General Terms and Conditions

Article 1
Definitions:

In these General Terms and Conditions, the following terms shall have the following meanings:

1.1. “We”, “to us” and “our”: Van Berlo B.V.

1.2. Day: a calendar day.

1.3. Working day: a calendar day unless this day falls on a prescribed rest day or holiday, vacation day, or other non-individual day off, which is generally recognised, or recognised at the work site, or by the government or by or powered by a national collective labour agreement applicable to us.

Article 2
Scope:

2.1. All our offers, quotations, job confirmations, and agreements are made only in compliance with these conditions. We never commit ourselves to conditions which differ from our conditions.

2.2. If the client states in the order confirmation that for the agreement which has been or shall be entered into, general conditions are applicable, excluding our conditions, we are only deemed to agree thereto, by our written acceptance thereof. In the absence of such written acceptance and permitting us to start the agreed works, the client is deemed to agree that the execution of the agreement takes place subject to the employment of our General Terms and Conditions.

2.3. Aside from these conditions, we employ the “Conditions of Execution of Van Berlo B.V.”. These Conditions of Execution mainly concern the actual execution of the work that has been assigned to us on the construction site. The aforementioned conditions, a copy of which is attached to these General Terms and Conditions, constitute an integral part of these general conditions.

Article 4
Agreement of Service provision:

4.1. Changes to the Agreement by the client must be confirmed in writing to us and accepted in writing by us, respectively.

4.2. All orders given to us directly or via our representatives or by agreements entered into by the latter, are only binding on us only after our written confirmation.

Article 5
The involvement of third parties with the execution of the order:

In the case and insofar this is required for proper execution of the agreement, we have the right to have certain auxiliary works carried out by third parties. In the case it is reasonably possible to do so, we will consult the deployment of third parties with the client and in any case we will exercise due diligence with the selection of third parties. We cannot be held liable for the shortcomings in the work of third parties engaged by the client, whether or not on our advice.

Article 6
Changes of the job / more work:

6.1. In case of more work or additional orders, whether or not concerning the work, from the client’s side, in principle, invoicing will be at unit prices which applied for the accepted work, or at our discretion, at time and expense.

6.2. The client accepts that for more work, as referred to in article 6.1, the agreed or expected time of completion of the works and the mutual responsibilities can be affected. In that case, we cannot adhere to the initially agreed time for completion of the works.

Article 7
Our rights and obligations:

7.1. If the client has fulfilled all these conditions and our Conditions of Execution, we must finish the floors in accordance with the standards set for monolithic floors. The execution and quality assessment are then also carried out pursuant to the standards applicable at the time of the execution, unless agreed otherwise in writing. The NEN standard 2743 is currently applicable. If these standards are replaced by other or more extensive standards, then we shall also comply thereto, unless agreed otherwise in writing in advance.

7.2. The work will be executed within and outside the client’s normal working hours.

7.3. The client accepts that, when the offered work or work ordered from us, implemented on the ground made available to us, or due to any other any other cause beyond our control, in our opinion, cannot lead a good result, we have the right to suspend the execution of the agreement until the necessary provisions for achieving a good performance have been taken or to unilaterally terminate the agreement, without being liable to pay compensation for damage or fulfilment of the contract.

7.4. The client accepts that pursuant to conditions described in Article 7.3, we shall never be or find ourselves in a situation of default, even after notice of default and that in such cases, the client is liable to pay the works and services invoiced or to be invoiced by us. The client also accepts that, under the conditions referred to in Article 7.3, it can never burden us with or settle with amounts invoiced or to be invoiced by us, any penalty with respect to late delivery.

Article 8
Prices and price increases:

8.1. The prices quoted by us are based on the price-determining factors applicable at the time of the offer, as mentioned in article 8.2, among others.

8.2. If after acceptance of the order the prices of materials, the prices of auxiliary materials and raw materials such as electricity, the prices of parts.

Article 9
Invoicing and Payment:

9.1. We can always invoice work for the portion of the floor that is ready. When sending the invoices, invoicing shall always take place, as insofar as possible in relation to the value of the work performed.

9.2. Regardless of whether or not the client has taken care of the issuing us with a receipt from the executor, we may invoice the works executed, at all times.

9.3. Our invoices must be paid within 30 days after the invoice date, unless otherwise agreed, and without any deduction, discount and/or compensation for whatever reason or cause.

9.4. An invoice sent by us shall be deemed to have been approved, if we have not received the registered letter with acknowledgment of receipt with written notice of reasoned objections to the invoice within eight (8) working days of the date of the invoice.

9.5. Before the completion of the work, we are entitled, at all times to send periodical invoices in proportion to the value of the work executed.

9.6. As long as the client has not fulfilled his payment obligations to us, we have the right to suspend provision of services or execution of work, including with respect to other orders of the client which the unpaid invoice concerns, until the payment is made, without prejudice our rights, in the case of dissolution of the agreement, to claim compensation for all damages, costs and interest. We are not liable for any damages resulting from such suspension.

9.7. In the case of suspension as referred to in Article 9.6. we have the right to retain to all materials, parts, etc., whether or not relating to the order to which the unpaid invoice concerns, until the moment that payment has been made.

9.8. We are entitled, at all times, therefore, even after the execution of the order, to claim security for payment or prepayment

9.9. If the payment is not made on time, the client is considered to be automatically in default, without any notification or notice of default being required. It shall then forfeit a late fee of one and a half (1.5) percent for each month (a part of a month is calculated as a full month) on the amount not paid on time. Furthermore, the client shall be charged all collection costs, both judicial and extra-judicial, for the amounts not paid on time. The extra-judicial costs are at least 15% of the amount not paid on time, without prejudice to our right to demonstrate that in respect to these costs, we were charged a higher amount, and to charge the client that amount.

9.10. If our attorney, in legal proceedings, including proceedings before the arbitrator(s), must engage a debt collection agency, the client shall also owe us the salary of our attorney, to the extent that is not covered by the total award for extra-judicial collection costs and the amount assigned to us for litigation costs.

9.11. The full price shall be completely and immediately payable in the following cases: a) in the case of imminent insolvency, moratorium or other indication of impending insolvency of the client; b) if the client is subject to receivership or subject to judicial supervision, or a request to be placed under receivership or judicial supervision is made; c) in the case of seizure of movable and/or immovable property, assets or other property of the client; d) in the case of death of the client, or if the client intends to leave the Netherlands; e) if the client is a partnership, a limited partnership, a limited company or a public limited company and the company is actually terminated, liquidation, is dissolved, another company or operator obtains it, or a partner or director leaves or resigns, respectively.

Article 10
Duration of execution, delay of completion of the work:

10.1 In the case that the agreement expressed a term of completion of the work, unworkable days are considered as the days on which, due to circumstances beyond our control, the majority of employees or machines cannot work for the duration of five (5) hours, respectively at least two (2) hours.

10.2. In the case that the completion of the work must occur on a day which pursuant to our applicable collective labour agreement, is not a working day, the next working day shall apply as the agreed date of completion.

10.3. With any addition or amendment to the agreement, the previously established execution term lapses automatically.

10.4. In the case that the execution of the work is delayed due to force majeure, due to circumstances for which the client is responsible, or due to changes in the specifications or due to changes in the execution of the work, we are automatically deemed to obtain a proportional time extension, without us being obliged to request such an extension.

10.5. In the case that we exceed the execution term, the client must provide us with written notice of default and set a reasonable time period, in the manner indicated in Article 9.4, in order for us to still fulfil our obligation arising from the agreement. After the expiry of the reasonable time period, without us having fulfilled our obligations, the client has the right to dissolve the agreement which had been entered into, in the manner specified in Article 9.4.

Article 11
Force Majeure:

11.1. In the case direct or indirect stagnation occurs in our company and / or in the execution of our work due to war, total or partial mobilisation, riots, blockade, government regulations, traffic obstacles, lack of means of transport, general or partial strike, lockout, forced immobilisation, fire, flood and/or abnormal water condition, epidemic, sickness of personnel, vandalism, occupation (also by squatters), nuclear reactions, environmental disaster, environmental contamination at the site where the work is executed and the threatening consequences for the health of the persons present there, actions of social groups, import or export prohibition, refusal of import licenses by the government, rain, frost and/or ice obstacles or any other cause beyond our control or necessary raw materials, auxiliary materials or parts which we obtain from third parties, we cannot reach us or cannot reach us on time, respectively, and/or our employees cannot reach the construction object or remain there, we have the right to suspend the supply of materials and/or the execution of the work for as long as this stagnation or hindrance persists.

11.2. If this stagnation or hindrance has lasted for more than thirty days, either party may dissolve the agreement, provided that takes place in writing in the manner specified in Article 9.4, within 14 days, insofar as that concerns the part not yet delivered or executed. The part already actually delivered or executed must be paid for. Upon such dissolution, regardless of from which side, we are not obliged to grant any compensation for that matter.

Article 12
Warranty:

12.1. Any possible imperfections in the floor constructed by us, which are visible, must be reported in writing to us by the client within forty-eight (48) hours of the date of completion of the work, which coincides with the day on which we have the floor finished. Other possible defects which are revealed within the agreed warranty period for the specific project must also be notified in writing to us by the client within forty-eight (48) hours of their detection. All the aforementioned are on penalty of lapse of the right to (further) warranty from our side.

12.2. Any claim by the client on redressing any defect attributed to us lapses if the client has not or does not fully fulfil his payment obligations to us, even if the resulting payment obligation arises from another agreement between us and the client. By fulfilment of the client’s payment obligation to us is also understood the payment of principal, possible late payment interest and possible collection costs.

12.3. Insofar as there is any defect in our performance, within fourteen (14) days after completion of the work, the client must demonstrate that this originated exclusively or predominantly as a direct result of an error in the construction designed by us, our poor performance, or finishing, or in the case of use of materials that we could have known that they was inadequate. In such case, the work shall be repaired, redelivered or recovered (at our discretion) by us, free of charge. Our warranty does not include an obligation to pay damage compensation which may arise for the client from redelivery or any other manner of recovery. Consequential damage is always excluded from compensation. The client is not free to grant permission to third parties, without our express written permission, for redelivery or any other manner of recovery. If the client does do so, then the costs for so doing can never be recovered from us and all the client’s warranty rights from our side lapse.

12.4. If the client makes raw materials or goods available to us to process, the guarantee applies exclusively to the soundness of the works executed by us, using these goods or materials.

12.5. We reserve the right to pay equitable damage compensation instead of recovering defects.

12.6. If we (must) recover defects, the client shall make available to us and our staff or ensure, respectively, at its expense and risk, the facilities originally provided, such as the use of water, electricity, scaffolding(s), lifts, cranes or means of transport and storage capacity as well as the originally existing access and/or accessibility and security.

12.7. Any claim by the client concerning recovering any defect attributed to us lapses if the client has not or does not fully fulfil his payment obligations to us.

12.8. The warranty provided by us never extends beyond that which we enjoy from our subcontractors and suppliers

Article 13
Liability:

13.1. In the case that the execution of our work is interrupted or the execution of our work cannot commence by or because of the client, the client shall compensate us for the resulting damage.

13.2. In the case that during the execution of the work damage attributable to us is caused to the property of third parties, we shall only accept this liability insofar as the insurance pays out for this and to the equivalent of the maximum amount to be paid out for that case.

13.3. Insofar as it would be considered that we are in default, we are never obliged to pay compensation for operational and stagnation damage of any kind or due to any cause whatsoever, nor for consequential damages.

13.4. Our liability is, in all cases, limited to the maximum amount of the contract price, excluding VAT, or maximum the part of the contract price that relates to the work concerned, respectively, taking into account the depreciation percentage to the degree of the average lifespan of work executed.

13.5. We accept no liability for operational and/or consequential loss and/or damage to property of the client and/or third parties, without prejudice to the provisions of Article 13 paragraphs 3 and 4. Furthermore, are also excluded from liability: defects due to non-performance by the client of our conditions of execution in general or due to:
A. ageing or wear and tear to be considered as normal;
B. defects due to use other than the parties intended with the order, including overload;
C. mechanical damages;
D. change in conditions in the area;
E. improper or negligent treatment;
F. defects in the construction of the building or work in the construction;
G. unstable ground/sub-surface;
H. vapour pressures;
I. groundwater level increase or decrease.

13.6. No liability is accepted in the case changes or additions implemented by the client or third parties in or to our work, of any nature whatsoever.

13.7. Liability from our side also lapses if the defects are so obvious that it would be contrary to reasonableness and fairness and also our legitimate interests, if the defects are not or will not be immediately reported and we are not afforded an opportunity to proceed to their recovery.

13.8. We are not liable for the work carried out by us in the case of an unsound ground/subsurface or an unsound work method from the client’s side, or if work had to be executed in unsuitable conditions. The client accepts that in this case, after detection of possible defects, it also cannot claim any performance from us.

13.9. In all cases where we have excluded or limited liability, it applies that every obligation to be fulfilled by us is also excluded. In that case, performance can never be asked or claimed.

13.10. We are not liable for the quality of the materials introduced by us, to which, on request of the client, materials are added other than those we usually use, as well as the manner in which the materials to be processed by us are stored upon their arriving at the work, nor are we liable for the design and/or the manner of execution prescribed by or from the side of the client, even in the case that we may have given advice on that.

13.11. The client is obliged to indemnify us and consider us blameless with respect to any claims of third parties due to circumstances for which we are not liable, arising from these conditions or which extend beyond our liability, as limited by these conditions.

13.12. We are not liable for damage as a result of not being able to deliver or not being able to deliver on time the agreed goods or services, or defects in the goods delivered or services provided if the non-performance, not timely performance or defective performance is a result of circumstances beyond our control, nor based on the law, legal action or at our risk according to generally accepted standards. In any case, the non-delivery, non-timely delivery or defective delivery of the agreed goods or services as a result of force majeure, including a power outage.

13.13. In the case that the client gives orders to execute works despite the risks associated thereto, including under less favourable weather conditions, then by issuing this order the client already takes the full responsibility for any possible less favourable outcome. We always (therefore) execute outdoor works or works which are exposed to the weather at the sole risk of the client. With issuing its order for the execution of this work, the client waives its possible right to claim damage compensation and/or performance.

13.14. The limitations of our liability contained in these terms and conditions shall not apply if the damage is due to our intent or gross negligence.

Article 14
Acceptance and approval:

14.1. Acceptance of the work after its completion will not occur, unless otherwise agreed.

14.2. Possible acceptance occurs as soon as possible and usually within four (4) business days after the completion of the work. The client must inform us on time, if possible, two (2) days in advance, in writing, of the date and time the acceptance shall take place.

14.3. Once the work has been accepted, we are immediately informed by the client, after the completion of the work, whether or not the work has been approved, and in the latter case, stating the reasons for this.

14.4. In the case that after acceptance, a written report is not immediately sent to us by the client, in the manner indicated in Article 9.4 stating whether or not the work has been approved, the work will be deemed to have been approved.

14.5. Minor defects that can be recovered before a payment period still to come, do not constitute a reason to withhold approval. Defects which do not hinder commissioning, cannot lead to the suspension of any of the client’s payment obligations

Article 15
Delivery and complaints:

15.1. The work shall be considered have been completed when the work has been approved or is deemed to be approved;

15.2. The work is approved or deemed to have been approved when: a) The client reports this to us; b) We have informed the client in writing that we consider the work to have been completed in the form of an invoice sent. If the client has not made an objection with respect to the completion of the work know within eight (8) days after the date of our relevant written notice, the work is deemed to have been approved and delivered. c) The client has the floor in use, provided that that the utilisation of a part of the work area is deemed to have been delivered unless the split is implemented improperly by the client, in which case partial commissioning also implies acceptance of the work.

15.3. In the case that the client has issued the order under the clause “upon approval of the Executive Board” or under other such clause has delegated the approval to third parties, possible complaints must be communicated to us in the manner described in the preceding paragraph and within the time period stated therein.

Article 16
Retention of ownership:

16.1 All goods and materials delivered to the work remain our property, until the outstanding invoices or part thereof in respect of goods supplied by us to the client, as well as when any judicial and extra-judicial costs and interest charged incurred by us with respect to this order remain unpaid.

16.2. The client irrevocably authorises us henceforth to collect all goods delivered by us and still present at the work for which it will grant us or a person authorised by us for that purpose, free access to those goods.

16.3. The client is obliged to inform us immediately of any seizure of our goods and/or materials which are in its possession or the reporting of inability to pay to the tax authorities and/or business association or a situation in which there is such obligation.

Article 17
Applicable law, jurisdiction and disputes:

17.1. Unless determined otherwise, Dutch law is applicable to all our agreements.

17.2. All other disputes, including disputes only considered as such by one of the parties, concerning or as a result of the order, or concerning or as a result of the agreements which have arisen from the order and for which value of the subject of the dispute exceeds competence level of the applicable to the Cantonal Court, shall be submitted to arbitration, in accordance with the articles of association and regulations of the Board of Arbitration for the construction sector, based in Amsterdam, according to its articles of association and regulations, as they exist at the time the dispute is filed for settlement. This clause is an arbitration clause as referred to in Article 1020 of the Civil Procedure Code. These conditions with the arbitration clause referred to constitute a document, as referred to in Article 1021 of the Civil Procedure Code. The foregoing is without prejudice to the competence of the parties to obtain an immediate provision to approach by priority the Judge of the competent court.

Article 1
General

1.1. These Conditions of Execution mainly concern the actual execution of the work that has been assigned to us at the construction site.

1.2. In addition to, but separate from these Conditions of Execution, the General and Terms and Conditions of Payment and Delivery which constitute a part thereof as annex, are applicable.

1.3. NEN 2743 is applicable to the execution of the work (surface and composition of monolithic finished concrete floors) and to the quality assessment, which shall be provided, free of charge, on first request.

Article 2
Ground/subsurface

2.1. The client is responsible for and shall ensure a stable ground/sub-surface of the right quality which enables us to safely execute the assigned work in order to ensure the end result and quality, during the possible guarantee period.

2.2. If the client fails to provide a stable ground/sub-surface, as referred to in the first paragraph of this article, we cannot be held liable for the damage to executed work and also for any consequential damage in any case whatsoever. In such case our work will be fully at the client’s risk.

Article 3
Standard size

3.1. The client is responsible and must ensure that the standard size is clearly indicated and that it is retrospectively verifiable, in a way that the actual thickness of the floor that we have executed can be easily and unequivocally traced back, from the standard size, in combination with the subsurface. The client is responsible and must ensure that together with us, it shall check, in advance, the standard size indicated and it is expected to fully cooperate with us in this.

3.2. In the absence of the standard sizes and/or heights, the client accepts the actual thickness of the floor executed by us, and it also accepts the actual size maintained by us.

Article 4
Slope

4.1. If a floor must be placed with a slope, in which case is defined as an offset of 1.5 centimetre per metre, the client must request this, in writing, in time, in advance, with the quotation. If the client does not communicate to us that the floor must be placed with a slope, in time, we assume this concerns a flat floor, whereby the client knows and acknowledges that the water will not run off it, if water has free access to the floor that we will execute, for example, due to being outdoors.

4.2. If the client has made it clear to us, in time, as described in paragraph 1, that the floor must be placed with a slope, the client shall provide standard sizes, in advance, that can easily and unequivocally be checked retrospectively, indicating the required slope. The client is fully responsible for this.

Article 5
Form work / levelling works

 5.1. The client is responsible for, at its own expense, the advance indication of formwork and levelling works such as angled steel, drains, pipes (dilatation) profiles which must be securely adjusted and placed at the right height, which can easily and unequivocally be checked retrospectively.

Article 6
Accessibility of the construction site

6.1. The construction site must be to be easily and soundly accessible, both horizontally and vertically, for us to execute our work, and also be safe for people, materials, and equipment. If necessary, the client must provide additional provisions at its own expense, in order to achieve this situation and to guarantee it for the entire duration of the execution of the works.

6.2. The client shall make lifting equipment available to us, free of charge, both by day and by night, for possible vertical transportation.

Article 7
Weather conditions

7.1. The client shall ensure, at its own expense, that we can execute our works in a closed space, whereby the finishing of the floor surface will be and shall remain fully protected from the weather conditions, at all times. With respect to this, it is understood, at least, that the client shall ensure that the roof above the site where the works must be executed, is entirely closed and that the rain water drains are connected. Weather conditions are defined as wind, rain, sunshine, and frost or a combination thereof.

7.2. We can never be held responsible for the results of a possible roof leak, impacting rain or frost, also not in the form of a requirement for performance. We therefore exclude any liability, in the broadest sense of the word, for works or floors which are executed in the open air and/or which are otherwise subjected to or have been subjected to weather conditions.

Article 8
Permits

8.1. The client is fully responsible for possible noise nuisance caused by the execution of our works and must ensure, at all times, in advance, the obtaining of the required (night) permits. The client indemnifies us from possible actions of third parties.

8.2. If, for whatever reason, the construction is halted, then by definition, the failure of the result is at the client’s risk and expense.

Article 9
Minimally required (miscellaneous) provisions

9.1. The client shall provide, at its own expense, sufficient running water with hose(s), lighting, and safe power connections for our equipment, all the aforementioned, within a maximum radius of fifty metres from the location where the works are to be carried out. Furthermore, the client shall provide, at its own expense, an appropriate eating/break facilities, equipped with lighting and heating and also a clean toilet area.

9.2. The client shall provide, at its own expense, a clean space where we can thoroughly clean the concrete pump and other equipment and where we can dispose of possible leftover concrete and remaining sludge, and cleaning water without polluting the environment.

9.3. The client is responsible for and shall provide the capacity to adequately fulfil the current health and safety legislation applicable to us and third parties engaged by us.

9.4. At the site, there must be sufficient atmospheric circulation for the expulsion of exhaust gas from the power trowel, which the client shall provide, at its own expense, in a timely manner.

9.5. The client shall also ensure that we can dispose of excess water from the floor before we can begin work with the power trowel.

9.6. All the necessary materials must be delivered by the client, at its own expense, in a timely manner.

9.7. In the case that the floor must be attached on a previously existing sub-floor, the client must, in advance, at its own expense, have cleaned, possibly roughened up, and kept and continue to keep the floor wet as long as necessary.

Article 10
The client’s other obligations

10.1. The client acknowledges we have informed it that the floor can be walked upon or loaded eight (8) days after completion. Maximum load of the floor may only take place following our permission [to do so]. The client is also fully responsible for damage resulting from commissioning the floor too early and/or overloading of the floor.

10.2. In case we have to roughen the floor the client acknowledges that the removal of the possible concrete skin which may be present on the surface, shall take place at its own expense and risk.

Article 11
Monolithic process

11.1. As stated in the applicable standard NEN 2743 cracking of monolithic floors is always possible. This also applies for the possible visible appearance on the surface of steel fibres, differences in sheen and colour shade. If imperfections, as referred to here, do appear, the cause thereof is presumed to originate from the fact that it is a monolithic floor.

Article 12
Other provisions

12.1. Measurements or other test samples which have been agreed in advance must be made or taken in the presence of one of our employees, while the client acknowledges our right, in the event we deem it necessary, useful or desirable, to allow the conducting of a counter-test and/or measurement by an independent consultant selected and paid by us. The final cost thereof shall be borne by the party who is (for the most part) in the wrong.

12.2. The client may not deduct any surfaces of e.g. ducts, manhole covers, wells, columns, etc. of less than one square meter, from the square metre surface to be invoiced.

Article 13
Disputes

Factual disputes regarding the interpretation of the Conditions of Execution, due to the required speed required on site, are definitively decided by the highest ranking person of our company present, if previous amicable consultation did not lead directly to an agreement and solution.