GENERAL TERMS AND CONDITIONS FOR THE SUPPLY OF PRODUCTS AND SERVICES OF SILENT MOTOR COMPANY B.V.
Article 1 - Applicability
1.1 These general conditions shall apply to all contracts between the Customer and SilentM Company B.V., hereinafter called "SilentM", including any contracts under negotiation, as well as to all quotations made by SilentM to the Customer.
1.2 Any other general conditions stipulated by the Customer are expressly rejected by SilentM and any deviations from the present General Conditions will be binding only when accepted by SilentM explicitly in writing.
Article 2 - Quotations
2.1 Any offer made by SilentM for the supply of product will be binding on SilentM only if a validity period is mentioned in it. Any such offer will lapse in case of non-acceptance by the Customer within that period. Unless the contrary is explicitly stated, all offers will be based on implementation of the contract under normal conditions and during normal business hours, and shall always be regarded as indivisible.
2.2 If so requested by the Customer a budget price may be quoted by SilentM. This will be no more than a provisional and non-binding price indication for calculation purposes only.
2.3 All quotations envisioned in paragraphs 2.1 and 2.2 will be copyright to SilentM. Copying of information included in quotations is subject to the written permission of SilentM.
Article 3 - Conclusion of the contract
3.1 SilentM reserves the right to consider a contract as not concluded as long as the order has not been confirmed in writing by SilentM.
Article 4 - Prices, payment, passing of risk and refund
4.1 Unless expressly agreed otherwise in writing the agreed prices or tariffs will be exclusive of value added tax and any other governmental taxes and levies that may have to be charged by SilentM in addition, and such prices or tariffs will not be subject to modification.
4.2 SilentM is entitled to require from the Customer that it shall provide sufficient surety for the compliance of its payment obligations under the contract, such as by a bank guarantee.
4.3 Unless agreed otherwise 50% of the price must be paid upon placing the order and 50% upon delivery. Invoices sent by SilentM must be paid within 30 days from the date of the invoice.
4.4 On any overdue installment and without any notice being required the Customer will be due interest as from the maturity date at the applicable rate of legal interest plus 4 points, as well as the legal and non-legal expenses to be incurred for collection which will be determined at no less than 15% of the amount involved. If the Customer is in arrear with the payment of one or more outstanding installments SilentM will be entitled to suspend the performance of current obligations of its own.
4.5 All payments must be made without any deduction or set-off.
4.6 The risk of the products to be supplied will pass to the Customer at the moment of delivery. The ownership of the products delivered to the Customer will remain with SilentM as long as the Customer has not fully paid the amounts due therefore, including any interest and expenses.
4.7 If at quotation and ordering a refund is agreed upon, the customer has the right to return the stack or the stack containing system. The customer will receive the refund within 30 days after receipt of the stack or the stack containing system by SilentM. Shipping costs are for the customer. This is an arrangement for stacks of stack containing systems which are returned within 3 years after delivery.
Article 5 - Contract amendments
5.1 Any amendments to be made in contracts after their conclusion require written confirmation by both parties.
5.2 Before implementing such changes the parties shall agree on the resulting consequences as to price and/or time.
5.3 Article 4.3 will apply similarly to any respective price difference.
Article 6 - Delivery period
6.1 The delivery period will begin when the contract has come about, all formalities required for its implementation have been fulfilled, all necessary information and documentation to be provided by the Customer have been provided to SilentM and the initial payment has been received by SilentM.
6.2 SilentM shall be reimbursed by the Customer for any additional expenses incurred by it as a result of, inter alia, waiting periods, overtime work or prolongation of the delivery period, unless such additional expenses are the direct result of any cause attributable to SilentM.
6.3 In the event of any delay in the agreed delivery period that is attributable to SilentM and which results in demonstrable damage for the Customer, SilentM will have to pay an indemnity of 0,5% of the price agreed for the product or work concerned for each full week of delay, up to a maximum of 5%. That indemnity shall be the only remedy. Delays shall not be attributed to SilentM if caused directly or indirectly by any delay in the supply of raw materials and/or semi-finished products by the Customer or third parties.
6.4 If SilentM is prevented by force majeure to implement the contract it will be entitled, without judicial intervention, to either suspend the implementation of the contract for a maximum period of three months or to cancel the contract in part or in its entirety, without having to pay any indemnification. During the suspension SILENTM is entitled, and at the end thereof it will be obliged to opt for either implementation or partial or complete cancellation of the contract. The terms of this clause are without prejudice to other rights of SilentM.
Article 7 - Inspection and final testing
7.1 If it has been expressly agreed in writing that the products and/or services shall be inspected in the course of the production process, the Customer will be entitled to carry out such inspection or to have it carried out by staff members or third parties specially authorized therefore. The inspection shall be carried out during normal business hours and at such time as will have been agreed with SilentM in advance.
7.2 If a final testing has been expressly agreed to in writing, the Customer is entitled to attend it. SilentM is obliged to notify the Customer in time of the moment of the final testing in order to enable the Customer to be present, or to be represented at it by staff members or third parties specially authorized for that purpose. In the final testing the agreed qualities and parameters of the items to be delivered will be tested in accordance with respective instruction of SilentM that has been made part of the contract. If the Customer or its authorized representative does not attend the final testing though having been notified about it in time, SilentM will provide the Customer with the final testing report, the contents of which will then be binding.
Article 8 - Delivery and acceptance
8.1 Unless agreed otherwise SilentM will deliver the products "ex works" according to the ICC Incoterms prevailing on the date of its offer, packaged if and as needed with a view to transport.
8.2 Delivery of the agreed products will be deemed to take place at the moment when the finished products, after successful conclusion of the final testing if this had been agreed, become available to the Customer at the premises of SilentM and SilentM notifies the Customer accordingly. If within one month from the date on which SilentM has notified the Customer that the agreed final testing as provided in article 7.2 can take place, that final testing has not yet been performed through any cause not attributable to SilentM, then that final testing will be deemed to have been concluded successfully and SilentM will be entitled to notify the Customer as above that the products have become available to it.
8.3 In the event of any shortcomings that do not or not significantly hamper the intended use of the products, the products shall be deemed to have been accepted notwithstanding such shortcomings. SilentM shall correct such shortcomings as soon as possible under the guarantee terms set forth in article 10.
Article 9 - Drawings, calculations, descriptions, models
9.1 Drawings, calculations, descriptions, models, weights, dimensions, capacities, prices, yields and other data represented in brochures, circular letters, catalogues, prospectuses, advertisements, price lists and illustrations are no more than indicative. These elements will bind SilentM solely if and to the extent that the respective obligation is expressly stipulated in the contract.
9.2 Any drawings and technical descriptions provided to the Customer before or after conclusion of the contract remain the sole property of SilentM. Except with the written permission of SilentM the customer will not be entitled to use, copy, multiply, pass on to or bring to the notice of third parties, except to the extent necessary for the Customer's own use of the products delivered.
9.3 Any special knowledge or know-how developed in the course of the implementation of the contract, as well as the right to patent it, will be the exclusive property of SilentM, unless agreed otherwise.
9.4 Reports, drawings and the like which are the result of any work ordered by the Customer will belong to the Customer, except the copyright which will remain with SilentM.
9.5 Any reports rendered to the Customer by SilentM may be published by the Customer only verbatim and in their entirety, subject to mention of the name and copyright of Silent Motor Company B.V. and only with the prior written permission SilentM.
9.6 The use by the Customer of any of the reports of SilentM, drawings and the like for the purpose of making claims or bringing legal action against third parties, as well as the use of the name of SilentM in any connection whatsoever will be allowed only with prior written consent of SilentM, which will not be unreasonably withheld.
9.7 Each party shall keep secret all information disclosed to it as confidential and use it only for the purpose for which it has been disclosed to it, unless it is part of the public domain or has come into its possession lawfully through other channels than the other party.
Article 10 - Guarantee
10.1 In this article "products" are understood to be any and all products, components, advice, services, instructions and testing supplied according to the contract.
10.2 Subject to the following, SilentM vouches towards the Customer for the good quality of the products supplied by SilentM, in the sense that all defects in these products which the Customer notifies to SilentM within 6 months from delivery and of which it shows that they have arisen or come to light within that same period as a result of faulty design or poor workmanship by SilentM in the manufacture of the products, will be remedied by SilentM without charge, at option of SilentM either by repair or by replacement of the faulty parts or products.
10.3 SilentM accepts liability for direct damage to products as a consequence of defects in products delivered by it up to a maximum of € 10.000,-.
10.4 Claims for defects must be notified to SilentM as soon as possible after the discovery of such defects, but anyway within the guarantee period indicated in article 10.2 above. Failure to notify such defects within that period will cause any respective claim against SilentM to become null and void. Any respective legal action must be brought before the appropriate court within one year after timely notice of the claim, failing which the respective claim will equally become null and void.
10.5 To any materials or services obtained from third parties only the respective guarantees provided by such third parties will apply.
10.6 Any damages as a result of:
• normal wear and tear
• negligence in the compliance with handling and/or maintenance instructions
• misuse of the products
• assembly, installation or repair by third parties or by the Customer itself
• non-observance of any governmental regulation
• materials, design or procedures prescribed by the Customer or materials or other elements supplied by the Customer
will never be covered by any guarantee from SilentM.
Article 11 - Liability
11.1 After delivery of the products to the Customer SilentM will have no liability for defects other than to comply with the guarantee obligations set forth in article 10.
11.2 Without prejudice to the other stipulations made in these conditions with regard to liability, SilentM does not accept any liability for loss of profits and/or any other form of indirect or consequential damages towards third parties, except in the event of willful intent or gross negligence on the part of SilentM and/or its employees.
11.3 In the event that the Customer claims the partial or entire annulment of the contract and to the extent that the Customer demonstrably suffers damages as a consequence of a default attributable to SilentM, SilentM will reimburse the excess cost, if any, of the replacement performance, with a maximum of the value of the part of the contract that was not properly implemented.
11.4 Each and every claim against SilentM for compliance with its contractual obligations shall be null and void if the Customer on its part fails to comply with any of its obligations towards SilentM.
Article 12 - Force Majeure
12.1 Force majeure shall mean any circumstance that is independent of the will of the parties or unforeseeable, as a consequence of which the implementation of the contract cannot reasonably be expected. In that respect force majeure will be deemed to include any temporary or lasting disturbance in one of the parties' businesses, or any impediment preventing the normal implementation of the contract such as, without limitation, strikes, lock-outs, governmental measures, state of war or siege, civil commotion, fire, natural disasters, epidemics, extremely long periods of frost, extreme weather conditions and similar circumstances, or circumstances attributable to subcontractors.
12.2 The party claiming to be affected by force majeure shall notify the other party within fourteen days of the occurrence of the circumstance concerned, upon which the implementation of the contract will be suspended. In the event that the force majeure lasts longer than three months either party will be entitled to terminate the contract.
Article 13 - Termination
13.1 In the event that the Customer does not comply properly or timely with its obligations or in the event of force majeure, threatened or actual bankruptcy, moratorium, closing down or liquidation of the business of the Customer, SilentM will be entitled to terminate the contract without judicial intervention either in part or entirely, without any obligation as to indemnification or guarantee. The above is without prejudice to any of other rights of SilentM.
Article 14 - Use and ownership of software
14.1 If the delivery includes any software, meaning computer programs recorded on computer readable materials and accessory documentation, SilentM grants the Customer a non-exclusive, nontransferable right solely for the use thereof in connection with the products delivered, including any new versions if the supply thereof has been agreed in writing.
14.2 The ownership of and all rights under industrial and intellectual property relating to the software will always remain with SilentM or the third party that has granted SilentM the right to make the software available to the Customer. Any indications as to copyright shall not be removed by the Customer. The Customer shall be aware that the software contains confidential information and business secrets of SilentM or the third party supplier and shall ensure that the software will remain secret and will not be disclosed to third parties. SilentM will be free to take technical measures for the protection of the software.
Article 15 - Disputes and applicable law
15.1 Any dispute that may arise in connection with the supply contract or with any further contracts that might result from it, shall be submitted to mediation as a first remedy. Any dispute that cannot be solved in this way shall be submitted to the judicial courts in Arnhem, the Netherlands or, if so desired by SilentM as the plaintiff, those competent for the place of business of the Customer.
15.2 These conditions and the contract will be governed exclusively by Dutch law.
Arnhem September 1st, 2008