General terms and conditions

aLUCKERATH B.V. general terms and conditions.

Article 1: General
1.1.    Where reference is made to “Luckerath” and/or “our” in these terms and conditions, reference is made to the private company with limited liability “Luckerath B.V.” with registered business premises in Tilburg.
1.2.    The other party of Luckerath with regard to the transactions to which these general terms and conditions relate shall be referred to as “the other party” from now on.

Article 2: Scope of action
2.1    These general terms and conditions apply to all offers, quotations, agreements, sales and deliveries of items and services of Luckerath.
2.2    The terms and conditions used by the other party do not apply unless Luckerath has expressly accepted the applicability of those terms and conditions in writing.

Article 3: Offers and formation of agreements
3.1    All Luckerath offers and quotations are completely free from any obligation and may only be regarded as an invitation to make a further offer unless expressly specified otherwise.
3.2    Quotations, offers and price specifications for items to be especially produced or specially to be delivered services shall only apply to the offered quantities.
3.3    Every offer is based on the execution of the agreement by Luckerath under normal conditions and during normal working hours.
3.4    Agreements will first be formed after written acceptance/acknowledgement by Luckerath of an instruction and/or placed order given by the other party.
3.5    All technical recommendations about items to be purchased are completely free from obligation and are limited to those items. Issues to be produced must be tested through tests at the other party or not with regard to technical recommendations.
3.6    Verbal promises made by and agreements with Luckerath subordinates including account managers and agents do not commit Luckerath except after and insofar as this is confirmed by Luckerath in writing.

Article 4: Cancellation, interim amendment and termination
4.1    Luckerath is entitled to refuse an order issued to the company by the other party without having to specify reasons. Luckerath shall, in this case, not be liable to make any payments to the other party.
4.2    Luckerath retains the right at all times to implement slight deviations in the items it offers and/or sells and/or with regard to the quantities and/or the composition of the items it offers and/or sells.
4.3    If items are made in accordance with the specifications of the other party, Luckerath retains the right to deliver those items with a deviation of up to 10% of the specified additional or lower weight and/or quantity.

Article 5: Prices
5.1    Unless expressly stated otherwise, all prices, rates and costs excluding VAT and other apply to the authority charges falling on sales and deliveries and they shall be based on delivery ex-factory in accordance with Incoterms (international commercial terms) that apply on the date of the offer except insofar has been determined otherwise in these terms and conditions. Factory shall be deemed to mean the business premises of Luckerath.
5.2    The method used to package and ship shall be determined by Luckerath and the related costs shall be paid by the other party. Packaging and shipment costs are not included in the price unless otherwise agreed in writing.
5.3    Luckerath shall be entitled at all times to proportionally change the agreed price after concluding an agreement if the cost price-determining factors such as wages, prices, import duties, exchange rates, excise duties, levies and taxes and, in general, all government measures undergo changes which may or may not have been foreseeable at the time of the offer and/or the acknowledgment; one thing and another whilst observing the statutory regulations that apply. The other party has the authority to terminate the agreement should there be a price increase within three months after the formation of the agreement.
5.4    The authority of Luckerath is deemed to be included in the agreement to charge separately for additional work that the company performs when the amount to be charged for this is known to the company. The lines included in paragraphs 1 and 2 are applicable by analogy with regard to the calculation of the additional work. Additional work shall be deemed to be everything that is delivered and/or installed by Luckerath in consultation with the other party, that may or may not have been defined in writing, during the execution of the agreement on top of the quantities expressly determined in the agreement or the order confirmation and/or the work performed by the company on top of the work expressly determined in the agreement or the order confirmation.
5.5    Cost budgets and plans are not charged separately unless otherwise agreed. If Luckerath has to make new drawings, calculations, descriptions, models or tools with regard to any repeat orders, the costs thereof shall be billed.
5.6    Costs related to loading and unloading and related to the shipment of base materials, semifinished products, models, tools and other items made available by Luckerath are not included in the price and shall be billed separately. The costs paid by Luckerath with regard to the above shall be deemed to be an advance at the expense of the other party.
5.7    If Luckerath has accepted that it shall install the product, the price shall have been calculated to include the installation and the delivery ready for operation of the product at the location specified in the offer and shall include all costs except for costs that are not included in the price in accordance with the previous paragraphs or that are specified in Article 9. Incurred costs due to adverse weather conditions that make working impossible shall be passed on.

Article 6: Carbon Management System (CMS), drawings, calculations, descriptions, models, samples
6.1.    Data mentioned in catalogues, figures, drawings, dimensioning and weight specifications, etc., shall only be binding if and insofar the data has been expressly included in an agreement signed by the parties or in an order confirmation signed by Luckerath. The offer issued by Luckerath as well as the drawings, calculations, software, descriptions, models, etc., that it makes or issues shall remain the property of Luckerath regardless of whether costs have been billed. The information that is included in various things or that forms the foundation for the manufacture and construction methods, products, etc., remains exclusively reserved to Luckerath even when costs have been billed. The other party shall guarantee that the aforementioned information shall only be copied, shown to third parties, made public or used after having been given written permission by Luckerath except when the information is used for the execution of the agreement.
6.2.    A model, sample or example shown or issued by Luckerath is only shown or issued as a reference: the qualities of the items to be delivered may deviate from the sample, model or example unless it has been expressly stated that delivery shall take place in agreement with the shown or issued sample, model or example. Installation recommendation lists and all other issued documentation only have an advisory nature and, therefore, rights cannot be derived from them.

Article 7: Delivery
7.1    Unless expressly agreed otherwise, delivery shall take place ex-factory in accordance with Incoterms that apply on the date of the offer.
7.2    If free delivery of items has been agreed, the shipment shall take place in the cheapest way for Luckerath. If the other party wishes another shipment method to be used, the higher costs shall be billed.
7.3    The items shall be at the expense and risk of the other party from the moment they have been delivered.
7.4    The other party is obliged to accept the items during the first offer; should this not occur, the other party shall be liable for any costs that may ensue from this.

Article 8: Delivery terms
8.1    The specification of the delivery date shall always take place by approximation and shall never be a strict deadline unless expressly agreed otherwise in writing.
8.2    When inspection of the items to be delivered by Luckerath at the company of Luckerath has been agreed, the items shall be deemed to have been delivered before this inspection. The items to be delivered by Luckerath shall be deemed to have been delivered when they are ready to be shipped in other cases. Luckerath shall inform the other party in writing of this delivery.
8.3    Without prejudice to that which is specified elsewhere in these terms and conditions with regard to the extension of the delivery time, the delivery time shall be extended by the duration of the delay that occurs on Luckerath’s side as a result of the other party not complying with any obligation arising from the agreement or the other party not giving the cooperation asked from him or her with regard to the execution of the agreement.
8.4    Luckerath shall be entitled to deliver items anyway within a reasonable post-delivery period after the specified delivery period has elapsed.
8.5    Luckerath must be given notice of being in default in writing when the (post-)delivery period has been exceeded. The delivery time is based on the working conditions that applied at the time the agreement was concluded and on the timely delivery of the materials ordered by Luckerath for the execution of the work. If a delay occurs that is not imputable to Luckerath as a result of the aforementioned working conditions changing or because materials that were ordered on time for the execution of the work are not delivered on time, the delivery time shall be extended by the time that is required.
8.6    Except for gross negligence on the part of Luckerath, the delivery time being exceeded shall not give the other party the right of terminating the agreement in full or partially.
8.7    A contractual penalty set with regard to the delivery time being exceeded must be deemed to come in the place of any right of the other party to receive compensation. Such a penalty and/or compensation shall not be due and payable if the delivery time exceedance is due to force majeure.

Article 9: Installation
9.1    The other party is liable for the correct and timely execution of all devices, provisions and/or terms and conditions towards Luckerath that are required for the setting up of the item to be installed and/or the correct operation of the item in the installed condition, except for when and insofar this execution is performed by Luckerath in accordance with or due to the data issued and/or the drawings produced by the aforementioned.
9.2    Without prejudice to that which has been specified in paragraph 1, the other party shall, in any case, be responsible for the following at said party’s expense and risk:
a.    The personnel of Luckerath when they have arrived at the location where the set-up shall take place to ensure they can start their work and continue to perform their work during normal working hours and, moreover, outside normal working hours, when Luckerath deems this necessary, as long as Luckerath has informed the other party on time about this;
b.    Suitable housing and/or all provisions required by virtue of government schemes, the agreement and common practice must be available to the personnel of Luckerath;
c.    The access roads up to the location of the set-up must be suitable for the required transport;
d.    The indicated location for the set-up must be suitable for storage and installation purposes;
e.    The required lockable storage locations for material, tools and other items must be available;
f.    The required and normal auxiliary workers, auxiliary tools, auxiliary and industrial equipment (including fuels, oils and lubricants, cleaning and other consumables, gas, water, electricity, current, compressed air, heating, lighting, etc.) must be available as well as the measuring and testing equipment that is normally used with regard to the operations of the other party must be made available on time and free of charge at the correct location;
g.    All required safety and precautionary measures must have been implemented and enforced and all measures that have been implemented and have been enforced within the framework of the installation must comply with the applicable regulations from national and local authorities;
h.    All required items are available at the correct location when the installation starts and during this installation.
9.3    Damages and costs that occur or are incurred because the terms and conditions as laid down in this Article have not been met or have not been met on time are at the expense of the other party.
9.4    Article 8 shall apply by analogy with regard to the installation/installation time.

Article 10: Inspection and acceptance test
10.1    The other party shall inspect the product within fourteen days at the latest after delivery as referred to in Article 8 paragraph 2 and, if installation has been agreed, within fourteen days at the latest after the installation, respectively. If this period has elapsed without written and specified announcement of legitimate complaints, the item shall be deemed to have been accepted.
10.2    If an acceptance test has been agreed, the other party shall allow Luckerath to perform the required tests as well as implement improvements and changes that Luckerath may deem necessary after receipt or, if installation has been agreed, after installation. The acceptance test shall be performed immediately after Luckerath requests this in the presence of the other party. If the acceptance test has been performed without a specified and legitimate complaint and if the other party has not complied with his or her aforementioned obligations, the item shall be deemed to have been accepted.
10.3    The other party shall make available to Luckerath at the correct location the required facilities including as referred to in Article 9, paragraph 3 under f as well as representative samples of any materials to be processed in sufficient quantities, on time and free of charge for the acceptance test and for any other tests to ensure that the use conditions foreseen by the parties with regard to the product can be copied as faithfully as possible. If the other party should not comply with this, paragraph 2, last sentence, shall apply.
10.4    In case of minor shortcomings, in particular, those that do not or only barely influence the foreseen use of the product, the item(s) delivered by Luckerath shall be deemed to have been accepted regardless of these shortcomings. Luckerath shall put right the minor shortcomings after delivery.
10.5    Without prejudice to the obligation of Luckerath to comply with its guarantee obligations, the acceptance in accordance with the previous paragraphs shall exclude any claim of the other party with regard to a shortcoming in the performance of Luckerath.

Article 11: Risk transfer
11.1    Immediately after the product is deemed to have been delivered as specified in Article 8 paragraph 2, the other party shall bear the risk for all direct and indirect damages that may occur to or through this product except when and insofar gross negligence can be imputed to Luckerath.

Article 12: Reservation of title
12.1    All items delivered or to be delivered by Luckerath to the other party shall remain the exclusive property of Luckerath until all claims that Luckerath has or shall have with regard to the other party including claims that arise from previously specified claims not having been observed have been settled in full.
12.2    If an item delivered by Luckerath regarding which Luckerath has a reservation of title is imported into another Member State of the European Union, the right of that Member State shall have control over the reservation of title if this right comprises more favourable provisions for Luckerath with regard to this issue.
12.3    As long as a reservation of title is linked to items delivered by Luckerath, the other party may not encumber them; in particular, the other party may not encumber the items within the framework of any financing.
12.4    The other party must immediately inform Luckerath about claims or attempts to that end by third parties to obtain items regarding which Luckerath has any or co-ownership rights.
12.5    The other party shall now grant Luckerath the right to gain access to all those locations where the property of Luckerath can be found when the occasion arises to ensure it can exercise ownership rights.
12.6    The other party must keep the items belonging to Luckerath with the required care and at a separate place and Luckerath’s property must be clearly recognised as such.
12.7    The other party must ensure that the items of Luckerath are not mixed with other items. Should items be mixed, Luckerath shall become the co-owner of the mixed stock items for the invoice value for the items originally delivered by Luckerath.
12.8    If Luckerath cannot appeal to its (co-)ownership rights because the items have been mixed, processed or investigated, the other party must pledge to Luckerath the items that have, thus, been created at the first request.
12.9    Luckerath shall then also be entitled to retrieve the goods on which it has a reservation of title when circumstances occur from which Luckerath can deduce in all reasonableness that there is a risk that the items shall not be paid (on time) even when the payment is not yet due and payable.

Article 13: Payment
13.1    The payment of Luckerath invoices must take place without any discount or deduction within 30 days after the invoice date at the office of Luckerath or through a transfer to a bank account to be specified by Luckerath. Giro payments shall take place through receipt on Luckerath’s bank account. The right of the other party to appeal to settlement or on a right of suspension is excluded.
13.2    Luckerath shall be entitled to invoice each item or service separately when items or services are delivered in batches.
13.3    Payment for additional work shall take place when this has been charged to the other party.
13.4    The other party shall be deemed to be in default by operation of the law by only the payment term elapsing. A further demand letter or notice of default is not required.
13.5    From the moment when the other party is deemed to be in default, the other party shall owe default interest at 1% per month or part of a month based on the invoice amount up to the day when the amount is settled in full with Luckerath. One thing and another without prejudice to the further rights of Luckerath.
13.6    All extrajudicial costs that Luckerath incurs due to the other party not complying with one or more obligations from the agreement shall be borne by the other party. Should payment not be on time, the extrajudicial costs shall at least be 15 % of the amount to be collected whereby a minimum of € 125 shall apply.
13.7    Any payment made by the other party including any payment made by third parties of the amounts that should be paid by the other party, shall primarily be used to settle the extrajudicial costs owed by the other party and, subsequently, to settle the emerged interest and shall then be deducted from the running interest and, at the discretion of Luckerath, the outstanding claim(s).

Article 14: Guarantee
14.1    Without prejudice to the limitations set down below, Luckerath guarantees both the reliability of the items it delivers and the quality of the material used for this and/or delivered insofar it concerns non-observable defects to the product delivered related to an inspection or acceptance test, respectively, regarding which the other party proves that they have occurred within six months after delivery in accordance with Article 8 paragraph 2 or mainly as a direct result of an incorrectness in the construction that Luckerath has applied and/or as a result of faulty finishing or use of poor material.
14.2    Paragraph 1 applies by analogy to a non-observable defect with regard to an inspection or acceptance test, respectively, that only or mainly is due to faulty installation by Luckerath. If Luckerath installs the items, the guarantee term of six months as referred to in paragraph 1 shall commence on the day that Luckerath has completed the installation subject to the guarantee term ending in any case after twelve months after delivery has elapsed in accordance with Article 8 paragraph 2.
14.3    The defects that fall under the guarantee referred to in paragraphs 1 and 2 shall no longer apply due to the repair or replacement of the defective part that may or may not take place at the company of the other party or through the shipment of a part for replacement by Luckerath; one thing and another at the discretion of Luckerath at all times. All costs that are above the single obligation as described in the previous sentence such as but not limited to shipment expenses, travelling and accommodation expenses and costs related to disassembly and installation shall be borne by the other party.
14.4    Defects that occur in and/or are the result of the following in part or in full shall, in any case, not be covered by the guarantee:
a.    Not observing the operational and maintenance instructions and/or not using the item/installation based on the foreseen normal use;
b.    Normal wear and tear;
c.    Installation or repair by third parties including the other party;
d.    The application of any regulation set by an authority with regard to the nature or quality of the allowed materials;
e.    Employed used materials and items, respectively, in consultation with the other party;
f.    Materials or items that have been issued to Luckerath for processing by the other party;
g.    Materials, items, working methods and constructions insofar as they have been applied at the express instruction of the other party as well as materials and items delivered by or on behalf of the other party;
h.    Parts procured from third parties by Luckerath insofar as the third party has not issued a guarantee to Luckerath.
14.5    If the other party does not meet an obligation or does not meet this obligation correctly or in a timely fashion that arises from the agreement concluded with Luckerath or from a related agreements, Luckerath shall not be bound to any guarantee with regard to any of these agreements any guarantee regardless of what it may be called. If the other party starts to disassemble, repair or perform other work or has another party disassemble, repair or perform other work with regard to the product without obtaining prior written permission form Luckerath, any claim by virtue of the guarantee shall be null and void.
14.6    Putting in a claim with regard to defects must be done as soon as possible after their discovery but no later than fourteen days after discovery in writing. Should any terms be exceeded, any claim against Luckerath with regard to those defects shall no longer be deemed to apply. Relevant legal claims must be submitted within a year after timely objection at the risk of forfeiting all rights.
14.7    If Luckerath replaces parts/items to comply with its guarantee obligations, the replaced parts/items will become the property of Luckerath.
14.8    With regard to the repair and overhaul work or other services performed by Luckerath, a guarantee shall only be issued for the reliability of the execution of the assigned work for a period of six months unless agreed otherwise. In case of faultiness, this guarantee only covers the obligation of Luckerath to again perform the work concerned insofar this was faulty. The second sentence of paragraph 3 shall, in this case, apply by analogy.
14.9    A guarantee shall not be issued with regard to inspections, recommendations and similar operations performed by Luckerath.
14.10    The alleged non-compliance by Luckerath of its guarantee obligations does not release the other party from the obligations that arise from any agreement concluded with Luckerath for which this party is responsible.

Article 15: Liability
15.1    The liability of Luckerath is limited to complying with the guarantee obligations described in Article 14 of these terms and conditions.
15.2    Luckerath is, therefore, not liable for the following:
-    A breach of patents, licences or other rights of third parties as a result of use of data issued by or due to the other party.
-    Damage or loss due to whatever reason whatsoever to the base materials, semifinished products, models, tools and other items made available by the other party.
15.3    Luckerath cannot be held liable for damages including consequential damage, trading losses, loss of profits and/or discontinuation damage that have occurred due to the tests referred to in Articles 3 and 10.
15.4    Luckerath cannot be held liable for damages including consequential damage, trading losses, loss of profits and/or discontinuation damage as a result of the properties of graphite. Graphite has an amorphous structure with many hairline cracks, which may mean that there may be deviations to material specifications.
15.5    If Luckerath should grant assistance in whatever shape or form with regard to an installation without having been given an order for the installation, this will be at the risk of the other party. Luckerath cannot be held liable within this context.
15.6    If Luckerath should be sued by third parties for any damages for which it is not liable by virtue of these general terms and conditions, the other party shall indemnify Luckerath completely. The other party shall be liable for all costs that arise from the abovementioned claims of third parties towards Luckerath.
15.7    Should Luckerath not be able to rely on what has been determined in the other paragraphs of this Article, Luckerath shall only be liable insofar this liability is covered by its insurance. Luckerath shall never be liable for indirect damages including consequential damage, trading losses, loss of profits and/or discontinuation damage, for assistance, for exceeding a term or for a shortcoming as a result of force majeure.
15.8    If the insurer of Luckerath should decide not to pay up for whatever reason and/or if the damages are not covered by the insurance, the liability shall be limited to the invoice amount (excluding VAT) of the items/the service(s) due to which the damages arose.
15.9    The other party who assigns the production of items to Luckerath in agreement with drawings, models, samples and/or similar issued by the other party, shall indemnify Luckerath for all claims of third parties that could arise because intellectual property rights of third parties are being violated through this production.
15.10    The other party shall indemnify Luckerath for all claims from third parties due to product liability as a result of a defect or fault in a product that has been delivered by the other party to a third party and that (in part) comprised items and/or materials delivered by Luckerath.
15.11The other party shall indemnify Luckerath for all claims from third parties due to damages that have arisen through the tests specified in Articles 3 and 10.

Article 16: Force majeure
16.1Force majeure shall be deemed to mean the following in these general terms and conditions in addition to what this term is understood to mean in law and jurisprudence with regard to this: all external causes that may or may not have been foreseen on which Luckerath cannot exercise any influence but due to which Luckerath is unable to comply with its obligations. This shall at least be deemed to include strikes at the company, disruption with regard to transport, fire, a shortage of labour which may or may not be due to illness, absenteeism and/or failure by or at suppliers and/or shippers, delays or impossibility in the delivery and damage of or defect to the corporate resources of Luckerath that are essential to the order.
16.2    Should there be an impediment to the execution of the agreement as a result of force majeure, Luckerath shall be entitled to either suspend the execution of the agreement for at most six months or to fully or partially terminate the agreement without having to pay any compensation whatsoever without judicial intervention being required. Luckerath shall be authorised during the suspension and, at the end thereof, it shall have to choose execution and/or full or partial termination of the agreement.
16.3    Both in case of suspension or termination by virtue of paragraph 1, Luckerath shall be entitled to demand payment immediately with regard to the base materials, materials, parts and other items reserved, accepted for processing and manufactured for the execution of the agreement for a value that must be assigned to this in all reasonableness. In case of termination by virtue of paragraph 1, the other party must accept the items after payment of the amount due and payable by virtue of the previous sentence with regard to these items. Should the other party be in default regarding this, Luckerath shall be authorised to have these items stored at the expense and risk of the other party and/or to sell these items at said party’s expense.

Article 17: Suspension and termination
17.1    If the other party does not comply with any obligation or does not do this properly or on time that arises from the agreement concluded with Luckerath or from the related agreement that he or she should fulfil and/or if there is a reasonable fear that the other party shall be unable to met his or her contractual obligations towards Luckerath as well as in the case of the other party’s company being bankrupt, being in moratorium, having ceased trading, being wound-up or being partially assigned, as a security or not, including the assignment of an important part of his or her claims, Luckerath shall be entitled to either suspend the execution of these agreements for at most six months or to fully or partially terminate the agreement without having to pay any compensation whatsoever, without having to provide any guarantees, without having to give notice of default where judicial intervention shall not be required and without prejudice to any other right that said company may be further entitled to. Luckerath shall be authorised during the suspension and, at the end thereof, it shall have to choose execution and/or full or partial termination of the suspended agreement(s).
17.2    In case of suspension by virtue of paragraph 1, the agreed price shall become immediately due and payable after deducting the already paid terms and the costs that Luckerath has saved as a result of the suspension and Luckerath shall be authorised to have stored at the expense and risk of the other party the base materials, materials, parts and other items reserved, accepted for processing and manufactured for the execution of the agreement. In case of termination by virtue of paragraph 1, the agreed price shall become immediately due and payable if a prior suspension did not take place after deducting the already paid terms and the costs that Luckerath has saved as a result of the suspension and the other party must pay the previously described amount and accept the items that said amount comprises. Should said party be in default with regard to this, Luckerath shall be authorised to have these items stored at the expense and risk of the other party and/or to have them sold at said party’s expense.
17.3    The other party is not entitled to demand termination of the agreement with retroactive effect.

Article 18: Intellectual property
18.1    Luckerath and/or its suppliers retain all intellectual property rights on the items, services, drawings, designs and outlines delivered by said company and/or suppliers. Regardless of whether costs have been billed, they shall remain the property of Luckerath and/or its suppliers and may not be copied, reproduced and, in case of drawings, designs and outlines, shown to third parties or used in any other way whatsoever without its/their express permission.
18.2    Should the prohibition contained in paragraph 1 above be breached, the other party shall forfeit a penalty amounting to € 10,000 per breach and € 1,000 per day that the breach continues to Luckerath that shall be immediately payable and which is not open to judicial mitigation.

Article 19: Applicable law and choice of forum
19.1    All legal relationships to which these general terms and conditions apply shall only be governed by Dutch law. The Vienna Sales Convention is expressly excluded.
19.2    All disputes that may directly or indirectly arise from the agreement and these terms and conditions shall only be settled by the district court in Breda.