Terms and conditions

GENERAL TERMS AND CONDITIONS OF AAA LAB SERVICE B.V.

Article 1: Applicability

1.1 These general terms and conditions apply to all offers and all agreements concluded by AAA Lab Service B.V., established in Roelofarendsveen (Netherlands) (Supplier). The other party is referred to as "the Customer."
1.2 In the event that the agreement concluded between the Customer and the Supplier conflicts with these general terms and conditions, the provisions in the agreement shall prevail.
1.3 These general terms and conditions are deemed to have been stipulated for the benefit of employees, auxiliary persons, and (sub)contractors of the Supplier (Himalaya clause).
1.4 These general terms and conditions may be amended. Once the amended general terms and conditions have been communicated to the Customer, the amended terms shall take effect.

Article 2: Offers

2.1 Offers are non-binding.
2.2 If the Customer provides the Supplier with data, drawings, etc., the Supplier may rely on their accuracy and base the offer on such data, drawings, etc.
2.3 All prices, as specified in the offer, are based on delivery DDP, in accordance with Incoterms 2000. Prices are exclusive of VAT and packaging materials.

Article 3: Intellectual Property Rights

3.1 Unless otherwise agreed in writing, the Supplier retains all intellectual property rights concerning all offers, designs, illustrations, drawings, test models, programs, etc.
3.2 The intellectual property rights mentioned in Article 3.1 remain the property of the Supplier, regardless of whether production costs have been charged to the Customer. The relevant information may not be copied, used, or shown to third parties without the explicit prior consent of the Supplier. The Customer is obliged to compensate for any damage suffered by the Supplier due to a violation of the above.
3.3 The Customer must return all data, as mentioned in Article 3.1, upon the first request of the Supplier, within the period specified by the Supplier.

Article 4: Advice, Design, and Materials

4.1 The Customer cannot derive any rights from advice or information provided by the Supplier that does not have a direct relation to the agreement.
4.2 The Customer is responsible for all drawings, calculations, and designs made by or on behalf of the Customer and guarantees the functional usability of all materials prescribed by them.
4.3 The Customer indemnifies the Supplier against all third-party claims arising in connection with the use of drawings, calculations, designs, materials, samples, models, etc., provided by or on behalf of the Customer.
4.4 The Customer may inspect or have inspected the materials that the Supplier intends to use before processing at their own expense. If the tests result in damage, the Customer must compensate for this.
4.5 The Supplier observes all applicable safety measures.

Article 5: Delivery Periods

5.1 The delivery periods are approximate and are not binding unless expressly agreed otherwise.
5.2 When determining delivery periods or working times, the Supplier assumes that the obligations can be performed under the circumstances known to the Supplier at that time.
5.3 Delivery periods or working times do not commence until the parties have fully agreed on all commercial and technical details, all relevant data, final and approved drawings in the possession of the Supplier, and any payment terms.
5.4 If circumstances differ from those known to the Supplier at the time of setting the delivery times or working times, the Supplier may extend the delivery times and working times by the period necessary to fulfill the assignment under the changed circumstances. If the work cannot be carried out within the Supplier's schedule, the work will be performed as soon as the Supplier’s schedule allows.
5.5 In case of additional work, the delivery time and/or work period shall be extended by the time required to procure the necessary materials and parts and to perform the additional work. If the additional work cannot be incorporated into the Supplier’s schedule, the work shall be performed when the schedule allows.
5.6 If the Supplier suspends the execution of its obligations, the delivery period and/or work period shall be postponed by the same period. If the resumption of work cannot be incorporated into the Supplier’s schedule, the work will be carried out as soon as the Supplier’s schedule allows.
5.7 If weather conditions prevent the execution of the work, the delivery period and/or working times shall be extended by the duration of the delay.
5.8 If the delivery period or working times are exceeded, this does not entitle the Customer to compensation or dissolution, unless expressly agreed otherwise.

Article 6: Transfer of Risk

6.1 Deliveries shall be made DDP, in accordance with Incoterms 2000; the risk associated with the goods transfers to the Customer at the moment the Supplier delivers the goods to the Customer’s premises.
6.2 The Supplier ensures adequate insurance for the goods.

Article 7: Price Changes

7.1 The Supplier may pass on an increase in cost-determining factors to the Customer if the agreement has not yet been fully performed at the time of the price change.
7.2 The Customer is obliged to pay the price change referred to in Article 7.1 simultaneously with the payment of the principal sum or the next installment.

Article 8: Impossibility of Performing the Assignment

8.1 The Supplier is entitled to suspend the performance of its obligations if unforeseen circumstances temporarily make the performance of those obligations impossible.

8.2 Unforeseen circumstances within the meaning of the previous article include the situation in which the Supplier's subcontractors and/or suppliers fail to fulfill their obligations, weather conditions, earthquakes, fire, loss or theft of tools, destruction of materials to be used, road closures, strikes, work stoppages, and import or trade restrictions.

8.3 The Supplier is no longer entitled to suspension if the temporary impossibility of performance has lasted for six months. Until that time, the agreement may not be terminated, and termination may only take place concerning obligations that have not yet been fulfilled. In the event of termination, neither party is entitled to any compensation related to the termination.

Article 9: Scope of Work

9.1 The Client is responsible for obtaining and maintaining all permits, exemptions, and administrative decisions necessary to carry out the work on time.

9.2 The price of the work does not include:
a. the costs of construction work;
b. the costs of connecting gas, water, electricity, or other infrastructural facilities;
c. disposal costs;
d. hotel and travel expenses.

Article 10: Changes to the Work

10.1 Any changes to the work will result in changes to the contract, at least in the following circumstances:
a. changes in the design or specifications;
b. if the information provided by the Client does not correspond with the actual situation.

10.2 Additional work will be charged based on the value of cost-determining factors at the time the additional work is performed. Reduced work will be settled based on the cost-determining factors at the time of the agreement.

Article 11: Execution of the Work

11.1 The Client is responsible for ensuring that the Supplier can carry out the work without disruption at the agreed times. The Client is also responsible for ensuring that the Supplier has access to the necessary facilities to perform the work, such as:

• gas, water, and electricity;
• heating;
• a lockable and dry storage space;
• all facilities required by law and regulations regarding working conditions.

11.2 The Client is responsible for all damages, including loss, theft, fire, or injury, related to items belonging to the Supplier, the Client, or third parties, such as tools and materials intended for use in the work and present at the site unless the Supplier has failed to take necessary safety measures.

11.3 If the Client does not fulfill its obligations as referred to in 11.1 and 11.2, and this results in a delay in the execution of the work, the work will be carried out once the Client has met its obligations and when the Supplier’s schedule allows. The costs of delay, including any damages suffered by the Supplier, will be borne by the Client.

Article 12: Completion of the Work

12.1 The work shall be considered completed if:
a. the Client has approved the work;
b. the Client puts the product into use. If the Client uses part of the work, that part is considered completed;
c. the Supplier has notified the Client in writing that the product is completed, and the Client has not responded within fourteen days whether the work has been approved;
d. the Client has not approved the work due to minor defects or missing parts that can be repaired or delivered within 30 days and do not prevent the product from being used.

12.2 If the Client does not approve the work, they must provide the reasons for withholding approval in writing to the Supplier.

12.3 If the Client does not approve the work, the Supplier must be given the opportunity to complete it. In that case, the provisions of this article shall apply again.

Article 13: Liability

13.1 The Supplier is liable for any damage suffered by the Client that directly and exclusively results from a failure attributable to the Supplier. The liability is limited to the amount paid out under the professional liability insurance. The Supplier will endeavor to have the Client included as a co-insured under the insurance policy.

13.2 The following damages are not eligible for compensation:
a. commercial losses, including delay damages and loss of profits. The Client should obtain insurance for such damages if deemed necessary;
b. consequential damages, including damages arising during or as a result of the work on items used in the work or located near the worksite. The Client should insure against such damages if desired.

13.3 The Supplier is not liable for damages to materials provided by or on behalf of the Client if the damage results from poor manufacturing. At the Client’s request, the Supplier will repeat the process at the Client’s expense.

13.4 The Client indemnifies the Supplier against all third-party claims regarding product liability resulting from defects in products delivered by the Client to third parties that incorporate products and/or materials from the Supplier.

13.5 The primary remedy for defects is that the Supplier will be given the opportunity to repair the failure. Compensation is a subsidiary remedy.

Article 14: Warranties

14.1 The Supplier guarantees the proper functioning of the product and the quality of service provided for a period of twelve months after delivery or completion.

14.2 If the construction and/or materials prove to be defective, the Supplier will carry out the necessary repairs or replacements. The parts to be repaired must be sent to the Supplier, with transport costs covered by the Client. The Client is responsible for labor and travel expenses.

14.3 If the product or service includes the use of materials provided by the Client, the Supplier guarantees proper processing for the period specified in 14.1. If processing proves to be incorrect, the Supplier is obligated, at its discretion, to:

• repeat the process, in which case the Client must supply new materials;
• repair the defect, in which case the Client must provide defective materials at their own cost;
• credit the Client for the relevant portion of the invoice.

14.4 If the product or service involves the supply of goods, the Supplier guarantees their proper functioning for the period stated in 14.1. If the goods prove to be defective, they must be returned to the Supplier at the Client’s expense. The Supplier may then, at its discretion:

• repair the item;
• replace the item;
• credit the Client for the relevant portion of the invoice.

14.5 Factory warranties apply to components expressly agreed upon in writing between the Client and Supplier. If the Client had the opportunity to inspect the factory warranty, the factory warranty supersedes the warranties in this article.

14.6 Factory warranties apply to the components expressly agreed upon in writing between the Client and the Supplier. If the Client has had the opportunity to review the factory warranty, the factory warranty replaces the guarantees mentioned in this article.

14.7 In all situations, the Client must give the Supplier the opportunity to repair deficiencies.

14.8 The Client may only invoke warranties after fulfilling all its obligations towards the Supplier.

14.9
a. No warranties apply if defects result from:

• normal wear and tear;
• improper use;
• lack of proper maintenance;
• work carried out by the Client or third parties.

b. No warranty is given for delivered items that were not new at the time of delivery, nor for items prescribed for use by the Client or supplied by or on behalf of the Client.

c. No warranty is provided for inspections and/or repairs of items owned by the Client.

Article 15: Complaints

The Client may only complain about defects in the product if a written complaint is submitted within one month after the defect was discovered or should have been discovered.

Article 16: Defects and Acceptance

If the Client does not accept delivery after the delivery period has expired, the items will be held at the Client’s disposal. Any item not accepted by the Client will be stored at the Client’s expense and risk. The Supplier may invoke the powers of Article 6:90 of the Dutch Civil Code at any time.

Article 17: Payment

17.1 Payment shall be made at the Supplier’s address or into an account designated by the Supplier.

17.2 Unless otherwise agreed, payment shall be made as follows:
a. for counter sales: cash;
b. for installment payments:

• 60% of the price upon conclusion of the agreement;
• 30% of the price after delivery of materials or at the start of activities;
• 10% of the price upon completion;

c. in all other cases: within thirty days of the invoice date.

17.3 Without prejudice to other payment conditions, the Client is obliged to provide security for payment at the Supplier’s first request, to the Supplier’s satisfaction. If the Client does not provide such security within the specified period, the Client is automatically in default. In that case, the Supplier is entitled to terminate the agreement and claim damages from the Client.

17.4 The right of set-off is excluded, except in the event of the Supplier’s bankruptcy or suspension of payments.

17.5 The full payment becomes immediately due in the following cases:
a. exceeding the payment term;
b. insolvency of the Client;
c. seizure of the Client’s assets;
d. liquidation or dissolution of the Client;
e. admission to the Debt Rescheduling Natural Persons Act (WSNP), placement under guardianship, or death of the Client.

17.6 If payment is not made by the due date, the Client is immediately liable to pay the statutory commercial interest as referred to in Article 6:119a of the Dutch Civil Code.

17.7 If the payment term is exceeded, the Client is immediately liable to pay the Supplier extrajudicial collection costs of 15% of the principal amount, with a minimum of €150.00. Additionally, the Client owes the collection costs under Article 6:96(4) of the Dutch Civil Code, amounting to €150.00.

Article 18: Retention of Title and Pledge

18.1 After delivery, the Supplier remains the owner of the items until:
a. the Client has fulfilled its obligations under the agreement or related agreements;
b. the Client has paid for all work performed or to be performed under the agreement;
c. the Client has settled any claims related to deficiencies, including compensation, penalties, interest, and costs.

18.2 As long as retention of title applies to the items, the Client may not encumber or dispose of them, except in the course of the Client’s normal business activities.

18.3 Upon invoking the retention of title, the Supplier may reclaim the delivered items. The Client must grant the Supplier access to the location where the items are stored.

18.4 If the Supplier cannot enforce retention of title because the items have been mixed, transformed, or acceded, the Client is obliged to pledge the newly formed items to the Supplier.

18.5 If the items are delivered in Germany, the Supplier is entitled to an extended retention of title. In such a case, the Supplier becomes co-owner of the newly formed items if mixing, transformation, or accession has taken place. This Article 18.5 is governed by German law, excluding the CISG (Vienna Sales Convention), contrary to the choice of law clause in Article 20 of these general terms and conditions.

Article 19: Termination

If the Client wishes to terminate the agreement without the Supplier being in default, and if the Supplier agrees to the termination, the agreement is terminated by mutual consent. In such a case, the Supplier is entitled to compensation for all financial losses, including damages, lost profits, and incurred costs.

Article 20: Applicable Law and Competent Court

20.1 These general terms and conditions are governed by Dutch law, with the exclusion of the CISG (Vienna Sales Convention).

20.2 The District Court of The Hague has exclusive jurisdiction over all disputes arising between the parties, both contractual and non-contractual.