Terms & Conditions ERIKS Netherlands

1. Definitions

1.1 Terms with a capital letter in these Delivery Terms have the following meaning:

(a) “Services”: all services performed or to be performed by ERIKS for or on behalf of the Customer in the performance of an Agreement, whether or not in connection with the supply of Goods, including but not limited to assembly or installation work, inventory management and engineering work;

(b) “ERIKS”: the private limited liability company ERIKS B.V.;

(c) “Data”: the data and information made available by ERIKS to the Customer as part of the Services, whether or not electronically, and all other data made available, whether or not processed and in structured form;

(d) “Goods”: all items supplied or to be supplied by ERIKS to the Customer in the performance of an Agreement;

(e) “Auxiliary Person”: an auxiliary person whom ERIKS may engage for the purposes of or in connection with the Agreement, including independent (sub)contractors and self-employed persons.

(f) “Intellectual Property Rights”: all intellectual property rights, including copyrights, patents, utility models, registered and unregistered trademarks, semiconductor product topographies, database rights, proprietary rights in information, know-how and all other intellectual or industrial property rights as they may exist or come to exist anywhere in the world;

(g) “Customer”: any person or entity entering into an Agreement with ERIKS;

(h) “Delivery Terms”: these general delivery terms;

(i) “Agreement”: an agreement between ERIKS and the Customer regarding the sale of Goods and/or Services by ERIKS, concluded as described in Article 2;

(j) “Software”: the software made available by ERIKS to the Customer as part of the Services, including mobile applications, graphical user interfaces, application programming interfaces (APIs), web services and web page code;

(k) “Confidential Information”: all information (i) concerning the terms of the Agreement and all other arrangements between ERIKS and the Customer, (ii) relating to the supply of Goods and/or Services and/or personnel by ERIKS to the Customer, (iii) concerning the business processes, strategies, methods and know-how of ERIKS, its affiliated legal entities and customers, and (iv) in any form whatsoever, that has been disclosed in confidence or that, in view of its nature, must be regarded as confidential.

1.2 These Delivery Terms are drawn up in both Dutch and English. In the event of any dispute regarding the content or scope of these Delivery Terms, the Dutch text shall be binding.

2. Formation of the Agreement

2.1 These Delivery Terms apply to and form part of an Agreement and all other legal relationships between ERIKS and the Customer in connection with the sale of Goods or Services by ERIKS. Unless expressly agreed otherwise in writing, these Delivery Terms take precedence over all other communications, whether oral or written, between the parties regarding the sale of Goods or Services by ERIKS. The applicability of general terms and conditions used or to be used by the Customer is expressly rejected.

2.2 An Agreement is concluded between the parties: (i) upon entering into a written agreement signed by both parties, (ii) upon ERIKS issuing an order confirmation, or (iii) upon ERIKS fulfilling the order, whichever of these three events occurs first. All orders submitted by the Customer are requests and do not bind ERIKS in any way. ERIKS is not obliged to accept an order.

3. Delivery and delivery period

3.1 Delivery of Goods in the Netherlands, Belgium and Luxembourg takes place DDP (Incoterms 2020), unless expressly agreed otherwise in writing. Delivery of Goods outside the Netherlands, Belgium and Luxembourg takes place FCA (Incoterms 2020), unless expressly agreed otherwise in writing. Contrary to the applicable Incoterm, all forwarding, transport and delivery costs associated with the Agreement are borne by the Customer; ERIKS shall charge these costs to the Customer.

3.2 The Customer is obliged to take delivery of the Goods and to perform all acts that may reasonably be expected of the Customer in order to enable ERIKS to carry out delivery in accordance with the agreed Incoterms. If the Customer breaches this obligation, the risk in the Goods, irrespective of the applicable Incoterms, passes to the Customer at the time of breach of this obligation and all costs incurred by ERIKS, including but not limited to storage and warehousing costs, are borne by the Customer.

3.3 A request by the Customer to cancel or amend an order, or part thereof, must be submitted in writing and received by ERIKS and is subject to ERIKS’s written approval. The Customer may be charged for amending or cancelling an order. If the Customer requests expedited delivery of shipments, ERIKS reserves the right to charge the associated costs.

3.4 Delivery periods are indicative. ERIKS reserves the right to adjust delivery periods if circumstances give cause to do so. Failure by ERIKS to meet a delivery date or delivery period does not constitute a breach of the Agreement.

3.5 ERIKS reserves the right to make partial deliveries and to invoice such partial deliveries separately.

4. Inspection and returns

4.1 If ERIKS has undertaken to arrange the forwarding or transport of the Goods, the Customer must inspect the Goods for transport damage and, immediately after arrival at the agreed destination, verify that the correct quantity of Goods has been delivered. If transport damage or a discrepancy between the delivered quantity of Goods and the ordered quantity of Goods is identified, the Customer must provide a detailed description thereof on the transport document to be signed upon receipt of the Goods. Reporting damage, non-conformities or deficiencies does not release the Customer from its payment obligations for the Goods.

4.2 ERIKS only accepts returns provided that: (a) ERIKS has approved the return in writing in advance; (b) the return is made carriage paid and subject to reimbursement of ERIKS’s handling costs, being twenty (20) per cent of the sales value with a minimum of seventy-five (75) euros; (c) the returned Goods have a minimum sales value of one hundred and fifty (150) euros; (d) the Goods are stock or standard goods; (e) delivery took place no more than six (6) weeks ago; (f) the Goods are unused and undamaged; and (g) the Goods are in their original packaging.

5. Services

5.1 If ERIKS is to perform or arrange for the performance of Services for the Customer under the Agreement, the Customer is obliged, at its own expense and risk, to ensure that:

(a) the Customer properly complies with all laws and regulations relating to safety and healthy working conditions;

(b) the location where, and the equipment and materials with which, an employee and/or Auxiliary Person of ERIKS performs their duties under the Agreement comply with all relevant safety regulations;

(c) the Customer does and refrains from doing all that may reasonably be expected of it to prevent an employee or Auxiliary Person of ERIKS from suffering damage of any nature, including physical and psychological damage, during the performance of the Services;

(d) ERIKS is granted free access and the opportunity to properly perform the agreed Services during normal working hours and, if ERIKS considers this necessary, outside normal working hours;

(e) earthworks, paving, piling, demolition, foundation, concrete, carpentry and upholstery work or other related work has been completed, so that the location is readily accessible and the systems are clean and undamaged;

(f) auxiliary, hoisting or lifting equipment is available for moving objects that cannot reasonably be carried by two persons;

(g) scaffolding, racks and ladders are available and assembled;

(h) fuels and utilities such as compressed air, gas, water, electricity, supply and discharge pipes required to perform the work, including any testing and commissioning work, as well as the switching and protection equipment and cables for electric motors or other electrical equipment, are available to ERIKS in the correct locations;

(i) for the duration of the Services and in the immediate vicinity thereof, ERIKS is provided with a dry, heated, illuminated and separately lockable space of sufficient size to accommodate its employees and Auxiliary Persons and to store the materials, tools and personal belongings of the employees;

(j) connections, rights and permits are applied for in time and the amounts due for them have been paid; and

(k) the correct drawings, plans and instructions are made available before the start of engineering work.

5.2 Damage and costs arising from failure to meet the conditions described in Article 5.1, or failure to meet them in time, are borne by the Customer at its own risk.

6. Integrated Software

6.1 If Software or documentation is integrated into or supplied with the Goods, the sale of such Goods expressly does not include the transfer to the Customer of the Intellectual Property Rights or other title thereto. The Customer is granted only a non-exclusive, non-transferable, non-sublicensable and revocable licence to use such Software or documentation in combination with, and as integrated into or supplied with, the Goods. The right to use Software extends only to the object code and not to the source code of the Software. If third-party Software or documentation is integrated into or supplied with the Goods, as ERIKS may indicate, the Customer acknowledges and accepts that third-party licence terms may apply.

6.2 The Customer shall not:

(a) modify, adapt, alter, translate or create derivative works from Software integrated into or supplied with the Goods;

(b) use or make such Software available in a manner other than required to integrate it into the Goods or supply it with the Goods;

(d) disassemble, decompile, dismantle or otherwise attempt to discover the source code of such software without ERIKS’s prior written consent, except to the extent expressly permitted under applicable law.

6.3 ERIKS is permitted to take technical measures to protect its Software, Goods, Services and Data against unauthorised use. The Customer is not permitted to remove or circumvent such technical measures.

7. Retention of title

7.1 All delivered Goods, even if it has been contractually agreed that they will be assembled by ERIKS at the location of the Customer or its client, remain the property of ERIKS until the Customer has paid in full all amounts owed by the Customer to ERIKS under the Agreement or any other related contract, including interest and costs.

7.2 The Customer is authorised to dispose of the Goods in the ordinary course of its business. The Customer shall inform the acquiring third party of ERIKS’s retention of title in the Goods.

7.3 As long as the delivered Goods are not used, the Customer is obliged to keep these delivered Goods clearly separate from other goods until title to them has passed.

8. Prices and payment

8.1 Unless expressly agreed otherwise in writing, and irrespective of the applicable Incoterm, the prices set by ERIKS exclude forwarding or transport costs, VAT and other levies, assembly and commissioning costs, and the costs of non-standard packaging and non-standard coating. Prices are stated in euros. If the ordered Goods or Services are subject to any taxes, ERIKS may charge the relevant taxes to the Customer, which the Customer must pay in addition to the stated prices.

8.2 ERIKS reserves the right to adjust the price accordingly as a result of increases in costs, material prices, energy prices and/or currencies. ERIKS is also entitled to index prices annually.

8.3 ERIKS may offer the following payment methods in its webshop before delivery:

(a) Credit card: the Customer may enter its payment details when placing the order using a valid credit card (VISA or Mastercard). The applicable amount will be charged to the Customer’s card immediately. ERIKS reserves the right to verify the validity of the credit card, the credit status in relation to the value of the order and whether the Customer’s address details are correct. Depending on the results of these checks, ERIKS may refuse orders.

(b) iDEAL: the applicable amount will be debited from the Customer’s bank account immediately.

(c) PayPal: when the Customer pays with PayPal, ERIKS reserves the right to verify the validity of the PayPal account, that sufficient funds are available to cover the purchase price and the Customer’s billing address details. The applicable amount will be debited from the Customer’s PayPal account immediately. ERIKS reserves the right to refuse an order.

8.4 Payment after delivery may apply following specific approval by ERIKS. The Customer is not free to suspend and/or set off its payment obligation to ERIKS.

8.5 Unless expressly agreed otherwise in writing, payment must be made net and without any discount by deposit or transfer of the amount due to a bank account specified by ERIKS within thirty (30) days after the invoice date. ERIKS further reserves the right to charge a late payment surcharge. The value date stated on bank statements is decisive and is therefore considered the date of payment.

8.6 ERIKS reserves the right to require advance payment and/or a bank guarantee from the Customer.

8.7 All amounts owed by the Customer to ERIKS under the Agreement become immediately and fully due and payable if:

(a) the Customer has failed to make a timely payment to ERIKS; or

(b) ERIKS terminates the Agreement pursuant to Article 15; or

8.8 If the Customer does not pay an amount on time when it becomes due and payable, ERIKS is entitled to default interest on that amount, calculated from the time the amount became due until full payment of that amount. To the extent permitted by law, the default interest rate is:

(i) the statutory commercial interest rate, or

(ii) one (1) per cent per month on the outstanding amount, whichever is higher.

8.9 ERIKS is entitled to claim reimbursement of all costs, both extrajudicial and judicial, including legal assistance costs, incurred by ERIKS in collecting amounts owed by the Customer under the Agreement.

8.10 Complaints regarding invoices must be submitted in writing within thirty (30) calendar days after the invoice date. The Customer loses the right to submit complaints after this period has expired.

9. Intellectual Property Rights

9.1 All existing Intellectual Property Rights in or arising from the Goods, Services, Software and Data made available by ERIKS under the Agreement are vested exclusively in ERIKS or its licensors and/or suppliers. The Agreement does not involve the transfer to the Customer of Intellectual Property Rights of ERIKS or its licensors or suppliers in relation to the Goods, Services, Software and/or Data.

9.2 To the extent that new Intellectual Property Rights are created or arise in the performance of the Agreement, they shall accrue exclusively to ERIKS. To the extent that such Intellectual Property Rights do not accrue to ERIKS by operation of law, the Customer, by signing the Agreement, and insofar as applicable in advance, unconditionally transfers full intellectual ownership of such Intellectual Property Rights to ERIKS, which transfer is accepted by ERIKS by signing the Agreement.

9.3 ERIKS grants the Customer a non-exclusive, non-transferable, non-sublicensable and revocable right to use the Goods, Services, Software and Data for the agreed purpose, in accordance with and subject to the agreed terms and limitations.

9.4 The Customer indemnifies ERIKS against all third-party claims based on the assertion that the Customer’s use of the Goods, Services, Software and/or Data infringes that third party’s Intellectual Property Rights as a result of incorrect use by the Customer of the Goods, Services, Software and/or Data or use thereof contrary to the provisions of the Agreement.

9.5 If the Customer makes material available to ERIKS for the performance of the Agreement by ERIKS, the Customer grants ERIKS an irrevocable, worldwide, royalty-free and fee-free, non-exclusive and perpetual licence under all Intellectual Property Rights to use such materials for the performance of the Agreement. The Customer indemnifies ERIKS against all third-party claims concerning the material made available that infringes any right or otherwise proves unlawful towards such third parties and shall compensate ERIKS in this respect.

9.6 The Customer shall not use ERIKS’s trademarks, trade names and/or logos without ERIKS’s express prior written consent.

10. Warranty

10.1 Notwithstanding Article 4.1, the Customer shall notify ERIKS in writing of any non-conformity of the Goods within five (5) calendar days from the date on which it is discovered by the Customer, specifying the nature of the non-conformity and providing all available documents, reports and other evidence required by ERIKS to assess the alleged non-conformity.

10.2 Upon receipt of a notice of non-conformity as described in Article 10.1, the Customer shall arrange shipment of the Goods to ERIKS and, after receipt of the Goods, ERIKS shall be granted a reasonable period to evaluate the notice of non-conformity and the Goods and, if applicable, propose an appropriate solution to the Customer. If ERIKS confirms the non-conformity to the Customer in writing, ERIKS shall reimburse the shipping costs incurred by the Customer. No Goods may be returned to ERIKS without ERIKS’s prior approval.

10.3 ERIKS warrants that, under normal use and in accordance with the Agreement and all other instructions provided by ERIKS, the Goods comply with the provided specifications for such Goods at the time of delivery to the Customer and for a period of twelve (12) months thereafter, or for another period agreed by the parties in writing. The Goods are deemed to comply with the published specifications, notwithstanding minor deviations that do not materially affect normal use of the Goods, unless the parties have entered into a separate quality agreement, in which case the latter prevails. Consumables, such as seals and hoses, are not covered by this warranty.

10.4 Unless expressly agreed otherwise in writing, ERIKS does not warrant that the Goods are suitable for the use intended by the Customer.

10.5 ERIKS has no warranty obligations if the alleged non-conformity has occurred as a result of normal wear and tear, failed stress tests, exceeding the specified maximum operating conditions, misuse, negligence, modification, improper handling, installation, storage, transport, application, use in combination with other goods or other circumstances attributable to the Customer.

10.6 ERIKS’s sole and exclusive obligation, and the Customer’s sole and exclusive remedy with respect to warranty claims referred to in Article 10.3, are limited, at ERIKS’s option, to replacement or repair of non-conforming Goods or an appropriate credit of the purchase price. To the extent title has already passed to the Customer, the non-conforming Goods become the property of ERIKS as soon as they are replaced or credited.

10.7 The Customer’s right to invoke, in or out of court, the non-conformity of the Goods expires after the warranty period stated in Article 10.3 of these Delivery Terms has elapsed.

10.8 Unless expressly agreed otherwise in writing, the Services performed by ERIKS under the Agreement qualify solely as obligations of best efforts.

11. Auxiliary Persons

ERIKS is entitled to use Auxiliary Persons. If an Auxiliary Person is faced with a non-contractual claim relating to or arising from the Agreement, it is stipulated for the benefit of the Auxiliary Person that the Auxiliary Person may invoke the provisions of these Delivery Terms concerning exclusion and limitation of liability.

12. Liability and indemnity

12.1 ERIKS is not liable for any form of indirect damage, incidental damage, consequential damage, non-material damage or punitive damage, including but not limited to loss of profit, loss of turnover, cover costs or property damage that the Customer claims to have suffered in connection with or arising from the Agreement, the Goods and/or the Services. The foregoing applies irrespective of whether ERIKS was informed of the possibility of such damage arising.

12.2 Any liability of ERIKS for direct damage is limited to (a) fifty (50) per cent of the purchase price paid to ERIKS for the affected Goods or Services under the Agreement in the twelve (12) months preceding the event giving rise to the claim, or (b) €100,000.00 (one hundred thousand euros), whichever is lower.

12.3 ERIKS is not liable for any damage caused to third parties (i) as a result of defects in the design and manufacture of the Goods and their components and/or (ii) as a result of the performance of the Services, unless and to the extent determinable in accordance with applicable mandatory statutory provisions concerning liability for death, personal injury or damage to personal property directly caused by defective Goods.

12.4 The Customer shall fully indemnify and hold ERIKS harmless against all third-party claims that, for whatever reason, allege damage arising from or in connection with the Agreement, the Goods and/or Services, unless ERIKS is liable for such damage under Article 12.3.

12.5 Limitations of ERIKS’s liability do not apply only if the damage is the result of intent or deliberate recklessness on the part of ERIKS itself or where liability cannot be excluded or limited under applicable mandatory law.

13. Modification of Goods

Unless expressly agreed otherwise in the Agreement, ERIKS is permitted to apply a limited deviation to the specifications or quality of the Goods, such as colour, quantity, size, weight or Shore hardness. If, in ERIKS’s opinion, this deviation results in a material change to the relevant Goods, ERIKS shall notify the Customer thereof in writing within thirty (30) calendar days, after which the Customer has the right to terminate the Agreement within fourteen (14) days.

14. Force majeure

ERIKS is not liable for any damage, delay and/or failure to perform the Agreement that is directly or indirectly related to and/or results from circumstances or causes reasonably beyond its control, including but not limited to (inter)national emergencies, such as civil war, war, uprisings, riots and natural disasters; public health emergencies of international concern declared by the World Health Organization; breaches of contract; shortages of raw materials; supply problems and force majeure on the part of ERIKS’s suppliers, or suppliers earlier in the supply chain; staff shortages; unexpected power, electricity, internet, computer and telecommunications failures; computer viruses; and unorganised and organised strikes.

15. Termination, dissolution and suspension by ERIKS

15.1 ERIKS is entitled to terminate, dissolve or suspend performance of the Agreement, in whole or in part, with immediate effect, without requiring judicial intervention or any notice of default, without prejudice to ERIKS’s rights under the Agreement or applicable law, if:

(a) the Customer dies, applies for a suspension of payments, applies for bankruptcy, is declared bankrupt or requests admission to the debt restructuring scheme;

(b) an application for the Customer’s bankruptcy has been filed;

15.2 ERIKS is entitled to terminate the Agreement relating to the performance of Services at any time and for any reason, subject to a notice period of three (3) months.

15.3 If an Agreement is dissolved by ERIKS in whole or in part, the Customer is obliged to pay ERIKS compensation for all costs or lost profit relating to the dissolved Agreement.

15.4 Upon termination of the Agreement and irrespective of the reason for it, the Customer shall purchase all Goods that ERIKS holds in stock for the Customer within seven (7) days after termination of the Agreement, at the price applicable at that time, and shall accept the Goods immediately upon payment.

16. Compliance

16.1 The Customer represents and warrants:

(a) that no trade sanctions have been imposed on it by bodies and government institutions of the US, the EU, one or more EU Member States, the UN or any other state, organisation or authority whose decisions and actions are legally binding on it;

(b) that it shall comply with, and shall not participate in any activities, practices or conduct, or omissions, that constitute an offence under, all applicable laws, statutes, regulations and policies, including those relating to:

(i) trade restrictions or export controls, including trade sanctions imposed by the US, the EU, one or more EU Member States, the UN or any other state, organisation or authority whose decisions and actions are legally binding, in relation to the Goods; and

(ii) combating fraud, money laundering, forgery, bribery and corruption, and that it shall provide evidence that it complies with the foregoing as ERIKS may reasonably request from time to time.

(c) that it conducts its business in an environmentally responsible and efficient manner, in accordance with applicable legislation and internationally accepted standards, including the OECD Guidelines for Multinational Enterprises and the UN Guiding Principles on Business and Human Rights.

16.2 The Customer shall indemnify and hold ERIKS harmless against all claims, liabilities, fines and additional costs and expenses that ERIKS may incur as a result of the Customer’s non-compliance with applicable laws, rules and regulations.

17. Confidentiality

17.1 The Customer shall treat and protect all Confidential Information as confidential and use it solely for the purposes of the Agreement concluded with ERIKS.

17.2 The Customer shall not disclose Confidential Information to third parties.

18. Hardship

The Customer and ERIKS shall consult with each other on an appropriate solution if, due to fundamentally changed circumstances, performance of the Agreement is no longer possible or is structurally loss-making.

19. Applicable law and competent court

19.1 All Agreements entered into, or to be entered into, between ERIKS and the Customer, the general delivery relationship between ERIKS and the Customer, if applicable, as well as any claims in tort in connection with the Agreement, are governed exclusively by Dutch law, excluding the Vienna Sales Convention.

19.2 ERIKS and the Customer irrevocably agree to the exclusive jurisdiction of the competent court in Amsterdam in connection with any dispute or proceedings arising from or in connection with all Agreements entered into, or to be entered into, between ERIKS and the Customer, the general delivery relationship between ERIKS and the Customer, if applicable, as well as any claims in tort in connection with the Agreement.

20. Additional terms

20.1 If any provision of the Delivery Terms is found to be invalid or unenforceable, the invalid or unenforceable provision shall be replaced by a valid, enforceable provision that most closely reflects the intention of the original provision. The remaining provisions shall remain in force.

20.2 ERIKS may assign its rights and obligations under this Agreement or these Delivery Terms. The Agreement or these Delivery Terms shall benefit ERIKS’s successors and assigns.

20.3 A party’s failure to insist on or enforce strict compliance by the other party with any provision of the Delivery Terms, or failure to exercise any right under the Delivery Terms, shall not be construed as a waiver, or waiver to any extent, of that party’s right to enforce or invoke such provision or right in that or any other instance; instead, the same shall remain fully in force and effect.

20.4 Termination, dissolution, cancellation, revocation, annulment or any other form of termination of the Agreement does not affect rights or obligations that by their nature are intended to survive termination, including but not limited to the rights and obligations referred to in Articles 9, 11, 12, 16, 17, 19 and 20.