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Terms and conditions (2014)

 

1 Definitions

1.1 EMRI: the private companies with limited liability EMRI Repair BV, EMRI Services BV and EMRI Electronics BV.

The other party: the other party or parties in the legal relationships in which EMRI is a contract party.

Items: the motors, generators, machines, voltage regulators, devices, panels, materials and products, which are to be produced, overhauled, repaired or delivered by EMRI under the agreement.
The work: all services and activities (such as disassembly, assembly, winding, overhauling, balancing, repairs, maintenance, machining), which are to be carried out under the agreement, as well as all items to be delivered.

Subcontractor: any third party hired by EMRI to deliver items and/or carry out the work.

2 Applicability

2.1 These General Conditions are applicable to all legal relationships in which EMRI is a contract party, vis-à-vis each of the relevant other parties.

2.2 Deviations from these General Conditions are only possible in writing. No rights can be derived from such deviations with respect to agreements concluded at a later date.

2.3 Applicability of any general conditions of the other party is explicitly excluded, unless EMRI has recognised their applicability in the agreement.

3 Offers/conclusion of agreement

3.1 All offers and/or quotations of EMRI are without obligation and subject to interim price changes.

3.2 If the other party places an order, the agreement shall not be regarded as concluded until EMRI has accepted it in writing, or has started its execution.

3.3 Any arrangement or agreement with subordinate staff of EMRI shall not be binding upon EMRI, unless EMRI has accepted it in writing, or has started its execution. For the purpose of this article, subordinate staff is understood to be all employees and staff members who do not have power of attorney.

3.4 Any drawings, measures and weights shown or communicated are indicative only, without the item to be provided having to conform to these.

3.5 EMRI has the right to charge the cost of preparing the offer. Investigation costs are always for the account of the other party.

4 Prices

4.1 All prices are ex-EMRI. Prices are exclusive of VAT and exclusive of packaging.

4.2 The aforementioned packaging will be charged against cost price and is not returnable. The necessity of using packaging will be assessed by EMRI.

4.3 All items travel for the account and risk of the other party. The other party shall take out a suitable insurance policy against this risk.

4.4 All prices are based on the prices of wages, raw materials, materials, transport, insurance premiums, taxes, import duties, exchange rates and other price-determining factors as applicable on the date of conclusion of the agreement. Changes in these factors entitle EMRI to charge them to the other party.

5 Delivery/period of delivery

5.1 The period of delivery stated by EMRI commences at the moment that all data, drawings, information, and components from suppliers that are necessary for executing the order, have been received and/or acquired by EMRI.

5.2 Stated periods of delivery shall never be regarded as fatal deadlines, unless explicitly agreed otherwise. In case of late delivery, EMRI should therefore be given notice of default in writing.

5.3 EMRI has the right to deliver the required performance in phases.

5.4 Delivery to the other party shall take place ex-EMRI, which is defined as the place from which delivery by or on behalf of EMRI is effectuated, from which moment onwards the risk is for the other party.

5.5 The other party shall take delivery of the items within 30 days after the date of the invoice. In case of failure to do so, the risk is automatically transferred to the other party, and EMRI will be entitled to store the items elsewhere. The storage will be for the account of the other party.

6 Handover

6.1 Handover of fixed-price contract work shall be understood to mean the actual transfer of the work to the other party.

6.2 The work shall be regarded as handed over when the whole is complete, has been carried out and/or finished and the other party has been notified of this, or when the work has been put into use by the other party.

6.3 If any part cannot be delivered at the same time as the whole work due to circumstances beyond the control of EMRI, this shall not prevent handover from taking place.

7 Payment

7.1 Invoices from EMRI shall be paid within 30 days after the date of the invoice in the manner specified by EMRI, without claiming a discount, postponement or settlement.

7.2 Unless explicitly agreed otherwise, 50% of the agreed price shall be payable upon ordering and the other 50% upon handover.

7.3 All payments shall be made effectively in the agreed currency and without claiming any settlement, deduction and/or postponement.

7.4 In case of late payment, all payment obligations of the client become forthwith due and payable, whether or not EMRI has already invoiced them, and the other party shall be obliged to pay an interest of 1.5% of the amount due per month (or part of a month). After the end of each year the amount over which the interest is calculated shall be increased by the interest due over that year.

7.5 All costs arising from the collection of any amount owed by the other party, whether in or out of court, are for the account of the other party. The out-of-court costs will be calculated in accordance with standard practice in the Netherlands.

7.6 Any payment by or on behalf of the other party shall be used successively for settlement of the amounts owed by him for collection costs, court costs, the interest payable, and subsequently the outstanding principal sum in order of age, regardless of other instructions given by the other party.

7.7 The other party can only object to an invoice within the term of payment of that invoice, on penalty of forfeiture of any claims to correction/crediting.

8 Intellectual property and know-how

8.1 All documentation, offers, images, drawings, files and other documents, including their content, provided by EMRI to the other party, shall remain the property of EMRI.

8.2 The other party shall not use the documents referred to in paragraph 8.1 for other purposes than the items to which they are related.

8.3 The other party shall not duplicate and/or reveal to third parties the documents referred to in paragraph 8.1 or any information about EMRI contained therein or having come to his/her knowledge in any other way, unless explicitly authorised in writing by EMRI to do so.

8.4 If the supply of information as described in paragraph 8.1 does not lead to an agreement being concluded, the limited right of use as described in paragraph 8.2 shall expire.

8.5 In case of violation of the prohibitions given in paragraph 8.2 and/or paragraph 8.3 and/or paragraph 8.4 the other party shall owe EMRI a fine of Euro 50000 (fifty thousand Euros), without prejudice to the other rights of EMRI to demand fulfilment, dissolution, damages, etc.

9 Scope/alteration of fixed-price contract work

9.1 Unless explicitly confirmed otherwise, the agreed price of contracted work shall not include:

A) Earthwork, pile driving, demolition work, foundation work, brickwork, stuccowork, painting, wallpapering, repair work or any other construction work.

B) The extra assistance required for moving those parts that cannot be handled by EMRI, as well as the cost of the hoisting or lifting equipment to be used for this.

C) Repair activities of which it was not known at the time of accepting the work that these activities were necessary for execution of the work.

9.2 All changes in contracted work, either due to a special requirement from the other party or because the data provided do not tally with the actual execution of the work, shall be regarded as contract variations if they give rise to higher or lower costs.

9.3 Contract variations shall be settled in all fairness with the payment of the principal sum or the last instalment of this sum.

10 Assembly against hourly rates or at a fixed price

10.1 Assembly will be carried out against the normal rates of EMRI; these rates will be communicated to the other party on request.

10.2 The personnel charged with the assembly work will limit its activities to assembling the materials provided by the supplier and/or the material that was included in the order. Neither EMRI nor the supplier shall be liable for assembly work outside the scope of the order.

10.3 The other party shall ensure the availability of hauling assistance, lubricating and cleaning agents and the necessary heating and lighting during execution of the assembly work.

10.4 Repair of existing (old) materials, protection measures for holes, hatches, belts etc. do not arise from the accepted obligations with respect to delivery, turnkey handover and/or assembly work, unless explicitly agreed in writing.

10.5 If due to circumstances beyond the control of EMRI the assembly work cannot be carried out regularly and without interruption or is delayed in any other way, EMRI shall have the right to charge the resulting additional costs to the other party against the normal rates.

10.6 The other party shall indemnify EMRI against any claims from the subcontractor that are a consequence of activities which the other party has assigned directly to the subcontractor, without prejudice to the obligation of the other party to pay EMRI a reasonable profit margin in that case.

11 Impracticability of the order

11.1 If during the execution of a contract it is found that the work cannot be carried out due to circumstances unknown to EMRI or due to force majeure, then EMRI has the right to demand alteration of the order in such a way that execution of the work becomes possible, unless execution will not be possible at any time due to force majeure.

11.2 The cost increases or reductions resulting from the alteration of the order, shall be settled between parties, and moreover EMRI shall receive compensation for any work or deliveries already performed but proved to be in vain, if applicable. In this case settlement shall take place within four weeks after the date on which it was established that the work would be discontinued.

11.3 Situations to be regarded as force majeure include, but are not limited to, all involuntary failures or impediments that make performance of the contract more costly or problematic, such as storm damage and other natural disasters, impediments by third parties, complete or partial strikes, lockouts, revolt, either in the Netherlands or in the country of origin of materials, war or threat of war in the Netherlands or in other countries, loss of or damage to materials during transport, illness of irreplaceable employees, similar or related exceptional circumstances, such as export and import bans etc., partial or complete mobilisation, restrictive measures of any government, including changes in laws and regulations, a prohibition to deliver to the other party imposed by groups, organisations or contractual alliances with which EMRI is affiliated, fire and other accidents in the company, non-availability or failure of means of transport, non-delivery or late delivery of goods by suppliers, stagnation of the supply, and in general all circumstances, events, causes and consequences that are outside the scope of control or authority of EMRI.

11.4 At all times EMRI has the right to suspend the performance of any agreements concluded with EMRI or to dissolve these agreements or to execute them in a different manner if any changes occur in the specifications, dimensions or prices of components or parts that are required for the execution of the agreement, or if these components or parts are no longer available (on normal terms), or if it becomes clear during the execution of the work that the work cannot be carried out in accordance with the agreement due to circumstances which manifest themselves during the execution of the work.

11.5 If the agreement is suspended, dissolved or changed by virtue of paragraph 11.4, EMRI shall not be obliged to pay any compensation. If EMRI is the commissioning party, EMRI shall not be obliged to pay more than the amount payable in proportion to the progress of the work at that moment.

12 Retention of title

12.1 EMRI will retain the ownership of the items delivered or to be delivered by EMRI until it has received full payment for the following:

A) All performances payable by the other party for items and services delivered or to be delivered under a contract.

B) Claims owing to failure of the other party to fulfil such contract(s).

12.2 The other party is not entitled to invoke its right of retention as regards the costs of keeping or to settle these costs with the performances payable by the other party.

12.3 If the other party uses the items referred to in paragraph 12.1 to form a new item, this will be regarded as an item that EMRI has ordered to be formed for itself and the other party shall keep this item for EMRI as the owner, until all obligations under paragraph 12.1 have been met.

12.4 If any item belongs to EMRI by virtue of paragraph 12.1 or 12.2, the other party can only make use of it in the framework of its normal operations, and the other party may only dispose of this item if the acquirer recognises the property right of EMRI, on condition that the acquirer undertakes the same obligations towards third parties as the other party has towards the acquirer by virtue of this article.

12.5 If the other party is in default as regards the performances referred to in paragraph 12.1, EMRI has the right to retrieve the items belonging to EMRI, or have them retrieved, from the place where these items are located, at the expense of the other party. The other party now for then irrevocably authorises EMRI (or its representative) to enter the area used by or on behalf of the other party.

13 Security

13.1 If EMRI deems that there is good reason to fear that the other party will not promptly fulfil its obligations, the other party will be obliged to provide adequate security immediately, at the first request of EMRI and in the form required by EMRI, and to supplement this security if necessary for the fulfilment of all its obligations. As long as the other party fails to do so, EMRI shall be entitled to suspend fulfilment of all of its obligations

13.2 If the other party has not complied with the request as referred to in paragraph 13.1 within seven days after a written demand to do so, all its obligations become forthwith due and payable.

14 Complaints, obligation to investigate, time limit and fulfilment

14.1 The other party is obliged to investigate, upon delivery, whether the items are in accordance with the contract. If this is not the case, the other party will not be entitled to any claim unless he/she has informed EMRI of this in writing, stating proper grounds, as soon as possible and in any case within 8 days after the date of delivery, or after the date on which discovery of the fault was reasonably possible.

14.2 If complaints are recognised as being justified, EMRI has the right, with exclusion of all its rights to damages, either to cancel the delivery or to replace the goods with new ones. In the latter case the unusable goods shall be returned in exchange.

14.3 Claims and defences, based on facts that would justify the allegation that the items delivered are not in accordance with the contract, become time-barred by the passing of one year after delivery.

14.4 EMRI does not guarantee the special suitability for a specific purpose of the items it has delivered, unless these items have been manufactured by EMRI on the basis of a model provided by the other party for which the item must exhibit special suitability.

15 Guarantee

15.1 Within the limits of the following provisions, EMRI undertakes to repair at no charge any defects that were already present at the time of delivery or handover but have only come to light within six months after handover.

15.2 This obligation only covers defects that were reasonably unobservable at the time of delivery or handover and which present themselves under normal operating conditions and during correct use of the item delivered. It does not cover defects resulting from insufficient maintenance by the client, modifications made without the written consent of EMRI, repairs undertaken by the client or normal wear or defects for which the client is responsible. If during the execution of repair work undertaken under a guarantee it is observed that the nature of the defects is as described in the previous sentence, then EMRI is entitled to charge a fee for its work in accordance with its normal rates.

15.3 To invoke any rights under this article, the client should:

A) Inform EMRI immediately of the defects observed;

B) Make it plausible that the defects are attributable to a lack of quality or faulty workmanship of the item delivered, or – if and in so far as the design of the work has been made by EMRI – are the direct result of an imputable fault of EMRI, without prejudice to the provisions of Article 17.

C) Provide any required assistance to enable EMRI to remedy the defects within a reasonable period of time.

15.4 Any defective parts replaced by EMRI under the guarantee obligations shall become the property of EMRI.

15.5 If in the opinion of EMRI the cost of repair is not proportional to the client’s interest in repair, the client shall be entitled to compensation.

15.6 Contrary to the previous paragraphs of this article, in cases involving the supply of items EMRI will only undertake such guarantee towards the other party as undertaken by the supplier of EMRI, entirely on the same conditions. Further guarantee obligations can only rest with EMRI if this is proved by a written, specific certificate of guarantee issued by EMRI.

15.7 EMRI will never provide any guarantees beyond the obligation to replace the item delivered in which material defects have been found, and in particular EMRI shall not be liable for compensation of any consequential damage. Breakage will never fall under any guarantee.

16 Dissolution and discharge

16.1 If the other party fails to fulfil any of his/her obligations under the contract properly or promptly, as well as in case of prejudgment or executory seizure against the other party, an offer or agreement with respect to an out-of-court settlement of debts with the other party, bankruptcy, suspension of payment or placing under tutelage of the other party or stoppage or liquidation of its business, EMRI shall have the right, at its own discretion, without notice of default and without any obligation to pay damages and without prejudice to any other rights it may have, either to dissolve the agreement in full or in part, or to suspend the (further) performance of the agreement. In these cases EMRI will also have the right to demand immediate payment of the amounts to which it is entitled.

16.2 If the proper fulfilment by EMRI is fully or partly impossible, either temporarily or permanently, due to one or more circumstances beyond the control of EMRI, including the circumstances specified in the following paragraph, EMRI will have the right, at its discretion, either to suspend its performance or to dissolve the agreement. If at that time EMRI has already carried out part of the performance, the other party shall owe a proportional share of the total price.

16.3 Circumstances which will not be attributable to EMRI in any case are: the conduct, barring intention or gross negligence, of persons of whose services EMRI makes use in the fulfilment of the agreement, the exercise by a third party towards the other party of one or more rights with respect to failure by the other party to fulfil an agreement concluded between the other party and that third party with respect to the items delivered by EMRI, strike, workers’ lockout, illness, import/export/transit bans, transport problems, non-fulfilment of obligations by suppliers, breakdowns in production, natural or nuclear disasters, and war and/or threat of war.

16.4 If the other party fails to cooperate in delivery, after EMRI has required him/her to do so within a period of 14 days, EMRI shall be discharged of its obligations, without prejudice to the obligations of the other party.

16.5 If the other party cancels an order already given or by its actions makes it clear that it will not fulfil its obligations under that order, the other party shall compensate EMRI for the damage suffered by EMRI, which explicitly includes the loss of profit. If the execution of the work had not commenced at the time of cancellation by the other party, the other party shall be obliged in any case to pay EMRI 30% of the agreed contract price.

17 Damages/Liability

17.1 EMRI shall not be obliged to compensate any damage suffered by the other party, unless this damage is attributable to intention or gross negligence of its senior staff, in which case the liability shall be limited to the amount paid out by the liability insurance company of EMRI.

17.2 Under no circumstances shall EMRI be obliged to compensate any damage other than damage to persons or goods. EMRI shall not be liable for any consequential damage, loss of profit or turnover, damage to reputation, damage due to delay, or any other indirect damage.

17.3 EMRI stipulates all legal and contractual defences which it may invoke to ward off its own liability towards the other party, also for its employees and those non-employees for whose conduct it would be liable by virtue of the law.

17.4 With respect to items originating from a third party and resold by EMRI, EMRI shall only be liable in so far as the third party has not excluded its liability.

17.5 The other party shall indemnify EMRI against all claims from third parties, whatever they are called, with respect to any damage and/or loss which may arise for this third party in relation to items supplied by EMRI, work performed by EMRI, or due to the use of drawings, samples, models and pattern plates sent by EMRI. The other party shall be liable for all expenses resulting from this.

17.6 The provisions of this article do not affect the statutory liability of EMRI pursuant to mandatory provisions.

18 Rental

18.1 The present General Conditions are also applicable, to the extent possible, to renting and renting out of goods, machines and other equipment. In particular the following conditions apply:

18.2 Rental agreements concluded for a fixed term cannot be terminated prematurely.

18.3 Rent prices are exclusive of operation and fuel.

18.4 The rent period commences on the first day that the goods are reserved by the renter and ends on the day that the goods are returned.

18.5 The rented items shall be made available by EMRI in clean and properly usable condition. Renter shall keep the rented items in good condition and after use return them clean and in good condition.

18.6 The cost of transport of the rented items to the destination specified by the renter and back to the EMRI warehouses, including the costs of packing, loading and unloading, both at the destination and in the EMRI warehouses, shall be for the account of the renter.

18.7 If certain rented items have to be sent in disassembled condition, the cost of set-up and assembly at the place of use and of disassembly after use shall be for the account of the renter.

18.8 Daily maintenance at the place of use shall be arranged by the renter, for his account.

18.9 All costs related to repair and replacement of parts, not pertaining to normal wear, shall be for the account of the renter. All necessary work shall be carried out by EMRI, unless EMRI, in consultation with the renter, agrees to have repairs or replacements carried out by or on behalf of the renter. Renter shall notify EMRI immediately of any defect or damage.

18.10 The place where the rented items are being used or are located shall always be accessible to EMRI personnel charged with inspection or repair work. Waiting times resulting from inaccessibility of rented items, whatever the reason, shall be for the account of the renter.

18.11 Renter is fully liable for any damage caused to or by rented items; where appropriate the renter shall indemnify and/or compensate EMRI as necessary. The renter is obliged to compensate EMRI for any damage to the rented item that, upon or immediately after its return, is found to have occurred due to the rental. This damage shall be assessed by EMRI and communicated to the renter in writing not later than 10 days after the date on which the rented items were returned by the renter. If the renter does not object within 10 days after having taken cognisance of the damage assessment by EMRI, the assessment made by EMRI shall be final.

18.12 The renter shall take out an All Risks insurance policy based on the new value of the rented items.

18.13 If the rented items are lost or become damaged beyond repair, the renter shall pay the new value (replacement value) to EMRI.

18.14 To provide additional security for the fulfilment of his obligations which may arise during the period of the rental agreement and upon its termination, the renter shall be obliged to pay, at the first request of EMRI, a deposit to an amount to be specified by EMRI (which shall not exceed the new value of the rented material), in a manner to be determined by EMRI.

19 Applicable law/competent court

19.1 All legal relationships between EMRI and the other party shall be subject to the law of the Netherlands, under exclusion of the Vienna international sales convention (CISG).

19.2 Disputes that may arise between EMRI and the other party shall be judged exclusively by the competent court of the place of business of EMRI, except if EMRI as plaintiff or requesting party chooses the competent court of the place of residence or business of the other party.

20 Conversion

If and in so far as, on the grounds of reasonableness and fairness or its unreasonably onerous nature, any provision in these general conditions cannot be invoked, this provision shall be given a meaning that comes as close as possible in terms of content and purport, so that it can be invoked. 2012