General conditions of sale, delivery, assembly and maintenance NVKL

Published by the Nederlandse Vereniging van ondernemingen op het gebied van Koudetechniek en Luchtbehandeling (NVKL), filed with the Registry of the District Court of The Hague on January 10, 2023 under number 4/2023. © NVKL 2023 (www.nvkl.nl

Article 1 General

If these terms and conditions form part of offers and agreements to perform deliveries and/or services by a supplier for a buyer, all provisions of these terms and conditions between these parties shall apply, insofar as they have not been deviated from by an express written agreement between the parties. Any reference by the buyer to its own purchasing or other terms and conditions is expressly rejected by the supplier.
In these terms and conditions, the following definitions shall apply:

– product: the performance(s) that the supplier performs for the buyer, such as delivery of goods, assembly of goods delivered by the supplier or not, contracting of work, maintenance, repair and services, such as advice and inspection;

– thing: a material object, including any software incorporated therein; – software: software incorporated exclusively in the delivered thing; – supplier: the company in the field of refrigeration technology and air

treatment, which is a party to any agreement for the delivery of products, namely the delivery of goods and other services, such as assembly, installation, repair, inspection or maintenance, including the company that refers to these terms and conditions in its offer;

– purchaser: other party or parties to the agreement referred to above, other than a consumer;

– written: by document signed by both parties or by letter, e-mail message, telefax and by any other means agreed upon by the parties, other than oral;

– additional work: any performance performed by the supplier in consultation with the buyer, whether in writing or not, in addition to the agreement;

– Price: the price applicable to the product according to Art. 4.

Article 2 Offer

Any offer of the supplier is without obligation and can be revoked up to 3 working days after acceptance.
Each offer is based on performance of the contract by the supplier under normal conditions and during normal working hours.

Article 3 Agreement

Without prejudice to Article 2 paragraph 1, the agreement is concluded if the acceptance is in accordance with the offer. If the acceptance deviates from the offer, the agreement is only concluded after the supplier has expressly accepted these deviations.
If it has been agreed to deliver and calculate in parts, each part, insofar as the contrary does not follow from any provision, shall be considered a separate agreement, in particular with regard to the provisions on delivery time, liability and payment.
Data mentioned in product documentation, illustrations, drawings, size and weight specifications, etc. are only binding if and insofar as they are expressly included in an offer or order confirmation from the supplier or in a contract signed by the parties.
Verbal promises/agreements shall bind the Supplier only insofar as they have been made/made by an employee of the Supplier with authority to represent the Supplier or have been confirmed in writing by such an employee.

Article 4 Price

Unless otherwise agreed in writing, the agreed price is exclusive of sales tax and other government charges applicable to the sale and delivery and based on delivery Ex Works according to the Incoterms in force on the date of offer. “Factory” shall mean the business premises

of the supplier, as designated by him. For delivery Ex Works, the price is calculated exclusive of packaging, unless otherwise agreed. 2. If after the date of conclusion of the contract one or more of the cost price factors undergoes an increase – even if this occurs as a result of foreseeable circumstances – the supplier shall be entitled to increase the price accordingly.

The Supplier may charge for additional work separately as soon as the amount to be charged for it is known to him. For the calculation of additional work, paragraphs 1 and 2 shall apply accordingly.
Costs of loading, unloading and transportation of raw materials, semi-finished products, models, tools and other items made available by the customer are not included in the price.
If it has been agreed that assembly of the product will be performed by the Supplier, the price shall be calculated including assembly, except for the costs mentioned in Art. 7 Sections 3 and 5.

Article 5 Intellectual property/secrecy 1. All intellectual property rights to the product, its design and the drawings, calculations, descriptions, technical documents, models, finished goods, etc. made for the design, production and use of the product shall be vested in the supplier or, as the case may be, in a third party who has licensed the supplier to use these rights. This also applies if the same has been developed specifically for the afne mer, unless otherwise agreed in writing. The customer acquires a non-exclusive, time unlimited, transferable right to use these

intellectual property rights, but only for the product provided and subject to any restrictions in underlying third party licenses. The supplier is under no obligation to provide the afne mer with source code or updates for software.

Technical, commercial and financial information and information marked as confidential or which by its nature should be considered confidential, disclosed in writing or orally by one party to the other, shall be treated as confidential by the other party. Therefore, the information shall not be used by the other party for any purpose other than that for which it was provided without the written consent of one party. The information shall not be reproduced or transferred, communicated or disclosed to any third party. To the extent no longer required for use of the Product, the information shall be returned to the Supplier by the Customer at the Supplier’s first request and, to the extent applicable, deleted from digital files.

Article 6 Delivery time

If the parties have agreed on a specific deadline for delivery, this deadline shall commence as soon as the agreement has been entered into and also all conditions to be fulfilled by the buyer prior to the commencement of performance by the supplier of its obligations, such as provision to the supplier of necessary documents and data, obtaining permits, performance of necessary formalities and payment of an amount due in advance. If, instead of a deadline, a specific delivery date, week or month has been agreed upon, it shall be reasonably postponed in time.
The product shall be deemed delivered for delivery purposes when, if acceptance tests have been agreed upon at the supplier’s facility, it is ready for these tests and in other cases when the item is ready for shipment and the buyer has been notified of this in writing and, in the case of pres tations other than delivery of an item, when the performance has been delivered.
The delivery time shall be based on the working conditions applicable at the time the agreement is concluded and on timely delivery of the items and/or services ordered by the supplier for the execution of the work. If a delay occurs through no fault of the supplier as a result of changes in the aforementioned working conditions

circumstances or because items and/or services ordered in time for the performance of the work are not delivered on time, the delivery time shall be extended to the extent necessary.

If the execution of the agreement is delayed due to an act or omission by the buyer or due to circumstances attributable to the buyer, the supplier may extend the delivery time by a period that is necessary considering all circumstances. This also applies if the cause of the delay does not occur until after the agreed delivery time.
If interim changes are made to the agreement or its execution is suspended by the buyer, the delivery time will be extended by at least the duration of the additional work created by these changes or of the suspension, without prejudice to any other rights and claims of the supplier.
Merely exceeding the assembly period shall not cause the supplier to be in default by operation of law. This shall always require a further notice of default.
Exceeding the delivery time shall not entitle the buyer to rescind the agreement in whole or in part or to damages. However, if this overrun exceeds 16 weeks or will exceed 16 weeks according to the supplier’s notification, the buyer may rescind the agreement by written notification to the supplier. The buyer shall then be entitled, insofar as applicable, to reimbursement of the portion of the price already paid and to compensation for damages suffered by him, up to a maximum of 15 percent of the price. If partial deliveries have already been made, the contract can only be partially dissolved after 16 weeks, namely for the part not yet delivered, unless the part already delivered is not independently usable for the customer. In the event of partial rescission, the customer shall be entitled, where applicable, to reimbursement of that part of the price which relates to the undelivered part and to damages. For this compensation, the aforementioned maximum of 15% shall in that case be calculated on the part of the price that relates to the undelivered part. If exceeding the delivery time is the result of force majeure, art. 14 shall apply.
If the buyer remains in default of taking delivery of the product after notice of default, the supplier has the right to charge the buyer for the resulting costs and damages, without prejudice to the supplier’s rights according to Art. 15. The buyer is then further obliged to pay the price as if delivery had taken place according to the agreed delivery time.

Article 7 Assembly

If it has been agreed that the supplier will assemble an item, the buyer is responsible for the correct execution and timely availability of all devices, provisions and conditions necessary for the assembly of the item and the proper functioning of the item in its assembled state.
The buyer shall in any case ensure at his own expense and risk that: a) the supplier’s personnel can start the work according to the agreed time schedule and can work during normal working hours

General conditions of sale, delivery, assembly and maintenance NVKL

den. Insofar as the supplier deems it necessary, work may also be carried out outside normal working hours, provided this is reported to the buyer in writing within a reasonable period of time;

b) he informs the supplier in writing and in good time before the start of the assembly about all safety regulations applicable at the place of assembly;
(c) assembly can be performed in a healthy and safe environment; (d) all necessary safety measures are taken before assembly begins and maintained during assembly;
(e) suitable housing and/or all facilities required by government regulations, agreement and usage are provided for the supplier’s personnel;
(f) the supplier’s personnel can use proper sanitary facilities;
g) all necessary auxiliary personnel, cranes, lifting and hoisting equipment, transport and auxiliary equipment, machinery, operating materials (such as fuels, oils, greases, gas, water, electricity, steam, compressed air, heating and lighting) and the measuring and testing equipment normal for the buyer’s business shall be available in good time at the place of assembly;
(h) sufficient office space at the assembly site is available to the supplier;
(i) sound and adequately secured digital infrastructure and Internet facilities are available as needed;
(j) adequate storage space is available to protect against theft, loss and damage of tools and equipment intended for assembly and the personal property of the supplier’s personnel;
(k) access roads to the assembly site are suitable for emergency business transportation of the item to be assembled and the supplier’s assets.
(l) at the start of and during assembly, the products sent are in the right place.
Damages and costs, which arise for the supplier and/or the buyer due to not or not timely fulfilling one of the obligations mentioned in this article, are for the buyer’s account.
If the supplier does provide help and assistance – of any kind – during the assembly, without having the assembly under contract, this shall take place at the buyer’s risk.
Costs incurred by the supplier due to unworkable weather shall be borne by the buyer.

Article 8 Inspection and acceptance testing

The buyer shall inspect the product no later than 7 days after delivery as referred to in art. 6 paragraph 2. If assembly has been agreed upon, the purchaser shall inspect the proper execution thereof no later than 5 days after assembly. If the applicable period has expired without written and specified notification of justified complaints, the product shall be deemed to have been accepted.
If acceptance tests have been agreed upon, after the delivery as referred to in clause 6 paragraph 2, the buyer shall give the supplier the opportunity to make the necessary preparations and make the changes the supplier deems necessary. The supplier will be given the opportunity to take preliminary tests. The buyer shall ensure timely provision of the necessary auxiliary equipment, auxiliary and operating materials, water, energy, heating and lighting, all at his expense and risk. The acceptance tests shall be held in the presence of the buyer immediately after the supplier’s request. The costs of acceptance tests shall be borne by the buyer. However, the supplier shall bear the costs of its own personnel and its other representatives. If the acceptance tests have been carried out without justifiable complaint or if the buyer does not fulfil his aforementioned obligations, the product shall be deemed accepted.
The buyer shall make the necessary facilities, support and materials, including those referred to in clause 7 paragraph 2 (g), available to the supplier in sufficient quantities, on time and free of charge at the place specified by the supplier for the acceptance tests and the preparations and modifications referred to in paragraph 2. If the buyer fails to do so, the product shall be deemed accepted.
The supplier shall make a report of the acceptance tests which shall be sent to the buyer. If the customer, having been invited to do so in a timely manner and in writing by the supplier, was not represented at the tests, the test report shall be considered by him to be a correct representation.
If requested by the supplier, the buyer will sign a takeover protocol as proof that the goods have been delivered complete and in working order, without prejudice to the provisions of article 12.
If the acceptance tests show that the product does not comply with the agreement, the Supplier shall eliminate the deficiencies as soon as possible. If the customer requests this in writing, new acceptance tests shall be subsequently performed in accordance with paragraphs 2-4.
In case of minor shortcomings that do not affect the proper functioning of the product, the product shall be deemed accepted regardless of these shortcomings. The Supplier will eliminate these deficiencies as soon as possible.
The buyer is not authorized to use the product or any part thereof prior to acceptance. If the buyer does so, without the supplier’s written permission, the product shall be deemed accepted.
Without prejudice to Art. 12, the acceptance according to the preceding paragraphs excludes any claim by the buyer based on a shortcoming in the supplier’s delivery obligation.

Article 9 Transfer of risk

As soon as the product is deemed delivered in the sense of art. 6 subsection 2, the buyer shall bear the risk for all damages that may be caused to or by this product, except insofar as the damages can be attributed to intent or deliberate recklessness on the part of the supplier’s employees who are members of the supplier’s management. This shall also apply if assembly is performed by the supplier.
The method of transportation, packaging, etc. shall, if no further indication

given to the supplier by the buyer, reasonably determined by the supplier, without incurring any liability and without any obligation to take back the packaging, unless taking back the packaging is mandatory under the Packaging and Packaging Waste Directive 94/62/EC.

Article 10 Retention of title

The supplier retains ownership of all goods delivered by him to the buyer until the amounts due, including interest and costs, for all these goods have been paid in full. If the supplier has carried out work for the customer as part of the delivery of goods, the retention of title applies until the customer has also paid the claims for this work, also including interest and costs. The retention of title also applies to all claims that the supplier may obtain against the buyer on account of the buyer’s failure to fulfil one or more of his obligations to the supplier under the said agreements.
As long as the ownership of the delivered goods has not passed to the buyer, the latter may not pledge the goods or grant a third party any further right to them, subject to the provisions of the sixth paragraph of this article.
For delivered goods that have passed into the ownership of the buyer through payment and are still in the hands of the buyer, as soon as the supplier indicates that it wishes to do so, the buyer shall cooperate in the establishment of pledges as referred to in article 3:237 of the Dutch Civil Code as additional security for claims, other than those referred to in article 3:92 paragraph 2 of the Dutch Civil Code, that the supplier may then have against the buyer for whatever reason.
The buyer is obliged to keep the goods delivered under retention of title with due care and as recognizable property of the supplier. The buyer is obliged to adequately insure the goods for the duration of the retention of title against loss and damage, such as against damage caused by fire, explosion and water, and to make the policies of this insurance available to the supplier for inspection upon first request. All claims of the buyer against insurers of the goods on account of the aforementioned insurance will, as soon as the supplier indicates that he wishes this, be pledged to him by the buyer in the manner indicated in article 3:239 of the Dutch Civil Code, as additional security for the supplier’s claims against the buyer.
If the buyer fails to meet his payment obligations to the supplier or if the supplier has good reason to fear that he will fail to meet those obligations, the supplier shall be entitled to repossess the goods delivered under retention of title. After repossession, the buyer shall be credited for the market value, which may in no case exceed the original purchase price, less the costs incurred on repossession.
The customer shall be permitted to sell and transfer the goods delivered under retention of title to third parties in the ordinary course of his business. When selling on credit, the buyer is obliged to stipulate a retention of title from his buyers similar to the provisions of this article.
As long as ownership of the delivered goods has not been transferred to the buyer, the buyer undertakes not to assign or pledge to third parties any claims he may acquire against his own buyers without the prior written consent of the supplier. Furthermore, the buyer undertakes to pledge the claims in question to the supplier, as soon as the supplier expresses a wish to that effect, in the manner indicated in article 3:239 of the Civil Code, as additional security for his claims against the buyer on whatever account.

Article 11 Payment

Payment of amounts due to the supplier must, unless otherwise agreed, be made within 30 days of delivery.
For amounts above € 25,000, the payment schedule, unless otherwise agreed, is as follows:

– 40% on assignment;

– 50% on delivery;

and the remainder (10%) within 30 days of delivery.

Payment for additional work shall be made no later than 7 days after it has been invoiced to the customer.
All payments shall be made without deduction, suspension or set-off in the manner determined by the Supplier.
If the buyer fails to pay on time, he shall be in default by operation of law and the supplier shall be entitled, without notice of default, to charge him interest from the due date at a rate of 3 points above the legal interest rate for commercial contracts in force in the Netherlands, as referred to in art. 6:119a and art. 6:120 paragraph 2 of the Civil Code, and all judicial and extrajudicial costs.
Payments shall first be applied to reduce the extrajudicial and judicial costs, then to reduce the interest, and only then to reduce the invoice amounts due, always starting with the oldest invoice.

Article 12 Defects in the product

The product must comply with the contract. The supplier is obliged to eliminate any deviation therefrom (hereinafter referred to as “defect(s)”) resulting from improper or faulty design or material or poor workmanship, in accordance with this Clause 12. Unless otherwise agreed, an infringement of intellectual property rights of a third party applicable in the Netherlands shall also be considered a defect. The obligation to remove the defect only applies to defects in the product that are not noticeable during inspection and (if agreed) acceptance tests, of which the buyer proves that they have occurred within 12 months in the case of goods and within 6 months in the case of another performance in accordance with art. 6 paragraph 2.

General conditions of sale, delivery, assembly and maintenance NVKL

The product must comply with the regulations in force in the Netherlands with regard to operation, transport and safety on the day the agreement is concluded. Should amended legal regulations come into force between the date of conclusion of the agreement and delivery and commissioning, the product will be adapted to these new regulations if possible. Any associated costs shall be borne by the customer.
Unless expressly agreed otherwise in writing, the supplier’s obligations under paragraph 1 are limited to deliveries within the Netherlands.
In case of assembly of an item delivered by the supplier, the period of 12 and 6 months referred to in paragraph 1 for the delivered item respectively for its assembly shall commence on the day the assembly is completed by the supplier. This period shall in any case end 18 months after delivery of the item according to clause 6 paragraph 2.
Defects in a delivered good shall be removed by the supplier by repairing or replacing the defective part, whether or not at the supplier’s company, or by sending a repaired part or a part for replacement, all this always at the supplier’s discretion. After the removal of the defect, the supplier shall be similarly obliged to remove defects in the repaired or replacement part for a period of 6 months. Any liability for defects in the delivered item shall in any case lapse 18 months after its delivery in accordance with Article 6 paragraph 2 or, in the event of the applicability of paragraph 4, 24 months after such delivery.
Defects in the assembly of an item delivered by the supplier shall be eliminated by the supplier by performing remedial work. After the removal of the defect, the supplier shall be equally liable for defects in the remedial work for a period of 6 months. Any liability for defects therein shall in any case expire 24 months after the delivery of the item according to clause 6 paragraph 2.
Defects in maintenance, repair (if not performed pursuant to paragraph 5 or paragraph 6), assembly of an item delivered to the buyer by a third party, overhaul, contracting work and similar work, shall be eliminated by the supplier by redoing the work, insofar as it is defective. After redoing the work, the supplier shall be liable for defects in the redo work for a period of 6 months. Any liability shall in any case expire 12 months after the delivery according to clause 6 paragraph 2.
Defects due to infringement of intellectual property rights shall, at Supplier’s option, be eliminated by Supplier by:

– acquisition of the customer’s right of use;

– modification of the item such that there is no longer infringement, or – replacement of the item with another item that does not infringe intellectual property rights.

The supplier shall be liable for any defects therein for 6 months after the said adaptation or replacement under the conditions set forth in this article. Any liability of the supplier for defects therein shall in any case expire 18 months after the delivery of the item in accordance with clause 6 paragraph 2 or, in the event that paragraph 4 applies, 24 months after such delivery.

The goods to be repaired or replaced pursuant to this article, which reasonably lend themselves to this, shall be returned by the buyer to the supplier at his request. Transport costs and additional costs of disassembly and reassembly incurred by the supplier in removing defects shall be borne by the buyer.
The supplier is not liable for defects in inspections, consulting and similar services.
The supplier is not liable for defects, which occur in or are wholly or partially the result of:
(a) non-observance of operating and maintenance instructions or other than the intended normal use;
(b) normal wear and tear;
c) (de)assembly, repair or modifications by the customer or by third parties; d) the application of a government regulation;
e) materials and items already used in consultation with the customer; f) materials and items provided, whether for processing or not, by or on behalf of the customer;
(g) materials, items, design, construction or method of operation applied at the express instruction of the buyer;
(h) components (including software) procured by the Supplier from third parties, to the extent that the third party is not liable to the Supplier for them.

The Supplier is not liable for damage to paint or chrome work, unless the damage is the result of quality and/or construction faults of other parts. Furthermore, the Supplier is not liable for infringement of intellectual property rights resulting from the circumstance that:

(i) the product is used outside the Netherlands;
j) the product is used in a manner other than that agreed upon; k) the product is used in conjunction with equipment or software not supplied by the supplier
(l) data provided by or on behalf of the buyer have been used. If the buyer does not, not properly or not timely comply with an obligation arising for him from any agreement concluded with the supplier, the supplier is not obliged to remove defects. If the buyer proceeds to dismantle, repair or perform other work on the product without prior written approval from the supplier, any obligation on the part of the supplier to remove defects lapses.
Defects must be reported to the Supplier in writing as soon as possible after their discovery, but no later than 14 days after the expiration of the applicable liability period. If these periods are exceeded, any claim for such defects shall lapse. Legal actions must be brought within 1 year of said notification under penalty of forfeiture of all rights.
If the buyer has made said notification and no defect is found for which the supplier is liable, the supplier is entitled to reimbursement of the costs incurred as a result of the notification.
If the supplier replaces parts when removing defects, the replaced parts become the supplier’s property.
If the buyer claims that the supplier fails to fulfill an obligation mentioned in this article, the buyer remains obliged to fulfill the obligations arising for him from any agreement entered into with the supplier.
If the supplier has not eliminated the defect within a reasonable time, the buyer may set a final, reasonable deadline for doing so by written notice. If the supplier fails to meet its obligations within this final deadline, the buyer may, at the supplier’s expense, have the defect eliminated itself or by a third party, provided that the buyer or the third party has the necessary expertise to do so. If the defect is thus successfully removed, the supplier shall be released from all liability for the defect by reimbursing the reasonable costs incurred by the buyer. These costs shall not exceed 15 percent of the price of the product.
If the defect is not removed according to paragraph 15,
a) the customer is entitled to a discount on the price, in proportion to the depreciation of the product. This discount shall not exceed 15 percent of the price, or
(b) if the defect is so serious that it substantially deprives the customer of his interest in the contract for the product or a substantial part of the product, respectively, the customer has the right, by a

written notice to the supplier to dissolve the agreement for the product or the essential part of the product, respectively. The buyer is then entitled to reimbursement of the price paid for the part for which the agreement is dissolved. The buyer is also entitled to compensation for damages up to a maximum of 15% of the portion of the price relating to the part of the product for which the agreement is dissolved.

Article 13 Liability

Unless there is intent or deliberate recklessness on the part of the supplier’s employees belonging to the business line and subject to the applicability of art. 6 paragraph 7 and art. 12, all liability of the supplier, regardless of the legal basis, is excluded. The supplier shall therefore not be liable, among other things, for damage caused by:

– non-delivery;

– liability to third parties;

– any wrongful act or omission of (employees and auxiliary persons of) the supplier;

– infringement of intellectual property rights, licenses and other rights of third parties;

– damage or loss, from whatever cause, of raw materials, semi-finished products, models, tools pen and other items made available by the buyer;

– loss or corruption of data;

– loss of production and reduction of uses;

– loss of contracts and customers.

The supplier shall further not be liable for lost profits and any consequential and indirect damages.

The buyer is obliged to indemnify and hold the supplier harmless from all claims by third parties for compensation for damages in connection with the execution of the agreement.
Barring intent or deliberate recklessness on the part of the supplier’s management, the buyer is bound to indemnify the supplier for all damages resulting from the supplier’s use of goods belonging to the buyer.
The buyer is liable for the structural part not delivered by the supplier and/or for the adverse consequences resulting from the condition of the soil and is obliged to compensate the supplier for any damage he may suffer as a result of the unsoundness of the structural part and/or the condition of the soil.

Article 14 Force Majeure

In these general terms and conditions, force majeure means every circumstance independent of the will of the supplier – even if it was foreseeable at the time the contract was concluded – which permanently or temporarily prevents the supplier from fulfilling the contract or makes it unreasonably onerous, and, insofar as not already included, war, danger of war, civil war, riots, strikes, lock-outs, transport difficulties, import and export restrictions, government measures, fire, terrorism, epidemics and pandemics, natural disasters, extreme weather conditions, limited availability of energy, electricity failure, failure of the Internet, computer network and telecommunication facilities, cybercrime and defects and delays in delivery by suppliers as a result of circumstances mentioned in this paragraph.
If the supplier is temporarily unable to fulfill the agreement due to force majeure or can only fulfill it in a way that is unreasonably onerous for it, it has the right to suspend the performance of the agreement. After 6 months, if the force majeure situation still persists, each party is entitled to dissolve the agreement in whole or in part. Each party is also entitled to dissolve the agreement in whole or in part if after the force majeure situation has occurred it is or becomes clear that fulfillment of the agreement by the supplier will be impossible or unreasonably onerous for more than 6 months.
In case of suspension and dissolution pursuant to paragraph 2, the supplier shall not be obliged to pay damages. The supplier then has the right to demand payment of the costs he has incurred for the raw materials, materials, parts and other items purchased, reserved, processed and manufactured by him for the execution of the agreement. In the event of dissolution pursuant to paragraph 2, the buyer is obliged, after payment

General conditions of sale, delivery, assembly and maintenance NVKL

of the said costs to take delivery of the said goods. If the buyer fails to do so, the supplier is authorized to store these items at the buyer’s expense and risk or to sell or destroy them at the buyer’s expense.

Article 15 Suspension and dissolution

If there is good reason to fear that the buyer is or will be unable or unwilling to meet his obligations and in case of bankruptcy, suspension of payments, shutdown, liquidation or full or partial transfer of the buyer’s business, the supplier shall have the right to demand adequate security for all contractual obligations of the buyer (whether due or not) and in anticipation thereof to suspend the execution of the agreement. If this security is not provided within a reasonable period set by the supplier, the supplier shall be entitled to dissolve the agreement in whole or in part. The supplier has these powers in addition to his other rights under the law, the agreement and these terms and conditions.
If the buyer does not, does not timely or does not properly fulfill an obligation under an agreement with the supplier, the supplier is entitled to suspend the execution of the agreement and/or to dissolve the agreement.
In case of suspension and dissolution according to paragraphs 1 and 2, the supplier has the right to store the raw materials, mate rials, parts and other items purchased, reserved, processed and manufactured by him for the execution of the agreement at the buyer’s expense and risk. The supplier may also choose to sell or destroy at the buyer’s expense. In case of suspension and dissolution according to paragraphs 1 and 2, the supplier shall be entitled to full compensation, but shall not be obliged to pay compensation himself. The supplier’s damages shall be fixed at 75% of the compensation due for the (the) not yet executed (part of an) agreement, all this without prejudice to the supplier’s right to claim the actual damages resulting from the buyer’s failure.
If the buyer terminates the agreement without the supplier’s prior written approval, he is obliged to pay the full price without notice of default, less any costs saved by the supplier.

Article 16 Disputes

Disputes between the parties as a result of an offer, the conclusion or execution of an agreement or further agreement can be brought before the Geschillencommissie Koude, Klimaat en Grootkeuken, Postbus 90600, 2509 LP Den Haag (www.degeschillencommissie.nl) by both the supplier and the buyer. The supplier and the buyer may also each choose to bring the dispute before the ordinary court.
A dispute will only be handled by the Disputes Committee if the customer has first submitted his complaint to the supplier. If the complaint does not lead to a solution, the dispute can then be submitted in writing or in another form determined by the Commission to the Disputes Committee.
If the customer brings a dispute before the Disputes Committee, the supplier shall be bound by this choice. If the supplier wishes to bring a dispute before the Dispute Commission, he must ask the customer, in writing or in another suitable form, to express his agreement within five weeks. If the customer does not agree within this period, the supplier shall be free to bring the dispute before the ordinary courts.
The Disputes Committee shall rule in accordance with the provisions of the regulations applicable to it. The regulations of the Disputes Committee shall be sent to the customer by the supplier on request. The decisions of the Disputes Committee shall be binding.

advice. A fee is payable for handling a dispute. 5. Only the ordinary court or the above mentioned Dispute Committee is authorized to take cognizance of disputes.

Article 17 Applicable law

All agreements, to which these conditions apply, shall be governed by the law applicable in the Netherlands, to the exclusion of rules of referral and conflict of laws of international private law. The applicability of the Vienna Sales Convention is excluded.

DETAILED PROVISIONS MAINTENANCE

The following provisions shall apply in addition to Articles 1 to 17. In the event of a conflict between Articles 1 to 17 on the one hand and the following provisions on the other, the latter shall prevail.

Article 18 Definitions

In these further provisions, the following terms shall have the following meanings: – maintenance contract: the agreement that obliges the supplier to perform preventive maintenance during the contract period on an item.

– preventive maintenance: the performance of inspection/monitoring in accordance with the requirements of the F-gases Regulation and the Ozone Regulation, such as checking an item for proper operation, for leak tightness to prevent loss of refrigerant, checking, testing and

measuring electrical switchgear, control and protection equipment and, if necessary, recalibrating or adjusting it.

– corrective maintenance: eliminating malfunctions and making repairs to items.

Article 19 Preventive Maintenance

Preventive maintenance shall be performed during normal working hours. Normal working hours shall mean working days from 8 a.m. to 4:30 p.m., excluding weekends and generally recognized holidays.
Any relocation or modification of the installation must be reported by the buyer to the supplier in writing immediately. Any change or relocation of the installation may result in an adjustment of the rates specified in the maintenance contract.
Pipes will only be serviced if they are in plain view. Internal cleaning of furniture(s) belonging to the installation is not part of preventive maintenance, nor is cleaning the evaporators and condenser(s) of the case.
After an inspection has been carried out, the buyer will be informed by the supplier by means of the submission of a maintenance report about the state of maintenance and operational reliability of the item.

Article 20 Preventive controls

The preven tive checks to be carried out in accordance with the applicable laws and regulations will be notified to the buyer in advance and in a timely manner, after which the buyer will actually give the supplier the opportunity to carry out the relevant checks.

Article 21 Refrigerants

If an operation has been carried out with a refrigerant, this shall be noted by the supplier in the logbook for the case in question. Refrigerants removed as part of preventive maintenance shall be charged to the customer separately. After transferring the removed refrigerants to the supplier, the supplier shall be obliged to comply with the applicable statutory provisions.

Article 22 Corrective maintenance

Work for corrective maintenance falls outside the maintenance contract. Corrective maintenance will be carried out after receiving a fault report from the customer or after the fault has been signaled in some other way. After receiving a fault report, the necessary corrective maintenance will be carried out during normal working hours whenever possible.

Article 23 Free access

The supplier’s service technician must always have free and unobstructed access to the area where an item is set up. If free and unobstructed access to an item is not possible or not allowed by the buyer, the supplier shall be released from its obligation to perform the agreed work, without prejudice to the buyer’s obligation to compensate the supplier for the agreed price.
The supplier’s service engineer must be able to start work immediately upon arrival and have the necessary working space available for this purpose. Waiting hours or delays due to a circumstance not attributable to the supplier may be charged to the customer.

Article 24 Exclusions

In any case, the maintenance contract does not include the performance of work related to:

improper or injudicious use of the item or use for purposes other than those for which the item is intended;
inadequate cleaning of furniture or cells, which may cause blockage due to dirt from the water drain, resulting in the inadequate functioning of the case;
an accident or other external causes or influences;
abnormal physical or electrical stress;
modification or relocation of the item or the performance of maintenance by third parties.
introduction of new legal or other governmental measures affecting the nature or extent of maintenance work;
wear of the condenser or evaporator due to weathering from external influences;
reasonably impossible to repair the item – at the Supplier’s discretion – or if the capacity of the item is (or becomes) insufficient for the purpose for which the item is used.

Article 25 Payment and fulfillment

If and to the extent prepayment is agreed upon, the subscription money is due on the first day of the contract period.
Payment of the subscription fee must be made within 14 days of the invoice date.
In case the buyer is in any degree of default in the fulfillment of its obligations, including payment of the subscription fee for the maintenance contract, pursuant to which the supplier has suspended its obligations, this right of suspension shall also extend to reporting and performing preventive checks in accordance with the relevant legislation.