terms and conditions of delivery

Terms and conditions of delivery of Evilim Industriewater BV

These General Terms and Conditions are identical to the General Terms and Conditions of e-Water Group BV, which were deposited with the Chamber of Commerce and Factories in Maastricht on 17 September 1999 under number 14060305.

General

These General Terms and Conditions define the provider, seller, and supplier as Evilim Industriewater BV, which is the user of these terms and conditions, while the other party is referred to as the client and/or buyer.

The provisions contained in Articles 1 to 12, as recorded in these General Terms and Conditions, apply to all offers and agreements by and with Evilim Industriewater BV, unless the parties explicitly agree otherwise in writing.

Any amendments to the General Terms and Conditions made by Evilim Industriewater BV will apply in respect of the client/buyer as from one month after the date on which the client/buyer receives written notification of the amended General Terms and Conditions, unless the supplier/buyer notifies Evilim Industriewater BV in writing, within fourteen days of receiving the notification, of the fact that it objects to the amendment of the General Terms and Conditions.

Article 1: offer and agreement

1.1 Any offer made by Evilim Industriewater BV is valid for three months. If an offer is not accepted within this period, the offer will expire, except in cases in which Evilim Industriewater BV has extended the period of validity for the offer in writing.

1.2 Any terms and conditions of purchase or other terms and conditions of the client/buyer do not apply, unless Evilim Industriewater BV has explicitly accepted them in writing.

1.3 An agreement is created when the offer has been accepted in writing. The agreements made between the parties will be recorded in a written agreement. In the absence of such a written agreement, the written offer and the acceptance of this offer, together with any appendices, will constitute the documents in which the agreements that apply between the parties are recorded.

Article 2: confidential information

2.1 Each party will take all reasonable precautionary measures in order to keep secret all information of a confidential nature that it receives from the other party.

Article 3: duration and termination of the agreement

3.1 The premature termination of the agreement by way of dissolution is only possible if the other party, having been given notice of default, attributably fails to comply with substantive contractual obligations. The agreement must be dissolved by means of registered letter to the other party, without the requirement for judicial intervention.

3.2 If the client had already received services in performance of the agreement at the time of dissolution, it may partially dissolve the agreement, albeit only in respect of the portion of the agreement that Evilim Industriewater BV has not yet performed.

3.3 Any amounts for which Evilim Industriewater BV has sent an invoice prior to dissolution, in connection with services it has already performed or provided in performance of the agreement, will still be due and will be immediately payable at such time as the agreement is dissolved.

3.4 In derogation from the provisions contained in Article 3.1, each party may terminate the agreement in full or in part, without judicial intervention, by giving written notice if the other party is declared bankrupt, if it is granted suspension of payments, regardless of whether or not this is temporary, or if it is otherwise unable to fulfil its payment obligations. The party that dissolves the agreement on the basis of this Article will never be required to pay any compensation to the other party. The parties are required to notify the other party immediately if a situation as described above arises.

Article 4: prices and fees

4.1 The prices listed in the agreement will be indexed annually, with effect from 1 January, based on the index figure listed in the agreement. If at any time this index figure is no longer used, the parties will consult each other and agree on an index figure to be used that is as close as possible to the original index figure.

4.2 If the factors that determine prices are subject to an increase as a result of external factors, Evilim Industriewater BV may amend its prices in the interim. In principle, this will not occur more than once a year. Price changes will be announced with due observance of a period of one month prior to the start date of the changes. Price changes pursuant to the provisions contained in this article do not give the client the right to terminate the agreement prematurely.

Article 5: payments

5.1 The client/buyer will pay all invoices in accordance with the payment conditions listed on the invoice. Payments must be made within thirty days of the invoice date, without any deduction or postponement for any reason whatsoever, except insofar as an arbitrary or legal ruling determines that the client/buyer has a deductible counterclaim or grounds for postponement.

5.2 If payment is not made within the payment term, the client/buyer will be charged interest on the outstanding amount at a rate that is equal to the statutory interest rate. If, after receiving a notice of default, the client remains in default with regard to its payment obligation, then in addition to the amount due, the client will be required to pay all extrajudicial and legal collection costs, in which respect the amount of the former costs is set at 15% of the total outstanding amount, with a minimum of EUR 250.

5.3 If the creditworthiness of the client/buyer gives cause, Evilim Industriewater BV may demand additional security, in the absence of which it may suspend performance of the agreement.

5.4 Evilim Industriewater BV may retain any items, data, and results of processing which it receives from the client until the client pays all of the amounts due.

Article 6: retention of title

6.1 All items supplied to the client/buyer will remain the property of Evilim Industriewater BV, or its supplier, until all amounts owed by the client/buyer in respect of the items delivered or to be delivered and the work performed or to be performed pursuant to the agreement in question, as well as the amounts specified in Article 5.2, have been paid in full to Evilim Industriewater BV. The rights will always be granted and/or transferred to the client/buyer on condition that the client/buyer pays the agreed fees on time and in full.

Article 7: rights of Evilim Industriewater BV and the client/buyer

7.1 The copyright and all other intellectual or industrial property rights to all software, devices, or other materials, such as analyses, designs, documentation, reports, and quotes, which Evilim Industriewater BV provides to the client or makes available to the client in any manner whatsoever, belong exclusively to Evilim Industriewater BV or its licensors. The client/buyer only obtains the rights of use which are explicitly assigned by way of these terms and conditions, unless otherwise explicitly agreed in a signed, written document from Evilim Industriewater BV to the client.

7.2 The client/buyer is aware that the software and other materials provided contain confidential information and company secrets belonging to Evilim Industriewater BV and undertakes that it will keep secret this software and these materials and that it will not disclose them to any third parties or allow any other third parties to use them.

7.3 The client/buyer is not permitted to remove or amend any indication concerning copyrights, brands, trade name, or other intellectual or industrial property rights from the software, equipment, or materials, including indications concerning the confidential nature and secrecy of the software.

7.4 Evilim Industriewater BV is permitted to take measures to prevent any infringement on its rights. 

Article 8: deadlines

8.1 All of the deadlines quoted by Evilim Industriewater BV have been set with the best of intentions pursuant to the data that was available at the time of entering into the agreement. If there is any danger of a deadline not being met, Evilim Industriewater BV and the client will consult with each other as soon as possible. Excessive delays may be considered grounds to dissolve the agreement, with due observance of the provisions contained in Article 3.

Article 9: liability of Evilim Industriwater BV – indemnification

9.1 Evilim Industriewater BV accepts its statutory obligations to pay compensation, insofar as that is in accordance with this Article.

9.2 In the event of an attributable failure to comply with its obligations, Evilim Industriewater BV is only liable for direct damage to property and/or personal injury. The liability of Evilim Industriewater BV for indirect damages of any kind whatsoever, which explicitly includes consequential losses, pecuniary damage, and the loss of profit, is excluded. Its liability for direct damage is limited to the amounts invoices pursuant to the agreement, plus the amounts which Evilim Industriewater BV spent on providing the client/buyer with products but for which it has not yet sent an invoice, all this to a maximum of EUR 5,000,000. In the case of long-term contracts, the amount of compensation will not exceed the stipulated price for the services provided by Evilim Industriewater BV for a period of three months, with a maximum of EUR 5,000,000.

9.3 In the event of any wrongful action by Evilim Industriewater BV, Evilim Industriewater BV is only liable to pay compensation in respect of death or physical injury and for other damage, insofar as it was caused by a deliberate act or gross negligence. In these cases, the compensation will never exceed EUR 1,000,000. The liability of Evilim Industriewater BV for all other damage caused by wrongful action is explicitly excluded. If for any reason whatsoever this provision cannot be invoked, the liability per incident, in which respect a series of connected incidents will count as one incident, will in any event be limited to EUR 1,000,000.

9.4 Evilim Industriewater BV does not accept any liability for the performance of work commissioned by the client/buyer which Evilim Industriewater BV was required to outsource to third parties.

9.5 The Client indemnifies Evilim Industriewater BV against any losses that Evilim Industriewater BV might suffer as a result of claims by third parties which are associated with goods or services provided by Evilim Industriewater BV, including: - claims by third parties, including employees of the client/buyer, who suffer losses that are the result of wrongful action by employees of Evilim Industriewater BV who were made available to the client/buyer and work under its supervision or at its instructions. - claims by third parties, including employees of Evilim Industriewater BV, who suffer damages in connection with the performance of the agreement that are the direct or indirect result of the action or failure of the client/buyer, including the client's failure to comply or fully comply with the Dutch Data Protection Act or which is the direct or indirect results of unsafe situations in its company. - claims by third parties that suffer losses that are the result of a defect in the services provided by Evilim Industriewater BV which the client/buyer uses, modifies or supplies to another party with the addition of or in connection with its own products, software, computer services or other services from the client or third parties, unless the client proves that the defect did not arise from using, modifying, or supplying the service to another party as referred to above.

Article 10: transfer and takeover

10.1 The agreement concluded between the parties will remain in effect if the legal form of Evilim Industriewater BV changes or if Evilim Industriewater BV transfers all or part of its business to another legal entity.

10.2 The client/buyer cannot transfer its rights and obligations ensuing from the agreement to third parties without the consent of Evilim Industriewater BV. Incidentally, Evilim Industriewater BV will never withhold its consent on unreasonable grounds. However, the client/buyer does not require permission to change the legal form of its business.

Article 11: force majeure

11.1 None of the parties is required to comply with any obligation if it is prevented from doing so as a result of any circumstance for which it is not to blame and for which it cannot be held accountable by law, legal action, or generally accepted standards.

Article 12: applicable law and disputes

12.1 The agreements between Industriewater BV and the client/buyer are governed by Dutch law.

12.2 In the performance of the present agreement and any ensuing agreements, the parties will observe the due care that may be expected of a diligent party to an agreement. The parties will attempt to amicably resolve any disputes that may arise between Evilim Industriewater BV and the client/buyer as a result of the agreement concluded between Evilim Industriewater BV and the client/buyer or as a result of subsequent agreements arising from the said agreement. If an amicable agreement cannot be reached, the disputes will be settled by the competent court in Maastricht, unless the provisions of mandatory law prescribe otherwise.