The General Terms and Conditions of Augusta Benelux B.V., with its registered office in Leiden, hereinafter referred to as Augusta. These General Terms and Conditions were deposited on June 14, 2018 at the Chamber of Commerce.
| 1.1. | These General Terms and Conditions shall apply to and expressly form part of all agreements, subsequent offers and quotations from Augusta and its affiliated companies as well as all legally binding written documents (whether or not in electronic form) that pertain to the activities that Augusta undertakes. |
| 1.2. | Augusta is a company which is engaged in a variety of activities. |
| 1.3. | Clauses which deviate from the clauses in these General Terms and Conditions shall only apply if and in so far as they are agreed to by Augusta and expressly accepted in writing as well as only for the agreement for which the deviation has been made and intended. For the rest of their content, these terms and conditions shall remain applicable. |
| 1.4. | If a customer of Augusta has entered into an agreement with Augusta based on these terms and conditions or if the customer is otherwise aware of or can reasonably be expected to be familiar with it, these terms and conditions due to the fact shall become applicable to any subsequent Agreement with Augusta, even if upon the conclusion of the relevant Agreement a reference to these terms and conditions or the applicability thereof has not been made explicit. |
| 1.5. | If these General Terms and Conditions are written in another language than the Dutch language, the Dutch text is binding and shall prevail over its translation. |
| 1.6. | Augusta explicitly rejects the applicability of other General Terms and Conditions or stipulations, including the General Purchasing Conditions of Augusta’s customer. |
| 2.1. | The offers and quotations made by Augusta are obligation free and are expressly not binding to Augusta unless an unequivocal deadline for acceptance has been issued on the relevant offer or quotation. The applicability of Article 6:219 of the Dutch Civil Code is expressly excluded. |
| 2.2. | An agreement with a customer is only formed after Augusta has accepted the order from the customer in writing, for example by means of an order confirmation or confirmation by email or by Augusta’s fulfillment of the placed order or order. |
| 2.3. | A customer should promptly provide a complete written specification with its order describing the goods and services as requested from Augusta. |
| 2.4. | In case of a difference between the order intended by the customer and the written confirmation by Augusta, the customer is bound by the written confirmation from Augusta, unless the customer informs Augusta in writing within 5 days after the date of the confirmation that this confirmation is not in accordance with the order and the customer provides proof that Augusta was in fact informed of this. |
| 2.5. | Augusta reserves the right to refuse orders. |
| 2.6. | The customer must at all times keep Augusta informed of any change in circumstances and developments, of which the customer, is aware of or is deemed to be aware of, to ensure the proper fulfillment of the agreement. The customer guarantees to Augusta the accuracy and completeness of the information made available by itself or coming from a third party. |
| 2.7. | The customer also guarantees the security and accessibility of the location to be made available to Augusta where the activities are carried out. |
| 4.1. | The prices that Augusta uses or have agreed to with the customer are stated on the quotation and are provided in Euro (€) or USD ($), VAT excluded as well as any other duties, levies and taxes, unless expressly indicated otherwise. |
| 4.2. | Augusta is not obliged to honour an agreement at a price based on an obvious printing or typographical error or a price which is obviously not in conformity with the market. |
| 4.3. | Augusta is expressly authorised to unilaterally change the terms and conditions and content of a concluded agreement, if market conditions (foreseen or unforeseen) or cost-increasing circumstances occurs. Augusta shall not be held liable for any damages incurred by the customer in the event of such change and the change does not authorise the customer to terminate the contract. |
| 4.4. | Deviations up to a maximum of 10%, for example, on price or delivery time will, in principle, be considered as reasonable unless the customer demonstrates that this cannot reasonably be expected from it. |
| 4.5. | The prices quoted by Augusta are exclusive of VAT and other governmental charges, unless indicated otherwise and are based on delivery in accordance with the Incoterms applicable on the date of the quotation or offer. Transportation costs, if applicable, shall be invoiced separately. |
| 4.6. | If the prices have not yet been determined before or at the moment of the agreement, the prices to be charged by Augusta and the prices payable by the customer are the prices specified in the price lists of that year by Augusta or the prices which are valid on the day of delivery, at Augusta’s choice. |
| 6.1. | Augusta’s payment terms are as follows: payments shall be made within fourteen (14) days of the invoice date, effectively by transfer of the amount due on Augusta’s bank account, unless the parties have agreed otherwise in writing. |
| 6.2. | Payments are to be made by the customer, without any right to deduction or settlement unless expressly agreed by Augusta. The customer’s right to suspend or settle is expressly excluded by Augusta. |
| 6.3. | Augusta has the right to suspend the fulfilment of its obligations until full payment of the overdue invoices has been received. |
| 6.4. | Augusta has the right, even after partial delivery of goods and/or services, to request financial securities and sureties from the customer, in accordance with Clause 5. |
| 6.5. | Augusta also reserves the right to submit an invoice upon partial delivery. |
| 6.6. | Without any prior notice of default necessary, all invoices are immediately due and payable in the event that the customer is undergoing an insolvency procedure or the customer loses possession of its assets in full or partially as a result of seizure, administration or otherwise, as well as if the customer fails to fulfil one or more of its obligations, should they result from the current agreement or from any other agreement with Augusta or resulting from law. |
| 6.7. | The customer is legally in default, without any prior notice of default necessary, by the mere expiry of the agreed payment term. |
| 6.8. | If the payment term is exceeded, the customer shall be liable for a directly payable default interest of 1.5% per month from the day of the default, whereby a portion of a month shall be counted as a full month. After the end of a year, the amount on which the interest is calculated is increased by the interest due for that year. |
| 6.9. | In case of default in payment, the customer is also obliged to pay an extra penalty representing 15% of the overdue invoices with a minimum of € 250.00. |
| 6.10. | Should legal proceedings be necessary, Augusta is also entitled to charge the customer the actual costs incurred by its counsel, regardless of the legal system to calculate these costs, if applicable. |
| 7.1. | Except in case of paragraphs 7.3 and 7.4, the ownership of the goods will be transferred to the customer at the time of delivery or the delivery date referred to in Clause 3 or the moment at which they are collected. |
| 7.2. | Notwithstanding that which is otherwise determined in Clause 3, the goods are issued at the risk of the customer from the time of delivery or the delivery date referred to in Clause 3. |
| 7.3. | Augusta retains the ownership of all goods delivered or supplied to the customer - paid and not paid, including interest and costs - on account of the agreements concluded by it including service delivery. |
| 7.4. | If in the context of these agreements, Augusta performs or will perform activities for or by the customer, the aforementioned retention of ownership shall be applicable until the customer has entirely concluded these claims due to Augusta. The retention of ownership also applies to the claims that Augusta has against the customer, due to the customer failing to fulfil one or more of its obligations towards Augusta. |
| 7.5. | As long as the ownership of the delivered goods has not been transferred to the customer, the latter may not pledge the goods or grant any other right to a third party, except in case of paragraph 7.6. |
| 7.6. | On delivered or supplied goods that have been transferred to the customer's ownership and are currently in the customer’s possession, Augusta retains the right to claim the right of pledge as referred to in Article 3:237 of the Dutch Civil Code as an additional security for all claims that Augusta may still have against the customer. Augusta is at all times entitled to and is hereby irrevocably authorised by the customer to perform the necessary actions for the establishment of this right of pledge (including explicitly establishing the right of pledge by authentic or registered private deed) and thereby also acting on behalf of the customer. The customer is obliged at the request of Augusta to immediately cooperate on this pledge. |
| 7.7. | The customer is obliged to keep the goods delivered or supplied under retention of ownership with due care and as a distinguishable property of Augusta. The customer is obliged to insure the goods against fire, water and explosion damages as well as theft for the duration of the retained ownership and provide the policies for inspection of Augusta, on its first request. All claims of the customer against the insurers of the goods with retained ownership, will, on first request of Augusta, be pledged by the customer as specified in Article 3:239 of the Dutch Civil Code, to ensure further security of claims of Augusta against the customer. |
| 7.8. | If the customer fails to comply with the payment obligations towards Augusta or Augusta has good reasons to fear that the customer will fail in its obligations, Augusta is entitled to take back the goods delivered under retention of ownership without any liability to the customer. After return of the goods, the customer will be credited for the purchase price, which will in no case be higher than the original price agreed to, reduced by the costs incurred in the return transport. |
| 7.9. | The customer is allowed to sell and transfer the goods delivered under retention of ownership to third parties, as long as this is part of its normal business activities. When selling on credit, the customer is obliged to include a retention of ownership against its customers based equivalent to this Clause. |
| 7.10. | The customer agrees that, on first demand of Augusta, the customer will commit not to assign or pledge its claims against its customers to third parties without prior written permission from Augusta, unless the customer has pledged them to the financing bank. The customer also agrees, on first demand of Augusta, to accept to pledge in the benefit of Augusta as specified in Article 3:239 of the Dutch Civil Code, as an additional security for the claims of Augusta against the customer. |
| 7.11. | If the retention of ownership is not applicable on the goods supplied by Augusta because of its alteration or implemented in another good, Augusta retains an immaterial pledge on the changed or implemented goods, at the pro rata of the value of the goods delivered by Augusta. |
| 7.12. | Augusta's retention of ownership does not disappear when it is paid to Augusta by a third party who is then subrogated in Augusta's rights against the customer. |
| 8.1. | The customer shall always report complaints of any nature to Augusta in writing, with the complete reasons. A complaint, regardless of what it relates to, does not entitle the customer to suspend his or her obligations under the agreement with Augusta. |
| 8.2. | The customer must immediately check the delivered goods or services provided upon delivery or following completion or on completion. The customer must also verify that the delivered goods correspond with the agreement, namely:- whether the goods delivered or services provided meet the agreed quality requirements or, if these are lacking the requirements expected for the normal use and/or other agreed purposes, and this based on a visual inspection of the delivered goods or services provided;
- whether the delivered goods or services provided match with the agreement or order confirmation in terms of quality (number, quantity, weight);
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| 8.3. | The customer must immediately report any visible defects to Augusta upon delivery of the goods or fulfilment of the services. If no report is made, then the delivered goods or services provided shall be considered as correct and accepted. |
| 8.4. | In the case of non-visible defects, the customer must submit a complaint in writing within 5 working days after its discovery or after the defect should reasonably have been discovered. If this period expires without a complaint being made, the delivered goods or services are considered to be correct and accepted. |
| 8.5. | All other complaints must be reported by the customer to Augusta within the agreed payment term, otherwise all right to submit a complaint is lost. |
| 9.1. | If Augusta is prevented from fulfilling its obligations under the agreement or during the pre contractual phase due to: war, threat of war, civil war, rioting, terrorism, acts of war, fire, water damage, flood, epidemic, organised and un-organised strike, occupation of the company, exclusion, seizure, import and export barriers, government measures, defects in machinery, failures in the supply or delivery of energy, lack of materials, raw materials and stock, defects in transport and transport barriers, both in the company of Augusta or of its suppliers including the person who is in charge of storage or transport and further any independent circumstances not caused by or does not fall in the control sphere of Augusta. |
| 9.2. | In case of force majeure, the (delivery) terms will be extended by the period during which Augusta is hindered in fulfilling its obligations due to force majeure. |
| 9.3. | If the period during which the delivery is delayed and due to force majeure lasts longer than one (1) month, both Augusta and the customer are entitled to terminate the agreement - for the part not fulfilled - with due observance of the point specified in 9.4. |
| 9.4. | If force majeure occurs, while the agreement has already been partially implemented, the customer will retain the already delivered part of the goods and will not terminate the already fulfilled part of the agreement and also pay the purchase price due in both cases, unless the customer proves that the already delivered part of the goods can no longer be used effectively or used as a result of not delivering the remaining items. In the latter case, if the remaining delivery is delayed and due to force majeure lasts longer than one (1) month, the customer entitled to terminate the agreement for the part already fulfilled with regard to what was already delivered and return this to Augusta at the expense and risk of the customer. |
| 9.5. | Augusta, nor the customer will be mutually liable for termination of the contract as a result of force majeure. |
| 10.1. | Augusta excludes all liability towards the customer as long as the customer has not fully fulfilled its payment obligation. |
| 10.2. | Augusta is not liable for any damage suffered by the customer, including the damage obligation on account of the contract not being valid or of tort (unlawful actions) unless the customer demonstrates that the damage is the result of deliberate or consciously reckless actions on part of Augusta. Augusta is only liable for damage resulting from deliberate or conscious reckless acts by Augusta or of persons working for Augusta who are in charge of the management of the company. |
| 10.3. | Augusta is in no way liable for consequential damage, including damage on grounds of the contract not being valid or tort, no matter the nature or kind of consequential damage. |
| 10.4. | Should Augusta still be liable in a given case, then the amount of the damage to be paid to the customer is always limited to the cover provided by Augusta’s liability insurance or to the maximum of the relevant case, as paid out by Augusta‘s liability insurance, including its own risk. |
| 10.5. | In all cases in which Augusta would claim the application of the above mentioned clauses in judicial proceedings, any sued employees of Augusta can also invoke these clauses in their own benefit. |
| 10.6. | The liability for third parties engaged by Augusta, within the meaning of article 6:76 of the Dutch Civil Code, is expressly excluded. In the case of the engagement of a third party, the customer must make sure that it is insured against such eventualities. |
| 10.7. | The customer indemnifies Augusta against possible claims by external parties who may suffer a loss in view of the fulfilment of the agreement, regardless of the cause. |
| 10.8. | Claims for damages must be submitted by the customer within one year after a claim has been made to the competent court, in accordance with the conditions in Clause 13. After that period, the right to claim any damage shall be lost for the customer. |
| 11.1. | If the agreement between Augusta and the customer is made for a limited period of time, it cannot be terminated prematurely. |
| 11.2. | Concluded agreements between Augusta and its customer end by operation of law through the expiry of the period specified in the agreement and/or by the fulfilment of the agreed obligations. |
| 11.3. | If the agreement between Augusta and the customer is made for an indefinite period of time, it can be terminated after a notice period of 2 months, whereby the notice period always starts on the last working day of the month in question, unless otherwise agreed in writing. |
| 11.4. | Following Clause 9, Augusta may terminate the agreement with immediate effect, in whole or in part, without being obliged to pay any compensation to the customer and without prejudice of the right of Augusta to claim compensation from the customer, if the customer is undergoing an insolvency procedure, if the customer (company) is dissolved, if the customer has lost control of its assets by seizure of essential assets that lasts longer than 3 months, by custody or other loss of the power to dispose of its assets or parts thereof, the customer ceases its business sustainably as well as in the event that the customer fails to comply with one or more of its obligations, regardless of whether it arises from a sales agreement or another type of agreement or from the law. |
| 11.5. | In such cases as referred to in the previous paragraph, the amount owed by the customer to Augusta, including damages, is immediately due and payable in full. |
| 11.6. | Furthermore, Augusta can terminate the agreement with the customer with immediate effect if there is a change of ownership or management within the company of the customer or if the customer’s financial condition gives rise to this and additional security cannot be provided in accordance with Clause 5. |