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06-11-2017

General Terms & Conditions of Aerialtronics DV B.V.

General terms and conditions of Aerialtronics DV B.V., having its registered office at, a limited liability company, incorporated under the laws of the Netherlands, whose registered office is at Wassenaarseweg 75, 1e Mientlaan, Building 238, 2223 LA, Katwijk, The Netherlands Chamber of Commerce and Industry number 54159172.

1. Definitions

1.1 In the General Terms and Conditions, the following terms are used in the sense given below, unless explicitly indicated otherwise.
Aerialtronics: Aerialtronics DV B.V.
Agreement: means the agreement between Aerialtronics and the Customer, including all its appendices, relating to the distribution, sale or purchase of the Products, or the provision of Services, including the acceptance by Customer of an Offer.
Bribery: means any payment, offer, or promise to pay, or authorisation to pay or provide anything of value, directly or indirectly, whether in the public or private sectors, to obtain an improper personal or business advantage.
Corruption: means any activity that involves the abuse of position or power for an improper personal or business advantage, whether in the public or private sectors, and includes the receiving, acceptance, offer, payment or authorization of bribes.
Customer: means the contract party with Aerialtronics for the Products and/or Services.
Incoterms: means standard International commercial terms “Incoterms” latest version of the International Chamber of Commerce (“ICC”), incorporated in the Agreement by reference.
IPR: means all patents, trademarks (including the Trademarks), copyrights, design rights or other intellectual property rights (whether registered, unregistered or pending for application for any such protection) and all rights in any secret process, know-how or other confidential information in respect of Aerialtronics or its Products.
Offer: means a quotation or an explicit proposal to enter into an Agreement by Aerialtronics, which, if followed by a Purchase Order, completes the Agreement and binds both Aerialtronics and the Customer accepting the offer to the terms of the Agreement.
Parties: means both Aerialtronics and Customer together.
Products: means the products to be delivered by Aerialtronics to the Customer and any related advices, pursuant to the General Terms and Conditions, quality and details as specified in the Agreement.
Purchase Order: means the order submitted by a Customer pursuant to an Offer, and completing the Agreement subject to these General Terms and Conditions.

Sanctioned Person: means
(I) any person, organisation or vessel designated on any sanctions list maintained by the United Nations (the “UN”), the European Union (“EU”), the United Kingdom (“UK”), the United States (“US”) or on any list of targeted persons issued under the Trade Laws of any other country:
(II) that is, or is part of, a government of a Sanctioned Territory;
(III) owned or controlled, directly or indirectly, by, or acting on behalf of, any of the foregoing;
(IV) incorporated within, located within or operating from a Sanctioned Territory and subject to any Trade Laws; or
(V) otherwise targeted under any Trade Laws.
Sanctioned Territory: means any country or other territory subject to measures, relating to, but not limited to a general export, import, financial or investment restriction under Trade Laws.

Services: means the services to be provided by Aerialtronics to the Customer, and any related advices, pursuant to the General Terms and Conditions, and details as specified in the Agreement.
Trade Laws: means any laws, regulations, or other binding measures of the UN, the EU, any EU member state, the US or any other jurisdiction applicable to the Parties which relates to economic or trade sanctions, export controls, non-proliferation, anti-terrorism or similar restrictions.
VAT: means any Value Added Tax or any analogous tax thereto, but excluding any statutory late payment interest or penalties.

2. Applicability & Order

2.1 The stipulations of the General Terms and Conditions apply to each and every Offer made by Aerialtronics to Customer and form part of each and every Agreement between Aerialtronics and Customer.

2.2 Additional conditions may apply to each Product and Service provided by or on behalf of Aerialtronics to Customer.

2.3 In case of any contradiction between one or more terms of the General Terms and Conditions and of the Agreement, including its annexes (but excluding the General Term and Conditions) or any other express agreement between the Parties, the term or terms of the aforementioned Agreement or other express agreement shall prevail.

2.4 The applicability of any general conditions of the Customer will not be accepted by Aerialtronics and are hereby expressly rejected.

3. Deviations & Amendments

3.1 Any deviation from or addition to these General Terms and Conditions will only be accepted if made explicitly and in writing.

3.2 Aerialtronics has the right to amend these General Terms and Conditions from time to time. Customer will be notified of such amendments per post or per e-mail.

4. Repeating contracting

4.1 The Customer that has entered into an Agreement with Aerialtronics subject to the General Terms and Conditions, will subsequently be deemed to contract with Aerialtronics subject to the General Terms and Conditions, as amended from time to time, repeatedly afterwards.

5. Null & Void Conditions

5.1 Should one or more stipulations and/or paragraphs in the General Terms and Conditions be adjudged null and void or declared null and void or not binding by an appropriate authority, then the other stipulations and/or paragraphs of the General Terms and Conditions shall remain fully applicable.

5.2 The parties to the Agreement shall timely make best efforts to replace the null and void or non-binding stipulations and/or paragraphs with alternative, permitted stipulations and/or paragraphs that represent the intended purpose of the former as much as possible.

6. Offers

6.1 Any Offers made by Aerialtronics are free of obligations from Aerialtronics until an Agreement with Customer is formed. An Offer shall be valid for a period of thirty (30) days, unless indicated otherwise. Aerialtronics shall only be bound by the terms of an Offer if the acceptance thereof is confirmed in writing by Customer within the period of validity of the Offer.

6. Offers

6.1 Any Offers made by Aerialtronics are free of obligations from Aerialtronics until an Agreement with Customer is formed. An Offer shall be valid for a period of thirty (30) days, unless indicated otherwise. Aerialtronics shall only be bound by the terms of an Offer if the acceptance thereof is confirmed in writing by Customer within the period of validity of the Offer.
6.2 Until an Offer has been timely accepted by the Customer, Aerialtronics will have the right to withdraw such Offer.

6.3 Unless explicitly agreed otherwise, the prices given in any Offer shall be exclusive of VAT, other taxes, government levies, and other costs, including but not limited to packaging, administration, travel and shipping costs.

6.4 lf Customer makes any form of qualified or partial acceptance of an Offer, Aerialtronics shall not be bound by it. Any such qualified acceptance from Customer shall be deemed to represent a counter-offer by Customer to Aerialtronics.

6.5 Aerialtronics shall not be bound by Offers it makes that include errors, mistakes or typos as to the Products and its prices or Services, which judgment is subject to the sole discretion of Aerialtronics.

6.6 Offers that include, or are based on third party offers (such as freight quotations, stowage charges and the like), or that are subject to price fluctuations, shall always be subject to market availability and pricing at the time of contract execution, even when this does not explicitly appear in the Offer description.

6.7 Offers are time and place specific and shall not apply automatically to repeat orders unless specifically agreed in writing by Aerialtronics in each case.

7. Price Increase

7.1 Aerialtronics shall be entitled, amongst others, to increase its prices to Customer without any right for the Customer to dissolve the agreement for this reason, if the price increase is the result as a consequence or an obligation according to law or regulations, or if the cause lays in a price increase of parts or of production costs or due to other circumstances which could reasonably not be foreseen at the moment of the Agreement (e.g., exchange rates, salaries and wages, raw material, semi-finished products or packaging material).

8. Unforseen Circumstances

8.1 In case of unforeseen circumstances that are of such nature that Customer cannot reasonably expect the Agreement to be maintained unchanged, Aerialtronics shall have the right to alter the prices and work and/or to dissolve the Agreement with Customer, fully or partly, without judicial intervention and without being obliged to pay compensation for any loss or damage of any nature.

9. Prices & Payment

9.1 Aerialtronics shall send the Customer a specified invoice for delivery of the order before the date of delivery of the order or thereafter. Customer shall pay invoices within 14 days after the invoice date.

9.2 The Customer shall only make payments by transfer to the following bank account number and in the name of:

Aerialtronics DV B.V.;
IBAN: NL79RABO0323290515;
BIC: RABONL2U.
9.3 The Customer shall always specify the invoice number of the relevant invoice at each payment.

9.4 Invoices not paid in full on the due date set out there in shall automatically put the Customer in default (verzuim) without warning.

9.5 If the Customer fails to pay an invoice on the due date, Aerialtronics will be entitled to refuse any further delivery of the Products until full payment has been made. Customer shall in such case be due 1% interest of the full order price per month, unless the legal interest rate is higher, in which case the legal interest is due, until payment of the full amount, including interest, has been made.

9.6 After Customer is in default, Aerialtronics Customer’s payments shall be assigned in the following order: (I) the due amount of cost, (II) the outstanding amount of interest, (III) the principal amount including remaining current interest, and (IV) all extra-judicial costs made by Aerialtronics for the collection of the payment.

9.7 Customer shall not have the right to settle (verekening) or suspend (opschorting) payment obligations with Aerialtronics.

9.8 If Customer is in default, Customer will be liable for all reasonable extra-judicial costs made by Aerialtronics.

10. Contract Term and Terms of Delivery

10.1 Each Agreement will be entered into for the period described in the Agreement. If no term has been agreed in the Agreement, the Agreement will be deemed to have been entered into for an indefinite period of time and can be terminated by either Party through written notice within a period of six [6] months.

10.2 Aerialtronics and the Customer will agree upon the place of delivery on a case-to-case basis. If no place of delivery has been agreed, the place of delivery shall be Aerialtronics premises.

10.3 After acceptance of a Purchase Order, Aerialtronics shall deliver the Products as specified in the accepted Purchase Order. Aerialtronics reserves the right to deliver the Purchase Order in instalments.

10.4 Aerialtronics is not bound by the desired delivery date as specified in a Purchase Order. Aerialtronics shall inform the Customer of the actual delivery date when established by Aerialtronics. Aerialtronics shall be entitled to execute the Agreement in instalments and to deliver any Purchase Order in instalments. In such case, Aerialtronics shall inform the Customer of the delivery date of each instalment.

10.5 In the event of delay of the delivery beyond the delivery date as set in accordance with the previous paragraph, Aerialtronics shall notify the Customer hereof. No term for delivery given by Aerialtronics shall be considered a fatal term. Upon exceeding such term, Customer will be obliged to provide Aerialtronics with a reasonable term for execution.

10.6 Delivery shall take place Delivered at Terminal (DAT) at client’s place of business as referred to in the 2010 issued Incoterms.

10.7 Without prejudice to the previous paragraph, Aerialtronics retains ownership of all the Products, which it delivers to the Customer until the Customer makes full payment for the relevant the Products.

10.8 Aerialtronics shall have the right to sub-contract a third party for the execution of the Agreement.

11. Guarantees

11.1 Aerialtronics guarantees that the Products are free from defects at the moment of delivery. No other guarantees, whether express or implied, shall exist with respect to the Products.

11.2 All claims related to the guarantee referred to in paragraph 11.1 above expire within one (1) year after delivery of the Products.

12. Rentention of Title

12.1 All Products delivered by Aerialtronics to Customer, shall remain Aerialtronics’s property until Customer has fully settled the purchase price for all these Products.

12.2 If Aerialtronics has, within the framework of the Agreement(s), carried out Activities in favour of Customer which are to be compensated by Customer, the aforementioned retention of title shall apply until such time that Customer has fully discharged its obligations to settle all invoices, claims, outstanding interest and collection costs incurred by Aerialtronics.

12.3 If Aerialtronics has one or more claims against Customer other than those claims mentioned above, any payment received from Customer shall first be applied to settle those other claims.

12.4 Customer shall not be authorised to pledge or encumber in any way the Products falling under the retention of title.

12.5 In case the Products delivered by Aerialtronics to the Customer and subject to retention of title, are seized by third parties or in case third parties wish to establish or assert proprietary rights to Products delivered by Aerialtronics to the Customer and subject to retention of title, Customer shall inform Aerialtronics thereof as soon as reasonably possible.

12.6 Customer is obliged to mark the Products delivered by Aerialtronics to Customer that are still under retention of title or non-possessory pledge as property or pledge of Aerialtronics.

12.7 In the event that Aerialtronics wishes to exercise its ownership rights mentioned in this article, Customer shall cooperate with Aerialtronics and endeavour to its fullest potential to re-vindicate the Products. Customer shall in any case give Aerialtronics, or third parties appointed by Aerialtronics, unconditional and irrevocable permission to access all sites and locations where Aerialtronics’s property might be found and to take these Products back.

13. Liability & Indemnity

13.1 Aerialtronics’s liability shall under no circumstance exceed the total value of the respective purchase order giving rise to the liability. Aerialtronics shall not be liable for any indirect or consequential loss or damage, such as loss of profit or any other financial loss.

13.2 Customer shall release, defend, indemnify and hold Aerialtronics harmless against any and all claims, demands, or causes of action filed by or on behalf of third parties in connection with the execution of the Agreement by Aerialtronics, the Performance of Activities by Aerialtronics, and/or in connection with the delivered Products and/or Services rendered (such as but not limited to treatment of the Products) and/or in connection with advice rendered.

14. Force Majeure

14.1 The Parties shall not be held to fulfil any of their obligations if they are hindered to do so due to a circumstance through no fault of their own and which cannot be attributed to them by virtue of law, a Iegal action or generally accepted practice.

14.2 In addition to the provisions of the law and the case law in this respect, force majeure shall in the General Terms and Conditions furthermore be understood to be any external circumstance, be it envisaged or not, on which Aerialtronics cannot have any influence but which prevents Aerialtronics from fulfilling his obligations. Circumstances of force majeure amongst others include, but are not limited to: fire, explosion, strikes at Aerialtronics or other companies than that of Aerialtronics, wildcat strikes or political strikes at Aerialtronics’s company, a general lack of required goods or services required for bring about the agreed Products or Services, unforeseeable stagnation at suppliers or other third parties on which Aerialtronics depends, general transport problems, unforeseen government measures, natural disasters, war situation, moles and nuclear disasters.

14.3 Aerialtronics shall also be entitled to invoke force majeure if the circumstance resulting in the impossibility to fulfil the (further) obligations, commences after the point in time on which Aerialtronics should have fulfilled his obligation.

14.4 Throughout the duration of the circumstances of force majeure, the Parties shall be entitled to suspend the fulfilment of their obligations. If this period lasts far more than two months either of the Parties shall be entitled to dissolve the Agreement without any obligation to pay any form of direct or consequential damages to the other party.

14.5 Insofar Aerialtronics has already partially fulfilled its obligations under the Agreement at the moment the circumstance of Force Majeure commenced, Aerialtronics shall be entitled to invoice the Customer for the Products delivered and/or Services provided. Customer shall be held to pay this invoice as if it were a separate Agreement.

15. Confidentiality

15.1 Customer shall keep strictly confidential and shall not disclose to any third party and use only for the purposes of the Agreement all information relating to the Products and to the affairs and business of Aerialtronics and its parent, subsidiary or associated companies, whether such information is disclosed to any Customer by Aerialtronics or otherwise obtained by any Customer as a result of its association with Aerialtronics. The Customer takes to keep strictly confidential and shall not disclose to any third party and the Agreement.

16. Bribery & Corruption

16.1 Customer represents and warrants in connection with the business to be conducted under the Agreement that it has not participated in or had any involvement, and will not in the future participate in or have any involvement, in bribery or corruption in any form, directly or indirectly, and that it will not violate or cause Aerialtronics or other third parties to violate any applicable anti-bribery or anti-corruption laws and regulations of any jurisdiction.

16.2 Customer shall immediately inform Aerialtronics of any pending investigations related to bribery or corruption against Customer. Customer shall also immediately inform Aerialtronics if it becomes aware of any involvement of the Customer in bribery and/or corruption-related matters in the past. Customer will ensure that its officers, directors, employees and agents have the proper skills, training and background necessary to comply with all applicable anti-bribery, anti-corruption laws and regulations in connection with its performance under the Agreement

16.3 Customer will ensure that all obligations under this clause be passed on to any third party that Customer contracts or uses in its performance of the Agreement, or that takes over any obligation, or part thereof.

16.4 Customer’s failure to comply with any provision of this clause can be ground – subject to the sole discretion of Aerialtronics – for immediate termination of the Agreement by Aerialtronics without any prior notification. In the event of such termination, Aerialtronics shall be under no further obligation resulting from the Agreement and Customer shall indemnify Aerialtronics from any direct and indirect damages, claims, penalties or other losses resulting from that breach.

16.5 In addition, Aerialtronics shall be entitled to any other remedies available at law or in equity. The terms and conditions of this clause, and any other provisions containing the Customer’s representations and warranties, shall survive any expiration or termination of the Agreement.

17. Trade Laws

17.1 Customer shall ascertain and comply with all applicable obligations and restrictions arising out of and following from Trade Laws. The Customer shall not have any direct or indirect dealings or transactions with any Sanctioned Person (including in respect of any further sale or delivery of the Products) in relation to any transaction, whether directly or indirectly, with Aerialtronics.

17.2 Customer’s failure to comply with any provision of this clause can be ground – subject to the sole discretion of Aerialtronics – for immediate cancellation of the Agreement by Aerialtronics without any prior notification. In the event of such cancellation, Aerialtronics shall be under no further obligation resulting from the Agreement and the Customer shall indemnify Aerialtronics from any direct and indirect damages, claims, penalties or other losses resulting from that breach. Aerialtronics shall be entitled to any other remedies available at law or in equity. The terms and conditions of this clause, and any other provisions containing the Customer’s representations and warranties, shall survive any expiration or termination of the Agreement.

17.3 Customer will ensure that all obligations under this clause be passed on to any third party that Customer contracts or uses in its performance of the Agreement, or that takes over any obligation, or part thereof.

18. IPR

18.1 Unless explicitly agreed otherwise in writing between Aerialtronics and the Customer, Aerialtronics is and shall remain the holder of the IPR which applies to the Products.

18.2 Aerialtronics grants the Customer the right to use the Products exclusively within and for the benefit of his own organisation, however only after the Customer has fulfilled all his obligations (of payment) under the Agreement.

18.3 Any IPR resting on Products developed by Aerialtronics and on concepts or lay-outs of these Products, shall always remain vested in Aerialtronics. The Customer is obliged to respect the IPR of Aerialtronics at all times.

18.4 If the Customer acts contrary to the IPR of Aerialtronics, the Customer shall be liable for all damages suffered by Aerialtronics because of this. By damage, it should be understood, amongst others: profit losses, turnover losses, loss in market share and reputation damage.

19. Choise of Law and Forum

19.1 Any Agreement between Aerialtronics and Customer shall be exclusively governed by Dutch law. This choice of law shall equally apply to any non-contractual claims between Parties.

19.2 Any and all disputes between Aerialtronics and Customer will be settled exclusively by the competent court in Amsterdam, the Netherlands. Parties shall only refer the matter to the court if they have done their utmost to solve the dispute in mutual consultations. Without prejudice to any right of immediate cancellation or termination pursuant to this Agreement, Parties shall immediately give notice in writing to the other party of any dispute, controversy or claim arising out of or in connection with the Agreement, including the validity, breach, amendment or termination thereof.

20. Miscellaneous

20.1 No waiver, alteration, variation or addition to these General Terms and Conditions shall be effective unless made in writing on or after the date of signature of the present terms and conditions by both Parties and accepted by an authorised signatory of both Parties.

21. Waiver

21.1 The waiver or forbearance or failure of a party in insisting in any one or more instances upon the performance of any provisions of the General Terms and Conditions shall not be construed as a waiver or relinquishment of that party’s rights to future performance of such provision and the other party’s obligations in respect of such future performance shall continue in full force and effect.

22. Interpretation of the Terms & Conditions

22.1 The English version of these General Terms and conditions prevails at all time in case of disputes with regard to the interpretation and purpose of these General Terms and Conditions. Legal concepts are defined as they are in the Dutch legal system. The version of the General Terms and Conditions valid at the time the Agreement was concluded shall apply.