Definitions

For the purposes of these general terms and conditions (the ‘general conditions’), the following terms have the following definitions, unless expressly stated otherwise:

Supplier: Market Explorer, the Supplier of these general conditions;

Client: the Client of the Supplier.

1. OFFERS

All offers, unless expressly stated to the contrary, are subject to contract and may be withdrawn even after acceptance. If an offer is not withdrawn within six working days following acceptance, however, there is a binding Contract.

2. ORDERS

2.1 Each Contract between the Supplier and the Client is binding on both parties, unless the Supplier gives reasons in writing to the Client within twelve days after the creation of the Contract for its decision to terminate the Contract. The Supplier has such right if, inter alia, according to information supplied by a credit agency or the Supplier’s credit insurer, the Client is not credit worthy.

2.2 The Supplier is entitled to require payment of a deposit at the time of entering into a Contract.

2.3 If the Contract is with a Client acting in the course of a business or profession, the Supplier is entitled to require adequate security for compliance with the said Client’s payment obligations before making the supply, or before continuing with the supply or performance of the Contract.

3. TIME PERIODS

3.1 The time periods indicated in offers, confirmations, or Contracts are best estimates and not deadlines.

3.2 If a time period is expected to be exceeded, the Supplier will consult with the Client.

5. CHANGES TO CONTRACTS

5.1 If during the performance of a Contract it appears necessary for its proper performance to make changes (including additions) to the work to be carried out, the parties will consult in good time about appropriate changes to the Contract.

5.2 If the parties agree to change the Contract, this can affect the time period for completion of its performance. In such an event, the Supplier will notify the Client as soon as possible.

5.3 If the change to the Contract has financial and/or qualitative consequences, the Supplier will inform the Client in advance about these.

5.4 If a fixed price has been agreed, the Supplier will indicate the extent to which the change to the Contract will result in this fixed price being exceeded.

5.5 As an exception to section 3, the Supplier may not charge any additional costs if the change is the result of circumstances for which the Supplier can be held liable.

6. PERFORMANCE OF THE CONTRACT; COOPERATION OF THE CLIENT

6.1 The Supplier will perform the Contract with the appropriate level of skill and care, having regard to the state of knowledge at such time.

6.2 The Client may not derive any rights from images, drawings, descriptions, measurements, colours, and weights as indicated in offers, confirmations of order, catalogues, prospectuses, etc., issued by the Supplier.

6.3 The Client is responsible for the information that it provides to the Supplier, and guarantees that it is complete and accurate. The Client must also ensure that all information and documents that, in the opinion of the Supplier, the Supplier needs to be able to perform the Contract correctly and on time are provided to the Supplier in good time and in the form and manner required by the Supplier.

6.4 The Client must ensure that the Supplier is immediately notified of any matters that could affect the correct performance of the Contract.

6.5 Unless the nature of the Contract dictates otherwise, the Client is responsible for the accuracy, completeness, and reliability of the information and documents provided to the Supplier even if this originates from a third party.

6.6 The Client acknowledges that the duration and planning of the Contract may be influenced by various unforeseen factors, including but not limited to the quality of the information provided by the Client in the context of the Contract, and the availability, and degree thereof, and deployment of the employees of the Client involved in the Contract.

6.7 The Supplier will endeavour to perform the Contract within the agreed period. This period, however, is not a deadline. Except in the case of deliberate act or gross negligence on the part of the Supplier, any exceeding of this time period does not entitle the Client to terminate all or any part of the Contract nor to any compensation for loss thereby incurred.

6.8 The Supplier may engage third parties to perform the Contract where this would significantly influence the ability of the Supplier to perform the Contract properly.

7. PAYMENT

7.1 Unless agreed otherwise in writing, the work and services supplied by the Supplier will be charged to the Client on the basis of time worked and costs incurred. Unless any different provision is agreed in writing, the Supplier will invoice the Client on account or otherwise, once per month. The supply of goods will be invoiced at the time of, or following, delivery.

7.2 All prices and charging rates are net of turnover tax (VAT) and other government-imposed duties. Intermediate changes that require the Supplier to change its prices and charges will be passed on to the Client no more than once every six months.

7.3 Payment must be made within ten days of the invoice date, in the manner and currency specified by the Supplier in the invoice. Any objection to the amount invoiced will not suspend the obligation to pay.

7.4 If the total order placed is in excess of €1,000 then, unless agreed otherwise in writing, payment in instalments may be agreed.

7.5 If the period referred to in section 1 is exceeded, and the Supplier has sent the Client at least one formal demand for payment and the Client has still not paid, then the Client is automatically in breach of contract. In such a case the Client is liable to statutory interest on the outstanding sum from the date it became due to the date of payment. If after the due date the Supplier is forced to take extrajudicial enforcement measures a Client that acts in the course of a business or profession is liable for extrajudicial enforcement costs in line with Rapport Voorwerk II (Report on Extra-Judicial Costs).

7.6 If the Client goes into liquidation, is made bankrupt, is granted a moratorium, or its assets are made subject to an attachment order, the claims of the Supplier against the Client become immediately enforceable.

7.7 The Supplier is entitled to set off payments made by the Client firstly against costs, then against accrued interest, and finally against the principal sum and current interest. The Supplier may refuse an offer to pay, without thereby being in breach, if the Client stipulates another order in which the payment is to be applied. The Supplier may refuse full payment of the principal sum if this payment does not also cover accrued and continuing interest and costs.

8. RETENTION OF TITLE, RIGHT OF PLEDGE

8.1 The Supplier retains title to all goods delivered or to be delivered under the Contract until payment by the Client extinguishes:

a rights to payment for those goods;

b rights pertaining to the performance of the Contract by the Supplier and to work carried out, or to be carried out by the Supplier for the Client;

c rights arising from non-compliance with the Contract.

8.2 Goods are deemed not to have been paid for in the absence of proof by the Client that payment has been made.

8.3 The Client must give the Supplier access to these goods on demand and in the event of non-payment return these to the Supplier on demand. The Client will be credited for the goods returned by virtue of this article to the extent of their market value for the Supplier on the date of return.

8.4 The Client is not entitled to dispose of or encumber goods that are subject to the retention of title. However, the Client is permitted to sell and deliver such goods to third parties in the normal course of its business. This permission is automatically revoked at such moment as the Client is in breach of any obligation to which the retention of title relates, is granted a provisional moratorium, or is declared insolvent. Under no circumstances may the Client use goods that are subject to retention of title as security for claims by third parties.

8.5 The Client grants the Supplier a right of pledge on all goods that are transferred into the possession of the Supplier for the purposes of performing the Contract as security for any liability that the Client may have to the Supplier in any capacity and under any head, including debts that are conditional or not yet payable.

9. DURATION OF CONTRACT AND PERFORMANCE

9.1 The Contract will automatically end as soon as its performance has been completed, unless the nature of the contract would indicate otherwise or the parties have expressly agreed otherwise in writing.

9.2 If within the period of the Contract a time limit has been agreed for the completion of specific work, such time limit is not a deadline. If this time limit is exceeded, the Client must issue the Supplier with a written notice of default.

10. EXTRA COSTS, CONTRACT VARIATIONS

10.1 Extra costs arising due to the Client’s failure to enable the performance or continued performance of the work will be charged to the Client. Contract variations will be passed on insofar as they are fair and reasonable. Additional work includes, in general, all work and supplies not stipulated in the Contract and that is required by the Client.

10.2 A reduction in work is work specified in the Contract that, with the agreement of the parties, is not carried out.

11. FORCE MAJEURE

11.1 ‘Force majeure’ includes any circumstance of which neither the Supplier or the Client could reasonably be expected to have taken into account and as a result of which the Client cannot reasonably expect the normal performance of the Contract.

11.2 The Supplier will immediately notify the Client if it is affected by force majeure.

11.3 In the event of force majeure the Client is not entitled to compensation.

11.4 In the event of force majeure the parties will seek to agree terms for the further performance of the Contract.

12. INTELLECTUAL PROPERTY RIGHTS

12.1 The Supplier reserves the rights and powers conferred on it under the Copyright Act and other intellectual-law statutes and regulations, including patent laws, model rights laws, and copyright. Insofar as such a right is only acquired by filing or registration, only the Supplier is authorized to do this. The Supplier is entitled to use knowledge which it acquires through the performance of the Contract for other purposes, insofar as this does not result in the disclosure of strictly confidential information of the Client to a third party.

12.2 Drawings, calculations, photocopies, descriptions, models, and any documents and attachments provided by the Supplier and relating to an offer are deemed to form part of such offer and remain the property of the Supplier. They may not be copied, shown or handed to any third party, or used without the express written consent of the Supplier and must immediately be returned to the Supplier on request.

15. LIABILITY

15.1 Any liability of the Supplier is limited in the manner specified in this article.

15.2 If the Supplier is liable for direct loss, then such loss is limited to the maximum of the amount invoiced plus excess, or the value of such part of the Contract to which the liability relates. Liability is always limited to the amount that the Supplier’s insurer pays out in the relevant claim.

15.3 ‘Direct loss’ is limited to:

- the reasonable costs of establishing the cause and extent of the loss, insofar as this relates to the establishing of ‘loss’ within the meaning of these general conditions;

- any costs reasonably incurred to remedy the defective performance of the Contract by the Supplier, unless the Supplier cannot be held liable for such performance;

- the reasonable costs incurred in preventing or limiting loss, insofar as the Client can show that these costs have limited ‘direct loss’ within the meaning of these general conditions.

15.4 The Supplier is not liable for indirect loss, including consequential loss, loss of profits, missed savings, and loss resulting from business stoppage.

15.5 If the Supplier contracts with a Client acting in the course of a business or profession, it is not liable for any loss other than that expressly described in these general conditions, and is expressly not liable for other direct or indirect loss, including third-party loss, loss of profits, and suchlike.

15.6 The Supplier is not liable for loss caused by matters that the Supplier did not know about, nor ought not reasonably to have known about.

15.7 The limitations of liability in respect of direct loss as set out in these general conditions do not apply if this loss is attributable to a deliberate act or gross negligence on the part of the Supplier or its agents.

16. TAXES

Sale prices and other quoted prices are quoted net of the relevant rate of turnover tax and other government-imposed duties. All costs arising from these taxes are payable by the Client.

17. INDEMNITIES

17.1 The Client indemnifies the Supplier for any third-party claim based on intellectual property rights to materials or information supplied by the Client and used in the performance of the Contract.

17.2 The Client guarantees that any data carriers, electronic files, or software, etc., it provides to the Supplier are free of viruses and defects.

18. CONFIDENTIALITY

18.1 Unless any law, regulation, or professional obligation so requires, the Supplier and any persons it engages in the performance of the Contract must not disclose to any third party any confidential information received from the Client. The Client may waive compliance with this duty.

18.2 The Supplier is not entitled to use the information it is supplied by the Client for any purpose other than that for which it is supplied, without the express written consent of the Client. There is an exception hereto if the Supplier is a party in civil or criminal proceedings in which this information may be important.

18.3 Unless any law, regulation, or professional obligation requires the Client to disclose information, or prior written consent is given by the Supplier for such disclosure, the Client may not disclose to any third party the content of reports, advice, or other communications from the Supplier, whether written or otherwise.

18.4 The Supplier and the Client will ensure that any third parties they engage in the performance of the Contract are bound by the same obligations under this article.

18.5 The Supplier is entitled to mention in general terms the work that is the subject of the Contract to its other clients and potential clients, purely for the purposes of illustrating the experience of the Supplier.

19. ENFOERCEABILITY, JURISDICTION, AND CHOICE OF FORUM

19.1 If any provision of these general conditions is void or avoided, the other provisions will remain fully enforceable. The Supplier and the Client will then discuss the replacement of such void or avoided provision with a new provision having regard, as far as possible, to the purpose and scope of the original provision.

19.2 All Contracts are governed by Dutch law.

19.3 Any dispute arising under this Contract may be brought before the court with jurisdiction in the location where the Supplier has its business address, unless any statute or other mandatory rule of law specifies otherwise.