be extended by the delay resulting therefrom.
6.5. Unless agreed in writing, exceeding the agreed delivery period and/or implementation period will under no circumstance give a right to compensation.
Article 7: Risk transfer
7.1. Delivery takes place “ex works” in accordance with Incoterms 2000; the risk of the item transfers at the time the contractor makes the item available to the client.
7.2. Without prejudice to the provisions of the previous paragraph, the client and the contractor may agree that the contractor arranges the transport. The risk of storage, loading and unloading will in that case also be borne by the client.
The client may take out insurance to cover these risks
7.3. If a trade-in has been agreed and pending the delivery of the new item, the client continues to use the item to be traded in, the risk of the item to be traded in will remain with the client until the time the client has put this item into the contractor’s possession.
Article 8: Price change
8.1. The contractor is authorised to pass an increase of cost-determining factors arisen after concluding the agreement on to the client if the performance of the agreement has not yet been completed at the time of the increase.
8.2. The client is obliged to pay the price increase referred to in paragraph 1 together with payment of the principal sum or of the next agreed instalment.
8.3. If goods are supplied by the client and the contractor is willing to use them, the contractor will be entitled to charge no more than 20% of the market price of the goods supplied.
Article 9: Impossibility to perform the assignment
9.1. The contractor is entitled to suspend performance of his obligations if due to circumstances that could not be expected at the time of concluding the agreement and that are beyond his control the contractor is temporarily prevented from fulfilling his obligations.
9.2. Circumstances that could not be expected by the contractor and that are beyond his control are inter alia taken to mean the circumstance that suppliers and/or subcontractors of the contractor fail to meet their obligations or to meet them in time, weather conditions, earthquakes, fire, loss or theft of tools, destruction of materials to be processed, roadblocks, strikes or work interruptions, and import or trade restrictions.
9.3. The contractor is no longer entitled to suspension if the temporary impossibility to perform has lasted for more than six months. The agreement can only be terminated after this period and only for that part of the obligations that has not yet been performed. In that case, the parties will not be entitled to compensation of the damage suffered or to be suffered as a result of the termination.
Article 10: Scope of the work
10.1. The client shall ensure that all permits, exemptions and other decisions required for the performance of the work have been obtained in good time.
10.2 The price of the work is exclusive of:
a. the costs for groundworks, piling, chopping, destruction work, foundations, bricklaying, carpentry,
plastering, painting, wallpapering, repair work or other construction work;
b. the costs for connecting gas, water, electricity or other infrastructural facilities;
c. the costs incurred for the prevention of limitation of damage to items present at the work;
d. the costs for disposal of materials, building materials or waste;
e. travel and accommodation expenses;
f. transport costs.
Article 11: Amendments to the work
11.1. Amendments to the work will in any case result in additional or less work if:
a. there is an amendment to the design, the specifications or the contract documents;
b. the information provided by the client does not conform to reality;
c. estimated amounts are deviated from by more than 10%.
11.2. Additional work is calculated on the basis of the value of the cost-determining factors applicable at the time the additional work is carried out.
Less work is set off on the basis of the value of the cost-determining factors applicable at the time of concluding the agreement.
11.3. If the balance of the less work exceeds that of the additional work, the contractor will be allowed to charge 10% of the difference between the balances to the client in the final settlement. This provision does not apply to less work resulting form a request by the contractor.
Article 12: Performance of the work
12.1. The client shall ensure that the contractor can carry out his work without being interrupted and at the agreed time, and that he will be provided with the facilities required for the performance of his work, such as:
– gas, water and electricity;
– lockable dry storage space;
– facilities prescribed under the Working Conditions laws and regulations.
12.2. The client is liable for all damage, inter alia as a result of loss of, theft of, burning of or damage to items of the contractor and/or of third parties, such as tools and materials intended for the work, that are located on the site where the work is performed or at another agreed location.
12.3. If the client fails to meet its obligations as set out in the previous paragraphs and this results in a delay in the performance of the work, the work will be carried out as soon as the client meet its obligations and the contractor’s schedule allows. The client will be liable for all damage arising for the contractor from the delay.
Article 13: Completion of the work
13.1. The work will be regarded as completed when:
a. the client has approved the work;
b. the work has been put into use by the client.
If the client puts part of the work into use, that part will be regarded as completed;
c. the contractor has informed the client in writing that the work has been finished, and the client has not informed the contractor in writing within 14 days after this notification whether or not the work has been approved;
d. the client does not approve the work because of minor defects or missing parts that can be repaired or delivered within thirty (30) days and that do not prevent the work from being put into use;
e. access to the energy-IO energy portal/website has been granted.
13.2. If the client does not approve the work, the client will be obliged to notify the contractor of this in writing and with statement of reasons.
13.3. If the client does not approve the work, the client will give the contractor the opportunity to complete the work again. The provisions of this article apply again to this second completion.
13.4. The client indemnifies the contractor against claims by third parties because of damage to non-completed parts of the work caused by the use of parts of the work that have already been completed.
Article 14: Liability
14.1. The contractor is liable for the damage that is suffered by the client and that is directly and exclusively the result of a shortcoming attributable to the contractor. However, only that damage for which the contractor is insured or should reasonably have been insured will be eligible for compensation.
14.2. If at the time of concluding the agreement it is not possible for the contractor to take out insurance as referred to in paragraph 1, to take out such insurance on reasonable conditions or to subsequently renew such insurance on reasonable conditions, compensation of the damage will be limited to the amount invoiced by the contractor for this agreement (excluding VAT).
14.3. The following damage is not eligible for compensation:
a. direct trading loss, including for example loss due to business interruption and loss of profits.
If desired, the client shall take out insurance against such damage;
b. damage to property in the care, custody or control of, but not owned by the insured. This is inter alia taken to mean damage caused by or during the performance of the work to items on which work is done or to items that are situated in the vicinity of the place where work is carried out. If desired, the client shall take out insurance against such damage;
c. damage caused by intent or wilful negligence on the part of auxiliary persons or non-managing subordinates of the contractor.
14.4. The contractor is not liable for damage to materials supplied by or on behalf of the client as a result of an improperly performed processing operation. On a request from the client, the contractor will perform the processing operation again, with new material supplied by and at the expense of the client.
14.5 The client indemnifies the contractor against all claims by third parties because of product liability arising from a defect in a product that was supplied by the client to a third party and that (also) consisted of products and/or materials supplied by the client.
14.6 The contractor is not liable for damage arisen as a result of an improper or incorrect placement of equipment performed by installers or other (sub)contractors hired by the client for such placement.
14.7 Damage that is found more than three (3) months after performance of the assignment or set of assignments to which the damage relates is no longer eligible for compensation, for whatever reason. The same applies for damage that is found within the period of three (3) months referred to in the previous sentence and that is not reported to the contractor in writing within eight (8) days after discovery.
14.8 The liability of energy-IO B.V. for any reason whatsoever is limited to the contract amount in question for each assignment or for each event.
14.9 energy-IO B.V. is not liable in any way whatsoever for incorrect assembly activities performed by third parties.
Article 15: Warranty
15.1. The contractor warrants the proper delivery of an agreed performance for a period of twelve (12) months after completion.
15.2. If the agreed performance consists of the contracting of work, the contractor will warrant the soundness of the construction delivered and the material used for the period referred to in paragraph 1, provided that the contractor was free in the choice thereof. If it turns out that the construction delivered and/or the material used are not sound, the contractor will repair or replace them. The parts to be repaired at the contractor or replaced by the contractor shall be sent carriage paid to the contractor. Disassembly and assembly of these parts and any travel and accommodation costs incurred will be at the expense of the client.
15.3. If the agreed performance (also) consists of the processing of any material supplied by the client, the contractor will warrant the soundness of the processing operation performed for the period referred to in paragraph 1. If it turns out that a processing operation was not performed properly, the contractor will choose whether to:
– perform the processing operation again. In that case, the client will have to supply new material at its own expense;
– remedy the defect. In that case, the client will have to return the material carriage paid to the contractor;
– credit the client for a proportional part of the invoice.
15.4. If the agreed performance consists of the delivery of an item, the contract will warrant the soundness of the item delivered for the period referred to in paragraph 1. If it turns out that the delivery was not sound, the item shall be returned carriage paid to the contractor. The contractor will then choose whether to:
– repair the item;
– replace the item;
– credit the client for a proportional part of the invoice.
15.5. If the agreed performance (also) consists of the installation and/or assembly of an item delivered, the contractor will warrant the soundness of the installation and/or assembly for the period referred to in paragraph 1. If it turns out that the installation and/or assembly has not been performed properly, the contractor will remedy this. Any travel and accommodation expenses incurred will be borne by the client.
15.6. A manufacturer’s warranty applies for those parts for which this was expressly agreed between the client and the contractor in writing. If the client has had the opportunity to take note of the content of the manufacturer’s warranty, this warranty will supersede the warranty under this article.
15.7. In all cases, the client shall offer the contractor the opportunity to remedy any defect and/or perform the processing operation again.
15.8. The client can only invoke the warranty after it has met all of its obligations to the contractor.
15.9. a. No warranty will be given if the defects are the result of:
– normal wear and tear;
– improper use;
– lack of maintenance or improper maintenance;
– installation, assembly, changes or repairs performed by the client or third parties.
b. No warranty is given on items delivered that were not new at the time of delivery or on items prescribed by or supplied by or on behalf of the client;
c. No warranty is given on inspections and/or repairs performed on items of the client.
Article 16: Complaints
The client will no longer be able to rely on a defect in the performance if it has not submitted a written complaint to the contractor within fourteen (14) days after the client discovered or should reasonably have discovered the defect.
Article 17 Non-recruitment clause
The client is not permitted during the assignment or within three (3) months after termination of the assignment, to enter into a working relationship (employment contract, assignment or otherwise) with persons who carried out work for the contractor on the basis of an employment contract or an agreement for services in the last twelve (12) month before termination of the assignment. If the client breaches and/or fails to comply with the provisions of the previous paragraph, the client will forfeit to the contractor an immediately due and payable penalty in the amount of € 10,000 for every breach, as well as an amount of € 1,000 for every day – regardless of whether or not this is a day on which work is usually carried out – during which the breach/failure to comply continues. The penalty will be owed by the mere fact of the breach or failure to comply, but is without prejudice to the contractor’s right to demand performance and without prejudice to the contractor’s right to claim full compensation.
Article 18: Items not taken delivery of
If items have not been taken delivery of after expiry of the delivery period, they will remain at the disposal of the client. Items not taken delivery of will be stored at the client’s risk and expense. The contractor will always be permitted to use the power granted in Book 6, article 90 of the Dutch Civil Code.
Article 19: Payment
19.1. Payment is made into a bank account designated by the contractor.
19.2. Unless agreed otherwise, payment will be made as follows:
a. in the case of payment in instalments:
– 50% of the total contract amount on provision of the assignment; payment to be made immediately;
– 50% of the total contract amount on delivery of the materials on site;
b. subscription costs for reporting & analysis will be charged annually or every three months and prior to the subscription period;
c. in all other cases within fourteen (14) days of the invoice date.
19.3. Regardless of the agreed payment conditions, the client will be obliged to provide a security for payment which in the opinion of the contractor is sufficient, if the contractor so requests. If the client fails to comply with such request within the set period, the client will immediately be in default. In that case, the contractor will be entitled to terminate the agreement and recover his damage from the client.
19.4. The client’s right to recover its damage from the contractor is excluded, unless the contractor has been declared bankrupt or the statutory debt restructuring scheme applies to the contractor.
19.5. The full amount owed is immediately due and payable if:
a. a payment term has been exceeded;
b. the client has gone bankrupt or applies for a suspension of payments;
c. items of or amounts owed to the client are attached;
d. the client (i.e. the company) is dissolved or liquidated;
e. the client (i.e. the natural person) makes an application for admission to the debt restructuring scheme, is placed under guardianship or dies.
19.6. If payment has not been made within the agreed payment term, the client will immediately owe interest to the contractor. The interest rate is 12% per year, but will be equal to the statutory interest if this is higher. When calculating the interest, part of a month is regarded as a full month.
19.7. If payment has not been made within the agreed payment term, the client will owe the contractor all extrajudicial costs with a minimum of € 75.
The costs are calculated on the basis of the following table:
over the first € 3,000: 5%
over the excess up to € 6,000: 10%
over the excess up to € 15,000: 8%
over the excess up to € 60,000: 5%
over the excess from € 60,000: 3%
If the extrajudicial costs actually incurred are higher than appears from the above calculation, the costs actually incurred will be owed.
19.8. If the contractor is found for in judicial proceedings, all costs incurred by the contractor in connection with these proceedings will be borne by the client.
Article 20: Retention of title and pledge
20.1. After delivery, the contractor will remain the owner of the items supplied for as long as the client:
a. fails or will fail in the performance of its obligations under this agreement or other similar agreements;
b. does not or will not pay for work carried out or to be carried out under such agreements;
c. has not paid any amounts owed due to failure to perform the aforementioned agreements, such as damage, penalties, interest, and costs;
d. if it has been agreed in the contract that it concerns a rental/trial period.
20.2. As long as the items delivered are subject to a retention of title, the client will not be permitted to encumber them outside the normal conduct of its business.
20.3. After invoking his retention of title, the contractor is permitted to take back the items delivered. The client shall allow the contractor to access the place where these items are located.
20.4. If the contractor is unable to invoke his retention of title because the items delivered have been merged, transformed or acceded, the client will be obliged to pledge the newly formed items to the contractor.
Article 21: Termination
If the client wants to terminate the agreement without there being any shortcoming on the part of the contractor and the contractor consents to such termination, the agreement will be terminated by mutual agreement. In that case, the contractor will be entitled to compensation of all financial losses, such as loss suffered, loss of profit, and costs incurred.
The contract for reporting & analysis will be renewed annually for the period as agreed. This contract can be terminated at any time of the year, but with effect from the next calendar year.
Article 22: Applicable law and competent court
22.1. Dutch law applies.
22.2. The Vienna Sales Convention does not apply, nor does any other international regulation of which exclusion is permitted.
22.3. Only the competent Dutch civil court of the place in which the contractor has its registered office will have jurisdiction to hear disputes, unless this is contrary to the requirements of mandatory law. The contractor may derogate from this rule on jurisdiction and apply the statutory rules governing jurisdiction.
22.4. The parties may agree a different form of dispute resolution, such as for example arbitration or mediation.
These General Terms and Conditions have been filed with the Chamber of Commerce in Groningen and were last amended on 12-07-2017.