Terms and Conditions

Article 1 Applicability

1.1 These conditions shall apply to all legal relationships, including agreements and offers between the private company with limited liability Megaprojects BV, with its registered office and place of business at Gewenten 43B, 4704 RE Roosendaal, registered in the Trade Register of the Chamber of Commerce under number: 50200208 (hereinafter to be referred to as: Megaprojects) and the customer, insofar as these conditions have not been expressly deviated from by the parties in writing.
1.2 In these conditions, “purchaser” shall mean any natural or legal person who is in a contractual relationship with Megaprojects, whether under a purchase agreement entered into with Megaprojects or under any other type of agreement, as well as any natural or legal person who wishes to enter into an agreement with Megaprojects, whether under a purchase agreement or under any other type of agreement.
1.3 These conditions also apply to all legal relationships between the customer and any party affiliated to Megaprojects, such as a subsidiary, sister company or parent company. In such case, in the present conditions Megaprojects shall mean such affiliated party.
1.4 Deviations from these conditions are only permitted to the extent expressly agreed in writing. Any conditions not expressly deviated from in writing shall remain in full force and effect. Any deviation from the present terms and conditions shall only apply to the cases specifically provided for in that agreement, unless otherwise expressly provided for in writing.
1.5 If any of the provisions of these general terms and conditions are invalid, such a provision shall be deemed to replace the invalid provision as closely as possible. The same applies to provisions that Megaprojects cannot invoke for other reasons.
1.6 In the event these terms and conditions have been drawn up in a language other than Dutch, the Dutch text shall prevail in the event of a conflict in any part between that translation and the Dutch text.

Article 2 Offers and Prices
2.1 All offers made by Megaprojects are without obligation. The mere issue by Megaprojects of a quotation, budget, pre-calculation or similar communication, whether or not designated as an offer, shall not oblige Megaprojects to enter into an agreement.
2.2 An agreement shall only come into effect once the acceptance of the non-binding offer has reached Megaprojects, unless Megaprojects revokes its non-binding offer immediately upon receipt of the acceptance.
2.3 If the acceptance includes any reservation or any change compared to the offer, the agreement shall, contrary to the provisions of the previous paragraph, only be concluded if and as soon as Megaprojects has confirmed in writing to the customer that it agrees to such departure from its offer. Such consent shall, however, never be deemed to relate to the applicability of any general terms and conditions used by the customer.
2.4 Legal acts of the customer with subordinates of Megaprojects shall not bind Megaprojects, unless and to the extent such legal acts are expressly consented to in writing by Megaprojects.

Article 3 Deviations
3.1 Price quotations in the agreement are always made on the basis of the prices valid at the time of the offer. The prices quoted are always exclusive of turnover tax and other government levies, unless explicitly stated otherwise.
3.2 Megaprojects is entitled to increase the agreed price if one or more of the following circumstances occur after the conclusion of the agreement: exchange rate increases (cost price-determining exchange rate of the euro), increase in the cost of raw materials, materials, semi-finished products or services required for the performance of the agreement, increase in shipping costs, wages, employer’s contributions, social insurance, costs associated with other terms and conditions of employment, transport, introduction of new and/or increase in existing government levies, import and export duties or other levies and/or taxes at home and abroad, or, in general, such circumstances comparable to one and/or the other. If such a circumstance occurs, Megaprojects shall be entitled to increase the agreed price in proportion to the said increase.
3.3 Megaprojects shall be permitted to deviate from provided weights, quantities, delivery times, technical data, sizes, capacities etc. to the extent such deviation is of minor importance. Deviations of 10% or less of the total weight, numbers, delivery times, etc., as well as those deviations which, taking all circumstances into account, reasonably have no or minor influence on the value of the sold or delivered goods, shall always be deemed deviations of minor importance.
3.4 If in the performance of the agreement additional costs must be incurred and/or additional risks are present Megaprojects shall be entitled to charge a surcharge on the agreed prices in proportion to such additional costs and additional risks.
3.5 The Customer shall be entitled to dissolve the agreement if the price increase exceeds 10%.
3.6 Megaprojects shall at all times be entitled to have the agreement performed by third parties.

Article 4 Rates/prices
4.1 All prices stated in an offer, quotation or agreement are exclusive of VAT, unless otherwise stated.
4.2 For orders above EUR 500,- excluding VAT, the prices are based on delivery free domicile within the Netherlands, unless agreed otherwise.
4.3 For orders below this amount, a fee will be charged for shipping, packaging, insurance and administration costs.
4.4 Previously agreed or applied prices shall not bind Megaprojects unless expressly confirmed in writing in a subsequent agreement.

Article 5 Delivery time
5.1 The agreed delivery time is based on the circumstances prevailing at the time of the conclusion of the agreement and is not a deadline, unless expressly agreed otherwise.
5.2 If delivery is made later than agreed and there is no situation as referred to in the following paragraph, the customer must first give Megaprojects written notice of default and grant Megaprojects a final term of no less than fourteen calendar days, to be reasonably determined, to deliver the good(s).
5.3 If a delay arises as a result of changed circumstances which complicate or delay the import, processing, loading or shipment, the delivery time shall be extended as is reasonable, taking all circumstances into account.
5.4 Exceeding the agreed delivery time may only give rise to compensation if agreed in writing.
5.5 If “delivery from stock” has been agreed, this applies “if unsold”. If the items ordered are not in stock, the customer may cancel the contract in writing.

Article 6 Delivery
6.1 If transport of the goods to be delivered has been agreed, this shall take place at the customer’s expense and risk, unless carriage paid delivery (Incoterms: DDP) has been expressly agreed.
6.2 The delivery address must be reasonably accessible for the means of transport used. The Customer must provide sufficient loading and unloading facilities at the delivery address. For unloading the goods and loading returnable goods, the Customer shall provide sufficient personnel and (mechanical) aids, all free of charge.
6.3 From the time of delivery at the agreed place (or the first presentation of the goods to this address), the delivered goods shall be at the expense and risk of the customer. The Customer shall be obliged to cooperate fully with the delivery. The Customer shall be in default without notice if it fails to collect the goods to be delivered after Megaprojects’ first request or refuses to take delivery of the goods to be delivered.
6.4 The acceptance of goods from or on behalf of Megaprojects by the carrier shall be evidence that the goods have been received in externally good condition, unless the contrary appears from the waybill or receipt.
6.5 Megaprojects shall at all times be entitled to deliver (or have delivered) the goods cash on delivery or to demand and receive payment in advance.
6.6 Return shipments (at the customer’s expense) shall only be permitted if Megaprojects has given its express prior consent in writing.
6.7 Megaprojects is entitled to deliver the sold goods in parts. This does not apply if a partial delivery has no independent value. If the goods are delivered in parts, Megaprojects is entitled to invoice each part separately.

Article 7 Return shipments
7.1 Return shipments shall only be accepted by Megaprojects if the customer has received prior written consent from Megaprojects to return the goods.
7.2 All return consignments must be delivered
to Megaprojects carriage paid home Roosendaal (Incoterms DDP).
7.3 Returns that do not meet these requirements will be refused by Megaprojects.

Article 8 Advertisement
8.1 The customer shall promptly investigate after delivery and/or other performance of Megaprojects whether Megaprojects has properly fulfilled the agreement (have the correct goods been delivered, has the correct quantity been delivered, does the goods meet the agreed quality) and shall furthermore be obliged to immediately inform Megaprojects in writing as soon as Megaprojects becomes aware of the contrary, namely by noting the alleged defects on the transport document to be signed upon receipt.
8.2 Complaints regarding defects not observable upon delivery shall be made in writing by registered letter immediately after the customer has observed or reasonably should have observed such defects, but at the latest within 8 calendar days after delivery.
8.3 In the event of non-conformity, Megaprojects shall always be entitled to substitute a new sound item and/or performance for a previous defective performance, or, at Megaprojects’ discretion, to reimburse the difference in value between a sound and the actual performance delivered, without prejudice to the provisions of article 3 paragraph 3. The performance of the agreement shall then be deemed to be fully sound. The contract cannot be dissolved by the customer in this case.
8.4 Performance of the agreement shall be deemed proper if the customer has failed to make the examination referred to in paragraph 1 of this article on time.
8.5 Megaprojects’ invoice shall be deemed correct if the customer has not submitted a written protest to Megaprojects within no later than eight calendar days from the invoice date.
8.6 If the periods referred to in subsections 1 and 4 are to be regarded as unacceptably short by apparent standards of reasonableness and fairness even for a diligent and alert customer, such periods shall be extended automatically until no later than the first moment at which examination or notification of Megaprojects is reasonably possible for the customer.
8.7 Megaprojects’ performance shall in any case be deemed sound if the customer has taken into use, processed or treated the delivered goods or part of the delivered goods, delivered them to third parties, or has taken them into use, processed or treated them or had them delivered to third parties, unless the customer has complied with the provisions of the first paragraph of this article.

Article 9 Retention of title
9.1 Goods delivered by Megaprojects shall remain the property of Megaprojects until the customer has fulfilled all obligations under all agreements concluded with Megaprojects, including in any case: –
the consideration(s) in respect of delivered or to be delivered item(s) itself;
– the consideration(s) in respect of services performed or to be performed by Megaprojects pursuant to the agreement(s); –
any claims for non-performance by the customer of any agreement(s), including in any case claims for penalties, interest and costs.
9.2 Goods delivered by Megaprojects, which are subject to retention of title pursuant to the provisions under 1. of this article, may only be resold in the ordinary course of business. Furthermore, the customer is not entitled to pledge the goods or to establish any other right on them.
9.3 As long as the Customer is not in any default with respect to compliance with any agreement with Megaprojects, the Customer shall be entitled to process and/or treat the delivered goods as is customary in its business. If Megaprojects’ right of ownership is lost
after processing due to conversion, mixing, accession or otherwise, the customer shall transfer to Megaprojects the (joint) ownership of the new item thus created in proportion to the invoice value. The customer shall from then on act free of charge as holder and custodian of the relevant item of which Megaprojects is entitled to (joint) ownership.
9.4 If the customer fails to comply with its obligations or if there is a well-founded fear that it will not do so, Megaprojects shall be entitled to remove or have removed from the customer’s premises or from third parties holding the goods for the customer, the delivered goods to which the retention of title referred to in paragraph 1 of this article applies. The customer shall be obliged to provide all cooperation to this end on penalty of a daily fine of 10% of the amount due to Megaprojects.
9.5 If third parties wish to establish or enforce any right to the goods delivered under retention of title, the customer shall be obliged to inform Megaprojects as soon as may reasonably be expected.
9.6 At Megaprojects’ first request, the customer undertakes to:
– insure and keep insured the goods delivered under retention of title against fire, explosion and water damage and against theft, and to make the policy of this insurance available for inspection;
– pledge to Megaprojects
all claims of the customer against insurers relating to the goods
delivered under retention of title in the manner prescribed in Article 3:239 of the Dutch Civil Code:
– to pledge to Megaprojects the claims the customer acquires towards its customers on the resale of goods delivered by Megaprojects under retention of title in the manner prescribed in section 3:239 of the Dutch Civil Code: – to
clearly mark the goods delivered under retention of title to third parties or register computer systems as delivered under retention of title by Megaprojects; – to
otherwise cooperate with all reasonable measures Megaprojects wishes to take to protect its right of ownership in relation to the goods and which do not unreasonably interfere with the customer’s normal conduct of business.

Article 10 Payment and securities
10.1 Payment of invoices shall be made within 30 days of the invoice date by transferring the amount due to a (postal) bank account designated by Megaprojects, unless otherwise agreed. After expiry of this term, the invoice amount shall be due and payable in full, without deduction of any discount, damages or set-off.
10.2 If the term of payment referred to in paragraph 1 is exceeded, contractual interest of 12% per annum will be payable from the due date, without any notice of default being required If the statutory interest rate is higher than the contractual interest rate in a given period, statutory interest will be payable in lieu of contractual interest for that period. The Customer shall further owe the judicial costs actually incurred by Megaprojects in all instances, to the extent reasonable. This shall only apply if Megaprojects and the customer, in respect of an agreement to which these general terms and conditions apply, conduct judicial or arbitration proceedings and a judicial or arbitral decision becomes final and conclusive, whereby the customer is ruled against entirely or predominantly. Judicial costs shall include all costs incurred to collect the claim, such as, inter alia, the costs of seizure, legal costs and costs of a bankruptcy petition.
10.3 Megaprojects shall be entitled, before making delivery, continuing with delivery or (otherwise) commencing performance of the agreement, to demand adequate security for the punctual performance of the customer’s payment obligations. In the event of default, the customer shall be obliged to provide sufficient security, including pledges, at Megaprojects’ discretion, to secure compliance with the payment obligations. The security offered must be such that the claim with any interest and costs thereon is adequately covered. In the event of any default, the customer shall be obliged at Megaprojects’ first request to fulfil its payment obligations in another satisfactory manner for Megaprojects. Megaprojects is at all times entitled to refuse a method of payment proposed by the customer in the aforementioned sense.
10.4 The customer hereby grants Megaprojects a lien on all goods brought into Megaprojects’ possession by the customer as part of the agreement, as additional security for all that the customer, in whatever capacity and on whatever account, may owe Megaprojects, including non-exigible and contingent debts.
10.5 The refusal by the customer to provide the requested security shall give Megaprojects the right to dissolve the agreement, without prejudice to its right to compensation for any damage suffered by it.
10.6 In the event of liquidation, insolvency, (application for) bankruptcy or (application for) suspension of payments of the customer, the obligations of the customer shall become immediately due and payable.
10.7 Payments made by the Customer shall first be applied to all interest and costs due and thereafter to the longest outstanding payable invoices, even if the Customer states that the payment relates to another invoice.
10.8 Settlement or suspension by the Customer, for whatever reason and by whatever name, is excluded.
10.9 If a (payment) discount, under whatever name, has been agreed, it shall only be due and payable if the customer has met the conditions set in that context and has also fully and punctually complied with all its further (payment) obligations under the agreement vis-à-vis Megaprojects.

Article 11 Guarantee and liability
11.1 Megaprojects guarantees that the goods it delivers are in conformity with the purpose for which such goods are apparently and to Megaprojects knowably delivered. Megaprojects warrants that the products it delivers are free of design, material and manufacturing defects for a period varying from at least 2 years after delivery.
11.2 The warranty period commences on the date of purchase.
11.3 The warranty does not apply in case of:  normal wear and tear, inexpert or improper use, insufficient maintenance, failure to comply with operating and maintenance instructions, inexpert assembly or repair (without Megaprojects’ prior written consent) by third parties, inexpert repair by the customer, non-original parts applied by the customer, alteration or processing of the item, insufficiently careful storage of the item and, in general, in all cases in which no such care is taken as Megaprojects may require of an alert and careful customer. Nor does the warranty apply if it appears that the delivered goods are not treated in accordance with the instructions provided at the time of commissioning or are not used for the purpose for which they were purchased.
11.4 The guarantee does not apply to normal consumables, batteries, external connection cables, (interchangeable) signal and lighting lamps.
11.5 If the item does not comply with the warranty (of paragraph 1) of this article, the customer shall be entitled to have the item repaired during the warranty period. Megaprojects may choose to replace the item if repair meets with objections. Repair and replacement need only take place within the Netherlands. Costs for shipment of a defective product are at Megaprojects’ expense if Megaprojects has determined that there is a defect to which the guarantee scheme applies. The Customer shall only be entitled to replacement if, in Megaprojects’ opinion, repair of the item is not possible or cannot reasonably be required in Megaprojects’ opinion.
11.6 In the event of replacement of the item as referred to in the previous paragraph, the original purchase or invoice date shall remain in force. Replacement of the item shall in no way extend the original warranty period.
11.7 If Megaprojects is not given sufficient opportunity to remedy an occurring defect to or in connection with the delivered item, all costs arising therefrom shall be borne by the Customer.
11.8 Alleged non-performance by Megaprojects of warranty obligations shall not relieve the customer of any obligations arising for him under any agreement entered into with Megaprojects. If the customer fails to comply, fails to comply properly or fails to comply on time with any obligation arising for him from any agreement entered into with Megaprojects or any related agreement, Megaprojects shall not be liable for any warranty.

Article 12 Aftercare; controls
12.1 Megaprojects must be given the opportunity to take damage control measures, if desired, if it fails to comply with any obligation incumbent upon it.
12.2 If Megaprojects is not given sufficient opportunity to remedy any occurring defect, all costs arising therefrom shall be borne by the Customer.
12.3 If the performance of checks is agreed or, at Megaprojects’ discretion, desirable, the Customer shall provide all cooperation required by Megaprojects in this respect.
12.4 Unless otherwise agreed, checks are for the customer’s account.

Article 13 Liability and force majeure
13.1 Megaprojects shall not be obliged to pay damages as a result of any shortcoming in the performance (of whatever nature and due to whatever cause arisen to the delivered goods, or caused by the delivered goods to persons, whether or not employed by the customer, or to goods, whether or not belonging to the customer, which the customer uses in his business or which are located there) of any obligation or an unlawful act, if such shortcoming cannot be attributed to Megaprojects. This shall be the case if the default is not due to its fault, nor to a cause attributable to it under the law, legal act or generally accepted practice. The agreement cannot be dissolved by the buyer in this case. The agreement cannot be dissolved by the customer in this case.
13.2 Megaprojects does not accept any liability for defects in the performance of the agreement due to the fault or actions of the customer or third parties for which the customer is responsible. Megaprojects shall also not be liable for damage caused by the execution by Megaprojects’ subordinates of instructions, advice or assignments of the customer that fall outside the work arising from the order, unless the customer proves that this is due to gross negligence or intent.
13.3 Megaprojects shall only be liable for non-, incorrect or partially incorrect execution of the agreement as well as for advice given or investigations carried out if and to the extent such is the direct result of intent or gross negligence on the part of Megaprojects’ executives.
13.4 Without prejudice to the other provisions of this article, if Megaprojects is liable to compensate damage to the customer on the grounds of an attributable shortcoming, Megaprojects shall have the option, at its discretion, either to effect repair in kind or replacement of the item(s) not correctly delivered, or to pay compensation in cash.
13.5 Under no circumstances may the obligation to pay compensation for damage suffered relate to any loss of turnover or any other trading loss and/or consequential loss. 13
.6 The obligation to compensate damage shall in no event exceed a maximum of crediting the part of the invoice amount (excluding VAT) already paid by the customer in respect of the non-completed or incorrectly completed part.
13.7 In any event, Megaprojects shall never be liable for damage on any account whatsoever, to the extent that such damage exceeds the amount paid out by the insurance in a given case (minus the excess to be paid by Megaprojects) and in any event limited to € 500,000.
13.8 Executives, partners, directors, employees and others involved with Megaprojects may invoke the same defences against the Customer to ward off or limit liability, should they be held liable by the Customer.
13.9 Non-attributability as referred to in the first paragraph (also referred to as “force majeure”) shall include circumstances that prevent the performance of the agreement and which are not attributable to Megaprojects nor for its account
under the law, legal act or generally accepted practice. This shall include strikes of whatever nature in Megaprojects’ company or at Megaprojects’ supply companies or in transport companies working for Megaprojects; a general lack of necessary raw materials and other items or services required for the realisation of the agreed performance; unforeseeable stagnation at suppliers or other third parties Megaprojects depends on; and general transport problems, extreme and/or unsuitable weather conditions, war or danger of war, contamination or danger of contamination, illness of personnel, breakdowns of machinery used by Megaprojects or third parties involved, any failure of suppliers or third parties involved, delayed delivery of parts, government measures, as well as any delay and undercapacity at Megaprojects caused by the aforementioned circumstances.
13.10 Megaprojects shall be entitled to invoke force majeure even if the circumstance preventing (further) performance occurs after Megaprojects should have fulfilled its commitment.
13.12 During force majeure, Megaprojects’ delivery and other obligations shall be suspended. If the period in which fulfilment of Megaprojects’ obligations is not possible due to force majeure lasts longer than two (or three) months, both parties shall be entitled to dissolve the agreement, without any obligation to pay damages. Dissolution shall take place by means of a written statement.
13.13 If Megaprojects has already partially fulfilled its obligations when force majeure occurs, or can only partially fulfil its obligations, it shall be entitled to separately invoice the part already delivered or the deliverable part, as the case may be, and the customer shall be obliged to pay such invoice as if it were a separate contract. However, this does not apply if the part already delivered and/or deliverable part has no independent value.

Article 14 Indemnification
If Megaprojects is held liable by a third party in respect of any damage or part of the amount of the damage for which it would not be liable under the agreement or these terms and conditions if such damage was suffered by the customer, the customer shall fully indemnify Megaprojects in this respect and reimburse Megaprojects for everything Megaprojects is required to pay to such third party. The Customer shall also be obliged to indemnify Megaprojects for damages from and/or due to fines, claims, penalties and other governmental measures. These indemnification obligations of the Customer shall also apply to the executives, partners, directors, employees and others involved with Megaprojects.

Article 15 Termination of agreement
15.1 If the customer fails to fulfil his obligations towards Megaprojects or fails to do so properly or in time, or if he is declared bankrupt, applies for a suspension of payments or statutory debt rescheduling, or offers his creditors or any part of them a settlement or agreement, or if his assets or any part of them are seized, or if it proceeds with the sale or liquidation of its business and in the event of death, receivership or if it otherwise loses the management or direction of its business, affairs or part thereof, Megaprojects has the right, without any notice of default and without Megaprojects being liable to pay any compensation to the customer, to suspend the further performance of the agreement or to dissolve it in whole or in part. Megaprojects is at all times entitled to claim damages from the customer and to take back the delivered goods.
15.2.  In the event the customer wishes to dissolve the agreement, it shall at all times first give Megaprojects written notice of default and grant the customer a reasonable period of time to still comply with its obligations or to remedy any shortcomings, which shortcomings the customer must accurately describe.
15.3 In the event of termination of the agreement as referred to in paragraph 1, any claim Megaprojects has against the customer on any account whatsoever shall become immediately due and payable in full.

Article 16 Trademarks, trade names and copyright
16.1 The customer shall only be entitled to use trade names, trademarks and packaging used in trade by Megaprojects with Megaprojects’ express consent and on Megaprojects’ instructions.
16.2 With regard to offers, drawings and designs, Megaprojects expressly reserves the copyright. These may not be provided to third parties for inspection without the consent of Megaprojects.

Article 17 Multiple purchasers; multiple signatories
In case several purchasers have jointly entered into an agreement, or several persons have signed an agreement with Megaprojects, each of them shall be jointly and severally liable for any obligation of the purchasers arising from such agreement.

Article 18 Jurisdiction and application of Dutch law
18.1.  All disputes, enclosed on the applicability of these conditions, shall be exclusively adjudicated by the competent civil court in the Netherlands and within the jurisdiction in which Megaprojects is established. However, Megaprojects shall, if so desired, also be entitled to submit disputes to another legally competent court.
18.2.  Tenders, offers, acceptances and agreements are governed by Dutch law.

Article 19 Amendment of conditions
Megaprojects is entitled to make amendments to these conditions. Such amendments shall take effect at the announced time of entry into force and replace any previous general conditions of Megaprojects. Megaprojects shall send the amended conditions to the Customer in a timely manner. If no time of entry into force has been announced, amendments shall take effect vis-à-vis the customer as soon as the customer has been notified of the amendment.

Article 20 Foreign affairs
These general terms and conditions and the agreements to which they apply shall be governed by Dutch law. The UN Convention on Contracts for the International Sale of Goods concluded in Vienna on 11 April 1980, as entered into force for the Netherlands on 01 January 1992, shall not apply. Neither does any other future regulation on the sale of movable property whose effect can be excluded by the parties.