General terms and Conditions of Hire,
Genpower B.V. with registered office at
Groot-Ammers, the Netherlands
Filed with the Chamber of Commerce, Rotterdam, under number 23077733
Article 1. Definitions
1.1 In these General Terms and Conditions the following terms are defined as follows:
A. General Terms and Conditions of Hire: these terms and conditions;
B. Supplier: Genpower B.V.;
C. Customer: the other party in the contract with Genpower B.V.;
D. Hire Period: the hire period starts at the point of delivery by the Supplier or collection by the and runs until the point at which the Supplier once more has full and independent control of the Hired Goods, the Goods having been returned or physically reclaimed by the Supplier;
E. The Hired Goods or the Generator: Goods hired by the Customer;
F. Capacity of the Hired Goods: the capacity as confirmed by Genpower B.V. in the order confirmation;
Article 2. Applicability of general terms and conditions
2.1 These General Terms and Conditions of Hire apply to each offer and hire agreement entered into by the Supplier in its capacity as the party hiring out goods now or in future, and all related agreements or component agreements, such as maintenance agreements, but exclude purchase agreements. Purchase agreements are governed by the General Terms and Conditions of Sale of Genpower B.V., filed with the Chamber of Commerce, Rotterdam, under number 23077733.
2.2 Any deviation from these terms and conditions will apply solely where the parties have confirmed the same in writing.
2.3 Should an individual clause in these general terms and conditions be void or unenforceable, it shall not have any effect on the other clauses in this instrument.
Article 3. Offer and formation of the agreement
3.1 Bids, offers, estimates, schedules and other statements made by representatives or employees of the Supplier are not binding on the Supplier and imply no commitment in any way.
3.2 The substance of the agreement and the scope of the obligations are determined by the accepted offer and that which is covered in these standard terms and conditions.
3.3 The Supplier may supply a Generator with a greater capacity than the Capacity of the Hired Goods without the Customer having recourse to dissolve the agreement or to claim compensation.
3.4 The Supplier reserves the right to replace the Hired Goods (directly or indirectly) with a generator of at least the same capacity and of the same type without the Customer having recourse to dissolve the agreement or to claim compensation.
Article 4. Price and payment
4.1 The hire price agreed between the parties shall be paid by the Customer without any discount, deduction or off-setting in the manner indicated in the hire agreement or in the order confirmation. In default of written confirmation, the price must be paid to the Supplier at latest on return of the Hired Goods, or on the day that the agreed Hire Period ends, if this is earlier.
4.2 All prices are stated in euros and exclude VAT and other official charges, fuel and lubricants etc., handling costs, service and maintenance charges, commissioning at the delivery site, personnel deployed, where applicable, and day-to-day maintenance.
4.3 Prior to or during the Hire Period, the Supplier may demand payment of an advance or other form of security from the Customer.
4.4 Payments made by the Customer shall serve firstly to settle all interest and expenses owing, and secondly to settle all invoices owing, starting with the longest outstanding invoice, even if the Customer has specified that payment relates to a later invoice.
Article 5. Hire Period
5.1 The Hire Period starts at the point of delivery by the Supplier or collection by the Customer and ends when the Hired Goods are collected by the Supplier or returned by the Customer and the Supplier has full control of the Hired Goods. Where the goods are returned later than agreed, the provisions of the hire agreement will remain in full force and effect, and the Customer will owe the hire price until the goods are returned.
5.2 If the Customer should have reason to request early termination of the agreement and the Supplier agrees to this, the Customer will still owe the Supplier the price originally agreed for the entire Hire Period in full, plus any additional costs.
Article 6. Delivery/collection of the Hired Goods, delivery time, risk and inspection
6.1 The Supplier shall deliver the Hired Goods to the agreed site. The Customer vouches that the site specified by it is entirely suitable for delivery and deployment of the Hired Goods.
6.2 The Supplier shall do everything in its power to deliver the Hired Goods to the Customer at the agreed time. The delivery times specified by the Supplier are, however, not binding on the Supplier and are not considered to be deadlines.
6.3 The Supplier is not liable for loss or damage sustained due to delays in delivery under any circumstances.
6.4 The Hired Goods are deemed to have been delivered to the Customer, who accepts the risk for the goods:
a. where the Supplier delivers to a site nominated by the Customer: when the Hired Goods are unloaded at the site in question;
b. where the Customer collects the goods from the Supplier: when the Customer actually takes possession of the Hired Goods.
The Customer bears the risk until the point of actual return to the Supplier.
6.5 The Customer must ensure that when the Hired Goods are delivered there is someone available who is authorised to receive the Hired Goods. If there is no-one available when the goods are delivered by the Supplier, the Supplier may take the Hired Goods back to its premises. The extra expense incurred by the Supplier in relation to this, such as loss of hire income and handling costs must be met by the Customer.
6.6 The Customer is responsible for commissioning and assembly, where appropriate. The Customer may ask the Supplier to perform these activities at the Customer’s expense.
6.7 The Customer must perform a visual inspection of the Hired Goods immediately on delivery for visible defects. The Customer must report any complaints to the Supplier in writing, within 24 hours of delivery. Any defects that appear at a later date must be reported to the Supplier in writing within 24 hours of discovery.
6.8 In the event of a defect or fault in the Hired Goods, the Customer must warn the Supplier immediately and refrain from using the Hired Goods. If the Customer continues to use the Hired Goods under such circumstances, any expense that arises from such continued use must be borne by the Customer.
6.9 All expense and damage or loss caused by deficient maintenance and/or improper use of the Hired Goods must be met by the Customer.
6.10 In the event of defects to the operating hours counter, the Customer must notify the Supplier immediately. If the Customer fails to do so, the Supplier may charge the Customer an amount equal to the fee for the maximum number of operating hours, i.e. 24 (twenty-four) for each day or part of a day that passes between the previous operating hours reading and the date on which the Supplier identifies the defect.
6.11 Under all circumstances, the Customer must, on request, immediately notify the Supplier or its representative of the location of the Hired Goods and, where necessary, give the Supplier access to the Hired Goods and co-operate with inspection of the Hired Goods. If, on inspection, unreported damage or defects attributable to the Customer are identified, the Customer must bear the costs of the inspection.
Article 7. Return of the Hired Goods and the Customer’s liability
7.1 The Customer must return the Hired Goods to the Supplier at the end of the Hire Period in good condition, in the same state that the Hired Goods were in at the time of delivery or collection, as applicable.
7.2 The Customer is liable for all damage caused to the Hired Goods. The Customer undertakes to meet the costs of repair specified by the Supplier at the Supplier’s first request, without any form of discount or off-setting. If the Hired Goods are missing or damaged beyond repair, the Customer must pay the Supplier the replacement value of the Hired Goods without any ‘old-for-new’ deduction, at the Supplier’s first request, without any form of discount or off-setting. The Customer is liable for all indirect damage (such as consequential loss or damage, loss caused by delay and loss of profit or turnover) related to the Hired Goods being damaged or lost, such as but not limited to damage caused by insufficient maintenance or improper use of the Hired Goods.
7.3 If the parties have agreed that the Supplier will collect the Hired Goods from a site nominated by the Customer where the Hired Goods were delivered at the start of the Hire Period, the Customer must give the Supplier the opportunity to collect the Hired Goods. In that case, the Customer must have the Hired Goods ready for collection and the site at which the Hired Goods are located must be easily accessible for the Supplier.
7.4 If the parties have agreed that the Customer is to return the Hired Goods itself to the Supplier’s premises, where the Customer collected the Hired Goods at the start of the Hire Period, the Customer must do this during the Supplier’s opening hours.
7.5 The Supplier may collect the Hired Goods itself (or arrange to have them collected) and retains the right to reimbursement of costs arising from any delay in returning the Hired Goods occasioned by the Customer.
Article 8. Other obligations for the Customer
8.1 The Customer must use the Hired Goods in accordance with their designated use and with due care and attention, and follow all instructions and directions for use given by or on behalf of the Supplier.
8.2 It is the Customer’s responsibility to obtain any permission or special dispensation required to use the Hired Goods. Withdrawal or refusal to issue the same will, under no circumstances, be a reason to dissolve the agreement or any other claim in respect of the Supplier.
8.3 The Customer is not permitted to move the Hired Goods to a location other than that to which it was delivered or to make changes or additions to the Hired Goods without prior written permission from the Supplier.
8.4 The Customer may not rent out the Hired Goods to third parties or encumber the Hired Goods with any form of real right, or otherwise use them as security in respect of third parties.
8.5 If the Customer loses control of the Hired Goods, whether in legal terms or in actual fact, or if there is a threat of the same, or if the Hired Goods become the subject of legal proceedings the Customer shall notify the Supplier immediately and do everything in its power to secure the Supplier’s legal position.
Article 9. Third party rights clause
9.1 Customer is aware of the fact that Supplier has established or may establish security rights for a financing party on the Equipment offered by Supplier, regardless of whether the Equipment is held by Supplier or Customer. Customer is also aware of, and to the extent necessary agrees to, the fact that ownership of the Equipment may also rest with a financing party. Customer is aware of, and to the extent necessary agrees to, the fact that Customer may be obliged to surrender the Equipment on the financing party’s demand, without Customer being able to invoke any right of retention or other right, if and as soon as the financing party demands surrender of the Equipment on the basis of Supplier failing to fulfill its obligations towards the financing party.
9.2 As a result of the financing party demanding the Equipment, this Agreement will be dissolved with immediate effect (to the extent possible by operation of law). Equipment is surrendered to or taken back by the financing party at a location in the Netherlands to be stipulated by the financing party and Customer undertakes to fully cooperate in this.
9.3 In the event of the aforementioned situation and if the financing party wants Customer to continue using the Equipment, Supplier must on the financing party’s demand conclude a hire agreement with the financing party for the remaining term of this Agreement and under similar conditions.
9.4 The Parties exclude the applicability of Sections 7:226 and 7:227 of the Netherlands Civil Code.
9.5 The Parties cannot revoke this third-party clause.
Article 10. Maintenance, repair and inspection
10.1 The Supplier is liable for the costs associated with normal wear-and-tear of the parts of the Hired Goods that normally do not need replacing during the service life of the Hired Goods and for the costs associated with repair or replacement of hidden defects in the Hired Goods. The Supplier may carry out the repairs itself. In any maintenance or repair work, the Supplier shall endeavour to cause as little disruption as possible to the Customer’s use of the Hired Goods.
10.2 Liabilities and obligations on the part of the Supplier relating to defects or maintenance are limited to the scope outlined in article 9.1.
10.3 The Customer is obliged to notify the Supplier of any defects immediately and to give the Supplier every opportunity to carry out repairs. It is forbidden for the Customer to carry out repairs itself, or to have repairs carried out by third parties except with prior written permission from the Supplier.
10.4 The Customer must meet the costs of:
a. the fuel consumed and all day-to-day maintenance required or deemed necessary, whether for proper function or the outward appearance of the Hired Goods, and:
b. the costs associated with repair or replacement of components that are damaged or corroded other than as a consequence of normal wear-and-tear as referred to in article 9.1.
10.5 Day-to-day maintenance as referred to under article 9.4(a) includes:
– preventative maintenance: cleaning the Hired Goods and lubricating/oiling the motor and other moving parts in good time, and replacement of components other than those referred to in article 9.2, such as filters, belts, rubber parts and washers in good time;
– corrective maintenance: adjusting and setting components on the Hired Goods that require the same, and
– other maintenance: replacing broken, worn, or otherwise unusable components of the Hired Goods.
10.6 If the Generator is moved outside a radius of 200 km from the Supplier’s registered office or place of business and/or in the event of the Hired Goods being used on board a vessel/platform or other floating object, all costs associated with repair, transportation or accommodation etc. must be met by the Customer, in contrast to the terms of article 9.1, where these costs relate to the extra distance beyond 200 km or to the fact that the Generator is being used on a vessel/platform or other floating object.
10.7 The Supplier retains the right to replace the Hired Goods (either directly or indirectly) during the term of the agreement with a Generator of at least the same capacity and of the same type if this is advisable or necessary in the Supplier’s opinion, without the Customer having recourse to dissolution of the agreement, loss of profit or other forms of loss.
Article 11. Supplier’s liability
11.1 The Supplier has no liability to the Customer under any circumstances for personal injury or damage to property as a result of the Hired Goods failing to work or failing to work properly, for whatever reason.
11.2 The Supplier has no liability under any circumstances for indirect damage or loss and/or consequential damage or loss, including but not limited to loss of profit, loss of sales and all other indirect economic loss.
11.3 The limitations of the Supplier’s liability covered in the various sub-sections of this article are not applicable where the damage is the result of malicious intent or gross negligence on the part of the Supplier or its director(s).
11.4 Each incidence of liability on the part of the Supplier will be exhausted two months after the hire agreement has ended.
Article 12. Indemnification against claims from third parties
12.1 The Customer shall indemnify the Supplier against all third-party claims related directly or indirectly to the use of the Hired Goods. The Customer shall reimburse the Supplier for all damage or loss the Supplier sustains as a result of such third-party claims, both in terms of material loss and expenses incurred, including claims from employees of the Customer and others.
Article 13. Breach of contract, failure to make payment and dissolution
13.1 The Customer is not permitted to suspend any obligation under the terms of this agreement, either in whole or in part. The Customer may not off-set any claims under the agreement.
13.2 If the Customer fails to meet its payment obligations in time or in full it will be in default merely by the passing of the payment deadline without the need for any summons or notice of default. From the start of the period of default, the Customer will be liable to pay interest on the outstanding amount owing, said interest being equal to the legally-defined commercial interest rate of at least 10%, without prejudice to the terms in the following sub-sections of this article. Furthermore the Customer will be liable to pay the costs of extra-judicial collection incurred by the Supplier. Said extra-judicial costs amount to 15% of the amount owing, the minimum amount being EUR 50.
13.3 Similarly, the Supplier may dissolve the agreement without judicial intervention where:
a. the Customer fails to meet its obligations under the agreement or fails to do so in good time
b. one or more of the Customer’s goods are seized;
c. the Customer applies for a suspension of payments order;
d. the Customer files for insolvency or bankruptcy;
e. the Customer loses control or power over a substantial portion of its assets;
f. the Customer reaches a settlement with its creditors, whether imposed by a court or not,
releasing it in whole or part from its debts.
In the cases outlined above, the Supplier’s notification of dissolution of the agreement will be made in the form of a written statement addressed to the Customer, without prejudice to the Supplier’s further rights to have costs reimbursed and to claim for loss or damage and interest.
13.4 Where one or more of the situations outlined in the previous sub-sections b-f arises, the Customer must notify the Supplier immediately. The Customer hereby authorises the Supplier, should circumstances dictate, to remove and reclaim possession of the Hired Goods regardless of their location. The costs associated with this, including the costs of transportation, must be met by the Customer.
13.5 Should circumstances so dictate, the Customer must notify the receiver, the trustee or the bailiff imposing seizure as soon as possible that the Supplier has full ownership of the Hired Goods.
Article 14. Force majeure
15.1 In addition to the terms provided for at law, the Supplier may invoke force majeure in each situation in which the Supplier is prevented from meeting its obligations by circumstances that could not have been foreseen at the point at which the hire agreement was entered into, or by circumstances over which the Supplier has no influence. This is the case in situations including, but not limited to, war, threat of war, civil disobedience, strike, lock out, traffic disturbances, fire and/or other serious disruption to the operations of the Supplier or those that supply it.
14.2 In situations of force majeure, the Supplier’s obligations shall be suspended for the duration of the circumstances preventing it from meeting its obligations either directly or indirectly.
14.3 If the period in which the Supplier is unable to meet its obligations lasts longer than three (3) months, either party may dissolve the agreement. In that case, the parties will not be liable to pay each other compensation.
14.4 The Customer may not invoke force majeure.
Article 15. Jurisdiction and applicable law
15.1 All disputes arising from or relating to the hire agreement between the Supplier and the Customer, and any legal relationship arising from or relating to it shall be exclusively heard by the competent court in Rotterdam.
15.2 Dutch law governs all offers, order confirmations, hire agreements, and the legal relationships between the Supplier and Customer arising from or relating to such documents.