1. Definitions

In these terms and conditions the following words shall have the following meanings:

– The Contractor: Ellips B.V.

– The Client: the natural or legal person who, in respect of the purchase of goods, the commissioning of services and/or the contracting or commissioning of work has committed himself towards the Contractor or is in negotiations with the Contractor.

– The Parties: the Client and the Contractor.

– Legal relationship: the contract to be concluded or concluded between the parties, including negotiations to this end, offers and orders to which these terms and conditions apply.

– Performance: the supply of goods and/or services and/or the contracting of work undertaken by the Contractor towards the Client.


2. Applicability and explanation

2.1 These general terms and conditions of sale shall apply to all legal relationships prevailing between the parties.

2.2 The general terms and conditions, whatever called, of the Client shall not apply. Deviations from these terms and conditions may only be agreed on in writing. If the “U.S. Export Regulations” apply to the goods supplied by the Contractor, re-export thereof shall not take place without the permission from the US authorities.

2.3 If the Client is not the end-user of the goods and/or services and between him and the Contractor a purchase contract, dealer contract or similar contract exists, then, during the term of such contract the Contractor will always be entitled to make changes and change conditions, insofar as those changes do not affectorders already confirmed by the Contractor in writing.

2.4 If, in the execution of the contract, the Contractor makes use of goods and/or services of third parties – whether or not made available by those third parties – to which the terms and conditions of those third parties apply, those terms and conditions shall be deemed to be part of these terms and conditions as if verbatim included in them, provided that anything that the Contractor is obliged to towards those third parties in accordance with those terms and conditions, the Client, on his part, shall be obliged to towards the Contractor.


3. Offer and contract

3.1 Any offer made by the Contractor shall always be without obligation, unless the contrary appears unambiguously.

3.2 The stipulation in the previous paragraph shall also apply to the content of the information provided with or in connection with the offer.

3.3 Every offer shall be based on execution of the contract by the Contractor under normal circumstances and during normal working hours.

3.4 The Client shall be bound by the order placed by him; the Contractor shall only be bound by it after it has confirmed or accepted that order to the Client in writing or if written confirmation or acceptance is dispensed with because of delivery of the goods and/or services: the contract between the parties shall become effective by the confirmation / acceptance or delivery, respectively, referred to.

3.5 The Contractor reserves the right to outsource the performance to be supplied to third parties or have it subcontracted by third parties.

3.6 Additional work shall be considered to be all that is supplied, carried out and/or performed by the Contractor in consultation with the Client, whether or not laid down in writing, during the execution of the contract in addition to or more than the goods and services laid down in the contract. The Client shall accept that the time of delivery of the goods or the completion of the supply of services may be affected by that.

3.7 Software shall always be charged by the Contractor based on actual costs. Written offers of software shall already be considered a price estimate made by the Client to the best of his knowledge and based on the information provided by the Client at the time of the offer. If during the finishing of the software the costs appear to exceed the estimated price excessively, the Contractor shall contact the Client at the earliest stage possible.


4. Delivery of goods

4.1 Delivery of goods shall take place at the warehouses of the Contractor at the moment when the Contractor informs the Client that the goods are ready.

4.2 The delivery term shall only start after the contract has been concluded and after the Contractor has received all data and documents to be provided by the Client and the first instalment has been paid, if settlement thereof was agreed on with the order.

4.3 Transport, including loading and unloading, shall be for the account and at the risk of the Client, irrespective of at whose instruction transport takes place or to whom the carrier charges the transport risk.

4.4 From the moment of the notification referred to in paragraph 1 of this clause, the Client shall have ten days’ time to collect the goods; should the goods not be collected in time, after the aforementioned term the costs of storage shall be charged to the Client.

4.5 The risk of damage or loss of the goods shall pass to the Client at the moment of the delivery referred to in paragraph 1 of this clause.

4.6 Return consignments shall only be accepted if the Client has received written acceptance to that effect. If the Client returns goods without having received written acceptance to that effect and these returned goods are accepted on behalf of the Client and stored at the warehouse, these goods shall only deemed to have been accepted after the Client has received the written acceptance referred to above. Costs and risk shall be borne by the Client.

4.7 If goods must be assembled, put into operation and/or tested, all the work connected to that, such as digging, foundation, breaking, chiselling, masonry, plastering, concrete, forging, carpentry, painting and plumbing works, as well as carrying, hoisting and moving works shall be for the account and at the risk of the Client.

4.8 The Client shall ensure that the aforementioned work is performed in due time and in accordance with any instructions of the Contractor, whereas the Contractor shall not accept any liability in respect of those instructions. Furthermore, at his own account, at first call and in due time, the Client shall make available any auxiliary workers, auxiliary tools and materials, energy, lighting, compressed air or other tools deemed necessary by the Contractor.

4.9 In the event that circumstances present themselves that impede or slow down the execution of the contract through no fault of the Contractor, the latter will be entitled to charge the Client with the costs resulting from this.


5. Supply of services

5.1 If the performance to be supplied consists or partially consists of supply of services, these shall be supplied to the best of Contractor’s knowledge and ability.

5.2 The delivery of the goods shall take place upon completion of the supply of services by making them available to the Client. The risk of damage or loss of delivered goods shall pass to the Client as soon as the Client has the actual control of disposal of it.

5.3 In the case of phased supply of services, the Contractor will be entitled to suspend the execution of services that are part of a next phase until the performance supplied in the previous phase(s) has been accepted by the Client in writing.

5.4 In the event that circumstances present themselves that impede or slow down the execution of the contract through no fault of the Contractor, the latter will be entitled to charge the Client with the costs resulting from this.


6. Prices and rates

6.1 All prices and rates are exclusive of turnover tax and other levies imposed by the authorities. Prices of goods are based on delivery ex-warehouse. Rates are exclusive of travel and accommodation expenses. Installations costs, assembly costs and other costs to be incurred in connection with the performance that is to be carried out are not included in the price either. The Contractor reserves the right to charge consignment, administration and handling costs. Costs of urgent consignments at the request of the Client, as well as C.O.D. (cash on deliver) consignments, shall always be charged.

6.2 As soon as increases in the cost of the performance occur, they shall be charged on by the Contractor. Currency fluctuations shall be passed on if, at the moment of delivery, the exchange rate differs more than 1.5% from the original rate of exchange used for the calculation.

6.3 The Contractor will be entitled to demand that the Client furnishes security. In addition, the Contractor will be entitled to demand advance payment from the Client before it starts the execution of the contract.

6.4 The rates shall apply for normal working days, i.e.: Monday through Friday (with the exception of public holidays) between 08.30 and 17.00 hours.


7. Payment and retention of title

7.1 Payment of goods that are to be collected shall be made in cash. Payment of other invoices shall take place immediately after invoice date without any discount or setoff. From the due date the Client shall owe 1.5% interest per month; part of a month shall be calculated as a full month.

7.2 Any extrajudicial or judicial costs to be incurred by the Contractor, including all costs charged by external experts, shall be borne by the Client. The height of these costs shall be determined at minimum 15% of the total due amount, including the aforementioned interest, with a minimum of € 250.

7.3 Any complaints shall not suspend the obligations of the Contractor to pay.

7.4 The title of all goods supplied to the Client shall be retained by the Contractor and the Contractor shall reserve any rights that are to be granted or transferred until all amounts due to the Contractor have been paid. This retention of title shall remain in force even if the supplied goods undergo treatment or adaptation. Before the transfer of ownership as referred to here, the Client will not be entitled to sell on such goods in the framework of a purchase contract, a dealer contract or a similar contract, but only insofar as that is customary in the framework of the normal exercise of his business.

7.5 The Contractor will be entitled to deactivate the supplied systems if payments have not been effected within the set term or in case of non-payment. The systems shall be supplied with automatic blocking. The blocking will stop operation of the system after expiry of the payment term. Depending on partial/full payment, the Contractor shall extend the operation of the system or cancel the blocking completely with the aid of a password.

7.6 Should the creditworthiness of the Client give cause to this, then the Contractor may demand further security in the absence of which it may suspend execution of the contract.


8. Terms of delivery

8.1 All terms of delivery mentioned by the Contractor in offers, confirmations and/or contracts have been determined to the best of its knowledge and shall be observed as much as possible but are not binding. In the event of (impending) excess of the terms of delivery, the Contractor shall start consultations with the Client as soon as possible.

8.2 Excess of terms of delivery, due to whatever cause, shall not entitle the Client to damages, dissolution, rejection of goods, suspension of payments or non-fulfilment of any obligation on his part otherwise.

8.3 Changes to or additions to goods and/or services that must be delivered shall entitle the Contractor to adaptation of the terms stated.


9. Intellectual property

9.1 All intellectual property rights to the goods and/or services to be supplied or made available otherwise by the Contractor shall rest with the Contractor or its licensors. The Contractor reserves the intellectual property rights in respect of all information supplied by it.

9.2 The Contractor shall not remove or change any notice of intellectual property rights on or in the goods and/or services supplied or made available otherwise by the Contractor.

9.3 The Contractor shall take any reasonable precautions to prevent goods and/or services that are to be supplied or made available otherwise from being in contradiction with any right of intellectual property of a third party prevailing in the Netherlands.

9.4 If, nevertheless, the Contractor is to blame for an infringement of such right, the Contractor, with due observance of the stipulated in clause 12 paragraph 5, shall take back the infringing part of the goods and/or services, crediting the Client with the purchasing costs paid by him for the relevant part or shall ensure that the Client may (continue to) use the goods and/or services supplied or made available or similar goods and/or services without interruption, provided that the Contractor is informed of the claims, is put in charge immediately and completely and the Client provides the Contractor with the necessary information and cooperates to ward off those claims.

9.5 If the Contractor has supplied goods and/or services in accordance with designs, drawings or other instructions provided by or in the name of the Client, the Client shall guarantee that this does not infringe any intellectual property rights of third parties. The Client shall safeguard the Contractor against any claims from third parties in this matter.


10. Confidential information

The parties shall observe strict confidentiality in respect of the information about each other’s organization and the goods and/or services to be supplied, as well as in respect of other information of a confidential nature.


11. Mutual rights and obligations

11.1 The parties shall provide each other in due time with any useful and required data that may be requested in reasonableness in the framework of proper performance.

11.2 The Client shall be liable for the use, the protection and proper application in his organization of the goods and/or services supplied by the Contractor, as well as for any damage to and loss of documents and data entrusted to the Contractor; these shall always be considered copies of the original document and data retained by the Client.

11.3 If it has been agreed that the Client will make equipment, materials or data on information carriers available, these shall be in accordance with the specifications necessary for the performance of the work.

11.4 If data required for the execution of the contract are not, not timely or not in accordance with the agreements available to the Contractor or if the Client fails to fulfil his obligations otherwise, the Contractor will be entitled to suspend the execution of the contract and to charge additional costs in accordance with the prevailing rates of the Contractor.

11.5 During the term of the contract until one year after termination thereof the Client shall not employ or contract otherwise, either directly or indirectly, persons for the performance of work or the supply of services without written permission from the Contractor who:

a) perform work in the employment of the Contractor;

b) performed work in the employment of the Contractor and a year has not yet elapsed after the termination of the employment with the Contractor.

11.6 If the Client violates the stipulation in the previous paragraph and refuses to cooperate in undoing this violation, he shall forfeit an immediately payable penalty of € 3,000 per day that the violation continues.


12. Guarantee and liability

12.1 For a period of 30 days after supply of software by the Contractor and for a period of 365 days after supply of hardware by the Contractor, if they appear to be defective, they shall be repaired, replaced or properly executed after all by the Contractor, at its option, after the Client complained properly without delay and the Contractor accepted the complaint; all this without prejudice to the stipulated in paragraph 6 of this clause. In the event of repaired, replaced or after all properly executed goods and/or services determined in the framework of this clause, the guarantee term shall not start anew in respect of all or part of the goods and/or services, irrespective of the method followed by the Contractor when carrying out the guarantee. In case of replacement of goods, the Contractor shall become the owner of the replaced (parts of) goods. If the performance to be carried out consists entirely or partially of the supply of equipment and/or software and this equipment and/or software differ in respect of type, construction, size, model, colour etc. of what has been agreed in this respect and those differences do not affect the functioning of those goods in accordance with their purpose, the contract shall be considered to have been fulfilled.

12.2 The Contractor will not be obliged to supply its goods and/or services under the guarantee outside of the city or town where its company is established. It may claim, for that matter, that for repair or otherwise goods are transported to a place to be specified by it. The costs of transport of the goods to and from the place where the work is performed shall always be borne by the Client.

12.3 If the performance to be supplied consists entirely or partially of software, the Contractor, contrary to the stipulated in paragraph 1 of this clause, does not guarantee that the software will work without interruption or defects or that all defects will be repaired.

12.4 The guarantee does not apply:

•if supplied goods and/or services are used in another manner or for other purposes than for which they are designated in accordance with the contract;

•if the Client either performs work himself or has work performed to the supplied goods and/or services by third parties without prior approval of the Contractor;

•if, upon the coming about of failure or defect, the Client has not complained timely and properly and has done anything possible to limit the damage, including the switching-off or deactivation of equipment and making copies and back-ups of data and software;

•if failure, defect or damage is due to negligence of the Client or his customers.

The Client shall safeguard the Contractor against any claims from third parties. Except for mandatory legislative provisions in respect of (product) liability, as well as with due observance of the legal rules of public order and good faith, the supplier will not be obliged to compensate any damage whatsoever, direct or indirect, including loss of profits, to movable or immovable property or to persons, both at the other party or at third parties. With due observance of the stipulated elsewhere in this close, the supplier shall at any rate not be liable for damage caused by:

•improper use of the goods and/or services supplied or use thereof for another purpose than for which it is suitable in accordance with objective standards;

•negligence on the part of the other party, by his personnel or other persons involved by him;

•violation of the patents, licences and/or other intellectual property rights of third parties resulting from use of data provided by or in the name of the other party, such as drawings, models, designs etc.

12.6 If the Contractor helps with the assembly and/or making the goods and/or services ready for operation whereas this is not stated in the order, this shall be done at the risk of the other party.

12.7 In respect of advice given, the Contractor shall only be liable for generally avoidable and/or foreseeable failures in it, but for an amount equal to the negotiated advice fee at the most.

12.8 The liability of the Contractor shall also be judged based on any product/consequential loss insurances of the Contractor. Besides the cover thereof, the liability shall always be limited to the net invoice value of the supplied goods and/or services or limited to the insured sum of the liability insurance of the supplier. If necessary, at the request of the other party, the supplier shall provide information about the amount for which the supplier is insured.

12.9 Fulfilment of the prevailing guarantee/complaint obligations and/or payment of the determined damage by the supplier or his insurer(s) shall be considered the only and complete compensation. For the rest, the other party shall safeguard the supplier expressly and completely.

12.10 The claim for compensation and/or repair or replacement shall lapse through expiry of one year after the damage and/or the defect was acknowledged by the other party as appears from written notification or should have been acknowledged in reasonableness and at any rate shall lapse three years after delivery.

12.11 If the supplier must purchase the goods elsewhere, any (contract) stipulations applicable to that transaction shall also apply towards the other party if and insofar as the supplier invokes them.

12.12 Any further liability, including liability for indirect or consequential damage and liability because of excess of terms of delivery shall be excluded.

12.13 The Contractor shall not accept any liability for damage resulting from the cases referred to in paragraph 4 of this clause.


13. Force majeure

13.1 Force majeure shall be understood as any circumstance beyond Contractor’s control and due to which the Contractor cannot fulfil its obligation in reasonableness as well as, insofar as not already included, war, danger of war, civil war, riots, industrial action, lockout, transport problems, fire, explosion, natural disasters, stagnation due to time lost through frost and other weather circumstances, government measures and other serious failure in the business of the Contractor or its supplier. Furthermore, the Contractor will be entitled to invoke force majeure if its supplier does not or not timely fulfil his delivery obligations. If one of the facts as referred to above presents itself, the Contractor shall inform the Client immediately of this and keep him informed of the development of this fact of force majeure.

13.2 If the force majeure has lasted for longer than six months or as soon as it is certain that it will last for longer than six months, either party will be entitled to give notice of termination of the contract within thirty days from that time for that part of the execution that is impeded by that force majeure, provided that the party using this right notifies the other party by registered letter of this. Neither party will be entitled to demand compensation because of this notice of termination. All that has already been performed in accordance with the contract shall be settled pro rata.


14. Suspension and dissolution

14.1 In the event of attachment of goods, petition for suspension of payment, filing for bankruptcy, closing down, attachment of a considerable part of the capital, dissolution, winding-up or takeover of the company of the Client and in the event of the appointment of an administrator in the company of the Client – as well as in the event of a guardianship order or death if it concerns a natural entity -, the Contractor will be entitled, at its option, to either suspend the fulfilment of its obligations or to dissolve the contract entirely or partially. All instalments due by the Client shall be immediately payable. If and as long as the Client fails to fulfil his obligations, the Contractor will also be entitled to suspend the fulfilment of its obligations or to consider the progress of the delivery time suspended or to dissolve the contract entirely or partially. The Contractor shall not accept any liability for the damage to be suffered by the Client in such case.

14.2 If, at the moment of dissolution, goods and/or services were already supplied in the execution of the contract, it will only be possible to dissolve the contract partially, exclusively for that part that has not yet been executed. At the moment of dissolution, payment obligations due before the time of dissolution and/or relating to already supplied goods and/or services shall become immediately payable.

14.3 Obligations that, by their nature, are meant to continue also after dissolution of the contract shall continue to exist after dissolution of this agreement. The following stipulations shall be included in these obligations, without limitation: retention of title (clause 7), intellectual property (clause 8), confidential information (clause 10), mutual rights and obligations (clause 11), applicable law and disputes (clause 13) and general (clause 16).


15. Applicable law and disputes

15.1 All negotiations, offers, the manner of conclusion of contracts as well as the contents and resulting execution of those contracts shall be governed exclusively by Dutch law.

15.2 In case of nullity of one or more stipulations from a legal relationship existing between the parties, the parties shall be bound by rules of as much similar tenor as possible that are not subject to nullity. For the rest the contract shall at any rate be maintained.

15.3 Any disputes – including those that are only considered such by one of the parties – that might arise between the parties following negotiations, offers, the manner of conclusion of contracts, the content and resulting execution of the contracts shall in the first instance exclusively be brought before the competent court in the actual or legal place of establishment of the Contractor, at Contractor’s option.


16. General

16.1 Oral statements, promises or agreements shall not have legal effect unless these have been confirmed by the Contractor in writing. Stipulations deviating from these General Terms and Conditions may only be agreed on in writing by holders of power of attorney filed with the Chamber of Commerce.

16.2 The clause headings in these terms and conditions shall only serve to improve the readability and have no significance in determining the content and tenor of the terms and conditions.

16.3 These terms and conditions have originally been formulated in the Dutch language. In case of a dispute of interpretation of a translated version of these terms and conditions, the Dutch language shall be authentic and decisive

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