General terms and conditions

Carve Ceramics B.V.

Article 1 – Applicability

1.1 These General Terms and Conditions (hereinafter: “Terms and Conditions”) apply to all offers of Carve Ceramics B.V. (hereinafter: “Contractor”) and to the agreements resulting therefrom with the counterparty (hereinafter: “Client”).

1.2 Any deviations from these Terms and Conditions are only valid if agreed in writing between the parties.

1.3 The Client’s general terms and conditions do not apply and are expressly rejected.

Article 2 – Offers

2.1 An offer does not oblige the Contractor to perform part of the assignment at a corresponding part of the quoted price.

2.2 The recipient of the offer may only use the knowledge contained therein from the Contractor to assess the offer and may not make it available to third parties.

2.3 An offer is valid for thirty (30) days after being sent by the Contractor to the Client.

2.4 The Contractor has the right to revoke an offer within fourteen (14) days after acceptance by the Client.

Article 3 – Intellectual property

3.1 The Contractor retains all intellectual property rights to the information provided and/or supplied.

3.2 The Client indemnifies the Contractor against claims from third parties relating to intellectual property rights on the materials or data provided by the Client, which are used in the performance of the agreement.

Article 4 – Advice, designs and materials

4.1 The Client is responsible for the drawings and calculations made by or on behalf of him and for the functional suitability of the materials prescribed by or on behalf of him.

4.2 The Client indemnifies the Contractor against any claim from third parties relating to the use of drawings, calculations, samples, models, etc. provided by or on behalf of the Client.

4.3 The Client may, at its own expense, examine (or have examined) the materials that the Contractor intends to use before they are processed. If the Contractor suffers damage as a result, such damage shall be borne by the Client.

Article 5 – Obligations of the Contractor

5.1 The Contractor will make every effort to carry out the agreed work carefully within the agreed term. If an overrun of the term is imminent, the Contractor shall inform the Client thereof without delay.

5.2 The Client cannot derive any rights from exceeding the agreed term. Exceeding the term does not in any case entitle the Client to compensation, unless expressly agreed in writing.

5.3 The Contractor undertakes to perform the work to the best of its knowledge and ability, in accordance with the requirements of good workmanship, based on the state of science known at that time.

Article 6 – Obligations of the Client

6.1 The Client shall ensure all approvals required in the context of the performance of the work, including but not limited to: permits and waivers.

6.2 The Client shall cooperate in the execution of the work and shall make available to the Contractor, free of charge, all materials and facilities (gas, water, electricity, heating, facilities prescribed under the Dutch Working Conditions Act and regulations, etc.) required by the Contractor for the performance of the work.

6.3 The Client guarantees the accuracy of the information provided by him.

6.4 The Client must inform the Contractor as soon as possible of all data, events and changes in circumstances that may be relevant to the performance of the work.

6.5 If the Contractor has to carry out work in hazardous environments, such as – but not limited to – industrial work environments, construction sites, marinas or ships, the Client is responsible for taking all necessary safety measures.

Article 7 – Transfer of risk

7.1 In case of purchase, delivery takes place ex works, in accordance with Incoterms 2020; the risk passes at the moment the seller makes the goods available to the buyer.

7.2 After completion, the work is at the risk of the Client.

Article 8 – Fees / price changes

8.1 Fees are always quoted exclusive of VAT and/or other government levies.

8.2 If no fixed fee has been agreed, the fee will be determined based on actual hours spent and materials used (post-calculation).

8.3 All goods, work and expenses not mentioned in the offer shall be regarded as additional work and shall be charged to the Client.

8.4 The Contractor is entitled at all times to require the Client to provide adequate security for the fulfilment of its obligations towards the Contractor. The Contractor reserves the right to send interim invoices and may at any time require payment in advance.

8.5 The price in the offer does not include the costs:

1. for earthwork, piling, chopping, breaking, foundation, masonry, carpentry, plastering, painting, wallpapering, repair or other construction work,
2. for connection of gas, water, electricity or other infrastructural facilities,
3. to prevent or limit damage to items present at or near the work,
4. for removal of materials, building materials or waste,
5. for travel and accommodation,

unless expressly stated in the offer.

8.6 The Contractor is entitled to pass on interim price changes – which cannot reasonably be borne by the Contractor – to the Client.

Article 9 – Force majeure / impossibility of performance

9.1 The Contractor is not liable for any failure to perform any of its obligations if the failure is not attributable to the Contractor (force majeure). During force majeure the obligations of the Contractor are suspended.

9.2 The Contractor is not entitled to suspension if performance is permanently impossible, or if a temporary impossibility has lasted for more than six months. The agreement may then be terminated (ontbonden) by the parties or one of them for that part of the obligations not yet performed. In such a case, neither party is entitled to compensation.

9.3 Insofar as the Contractor, at the time of the occurrence of force majeure, has already performed or can still perform its obligations, and the part performed or to be performed has independent value, the Contractor is entitled to invoice the part already performed or to be performed separately. The Client is obliged to pay this invoice as if it were a separate agreement.

Article 10 – Completion of the work

10.1 The work shall be deemed completed when:

1. the Client has approved the work, or
2. the work has been put into use by the Client, or
3. the Contractor has notified the Client in writing that the work has been completed and the Client has not, within 10 working days of the notification, made known in writing whether or not the work is approved, or
4. the Client does not approve the work with respect to minor defects or missing parts that can be remedied or delivered within 30 days and which do not prevent use of the work.

10.2 If the Client has taken part of the work into use, that part is considered completed.

10.3 After completion of (part of) the work, the Contractor is no longer liable for defects in the work.

10.4 If the Client does not approve the work, he is obliged to notify the Contractor thereof in writing, stating the reasons for non-approval.

10.5 If the Client does not approve the work, he shall give the Contractor the opportunity to redeliver the work. The provisions of this article shall then apply again.

Article 11 – Liability

11.1 The Contractor is never liable for indirect damage, including consequential damage, lost profits, missed savings and damage due to business interruption, of any kind, arising from a failure of the Contractor in the performance of the agreement.

11.2 The Contractor is liable for direct damage suffered by the Client that is the direct and exclusive result of an attributable failure by the Contractor.

11.3 The Contractor’s liability is at all times limited to the amount paid out under the Contractor’s insurance. If the Contractor has not taken out an insurance, or if no payment is made under the Contractor’s insurance, the liability of the Contractor is limited to a maximum of once the contract value.

11.4 Any obligation to pay compensation or any claim based on a defect in the Contractor’s performance shall lapse if the Client fails to notify the Contractor in writing of the damage or defect in performance within fourteen (14) days after the damage was discovered or should reasonably have been discovered. In any case, any obligation to pay compensation lapses if the Client has not brought legal proceedings in this regard within two (2) years after the Client has notified the Contractor of the damage.

11.5 The Client indemnifies the Contractor against all claims from third parties arising from product liability as a result of a defect in a product supplied by the Client to a third party and which consisted (in part) of products and/or materials supplied by the Contractor.

11.6 The liability limitations and the indemnification obligation in this article also apply to employees of the Contractor and to third parties used by the Contractor in the performance of the agreement.

11.7 The Client is liable for all damage resulting from loss, theft, fire or damage to tools, materials and other items of the Contractor located at the place where the work is performed.

Article 12 – Warranty

12.1 The Contractor guarantees, for a period of six months after (delivery) completion, the proper execution of the agreed performance.

12.2 If the agreed performance consists of contracting work, the Contractor guarantees for the period referred to in paragraph 1 the soundness of the delivered construction and the materials used, provided he was free in their choice. If it appears that the delivered construction or the materials used are not sound, the Contractor will repair or replace them.

12.3 If the agreed performance consists of processing materials supplied by the Client, the Contractor guarantees for the period referred to in paragraph 1 the soundness of the processing carried out. If it appears that processing has not been carried out properly, the Contractor will choose whether to:

• redo the processing,
• remedy the defect, or
• credit the Client for a proportionate part of the invoice.

12.4 If the agreed performance consists of the delivery of goods, the Contractor guarantees for the period referred to in paragraph 1 the soundness of the goods delivered. If it appears that the delivery was unsound, the Contractor will choose whether to:

• repair the item,
• replace the item, or
• credit the Client for a proportionate part of the invoice.

12.5 If the agreed performance (also) consists of the installation and/or assembly of delivered goods, the Contractor guarantees for the period referred to in paragraph 1 the soundness of the installation and/or assembly. If it appears that the installation and/or assembly was not carried out properly, the Contractor will remedy this.

12.6 Warranty work will only be carried out at locations within the Netherlands. If the Client requires warranty work at a location outside the Netherlands, all reasonable travel, accommodation and other costs associated therewith shall be borne by the Client. These costs will be charged separately.

12.7 The Client must in all cases give the Contractor the opportunity to remedy any defect or to redo the processing.

12.8 The Client may only invoke the warranty after having fulfilled all of his obligations towards the Contractor.

12.9 No warranty is given for defects resulting from:

• normal wear and tear;
• improper use;
• no or incorrect maintenance;
• installation, assembly, modification or repair by the Client or by third parties;
• defects in the structure on/in which the supplied materials are placed/assembled.

Furthermore, no warranty is given for goods delivered that were not new at the time of delivery.

Article 13 – Non-competition

13.1 Without the express prior written consent of the Contractor, the Client is not permitted, during the term of the agreement and for one year after its termination, to employ or otherwise, directly or indirectly, have work performed by employees of the Contractor who are or were involved in the execution of the agreement. In case of violation of this provision, the Client owes the Contractor an immediately payable penalty of €50,000, without prejudice to the right of the Contractor to claim compensation for damages.

Article 14 – Goods not taken

14.1 When goods are not taken after expiry of the delivery period, they remain at the disposal of the Client. Goods not taken will be stored at the expense and risk of the Client. The Contractor may always exercise the authority of Article 6:90 of the Dutch Civil Code.

Article 15 – Invoicing and payment

15.1 Invoices must be paid within seven (7) days of the invoice date, unless otherwise agreed. Any objections to the invoice must be submitted in writing within fourteen (14) days. The obligation to pay is not suspended or extinguished on the basis of objections to the invoice.

15.2 If the Client does not pay, does not pay in full and/or does not pay on time, the Client is automatically in default.

15.3 If and as soon as the Client is in default, it shall also owe interest for late payment equal to the statutory commercial interest (Article 6:119a Dutch Civil Code), without prejudice to the right of the Contractor to reimbursement of the costs of judicial and/or extrajudicial collection.

15.4 If the Contractor is successful in legal proceedings, all costs incurred by the Contractor in connection with such proceedings shall be borne by the Client.

15.5 In the event of liquidation, bankruptcy, seizure or payment moratorium of the Client, the claims of the Contractor against the Client are immediately due and payable.

15.6 The Client’s right to set off its claims against the Contractor is excluded, unless the Contractor is declared bankrupt.

Article 16 – Retention of title and right of pledge

16.1 After delivery, the Contractor remains the owner of the goods delivered as long as the Client:

1. fails or will fail to fulfil its obligations under this agreement or similar agreements,
2. does not pay or will not pay for work performed or to be performed under such agreements,
3. has not settled claims arising from non-compliance with the aforementioned agreements, such as damages, penalties, interest and costs.

16.2 As long as the delivered goods are subject to retention of title, the Client may not encumber them outside its normal business operations.

16.3 After the Contractor has invoked its retention of title, it may take back the delivered goods. The Client allows the Contractor to enter the place where these goods are located.

16.4 If the Contractor cannot invoke its retention of title because the delivered goods have been mixed, transformed or accessioned, the Client is obliged to pledge the newly formed goods to the Contractor.

Article 17 – Termination

17.1 If the Client wishes to terminate the agreement without there being a failure by the Contractor and the Contractor agrees, the agreement will be terminated by mutual consent. In such a case, the Contractor is entitled to compensation for all financial losses such as losses suffered, lost profits and costs incurred.

Article 18 – Change of legal form

18.1 The Contractor is entitled to change the legal form of its business during the agreement. In such a case, the Contractor shall inform the Client of this change. The Client hereby agrees in advance that all rights and obligations under the agreement will be transferred to the new legal entity under which the Contractor will conduct its business.

Article 19 – Applicable law and disputes

19.1 Dutch law applies to the agreement.

19.2 The United Nations Convention on Contracts for the International Sale of Goods (C.I.S.G.) does not apply, nor does any other international regulation from which exclusion is permitted.

19.3 Disputes arising from the agreement or from further agreements resulting therefrom that cannot be settled amicably will be submitted to the competent court of the Zeeland-West-Brabant District Court.

19.4 The parties may agree on another form of dispute resolution by mutual agreement.