Terms and conditions

GENERAL MODULE – SERVICE LEVEL 1

1. APPLICABILITY

1.1 In these general terms and conditions Formula Air is taken to mean Formula Air Group B.V. and all the legal entities/natural persons and companies affiliated with it which apply these general terms and conditions with permission from Formula Air. The Client is taken to mean the legal entities/natural persons and companies to which an offer is addressed and/or with which an agreement has come or will come into effect.

1.2 These general terms and conditions apply to all offers from, assignments to and agreements with Formula Air. Derogations from these general terms and conditions will exclusively be valid if accepted by Formula Air in writing. The Client’s general terms and conditions will not apply to the offers and agreements with Formula Air and are expressly rejected.

1.3 If one or more of the provisions in these general terms and conditions are null and void, or are declared void, the other provisions of these general terms and conditions will remain fully applicable. Formula Air and the Client will enter into consultation for the replacement of the null and void or voided provisions of these general terms and conditions by provisions that will be as much as possible in line with the objective and effect of the null and void or voided provisions.

1.4 Insofar as the Client is a consumer, the mandatory statutory provisions will prevail over the provisions hereinafter.

2. OFFER AND AGREEMENT

2.1 An offer from Formula Air takes place without obligation and can be withdrawn or changed by Formula Air 7 (seven) calendar days after Formula Air taking note of the acceptance of its offer. Errors and omissions occurring in an offer, in instructions or advice provided by Formula Air in the context of an offer, and – general – information not exclusively addressed to the Client, will not bind Formula Air.

2.2 An offer from Formula Air will be valid for 30 (thirty) days after the sending thereof by Formula Air, unless another validity period is set out in the offer, or the validity period has been extended by Formula Air in writing before the expiry thereof.

2.3 If Formula Air has made an offer, an agreement between Formula Air and the Client will only come into effect by means of unconditional acceptance (confirmation of the order) by the Client of the offer from Formula Air either by email, fax or by means of execution of an assignment from the Client by Formula Air. The offer from Formula Air or the invoice from Formula Air for the execution of the assignment will exclusively be deemed to correctly represent the contents of the agreement.

2.4 If Formula Air has not made an offer, an agreement will only come into effect by acceptance in writing or by the execution of an order or assignment from the Client by Formula Air. The acceptance in writing of the assignment by Formula Air or the invoice from Formula Air for the execution of the assignment will exclusively be deemed to correctly represent the contents of the agreement.

2.5 Amendments of and/or addendums to the agreement will only be valid after these amendments and/or addendums have been agreed by Formula Air and the Client in writing.

2.6 The Client exclusively has the right to cancel or terminate the agreement if this has been agreed in writing, or if the Client derives this right from mandatory applicable legislation. If the Client cancels or terminates the agreement (in a legally valid manner) the Client will be obliged to simultaneously return the goods and rights delivered on the basis of the agreement, to simultaneously terminate the exercising of the rights granted on the basis of the agreement and to compensate Formula Air for the costs incurred by Formula Air related to the offer and the coming into effect and the performance of the agreement.

2.7 Formula Air has the right to unilaterally terminate the agreement, wholly or in part, with immediate effect, and/or to suspend the fulfilment of the obligations ensuing from the agreement, wholly or in part, with immediate effect, if one or more of the following incidents take place or takes place:

(a) An attributable failure on the part of the Client to fulfil one or more obligations ensuing from the agreement;

(b) After the concluding of the Agreement Formula Air acquires knowledge of circumstances that give good grounds to fear that the Client will not fulfil the obligations. In the event that there are good grounds to fear that the Client will only partially or will not properly comply with the agreements, the termination or suspension will be permitted only insofar as the Client still does not comply with the agreement or still does not provide security for fulfilment of the obligations within 7 (seven) calendar days after notice of default;

(c) At the concluding of the agreement the Client has been requested to provide security for the fulfilment of its obligations under the agreement and this security is not forthcoming or is insufficient. As soon as security has been provided, the entitlement to terminate or suspend lapses, unless payment is unreasonably delayed due to this;

(d) Submitting an application for granting (provisional) moratorium to the Client, or submitting an application for a liquidation order with regard to the Client, or as the case may be attachment in execution levied by Formula Air against the Client;

(e) Legal incapacity or complete lack of power of disposition of the Client;

(f) Transfer of the majority of the Client’s shares to one or more other parties, also including therein majority shareholders in the share capital;
the Client will be obliged to immediately inform Formula Air of the occurrence of (one of) the incidents referred to in this article.

2.8 In the event of the incident (d) in article 2.7 the claims of Formula Air against the Client will be immediately due and payable.

2.9 Formula Air will never be liable towards the Client for any compensation ensuing from the (partial) termination of the agreement and the suspension of the obligations ensuing from the agreement on the basis of the incidents referred to above in article 2.7. Formula Air retains the right to claim (additional) compensation if the agreement is terminated on the basis of the provisions of article 2.7.

2.10 If the agreement is (partially) terminated by the Client or by Formula Air the goods and services already provided by Formula Air and received by the Client for the performance of the agreement, as well as the Client’s payment obligations related thereto, will not fall under the obligation to undo. The goods and services that before or at the time of the (partial) termination of the agreement were already provided by Formula Air will become immediately due and payable after the (partial) termination.

3. PRICE AND PAYMENT

3.1 Prices and rates made apparent by Formula Air are excluding turnover tax, other duties imposed by the government and other sums of money owed to third parties, and also exclude the costs of inter alia transport, dispatch, import, export, storage and insurance, unless expressly stated otherwise. Prices and rates that have not been made apparent in an offer exclusively addressed to the Client will not bind Formula Air. Third parties cannot derive any rights from prices and rates made apparent in an offer addressed to the Client.

3.2 Formula Air has the right to adjust the agreed prices and rates with immediate effect. Any adjustment of the agreed prices and rates will not affect the agreement.

3.3 Invoices from Formula Air must be paid in Euro, unless the invoice stipulates another currency. Payments must be made in accordance with the payment terms set out in the invoice from Formula Air. If no payment term is set out, the invoice must be paid within 30 (thirty) calendar days after the invoice date.

3.4 If the Client has not paid the owed sums of money within the applicable period, the Client will be immediately in default and will owe the statutory commercial interest over the owed sums of money. If the Client fails to pay the owed sums of money after the first reminder, the Client will owe the amount of the actual costs to be incurred by Formula Air for legal assistance at law and otherwise (including the legal costs that have not been assessed) and the court costs, to Formula Air.

3.5 Formula Air has the right to have the payments from the Client (in spite of contrary statements from the Client) serve first for the payment of the claims of Formula Air against the Client that do not ensue from the agreement and the claims under the agreement and the claims that ensue from short-comings on the part of the Client in the fulfilment of the obligations ensuing from the agreement.

3.6 The Client does not have the right to suspend its payment obligations toward Formula Air and/or to set off against obligations on the part of Formula Air towards the Client.

3.7 The Client will be obliged upon first request from Formula Air to insure and keep insured the payment of Formula Air’s claims ensuing from the agreement. If the Client nevertheless insufficiently insures and/or keeps insured the payment of Formula Air’s claims, Formula Air the right to fully suspend and/or not to fulfil its obligations towards the Client.

3.8 Formula Air has the right to invoice on an advance payment basis and/or in instalments.

4. DELIVERY

4.1 Delivery takes place ex-factory of Formula Air. The goods to be delivered are at the risk of the Client with commencement at the time when (an auxiliary person) of the Client or a third party has the actual control over these goods, or as the case may be with commencement once the Client fails to take receipt of the goods to be delivered by Formula Air.

4.2 Notwithstanding the provisions of subclause 1 of this article, the Client and Formula Air can agree that Formula Air arranges the transport. In that event the risk of storage, loading, transport and unloading will be vested in the Client. The Client can take out insurance to cover these risks.

4.3 The Client will be obliged to inspect the goods delivered by Formula Air at the delivery and to inform Formula Air at the delivery of suspected faultiness of the goods delivered by Formula Air. The goods delivered by Formula Air that are retained by the Client, or the Client’s auxiliary person, for 48 (forty eight) hours after the delivery, or as the case may be after receipt without objection, or that were earlier taken into use wholly or in part, or processed, or modified, or delivered to other parties, will be deemed to comply with the agreement.

4.4 The Client will be obliged to take receipt of the goods at the time when the goods are made available under the agreement, while taking the agreed delivery period into consideration. If the Client refuses to take receipt of the goods or fails to provide the information or instructions that are necessary for the delivery, Formula Air will be entitled to store the goods at the expense of the Client.

4.5 If Formula Air has stated a period for delivery this will be indicative only.A named delivery date is therefore never a final deadline. In the event of exceeding of a stated period, the Client must give Formula Air notice of default in writing and thereby offer a reasonable period for performance to Formula Air.

4.6 Formula Air will be entitled to deliver the goods in parts, unless this has been derogated from in agreement, or partial delivery has no independent value. Formula Air will be entitled to invoice separately for the deliveries thus made.

4.7 Formula Air will not be obliged, without granting prior permission in writing, to accept goods that are returned by the Client to Formula Air. Acceptance of the goods returned by the Client does not imply acknowledgement by Formula Air of the validity of the reason for returning the goods. The agreed payments will be owed by the Client until Formula Air has credited the Client for these goods. If Formula Air does not accept the returned goods the Client will be obliged to reimburse Formula Air for the costs incurred by Formula Air related to the returned goods.

4.8 If Formula Air delivers goods to the Client that have been produced by other parties and/or that have been purchased from other parties, the terms and conditions of the producer or the supplier of the goods will apply with regard to (the sound condition of) these goods in addition to and with priority over the agreement between Formula Air and the Client (including these general terms and conditions).

5. RETENTION OF TITLE AND RIGHT OF PLEDGE

5.1 The ownership of all goods delivered by Formula Air will transfer to the Client only if and after the Client has paid all that which the Client owes to Formula Air, including the sums of money owed pursuant to article 3.4, pursuant to any agreement, with regard to goods that have been delivered or are still to be delivered, or work that pursuant to such an agreement has been executed or is to be executed for the benefit of the Client, as well as with regard to the claims due to failure in the performance of such agreements, whereby in addition to the delivery of goods the execution of specific work was also stipulated.

5.2 The Client has a limited power of disposition until payment in full has taken place with regard to the rights that are transferred, or granted, subject to the suspensive condition referred to regarding this matter in article 5.1 and will be obliged to inform the interested parties – including the intended successors in title – regarding this limited power of disposition.

5.3 The limited power of disposition in these general terms and conditions means that the Client is only entitled to transfer the conditional ownership of the goods. The Client is only entitled to transfer the goods subject to the suspensive condition of payment, therefore with due regard to the retention of title and right of pledge.

5.4 If the Client (also) creates new items from the goods delivered by Formula Air the Client will only create this item for Formula Air and the Client will hold the newly created item for Formula Air and Formula Air is and remains the owner of the newly created item until the Client has paid all amounts owed on the basis of the agreement.

5.5 The goods delivered by Formula Air will be stored recognisably as Formula Air goods (with a label or something similar) so that the goods will not be assimilated into a larger stock, rendering them untraceable or unidentifiable.

5.6 The Client will provide Formula Air as additional security for the (repayment) payment of all that which the Client might owe and/or will owe to Formula Air, and Formula Air accepts this in pledge, a first pledge on the delivered goods, or at least the new goods that are created therefrom, or the goods that are mixed therewith or acceded therefrom. If and insofar as Formula Air has delivered its goods subject to retention of title, the Client provides Formula Air, as Formula Air accepts this, with a first pledge to the conditional ownership right to the goods.

5.7 The Client will be obliged upon first request from Formula Air to provide replacement and/or additional security.

5.8 The Client will not be entitled to establish a right of pledge for the benefit of third parties on the goods delivered by Formula Air for as long as the ownership of these goods has not transferred to the Client.

5.9 The property law consequences of the retention of title of an item that is intended for export will be governed by the law of the State of destination if that law contains more favourable provisions for Formula Air.

5.10 The Client will be, for as long as the Client has the possession of the goods delivered subject to retention of title, obliged to treat these goods carefully and if necessary to conduct careful maintenance thereof, all this at the expense of the Client. The Client is also obliged to insure and keep insured the goods referred to with a reputable insurance company at the expense of the Client against the risks indicated by Formula Air such as fire, theft and other causes of loss, in addition to covering liability for damage related to these goods under the provisions and clauses and for amounts as required by Formula Air. The policy documents and the evidence of payment of the premiums must be shown at all times upon first request to Formula Air. In the event of claims or attachments made by third parties to/on the goods delivered subject to retention of title the Client will be obliged to take all measures that are necessary to retain the rights of Formula Air. Formula Air can, if required, also proceed with taking measures, or have these measures taken, and can charge the costs incurred with regard to this to the Client.

5.11 Formula Air or a person to be appointed by it will at all times have free access to the Client’s business in order to, if necessary, collect the goods delivered subject to retention of title. The business is taken to mean here all buildings and parcels, halls, cupboards, cellars, storage spaces and other location where the goods are situated, ought to be situated, or can reasonably be deemed to be situated.

6. GUARANTEE

6.1 Formula Air guarantees that the goods to be delivered will fulfil the usual requirements and standards that are ordinarily set for the goods, and that they are free from defects. The guarantee applies for a period of 12 (twelve) months. This guarantee period commences at the time of the delivery of the goods.

6.2 The Client can only rely on a guarantee after the Client has fulfilled all its obligations towards Formula Air.

6.3 (a) The guarantee referred to in article 6.1 lapses if there is:
– usual wear and tear;
– incompetent or improper use;
– no maintenance, or incorrectly conducted maintenance;
– incompetent installation, assembly, modification or repair by the Client or by third parties;
– defects or unsuitability of goods originating from, or prescribed by, the Client;
– defects or unsuitability of materials or auxiliary materials used by the Client.
(b) No guarantee will be provided for:
– delivered goods that were not new at the time of the delivery;
– the inspection and repair of the Client’s goods;
– parts for which a manufacturer’s warranty is provided.

7. INTELLECTUAL PROPERTY RIGHTS

7.1 All intellectual property rights (inter alia but not exclusively copyright, trademark rights and design rights) with regard to all products produced pursuant to and/or in the context of the agreement, or that are provided and/or made accessible pursuant to and/or in the context of the agreement, (such as inter alia texts, drawings, analyses, reports, methods, designs, materials, technologies, inventions, computer software, data bases and documentation), are exclusively vested in Formula Air. The Client will not publish, reproduce and/or change the aforesaid products and will not (otherwise) behave as the creator and/or the entitled party thereof. The Client will not remove or change specifications with regard to intellectual property rights from or out of the aforesaid products.

7.2 The products and the technologies, materials, methods and/or information contained or published therein will be exclusively regarded as containing confidential information belonging to Formula Air with regard to which the provisions of article 10.1 (first sentence) apply. The Client will not remove or change specifications with regard to the confidential nature of the information contained in or pertaining to the aforesaid products.

7.3 The Client will indemnify Formula Air against claims by third parties that are based on the argument that Formula Air, by using the products provided and/or prescribed by the Client, infringes the intellectual property rights of third parties, and to fulfil all the obligations ensuing from these claims for Formula Air as its own obligations and to compensate Formula Air for all damage ensuing from these claims.

8. LIABILITY AND COMPENSATION

8.1 Liability and statutory obligations of compensation on the part of Formula Air are limited by articles 8.1 up to and including 8.7. Articles 8.1 up to and including 8.7 apply mutatis mutandis to claims on the basis of unlawful acts and other non-contractual claims by the Client. Formula Air’s auxiliary persons have the right to rely towards the Client on articles 8.1 up to and including 8.7.

8.2 Formula Air will be exclusively liable for shortcomings ensuing from intention or gross negligence on the part of Formula Air to be attributed to Formula Air. Shortcomings to be attributed to Formula Air in any event will not include conduct of auxiliary persons, the use of (unsuitable) auxiliary goods, shortcomings due to the conduct of other suppliers of the Client and shortcomings ensuing from unsecured (electronic) sending of statements and data. Formula Air is under no circumstances liable for the (consequences of) the sale of unsuitable goods and the use of advice from Formula Air and general – information not exclusively addressed to the Client.

8.3 Liability on the part of Formula Air can exclusively arise after the Client has given Formula Air promptly, but no later than within 48 (forty eight) hours after the delivery, or in the event of a shortcoming that was not noticeable during the delivery, promptly but no later than within 7 (seven) days after noticing the shortcoming, proper notice of default by means of registered mail and has provided Formula Air during a reasonable period with the opportunity to remedy the shortcoming.

8.4 Any obligation of Formula Air to compensation is limited to direct damage or loss. Formula Air is under no circumstances obliged to compensate intangible and indirect loss, such as inter alia but not limited to consequential loss, trading loss and loss due to lost time, lost savings, loss of data and/or the missing of a financial advantage.

8.5 The liability is limited to a maximum of the amount of the agreed price, excluding turnover tax and other duties imposed by government, insofar as this has been paid by the Client. If the agreement mainly consists of partial deliveries for a period of more than 1 (one) year, the agreed price will be determined at the total amount of the price agreed for 1 (one) year, excluding turnover tax and other duties imposed by government, insofar as this has been paid by the Client. Under no circumstances will the compensation owed by Formula Air amount to more than the sum of money related to the obligation of compensation involved that is paid on the basis of Formula Air’s liability insurance.

8.6 The Client indemnifies Formula Air against claims by third parties, such as employees and other auxiliary persons, ensuing from and/or related to, goods delivered and/or services provided by Formula Air pursuant to and/or delivered and/or provided in the context of the agreement. The Client indemnifies Formula Air against claims by third parties based on product liability for the goods delivered by the Client to third parties, which also consists of goods delivered by Formula Air to the Client, unless the liability is exclusively caused by the goods delivered by Formula Air.

8.7 If employers and/or other auxiliary persons of Formula Air execute work for the benefit of the Client outside an enterprise of Formula Air and/or with materials made available by the Client, the obligation and liability towards these employees and other auxiliary persons, referred to in Section 658 Book 7 of the Civil Code, are vested in the Client, while the Client will indemnify Formula Air against claims made by these employees and other auxiliary persons ensuing from the failure by the Client to fulfil the obligations of the Client referred to in Section 658 Book 7 of the Civil Code.

8.8 The Client guarantees that Formula Air data to be processed by Formula Air, the processing of the data and the result of this processing will not be in conflict with applicable Dutch law, such as inter alia under the Personal Data Protection Act, or as the case may be the prevailing European privacy regulation. The Client will indemnify Formula Air against all claims by third parties based on the argument that the data processed by Formula Air, the processing of data and/or the result of this processing infringes applicable laws, such as inter alia the Personal Data Protection Act and/or rights ensuing therefrom.

9. FORCE MAJEURE

9.1 If due to force majeure Formula Air is temporarily unable to perform the agreement, Formula Air will be entitled to suspend the performance of the agreement wholly or in part for as long as the force majeure continues. If due to force majeure Formula Air is permanently unable to perform the agreement, Formula Air will have the right to terminate the agreement wholly or in part with immediate effect. Force majeure is inter alia taken to mean shortcomings of (suppliers of) Formula Air and/or other auxiliary persons, production disruptions, cessation of work and excessive sickness absence of employees and/or other auxiliary persons, government measures and weather conditions.

9.2 If due to force majeure Formula Air is temporarily or permanently unable to perform the agreement the Client cannot make claim towards Formula Air to performance of the agreement, termination of the agreement and/or compensation.

10. CONFIDENTIAL INFORMATION

10.1 The Client guarantees that third parties will not by their acts and/or
omissions on their part, and/or on the part of their employees and/or other auxiliary persons, acquire (can acquire) knowledge of information of a confidential nature provided by Formula Air or as the case may be obtained from Formula Air and ensuing from the performance of the agreement. Information will be regarded as confidential if this information is referred to as confidential by Formula Air.

10.2 The Client will be in default by operation of law due to breach of article 10.1 and will owe to Formula Air an immediately due and payable financial penalty of € 25,000 (twenty five thousand Euro) for each breach and of € 5,000 (five thousand Euro) for each day during which the breach continues, without prejudice to the obligation of the Client to cease and keep ceased every breach and to pay compensation of all damage ensuing from each breach to Formula Air and to account for and pay advantages ensuing from each breach to Formula Air.

11. CONCLUDING PROVISIONS

11.1 If statements or actions with regard to the agreement, or these general terms and conditions, are required to be in writing electronic statements will be included therein.

11.2 Rights, obligations or claims of the Client towards Formula Air are not
eligible (under the law of obligations as well as under property law) for transfer, unless there is prior permission in writing from Formula Air.

11.3 The Client will keep Formula Air informed of the correct name and address details of the Client and will inform Formula Air immediately in writing of any change to the name and address details of the Client.

11.4 Offers from and agreements with Formula Air are exclusively governed by Dutch law. The United Nations Convention concerning Contracts for the International Sale of Goods dated 11 April 1980 does not apply to the offers from and agreements with Formula Air.

11.5 The court with subject matter jurisdiction in the Oost-Brabant district in the Netherlands has exclusive jurisdiction to hear and determine disputes ensuing directly or indirectly from the agreement.

11.6 If Formula Air uses a version of these general terms and conditions that is not in Dutch, and there are differences between the Dutch version and the version in another language, the Dutch version will be exclusively binding.

MODULE SERVICES – SERVICE LEVEL 2

12. APPLICABILITY

12.1 The general terms and conditions consist of the General Module supplemented by one or more specific modules per product or service.
The provisions included in the present module are in addition to and have priority of applicability over the provisions in the General Module if Formula Air provides services to the Client, insofar as the part of the assignment to Formula Air is classified as an agreement for services including inter alia, but not exclusively, design, engineering and consultancy work, hereinafter referred to in this module as the “Services”.

12.2 The legal relationship between Formula Air and the Client with regard to the provision of Services classifies as an agreement for services as referred to in Section 400 Book 7 of the Civil Code. Sections 404, 407 and 408 Book 7 of the Civil Code are excluded by Formula Air and the Client, unless mandatory legal provisions determine otherwise.

13. ENGAGEMENT OF THIRD PARTIES

13.1 Formula Air is permitted to engage third parties during the provision of the Services if this is in the interest of the proper execution of the assignment in the opinion of Formula Air. A failure on the part of a third party involved in the provision of the Service cannot be attributed to Formula Air.

14. ADVICE AND PROVIDED INFORMATION

14.1 The Client cannot derive any rights from the advice and information that the Client acquires from Formula Air if this does not relate to the Services.

14.2 If the Client provides Formula Air with data, drawings and suchlike, Formula Air can assume the accuracy and completeness thereof during the execution of the assignment.

14.3 The Client indemnifies Formula Air against any claims by third parties with regard to the use of advice, drawings, calculations, designs, materials, samples, models and suchlike provided by or on behalf of the Client.

15. EXECUTION

15.1 Formula Air assumes during the determining of the execution period that it can provide the Services under the circumstances that are known to it at the coming into effect of the agreement.

15.2 The execution period will only commence when agreement has been reached on all commercial and technical details, and all necessary data, final and approved drawings and suchlike are in the possession of Formula Air, any agreed (instalment) payment has been received and the terms and conditions necessary for the provision of the Services have been fulfilled:

(a) If circumstances arise which Formula Air was not aware of when it recorded the execution period, it can extend the execution period by the time that it requires to provide the Services under these circumstances.
If the work cannot be accommodated by Formula Air’
s schedule, this will be executed as soon as its schedule permits this;

(b) If there is additional work the execution period will be extended by the time that Formula Air requires to deliver (have delivered) the materials and parts for this and to execute the additional work. If the work cannot be accommodated by Formula Air’s schedule, the work will be executed as soon as its schedule permits this;

(c) If there is a suspension of obligations by Formula Air, the execution period will be extended by the duration of the suspension. If continuation of the work cannot be accommodated by Formula Air’s schedule, the work will be executed as soon as its schedule permits this.

15.3 A revision option forms part of the assignment. Additional revisions and accompanying work will be regarded as extra work in conformity with article 17 of these general terms and conditions.

15.4 The Client will be obliged to pay all costs that are incurred by Formula Air as a result of delay in the execution period arisen through the actions or at the risk of the Client.

15.5 The exceeding of the execution period will under no circumstances give any right to compensation or termination.

16. PROVISION AND TAKING RECEIPT OF SERVICES

16.1 Formula Air will be obliged to provide the agreed Services to the best of its abilities and with due care on the basis of the arrangements and procedures accepted in writing by Formula Air. The services will be provided by part-days, which also contain the preparation time and travel time, unless agreed otherwise.

16.2 If it has been agreed that the Services will take place in stages, Formula Air will have the right to postpone the next stage until the Client has approved the results of the previous stage in writing.

16.3 Formula Air will be exclusively obliged to follow instructions during the provision of the agreed Services, if Formula Air has expressly accepted this obligation in the agreement and if the instructions from the Client are provided in a timely manner and are responsible. Formula Air is under no circumstances obliged to follow instructions that have an impact on the contents and/or the scope of the agreed Services. The Client will owe an (additional) payment to be recorded by Formula Air on the basis of its rates for the following of instructions that have an impact on the contents and/or scope of the agreed Services for Formula Air.

16.4 If Formula Air, upon the request from or with prior permission from the Client, has executed work that falls outside the contents and/or scope of the agreed Services the Client will owe to Formula Air an (additional) sum of money to be recorded by Formula Air on the basis of its rates. Formula Air will not be obliged to execute work that falls outside the contents and/or the scope of the agreed work and can require that a separate agreement comes into effect for this purpose.

16.5 Prices and rates made apparent by Formula Air, against which the Client has not made an objection within 7 (seven) days after the provision there of, will be deemed to comply with the agreement.

16.6 The Client will not be entitled to (hand over and/or access) databases ensuing from the production thereof by Formula Air and/or from the Services provided by Formula Air.

17. CHANGES OF THE EXECUTED WORK

17.1 Changes of the Services will in any event result in additional or less work:
(a) if there is change to the design and/or the specifications;

(b) if the information provided by the Client does not correspond with reality;

(c) if estimated quantities deviate by more than 10%;

17.2 Additional work will be calculated on the basis of the factors determining prices, as these apply at the time when the additional work is executed. Less work will be settled on the basis of the factors determining prices, as these applied at the time of the concluding of the agreement.

17.3 The Client will be obliged to pay the price of the additional work as referred to in subclause 1 of this article at the discretion of Formula Air at one of the following times:
(a) when additional work occurs;

(b) at the same time together with the principal sum;

(c) with the next agreed payment term.

18. LIABILITY SERVICES

18.1 In addition to article 8 the following provisions apply with regard to the liability of Formula Air for the Services provided by it.

18.2 In the event of shortcomings in the Services, Formula Air will be liable for this only insofar as these shortcomings can be attributed to Formula Air. Shortcomings as a result of information provided to Formula Air by or on behalf of the Client are excluded.

18.3 The liability of Formula Air on the basis of the previous subclause is limited to the amount agreed for the provision of Services. If no amount has been agreed, Formula Air will not be liable for the provided Services. Formula Air will under no circumstances owe compensation that amounts to more than the sum of money that is paid on the basis of the liability insurance of Formula Air related to the obligation of compensation involved.

CONTRACTING WORK MODULE – SERVICE LEVEL 3

19. APPLICABILITY

19.1 The general terms and conditions consist of the General Module supplemented by one or more specific modules per product or service. The provisions included in the present module are in addition to and have priority of applicability over the provisions in the General Module if Formula Air executes inter alia but not exclusively work related to work of a tangible nature, to be produced in accordance with the specifications of the Client, hereinafter referred to in this module as the “Product”.

19.2 The legal relationship between Formula Air and the Client with regard to contracting work classifies as an agreement for contracting work as referred to in Section 750 Book 7 of the Civil Code.

20. OBLIGATIONS OF THE CLIENT

20.1 Unless agreed otherwise the Client will ensure that the following will be available to Formula Air in a timely manner:
(a) the data and approvals required for the layout of the Product (such as permissions under public law and under private law), if necessary in consultation with Formula Air;

(b) the installation, the building, or site in which or on which the Product must be placed;

(c) sufficient opportunity for the supply of storage and/or r
emoval of building materials and auxiliary materials;

(d) prior to the delivery or purchase of the Product, if the Product is to be delivered or produced elsewhere than at the Formula Air’s location, a place that is suitable for the Product and facilities and provisions required for the functioning of the goods and where all necessary safety and precautionary measures are taken, and these are maintained, and government regulations are complied with.

20.2 The Client will be responsible for the approval in writing in a timely manner of the final drawings prior to the commencement of the execution period.

20.3 The Client will be responsible for taking receipt in a timely manner and will be obliged to provide cooperation to the delivery of the Product.

21. EXECUTION

21.1 When determining the execution period Formula Air assumes that it can execute the assignment under the circumstances as known to Formula Air at that time.

21.2 The execution period will only commence when agreement has been reached on all commercial and technical details, and all necessary data, final and approved drawings and suchlike are in the possession of Formula Air, the agreed (instalment) payment has been received and the terms and conditions necessary for the execution of the assignment have been fulfilled:
(a) If circumstances arise which Formula Air was not aware of when it recorded the execution period, Formula Air can extend the execution period by the time that it requires to perform the agreement under these circumstances. If the work cannot be accommodated by Formula Air’s schedule, this will be executed as soon as its schedule permits this;

(b) If there is additional work the execution period will be extended by the time that Formula Air requires to deliver (have delivered) the materials and parts for this and to execute the additional work. If the work cannot be accommodated by Formula Air’s schedule, the work will be executed as soon as its schedule permits this;

(c) If there is suspension of obligations by Formula Air the execution period will be extended by the duration of the suspension. If continuation of the work cannot be accommodated by Formula Air’s schedule, the work will be executed as soon as its schedule permits this.

21.3 A revision option forms part of the assignment. Additional revisions and accompanying work will be regarded as extra work in conformity with article 17 of these general terms and conditions.

21.4 The Client will be obliged to pay all the costs that Formula Air incurs as a result of delay in the execution period as set out in subclause 3 of this article.

21.5 The exceeding of the execution period will under no circumstances give any right to compensation or termination.

22. DELIVERY OF THE PRODUCT

22.1 The assignment will be regarded as completed in the following cumulative events:

(a) if the Client has approved the Product;

(b) if the Client has taken the Product into use. If the Client takes a part of the work into use this part will be deemed to be delivered;

(c) If Formula Air has informed the Client in writing that the Pr
oduct is completed and the Client has not made it apparent in writing whether or not the Product has been approved within 7 (seven) days after the notification;

(d) If the Client has not approved the Product on the basis of minor defects or absent parts, which can be repaired or delivered within 30 (thirty) days and that do not prevent the taking into use of the Product.

22.2 If the Client does not approve the Product, the Client will be obliged to make this apparent to Formula Air in writing stating reasons. The Client must provide Formula Air with the opportunity to still deliver the Product within a reasonable period.

22.3 If the Product is delivered in stages and taken into use by the Client, the Client will indemnify Formula Air against claims by third parties for damage of the parts of the Product that are not yet delivered and that is caused by the use of parts of the Product that have already been delivered.


23. LIABILITY OF FORMULA AIR DURING CONTRACTING WORK

23.1 Formula Air will no longer be liable for shortcomings of the Product after the delivery of the Product, except for if there is a defect that was already present at the delivery and the Client could not have noticed this defect at the delivery and regarding which the Client can plausibly contend that the defect was already present to a high level of probability at the time of delivery.

23.2 The Client must, before Formula Air can be liable on the basis of subclause 1 of this article, provide Formula Air with the opportunity to remedy defects within a reasonable period, unless the costs of repair are not in proportion with the interest of the Client in repairing the Product instead of receiving compensation.