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General terms and conditions of Sit & Heat B.V.

Article 1 General

  1. These terms and conditions apply to every offer, quotation and agreement between Sit & Heat B.V. established in Nijmegen, KvK no. 55898114, hereinafter referred to as: "Sit & Heat", and a Counterparty to which Sit & Heat has declared these terms and conditions applicable, insofar as these terms and conditions have not been expressly deviated from by the parties in writing.
  2. The present conditions also apply to agreements with Sit & Heat, the execution of which requires the involvement of third parties by Sit & Heat.
  3. These general conditions are also written for the employees of Sit & Heat and its management.
  4. The applicability of any purchasing or other conditions of the Other Party is expressly rejected.
  5. If one or more provisions in these general terms and conditions are at any time wholly or partly void or may be annulled, the other provisions of these general terms and conditions shall remain fully applicable. Sit & Heat and the Customer shall then consult in order to agree on new provisions to replace the void or nullified provisions, taking into account as much as possible the purpose and meaning of the original provisions.
  6. If any ambiguity exists regarding the interpretation of one or more provisions of these general terms and conditions, the interpretation must take place 'in the spirit' of these provisions.
  7. If a situation arises between the parties that is not regulated in these general terms and conditions, this situation is to be assessed in the spirit of these general terms and conditions.
  8. If Sit & Heat does not always require strict compliance with these terms, this does not mean that the provisions do not apply, or that Sit & Heat would in any way lose the right to require strict compliance with the provisions of these terms in other cases.

Article 2 Quotations and offers

1. All quotations and offers by Sit & Heat are without obligation, unless the quotation sets a deadline for acceptance. An offer or quotation expires if the product to which the offer or quotation relates is no longer available in the meantime.
2. Sit & Heat cannot be held to its bids or offers if the Other Party can reasonably understand that the bids or offers, or any part thereof, contain an obvious mistake or clerical error.
3. The prices stated in an offer or quotation are exclusive of VAT and other government levies, any costs to be incurred in the context of the agreement, including travel and accommodation, shipping and administration costs, unless otherwise stated.
4. If the acceptance (whether or not on minor points) deviates from the offer included in the quotation or the offer, Sit & Heat shall not be bound by it. The agreement shall then not be concluded in accordance with this deviating acceptance, unless Sit & Heat indicates otherwise.
5. A compound quotation does not oblige Sit & Heat to perform part of the order at a corresponding part of the quoted price. Offers or quotations do not automatically apply to future orders.


Article 3 Contract term; delivery terms, performance and amendment of agreement

1. The agreement between Sit & Heat and the Other Party shall be entered into for an indefinite period of time, unless the nature of the agreement dictates otherwise or if the parties expressly agree otherwise in writing.
2. If a term for the completion of certain work or for the delivery of certain goods has been agreed or given, this shall never be a deadline. If a term is exceeded, the Customer must therefore give Sit & Heat written notice of default. Sit & Heat must thereby be given a reasonable period to still perform the agreement.
3. If Sit & Heat requires data from the Other Party for the execution of the agreement, the execution period shall not begin until the Other Party has made them available to Sit & Heat correctly and completely.
4. Delivery takes place ex Sit & Heat's premises. The Other Party is obliged to take delivery of the items the moment they are made available to it. If the Other Party refuses to take delivery or fails to provide information or instructions necessary for delivery, Sit & Heat is entitled to store the goods at the expense and risk of the Other Party.
5. Sit & Heat is entitled to have certain work performed by third parties.
6. Sit & Heat is entitled to execute the agreement in several phases and to invoice the part thus executed separately.
7. If the agreement is executed in phases, Sit & Heat may suspend the execution of those parts belonging to a subsequent phase until the Other Party has approved in writing the results of the preceding phase.
8. If during the execution of the agreement it appears that for a proper execution of the agreement it is necessary to change or supplement it, the parties will timely and in mutual consultation adapt the agreement. If the nature, scope or content of the agreement is changed, whether or not at the request or indication of the Other Party, of the competent authorities et cetera, and the agreement is thereby changed in qualitative and/or quantitative respect, this may also have consequences for what was originally agreed. As a result, the amount originally agreed upon may be increased or decreased. Sit & Heat will give as much advance notice as possible. An amendment of the agreement may furthermore change the originally given term of execution. The Other Party accepts the possibility of amending the agreement, including the change in price and term of execution.
9. If the agreement is amended, including an addition, Sit & Heat is entitled to carry it out only after the person competent within Sit & Heat has given his consent and the Other Party has agreed to the price and other conditions stated for the execution, including the time then to be determined for its execution. Failure to execute the amended agreement, or failure to execute it immediately, does not constitute a default by Sit & Heat, nor is it a ground for the Other Party to cancel the agreement. Without being in default, Sit & Heat may refuse a request to amend the agreement if this could have consequences in qualitative and/or quantitative respects, for example for the work to be performed or goods to be delivered in that context.
10. If the Other Party should default in the proper fulfilment of that to which it is bound vis-à-vis Sit & Heat, the Other Party shall be liable for all damage (including costs) on the part of Sit & Heat caused thereby directly or indirectly.
11. If Sit & Heat agrees a fixed price with the Other Party, Sit & Heat is nevertheless entitled at all times to increase this price without the Other Party being entitled in that case to dissolve the agreement for that reason, if the increase in the price results from a power or obligation under the law or regulations or is caused by an increase in the price of raw materials, wages et cetera or on other grounds that were not reasonably foreseeable when the agreement was concluded.
12. If the price increase other than as a result of an amendment to the agreement amounts to more than 10% and takes place within three months of the conclusion of the agreement, then only the Other Party who is entitled to invoke title 5 section 3 of Book 6 of the Netherlands Civil Code is entitled to dissolve the agreement by means of a written statement unless Sit & Heat is then still willing to execute the agreement on the basis of what was originally agreed, or if the price increase results from a power or an obligation resting on Sit & Heat under the law or if it has been stipulated that the delivery will take place more than three months after the purchase.

Article 4 Suspension, dissolution and early termination of the agreement

1. Sit & Heat is entitled to suspend the fulfilment of its obligations or to dissolve the agreement if:
- the Other Party fails to fulfil its obligations under the agreement, in full or in time;
- after the conclusion of the agreement Sit & Heat learns of circumstances that give good reason to fear that the Other Party will not fulfil its obligations;
- the Other Party was requested to provide security for the fulfilment of its obligations under the agreement when the agreement was concluded and this security is not provided or is insufficient;
- If, due to the delay on the part of the Other Party, Sit & Heat can no longer be expected to fulfil the agreement against the originally agreed conditions, Sit & Heat is entitled to dissolve the agreement.
2. Furthermore, Sit & Heat is entitled to dissolve the agreement if circumstances arise of such a nature that fulfilment of the agreement is impossible or if other circumstances arise of such a nature that Sit & Heat cannot reasonably be expected to maintain the agreement unaltered.
3. If the agreement is dissolved, the claims of Sit & Heat on the Other Party shall be immediately due and payable. If Sit & Heat suspends fulfilment of its obligations, it shall retain its claims under the law and the agreement.
4. If Sit & Heat proceeds to suspension or dissolution, it shall in no way be liable to pay compensation for damage and costs thereby incurred in any way.
5. If the dissolution is attributable to the Other Party, Sit & Heat shall be entitled to compensation for the damage, including costs, incurred directly and indirectly as a result.
6. If the Other Party fails to comply with its obligations under the agreement and such non-compliance justifies dissolution, Sit & Heat is entitled to dissolve the agreement immediately and with immediate effect, without any obligation on its part to pay any damages or compensation, while the Other Party, by virtue of default, is obliged to pay damages or compensation.
7. If the agreement is terminated prematurely by Sit & Heat, Sit & Heat shall, in consultation with the Other Party, arrange for the transfer of work still to be performed to third parties. This unless the termination is attributable to the Other Party. If the transfer of the work involves extra costs for Sit & Heat, these shall be charged to the Other Party. The Other Party is obliged to pay these costs within the term stated, unless Sit & Heat indicates otherwise.
8. In the event of liquidation, of (application for) suspension of payment or bankruptcy, of attachment - if and in so far as the attachment has not been lifted within three months - at the expense of the Other Party, of debt rescheduling or any other circumstance as a result of which the Other Party can no longer freely dispose of its assets, Sit & Heat is free to terminate the agreement forthwith and with immediate effect or to cancel the order or agreement, without any obligation on its part to pay any compensation or indemnification. The claims of Sit & Heat against the Customer are in that case immediately due and payable.
9. If the Other Party fully or partially cancels an order that has been placed, the items ordered or prepared for it, plus any transport and delivery costs thereof and the working time reserved for the execution of the agreement, will be charged in full to the Other Party.

article 5 Force majeure

1. Sit & Heat is not obliged to fulfil any obligation towards the Counterparty if it is hindered to do so as a result of a circumstance that is not due to fault, and which is not for its account by virtue of the law, a legal act or generally accepted practice.
2. In these general terms and conditions, force majeure means, in addition to what is understood by law and case-law in this respect, all external causes, foreseen or unforeseen, which Sit & Heat cannot influence, but which prevent Sit & Heat from fulfilling its obligations. This includes strikes in the company of Sit & Heat or of third parties. Sit & Heat is also entitled to invoke force majeure if the circumstance preventing (further) fulfilment of the agreement occurs after Sit & Heat should have fulfilled its commitment.
3. Sit & Heat may suspend the obligations under the agreement during the period that the force majeure continues. If this period lasts longer than three months, each of the parties shall be entitled to dissolve the agreement, without any obligation to pay damages to the other party.
4. Insofar as Sit & Heat has already partially performed its obligations under the agreement at the time when the force majeure occurred or will be able to perform them, and the part performed or to be performed respectively has independent value, Sit & Heat is entitled to separately invoice the part already performed or to be performed respectively. The Other Party is obliged to pay this invoice as if it were a separate agreement.

Article 6 Payment and collection costs

1. Payment must be made within 14 days of the invoice date, in a manner to be indicated by Sit & Heat in the currency invoiced, unless otherwise indicated in writing by Sit & Heat. Sit & Heat is entitled to invoice periodically.
2. If the Other Party fails to pay an invoice on time, the Other Party shall be in default by operation of law. The Other Party shall then owe interest of 1% per month, unless the statutory interest rate is higher, in which case the statutory interest rate shall be due. The interest on the amount due and payable shall be calculated from the moment the Other Party is in default until the moment of payment of the amount due in full.
3. Sit & Heat is entitled to have the payments made by the Other Party go first of all to reduce the costs, then to reduce the interest falling due and finally to reduce the principal sum and the current interest.
4. Sit & Heat may, without thereby being in default, refuse an offer of payment if the Other Party indicates a different order for the allocation of payment. Sit & Heat may refuse full repayment of the principal sum, if this does not also include the interest falling due and accrued and collection costs.
5. The Other Party shall never be entitled to set off that which it owes to Sit & Heat.
6. Objections to the amount of an invoice do not suspend the payment obligation. The Other Party not entitled to invoke Section 6.5.3 (Articles 231 to 247 of Book 6 of the Dutch Civil Code) is also not entitled to suspend payment of an invoice for any other reason.
7. If the Other Party is in default or omission in the (timely) fulfilment of its obligations, all reasonable costs for obtaining extrajudicial satisfaction shall be borne by the Other Party. The extrajudicial costs are calculated on the basis of what is customary in Dutch collection practice, currently the calculation method according to Rapport Voorwerk II. However, if Sit & Heat has incurred higher costs for collection which were reasonably necessary, the actual costs incurred are eligible for compensation. Any judicial and execution costs incurred will also be recovered from the Other Party. The Other Party shall also owe interest on the collection costs owed.

Article 7 Retention of title

1. All items delivered by Sit & Heat under the agreement remain the property of Sit & Heat until the other party has properly fulfilled all obligations under the agreement(s) concluded with Sit & Heat.
2. Items delivered by Sit & Heat, which come under the retention of title pursuant to paragraph 1, may not be resold and may never be used as a means of payment. The Other Party is not authorised to pledge or encumber in any other way the items falling under the retention of title.
3. The Other Party must always do all that may reasonably be expected of it to safeguard the property rights of Sit & Heat.
4. If third parties seize the items delivered under retention of title or wish to establish or assert rights to them, the Customer is obliged to inform Sit & Heat thereof immediately.
5. The Customer undertakes to insure and keep insured the items delivered under retention of title against fire, explosion and water damage as well as against theft and to make the policy of this insurance available for inspection by Sit & Heat on first request. In the event of any insurance payment, Sit & Heat is entitled to this money. Insofar as necessary, the Other Party undertakes vis-à-vis Sit & Heat in advance to cooperate with everything that might (turn out to) be necessary or desirable within that framework.
6. In the event that Sit & Heat wishes to exercise its property rights referred to in this article, the Other Party gives unconditional and irrevocable permission in advance to Sit & Heat and third parties to be designated by Sit & Heat to enter all those places where Sit & Heat's property is located and to take back those items.

Article 8 Guarantees, investigations and complaints, limitation period

1. The goods to be delivered by Sit & Heat meet the usual requirements and standards that may reasonably be set for them at the time of delivery and for which they are intended in normal use in the Netherlands. The guarantee referred to in this article applies to goods intended for use within the Netherlands. In the event of use outside the Netherlands, the Other Party itself must verify whether they are suitable for use there and meet the conditions set for them. Sit & Heat may in that case set other guarantee and other conditions regarding the goods to be delivered or work to be performed.
2. The guarantee referred to in paragraph 1 of this article applies for a period of one year after delivery, unless the nature of the delivered item dictates otherwise or the parties have agreed otherwise. If the guarantee provided by Sit & Heat concerns a good produced by a third party, the guarantee is limited to that provided by the producer of the good, unless otherwise stated.
3. Any form of guarantee lapses if a defect has arisen as a result of or arising from injudicious or improper use thereof, incorrect storage or maintenance by the Other Party and/or third parties when, without written consent from Sit & Heat, the Other Party or third parties have made changes to the case or have tried to make changes to it, other items were attached to it that should not have been attached to it or if these were processed or treated in a manner other than prescribed. Nor is the Other Party entitled to any guarantee if the defect was caused by or is the result of circumstances beyond Sit & Heat's control, including weather conditions (such as, for example, but not limited to extreme rainfall or temperatures) et cetera.
4. The Other Party shall be obliged to examine the delivered goods, or have them examined, immediately at the time the goods are made available to it or the work in question has been carried out respectively. The Other Party must examine whether the quality and/or quantity of the goods delivered corresponds to what has been agreed and meets the requirements the parties have agreed in this respect. Any visible defects must be reported to Sit & Heat in writing within seven days of delivery. Any non-visible defects should be reported to Sit & Heat in writing immediately, but in any case at the latest within fourteen days of their discovery. The report must contain as detailed a description of the defect as possible, so that Sit & Heat is able to respond adequately. The Other Party must give Sit & Heat the opportunity to investigate a complaint (or have it investigated).
5. If the Other Party complains in time, this shall not suspend its payment obligation. The Other Party shall in that case also remain obliged to take delivery of and pay for the other goods ordered.
6. If a defect is reported later, the Other Party is no longer entitled to repair, replacement or compensation.
7. If it is established that a good is defective and a complaint in that respect has been lodged in time, Sit & Heat shall, at Sit & Heat's discretion, replace the defective good within a reasonable period of time after receiving it back, or, if returning the good is not reasonably possible, written notification of the defect by the Other Party, or take care of repair of it or pay the Other Party a substitute payment for it. In the event of replacement, the Other Party is obliged to return the replaced item to Sit & Heat and to transfer ownership of it to Sit & Heat, unless Sit & Heat indicates otherwise.
8. If it is established that a complaint is unfounded, the costs thereby incurred, including the research costs, on the part of Sit & Heat, shall be borne in full by the Other Party.
9. After expiry of the guarantee period, all costs for repair or replacement, including administration, shipping and call-out charges, will be charged to the Other Party.
10. Notwithstanding the statutory limitation periods, the limitation period of all claims and defences against Sit & Heat and the third parties involved by Sit & Heat in the execution of an agreement is one year.

Article 9 Liability

1. If Sit & Heat should be liable, such liability shall be limited to what is regulated in this provision.
2. Sit & Heat is not liable for damage, of whatever nature, arising because Sit & Heat has relied on incorrect and/or incomplete data provided by or on behalf of the Other Party.
3. If Sit & Heat should be liable for any damage, its liability is limited to a maximum of twice the invoice value of the order, at least to that part of the order to which the liability relates.
4. Sit & Heat's liability shall in any event always be limited to the amount paid by its insurer in the relevant case.
5. Sit & Heat shall only be liable for direct damage.
6. Direct damage is exclusively understood to mean the reasonable costs incurred to determine the cause and extent of the damage, in so far as the determination relates to damage within the meaning of these terms and conditions, any reasonable costs incurred to make Sit & Heat's faulty performance conform to the agreement, in so far as they can be attributed to Sit & Heat, and reasonable costs incurred to prevent or limit damage, in so far as the Other Party demonstrates that these costs led to the limitation of direct damage as referred to in these general terms and conditions.Sit & Heat shall never be liable for indirect damage, including consequential damage, loss of profit, missed savings and damage due to business stagnation.
7. Sit & Heat is never liable for indirect damage, including consequential damage, loss of profit, missed savings and damage due to business stagnation.The limitations of liability included in this article do not apply if the damage is due to intent or gross negligence on the part of Sit & Heat or its managerial subordinates.
8. The limitations of liability included in this article do not apply if the damage is due to intent or gross fault of Sit & Heat or its managerial subordinates.

Article 10 Transfer of risk

1. The risk of loss, damage or depreciation shall pass to the Other Party at the time when goods are brought under the Other Party's control.

Article 11 Indemnification

1. The Other Party indemnifies Sit & Heat against any claims by third parties, who suffer damage in connection with the execution of the agreement and whose cause is attributable to others than Sit & Heat.
2. If Sit & Heat should on that account be held liable by third parties, the Other Party is obliged to assist Sit & Heat both extra-judicially and judicially and immediately do all that may be expected of it in that case. Should the Other Party fail to take adequate measures, Sit & Heat is entitled, without notice of default, to do so itself. All costs and damage incurred on the part of Sit & Heat and third parties as a result, are integrally at the expense and risk of the Other Party.

Article 12 Intellectual property

1. Sit & Heat reserves the rights and powers to which it is entitled under the Copyright Act and other intellectual laws and regulations. Sit & Heat is entitled to use the knowledge gained by the execution of an agreement on its side also for other purposes, in so far as no strictly confidential information of the Other Party is brought to the knowledge of third parties.

Article 13 Applicable law and disputes

1. Dutch law applies exclusively to all legal relationships to which Sit & Heat is a party, even if an obligation is wholly or partly carried out abroad or if the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention is excluded.
2. The court in Sit & Heat's place of business is exclusively competent to take cognisance of disputes, unless the law imperatively prescribes otherwise. Nevertheless, Sit & Heat is entitled to submit the dispute to the court that has jurisdiction according to the law.
3. The parties will only appeal to court after they have made every effort to settle a dispute by mutual agreement.

 

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