Article 1: Applicability
1.1 These conditions shall apply to all offers and all agreements with regard to the implementation of the work or the purchase and sale performed by Rokatec B.V.
1.2 In these conditions the offerer/seller shall be referred to as the commissionee, being Rokatec B.V. that carries out these terms, while the other party shall be subsequently referred to as client.
1.3 The standard conditions of the client shall not apply, unless accepted in writing by the commissionee.
Article 2: Offers
2.1 All offers shall be valid during thirty days after the date of the offer, however they shall always be free of obligations. Offers shall be based on data, drawings etc. provided by the client in the event of an application, which the commissionee may assume to be correct.
2.2 If the assignment for the implementation of the work is not granted to him, the commissionee shall be entitled to charge the client for all costs he has incurred in order to draw up his offer.
3.3 The stated prices shall apply to delivery ex workshop, factory, shipyard or warehouse, excluding the turnover tax, unless agreed otherwise.
Article 3: Rights of industrial and intellectual property
3. Unless agreed otherwise, the commissionee shall retain the copyright, as well as all other rights of industrial and intellectual property with regard to the designs, sketches, illustrations, drawings, moulds, models, model plates, tools, software and offers. These items shall remain his property and it is not allowed to copy them, show them to a third party or use them in any other way without his explicit permission, irrespective of whether the client has been charged for them. The client shall be obliged to return these items to the commissionee at the latter’s first request, on penalty of a fine of EUR 500.- a day.
Article 4: Advice, designs and materials
4.1 Information and advice provided by the commissionee shall only be of a general nature and free of obligations.
4.2 The commissionee shall not accept any responsibility for a design that has been worked out by him or on behalf of the client, neither for any advice as a result of this design.
4.3 The commissionee shall accept responsibility for designs that have been made by the commissionee himself. With regard to this aspect the reader is referred to the guarantee conditions.
4.4 In the event of an assignment the commissionee shall only accept responsibility with regard to designs that have not been made by him or on behalf of him for the production in accordance with the assignment and for the soundness of the applied materials in so far as the client has not prescribed these materials. The client shall be entitled to commission a third party to investigate materials that have not been prescribed by him. The client shall pay the costs related to this investigation. After having processed the materials or components, the client cannot claim that the applied material is not suitable in a functional sense, neither can he claim other defects in the material that he could have discovered in reason in an investigation.
4.5 If the client wishes to transfer the responsibility for designs that have been made by him or on behalf of him to the commissionee, the latter does not have to accept the responsibility. The commissionee shall be given sufficient time to take a decision with regard to this decision. He shall have the opportunity to examine and calculate the entire design. For this purpose the client shall make all required or useful data and documents available to him. It cannot be required from the commissionee that he shall perform the investigation free of charge.
4.6 The commissionee shall never accept any responsibility for items that have been made available by the client himself.
Article 5: Agreements
5. Agreements, or whatever other name applied, shall only become effective after the explicit acceptance by the commissionee. This explicit acceptance shall become manifest by the (written) confirmation by the commissionee, or by the fact that he is putting the agreement into effect.
Article 6: Cancellation
6. The client shall be entitled to cancel an agreement before the commissionee
has started with the implementation of the agreement. He can solely do this by offering the commissionee a compensation for the damage sustained by the latter as a result of this cancellation. This damage shall in any case include at least 10% of the price of the assignment.
Article 7: Risk and costs of developing prototypes
7. The costs related to the development of prototypes shall be incurred by the client, notwithstanding the fact that the commissionee cannot guarantee an adequate functioning of a prototype of a certain product that has been produced at the request of the client.
Article 8: Moulds, models and model plates
8.1 Moulds, models, model plates and tools produced by the commissionee on the instructions of the client shall, unless explicitly agreed otherwise, always remain the property of the commissionee, also when the client has paid for these items wholly or partly.
8.2 Moulds, models and model plates and tools which by their nature are apparently intended for sustainable use are stored for a maximum period of three years by the commissionee, to be calculated from the last order. After this period, the commissionee shall be able to use these items freely and unconditionally.
8.3 The storage of items that have been made available by the client, or have become his property following the agreement to that effect, shall be at the expense and at the risk of the client, for a maximum period of three years, to be calculated from the last order. If the client has not requested the return of his items after this period has expired and also has not taken these items back within one month after a written notification, his proprietary rights shall cease and the commissionee shall be entitled to have them at his disposal at his discretion. The return shipment to the client of his property shall take place ex factory/workshop/warehouse of the commissionee.
8.4 Moulds, models, model plates and tools that have been produced for or on behalf of the client, irrespective of the fact whether or not these items are the property of the commissionee, shall only be used by the commissionee for third parties after permission by the client during the period referred to in the above-mentioned paragraphs 2 and 3. The costs of changing, renewing and/or repairing moulds, models, model plates and tools that have been produced on the instructions of the client as a result of wear, shall be at his expense.
Article 9: Numbers
9. Unless agreed otherwise, it applies that higher or lower numbers in the assignment are allowed, on the understanding that it is allowed to supply 10% more or less with a delivery of up to 500 items, and 5% more or less with a delivery exceeding 500 items. The higher or lower numbers shall be settled.
Article 10: Delivery time and place of delivery
10.1 Delivery shall take place ex workshop or warehouse, to be decided by the commissionee, unless agreed otherwise. Delivery times shall be established approximately. The delivery time shall commence when agreement has been reached about all technical details and after all data, drawings etc. required for the implementation of the work have come in the possession of the commissionee and after he has received any possibly agreed (part) payment.
10.2 The delivery time shall be established on the assumption that the commissionee can continue to work according to the expectations at the time of the offer and on the assumption that the necessary materials shall be supplied to him in time. An exceeding of the delivery time shall only be compensated if this has been agreed in writing.
10.3 When the items are ready or have not been purchased by the client after the expiry of the delivery time, the items shall be at the disposal of the client and stored at his own expense and risk.
Article 11: Impracticability of the assignment
11.1 When the commissionee cannot fulfil the agreement after its conclusion as a result of conditions that were not known to the commissionee when the agreement was concluded, the latter shall be entitled to claim the right that the contents of the agreement are modified in such a way that its implementation remains possible.
11.2 Moreover, the commissionee shall be entitled to suspend the fulfilment of his obligations and not be in default when he is temporarily prevented to fulfil his obligations as a result of the change in conditions that could not have been anticipated in reason when the agreement was concluded and which are outside his sphere of influence.
11.3 Conditions that could not be anticipated in reason and which are outside his sphere of influence shall also be understood to mean: non-compliance with the obligations by the suppliers of the commissionee, fire, strikes or work interruptions or the loss of moulds, model plates, tools or of the materials to be processed, import or trade prohibitions.
11.4 There shall be no power to suspend the agreement when its fulfilment is permanently impossible or when the temporary impossibility exceeds a period of six months, in which case the agreement between the parties shall be dissolved without one of the parties being entitled to a compensation of the sustained damage or damage to be sustained.
11.5 If the commissisonee shall partly have fulfilled his obligations, he shall be entitled to a proportionate part of the agreed price on the basis of the already performed work and incurred costs.
Article 12: Changes in the contracted work
12.1 All changes in the contracted work, either as a result of a special assignment of the client, or as a result of a change in the design or because the provided data are not in agreement with the actual implementation, or because there are departures from the suspended amounts, shall be considered as surplus work, and if these changes have led to lower costs they shall be considered as less work.
12.2 Surplus/less work shall be calculated on the basis of the price-deciding factors that apply at the moment that the surplus work shall be performed or on the basis of the price-deciding factors that apply at the moment of concluding the agreement.
12.3 If the final settlement of the work shows that the total of the already settled sum and still to be settled sum for the less work exceeds the total of the already settled sum and still to be settled sum for the surplus work, the commissionee shall be entitled to receive a sum equalling 10% of the difference of these totals, unless the request for less work was made by the commissionee.
Article 13: Liability
13.1 The commissionee shall only be liable for damage sustained by the client that has been directly and solely caused by a failure to be attributed to a commissionee, on the understanding that the only damage that qualifies for compensation is damage with regard to which the commissionee is insured or should have been insured in reason, in view of the customs applying in the branch. Hereby the following restrictions should be observed:
a) Operational damage (breakdown, port dues and other costs, loss of income etc.), whatever its cause, shall not qualify for compensation. If necessary, the client shall have to take out an insurance policy against damage.
b) During the implementation of the work the client shall not be responsible for damage (whatever type) to items on which work is taking place or which are used for the work, or items which are to be situated in the vicinity of the location where the work is performed, except and in so far as the commissionee has taken out an insurance policy for this purpose.
c) The damage to be paid by the commissionee shall be moderated if the price to be paid by the client is small in proportion to the extent of the damage sustained by the client.13.2 The client shall indemnify the commissionee against every third-party action for compensation towards the commissionee regarding the use of the drawings, samples, moulds, models or model plates or other items or data sent by the client and shall be held liable for all resultant costs.
Article 14: Transport
14.1 All items shall travel at the expense and risk of the client from the moment of shipment. The client shall be liable for all damage related to the transport, also when the commissionee shall take care of the transport. The client shall have to take out a substantial insurance policy against this risk.
14.2 If the provision in article 14.1 cannot be invoked, the commissionee shall never be obliged to pay a greater compensation than the sum that he can obtain in connection with the loss or damage during the transport of the carrier and/or insurer, and he shall assign his debt to the carrier or the insurance company at the request of the client.
Article 15: Uncollected items
15. If the client does not collect items that are at the disposal of the commissionee of the client on payment of the amount due, despite the fact that these items have been made available, the commissionee shall be entitled to sell these items for and on behalf of the client or have others sell these items for and on behalf of the client one month after they have been made available after having given a notice of default, under the obligation that the proceeds shall be paid to the client, after deduction of the claims to which the commissionee is entitled, including storage costs.
Article 16: Payment
16.1 The payment conditions shall be arranged in accordance with the nature and importance of the delivery or the work to be implemented. The net invoice amount shall be paid in cash or to an account.
16.2 The costs to be paid by the commissionee that have been disbursed by the client shall be settled with the payment of the last instalment.
16.3 The commissionee shall always be entitled, before delivering or continuing with the delivery or the fulfilment of the assignment, to demand sufficient security from the client for the fulfilment of the payment obligations. This provision shall also apply if credit is stipulated. A refusal by the client to furnish the demanded security shall entitle the commissionee to declare in writing that the latter shall consider the agreement to have been dissolved, without prejudice to the right of the commissionee to a compensation of the costs and loss of income.
16.4 If the client fails to fulfil his payment obligations, the commissionee shall also be entitled to suspend the work and/or deliveries, also if a fixed delivery time has been agreed.
16.5 Regulations from whatever authority that prevent the use of the items to be supplied shall not bring about any change in the financial obligations of the client.
16.6 The right of the client to settle his possible claims with the commissionee shall be excluded explicitly.
16.7 The entire purchase price or contract sum shall in any case be payable at once in the event of a non-prompt payment of the agreed instalment when due, if the client has become bankrupt, filed a petition for a moratorium or a request has been made to place him under guardianship, the items or debts of the client have been seized as well as when the client dies, or when his business is wound up or dissolved.
16.8 When the payment of a submitted invoice has not taken place in time, the commissionee shall be entitled to charge the client a compensation of 1% per month or a part of the month after the expiry of the instalment on account of a loss of interest.
16.9 The commissionee shall also be entitled to claim all extrajudicial costs that have been incurred as a result of non-payment (or an overdue payment). Extrajudicial costs shall be borne by the client, in any case when the commissionee shall have secured assistance from a third party for the collection. These costs shall be calculated in agreement with the collection rate that has been advised by the Netherlands Bar in collecting business, with a minimum of EUR 250,-. The mere fact that the commissionee has secured assistance from a third party shows the extent of the extrajudicial costs and the obligation to pay these costs. If the commissionee shall file a petition for bankruptcy of the client, he shall be obliged to pay the costs of the bankruptcy petition in addition to the main sum, interest and extrajudicial costs.
Article 17: Claims and complaints
17.1 The client cannot invoke a failure of performance anymore, unless he has protested in writing to the commissionee about this issue within eights days after having discovered the (in)visible failure or when in reason he should have discovered this failure.
17.2 The client shall lose all rights and powers that were at his service due to this failure if he does not submit a claim within the applicable period and/or if does not give the commissionee the opportunity to repair the failures.
Article 18: Price changes
18.1 The agreed prices shall have been stated in Euro and be based on the costs of material and wages that apply on the day of the offer.
18.2 If and in so far as the wages, prices of the materials etc. have undergone changes during the period between the date of the offer and the delivery or completion, the commissionee shall retain his right to modify the agreed price proportionally.
18.3 If the client makes materials or raw materials and other articles available to the commissionee for the implementation of the work, the commissionee shall be entitled to include a maximum of 10% of the cost price of the supplied items in the contract sum or include this percentage in his price calculations.
Article19: Retention of title and pledge
19.1 The client shall only become the owner of items supplied or still to be supplied by the commissionee under suspensive conditions. The commissionee shall remain the owner of the supplied items or items that still have to be supplied as long as the client shall not have paid the claims of the commissionee in consideration of the agreement or a similar agreement. The commissionee shall also remain the owner of items supplied or still to be supplied as long as the client shall not have paid the work performed or to be performed following such agreements and as long as the client shall not have paid claims on account of failing to fulfil such agreements, including claims with regard to fines, interest and other costs.
19.2 As long as he shall not have paid the aforementioned claims, the client shall not be entitled to exercise a right of pledge or a non-possessory pledge on items supplied by the commissionee and shall commit himself towards third parties who want to exercise such a right that, upon first expression of this wish, he shall state that he is not authorised to exercise such a right of pledge. Furthermore, the client shall commit himself to not sign any deed whereby a right of pledge shall be exercised on items, in which case the client shall have committed embezzlement.
19.3 If the client fails to fulfil any obligation from the agreement towards the commissionee with regard to sold items or work to be performed, he shall be entitled to take back the originally supplied items as well as the newly produced items, without proof of default. The client shall authorise the commissionee to enter the location where these items have been placed.
19.4 The commissionee shall transfer the property of the supplied items on the moment that the client has fulfilled all his payment obligations from this agreement and similar agreements, subject to the right of pledge of the commissionee, for the benefit of other claims that the commissionee has on the client. At the first request of the commissionee the client shall lend his assistance to actions that are required in this respect.
Article 20: Dissolution
20.1 A whole or partial dissolution of the agreement shall take place by registered mail by the person authorised for this purpose. Before the client sends a written statement of dissolution to the commissionee, he shall always first declare in writing that the commissionee is in default and offer him a reasonable period to fulfil his obligations or remedy his failures as yet, which failures shall be reported accurately by the client in writing.
20.2 The client shall not be entitled to dissolve the agreement wholly or partly or to suspend his obligations if he has already been in default with regard to the fulfilment of his obligations.
20.3 If the commissionee agrees with the dissolution, although he is not in default, he shall be entitled to a compensation of all financial damages such as costs, lost profit and reasonable costs in order to establish the damage and liability of 40% of the agreed price. In the event of a partial dissolution the client cannot invoke a claim to undo any work already performed by the commissionee, and the commissionee shall be fully entitled to payment of the work already performed by him.
Article 21: Applicable law
21.1 Netherlands law shall apply to all agreements.
21.2 The provisions of the Vienna Purchasing Treatment shall not apply, neither shall any other future international scheme apply regarding the purchase of movable physical property of which the effect can be excluded by the parties involved.
21.3 All disputes resulting from offers and agreements, whatever their name, shall be submitted to the judgement of the court of Utrecht, the Netherlands.