General Terms and Conditions
1 September 2023
General Sales Terms and Conditions of E2C B.V., registered with the Chamber of Commerce under number 65432231, hereinafter referred to as E2C.
1. Applicability of the conditions
1.1 These conditions apply to all products and services offered, sold, and/or delivered by E2C, including technical advice related to the products and associated activities. These conditions also apply to all agreements between E2C (or any affiliated group company as referred to in Article 2:24b Dutch Civil Code that refers to these conditions) and a counterparty, hereinafter referred to as "Customer." The term "agreement" shall mean any agreement concluded between E2C and Customer, as well as any amendments or additions thereto, and all actions taken in preparation for and in the execution of such agreement.
1.2 The use of Customer's general terms and conditions is expressly rejected unless E2C has expressly and in writing accepted their application prior to the conclusion of an agreement
1.3 All persons involved in the execution of Customer's orders by E2C, including employees and directors of E2C and affiliated legal entities, may invoke the provisions of these general terms and conditions.
1.4 If more than one person acts as a counterparty of E2C or behaves as such (e.g., by paying invoices to E2C), they are all jointly and severally liable for the obligations towards E2C.
1.5 If one or more provisions of these general terms and conditions are invalid or void or are declared void, the remaining provisions shall remain in full force. E2C and Customer shall then agree on new provisions to replace the invalid or void provisions, while aiming to achieve the purpose and intent of the original provision to the greatest extent possible.
1.6 E2C reserves the right to amend these general terms and conditions. Customer is deemed to have accepted the relevant changes unless written objections are received within fourteen days of E2C's notification of the amendment.
1.7 In case of translation of these conditions into another language, the Dutch text shall be considered binding.
2. Offers and Quotations
2.1 All offers and quotations from E2C are always non-binding and indivisible unless otherwise explicitly stated in the offer in writing. Price lists, brochures, yield and payback calculations, and any other information provided by E2C do not bind E2C in any way. E2C is not obligated by deviations in the acceptance of an offer, including the acceptance of only specific parts of an offer. Delivery times mentioned in an offer are indicative.
2.2 The agreement only becomes binding after E2C has confirmed an order or agreement in writing or has actually commenced the execution of the order. E2C reserves the right to withdraw its offer within ten (10) working days after receiving the acceptance of an offer. E2C is not obliged to supply products that are no longer part of its product range.
2.3 Clear mistakes and errors in writing, printing, or calculation can always be rectified by E2C.
2.4 The scope of work and products is limited to what is explicitly described in the offer. The Customer is responsible for the accuracy and completeness of the data provided to E2C, which forms the basis of E2C's offer. Work or products that are not explicitly included in the offer or that result from incorrect or incomplete information provided by the Customer will be considered as additional work or subsequent orders and will be invoiced separately. E2C is not obliged to accept requests for additional work or subsequent orders and may require the conclusion of a new written agreement.
2.5 If the Customer cancels an order, purchase, or assignment in whole or in part, the Customer is obliged to reimburse E2C for all costs incurred in the execution of the order or assignment. The Customer is also obliged to compensate for any loss of profit and other damages. The cancellation costs will be determined at a minimum of 30% of the total order amount (excluding VAT), without prejudice to E2C's right to claim full compensation resulting from the cancellation.
2.6 Additional agreements or changes to an agreement, as well as commitments made by E2C's personnel, are only binding if confirmed in writing by E2C.
2.7 If the Customer is an individual, they have the statutory right to cancel or dissolve the purchase free of charge within 14 days of the purchase, provided that the purchase was made remotely, and the Customer meets other statutory requirements.
3. Prices and Payments
3.1 he prices set by E2C are denominated in Euro (€) and do not include value-added tax, other government-imposed charges, actual costs incurred from third parties or materials, or packaging and shipping expenses, unless stated otherwise.
3.2 If there are changes that increase the cost price, E2C reserves the right to adjust the agreed-upon price with the Customer. If the Customer does not agree to such an adjustment, both parties have the right to terminate the agreement within fourteen days of receiving notice, with the termination taking effect from the date when the adjustment would become applicable. This right does not apply if the adjustment is based on a previously agreed-upon index or benchmark that was known at the time of entering into the agreement.
3.3 E2C's administrative records serve as conclusive evidence for deliveries made and work performed by E2C, as well as for the Customer's payment obligations. Regardless of whether the Customer has put the delivered items into use or benefited from them, the invoiced amounts must be settled.
3.4 Unless explicitly agreed otherwise, delivery will only occur after full advance payment of the agreed-upon amount. Upon receiving an order, E2C will issue an invoice to the Customer. The Customer is required to settle all invoices in accordance with the payment terms specified on the invoice. In the absence of specific terms, the Customer must make payment no later than one day before the delivery of goods or services, or within 8 (eight) days from the invoice date if earlier. In the event of the Customer's liquidation, bankruptcy, or suspension of payments, E2C's claims against the Customer become immediately due and payable.
3.5 After the expiration of the payment term, the Customer is automatically in default and is liable for an interest rate of 2% per month on the outstanding amount, unless the statutory commercial interest rate, as defined in 6:119a BW, is higher, in which case the statutory commercial interest rate applies. Additionally, the Customer is obligated to fully cover extrajudicial costs associated with the collection of this debt or legal actions, with such costs being at least 15% of the amount due.
3.6 The Customer is explicitly prohibited from offsetting claims against E2C or suspending payments. This prohibition on offsetting also applies in the event of the Customer's bankruptcy or (provisional) suspension of payments.
3.7 Agreed-upon payment discounts are one-time and can only be applied to the payment of the relevant invoice. They do not entitle the Customer to future discounts unless expressly agreed upon in writing. In the case of changes in the quantity of products or services to be acquired during the duration of an agreement, granted discounts or benefits may be adjusted or revoked, as well as the offered pricing level. Price reductions are not retroactive.
3.8 Each payment made by the Customer is intended to settle all outstanding interest and costs, and is subsequently allocated to the invoices that have been outstanding for the longest period, even if the Customer specifies that the payment pertains to a later invoice.
3.9 Complaints regarding invoices must be submitted in writing and accompanied by a rationale within eight days of receipt by the Customer. If this deadline is exceeded, all claims against E2C will be forfeited.
3.10 E2C reserves the right to request additional security to ensure the fulfillment of the Customer's payment obligations. If the Customer fails to meet their payment obligations on time or does not provide timely and complete security for the fulfillment of their payment obligations, E2C has the right to immediately suspend or cancel the execution of the agreement. In such a case, E2C is under no obligation to make any compensation. The Customer remains obligated to reimburse E2C for services already rendered.
3.11 E2C has the right to offset claims held by the Customer (or an affiliate of the Customer) against E2C with claims that E2C or its affiliated companies have against the Customer.
4. Reservation of Ownership and Right of Retention
4.1 All goods delivered and yet-to-be-delivered shall remain the exclusive property of E2C until the complete settlement of all claims held by E2C against the Customer or any group companies of the Customer, including claims as stipulated in Article 3:92, paragraph 2 of the Dutch Civil Code (BW).
4.2 As long as ownership of the goods has not been transferred to the Customer, the Customer shall not be authorized to alienate, pledge, or otherwise encumber these goods for the benefit of third parties.
4.3 The Customer undertakes to, upon the initial request of E2C, cooperate in the establishment of a lien on any claims held by the Customer against its customers arising from the onward supply of goods delivered under reservation of ownership.
4.4 The Customer is obligated to maintain due care in the storage of goods delivered under reservation of ownership and to keep them identifiable as the property of E2C.
4.5 The Customer shall be obliged to insure the goods delivered under reservation of ownership against risks including (but not limited to) fire, explosion, water damage, and theft. Said insurance must cover at least the risks outlined in the Dutch Insurance Market Fire Policy. Upon E2C's request, the Customer must provide a copy of the insurance policy. In case of an insurance payout, E2C is entitled to receive these amounts, and the Customer undertakes in advance to cooperate in the transfer of these amounts to E2C.
4.6 In the event that E2C is unable to invoke its ownership reservation due to the mixing, processing, or attachment of the delivered goods, the Customer commits to pledging the newly formed goods to E2C.
4.7 IShould the Customer default in fulfilling its payment obligations, experience financial distress, or be under threat of financial difficulties, E2C possesses the right to repossess the goods delivered under reservation of ownership that are still in the Customer's possession. The Customer grants E2C unrestricted access to its premises and/or buildings at all times for the purpose of inspecting the goods and/or exercising E2C's rights. The Customer provides E2C and third parties engaged by E2C with prior, unconditional, and irrevocable consent to enter the locations where the goods are situated and to take possession of the goods. Any costs or damages arising from the repossession shall be borne by the Customer. In the event that, despite receiving written notice, the Customer refuses to cooperate with the retrieval of the delivered goods, the Customer shall incur, without the necessity of judicial intervention, an immediately payable penalty of €500.00 per day that it remains in default. Furthermore, the Customer shall be liable for a penalty equivalent to 10% of the value of the repossessed goods, without prejudice to E2C's right to claim full compensation for damages arising from the Customer's attributable failure.
4.8 E2C reserves the right to retain the goods ordered by the Customer that are in E2C's possession until all outstanding amounts have been settled by the Customer, irrespective of whether the relevant agreement pertains to these goods or other goods belonging to the Customer. E2C also retains the right of retention in the event of the Customer's bankruptcy.
4.9 These aforementioned provisions do not diminish E2C's other rights.
5. Delivery and Terms
5.1 Unless otherwise explicitly stated in writing, deliveries are made under Ex Works (EXW) conditions, signifying that delivery occurs from E2C's warehouse in Rotterdam. Delivery deadlines are estimated based on the best available information at the time of entering into the agreement. E2C will make reasonable efforts to adhere to these deadlines. However, delivery deadlines are purely indicative and not binding. External factors such as adverse weather conditions may, for example, lead to delivery delays. The exceeding of a specified or agreed-upon delivery deadline does not automatically constitute a breach of contract by E2C. In case of a delay beyond the agreed delivery deadline, the Customer must provide written notice to E2C, allowing E2C a reasonable additional period to effect delivery. This additional period is equal to the original delivery time, with a maximum extension of three months.
5.2 The risk of loss, theft, or damage to goods, services, and data transfers to the Customer upon these items coming under the actual control of the Customer, a carrier, or a duly authorized representative of the Customer.
5.3 E2C is not bound by (delivery) deadlines that cannot be met due to circumstances beyond its control arising after the agreement has been executed. E2C is also not held to delivery deadlines if the Customer fails to strictly fulfill its (payment) obligations under the agreement or if modifications have been agreed upon regarding the content or scope of the agreement (such as additional work, specification changes, etc.) or a change in the method of executing the agreement. In the event of a delay beyond a deadline, E2C will enter into discussions with the Customer.
5.4 In cases of force majeure, the delivery deadline is automatically extended by the duration of the force majeure event. Force majeure is defined as described in Article 6:75 of the Dutch Civil Code. Force majeure on the part of E2C also encompasses situations beyond E2C's control, including (but not limited to) strikes, business and communication disruptions, customs impediments, transportation issues, weather conditions, and delayed deliveries by E2C's suppliers or third parties contracted by E2C. If the force majeure situation persists for a minimum of 60 consecutive days, both parties have the right to terminate the agreement in writing. If, at the time of the force majeure situation, one party has already partially fulfilled its obligations under the agreement or can do so, or if costs have been incurred for the execution of the assignment, that party has the right to separately invoice these activities and costs. In cases of force majeure, neither party may claim damages.
5.5 If it becomes evident that the delivery of an ordered item is impossible, E2C will reasonably attempt to provide an equivalent substitute item.
6. Termination of the Agreement
6.1 Both E2C and the Customer shall have the right to terminate this agreement with immediate effect under the following circumstances:
- If the other party files for a suspension of payments or is declared bankrupt.
- If the other party significantly breaches its obligations as arising from the executed agreement.
6.2 In the event of termination, where the Customer has already received performance related to the execution of the agreement, such performances and the corresponding payment obligations shall not be nullified, unless the Customer can substantiate that E2C is in default regarding these performances. Any amounts invoiced by E2C for services or deliveries properly performed or made prior to termination shall remain due and shall become immediately payable upon termination.
7. Service & Warranty
7.1 Unless otherwise specified, E2C does not extend any warranties beyond or additional to those provided by its suppliers and/or manufacturers (referred to herein as "manufacturer's warranty") for the respective product or service.
7.2 In cases where a supplier and/or manufacturer does not generally offer a warranty for a specific product, E2C guarantees that the product will reasonably conform to the expected characteristics for such a product for a period not exceeding twelve (12) months from the date of purchase.
7.3 Tolerances are applicable to all goods and services offered. This means that within reasonable limits, E2C may make alterations to specified specifications if they do not significantly impact the technical execution and the reasonable operational or productive utility of the product. Such deviations (including variances in color in delivered solar panels) or minor errors shall not release the Customer from its obligations under the agreement. Unless explicitly agreed otherwise, brand designations do not affect the conformity of the delivered product.
7.4 If the Customer has grievances concerning the delivered goods or services, the Customer must afford E2C or the supplier the opportunity to promptly investigate these grievances. The Customer is obligated to provide as comprehensive and detailed a description as possible of the deficiency. Subsequent inquiries will be conducted in the least burdensome manner, for which the Customer must enable E2C, if necessary, through the provision of goods or data. All reasonable costs incurred for the necessary investigation shall be borne by the Customer if the grievances are determined to be unfounded.
7.5 E2C or its supplier may charge for repair expenses at their customary rates if there is improper or incorrect use by the Customer or other causes not attributable to E2C or the supplier. The performance of warranty work does not extend or renew the warranty period.
7.6 Any warranty obligation shall lapse if the Customer modifies the delivered product, or if the Customer fails to strictly adhere to the instructions and regulations provided by E2C or the manufacturer. Moreover, any warranty lapses in case of non-compliance with prevailing relevant quality standards as described in NTA 8013 and NEN 1010 and NEN-ENIEC 62446 (Installation, Maintenance, and Inspection of PV Systems). Additionally, the failure to fulfill one or more obligations under any agreement concluded with E2C leads to the suspension of warranty obligations, without requiring further warning or notice.
7.7 Returns are permitted solely with prior consent from E2C. E2C may impose conditions on the return. The products to be returned, along with their original packaging, must be complete, undamaged, and unused. In no circumstances shall permission be granted for the return of products or services that are no longer part of E2C's regular product range or that have been specially ordered or manufactured for the Customer.
7.8 If a return is authorized by E2C, the costs incurred by E2C for processing the return shall be invoiced to the Customer. These costs shall be calculated at a minimum of 30% of the total order amount (excluding VAT), without prejudice to E2C's right to seek full compensation for damages arising from the return.
7.9 The advice, opinions, expectations, forecasts, and recommendations provided by E2C, including those related to potential yield or return, shall not be construed as guarantees under any circumstances. E2C shall bear no responsibility for acting on such statements.
7.10 In the event that E2C or its supplier identifies a defect in the delivered product, they may opt to either replace the defective item, effect repairs, or provide the Customer with a discount on the purchase price, in accordance with their customary rates. In the first two scenarios, the Customer must, when feasible, return the identified faulty goods to them. Defects in a segment of the delivered goods do not grant the Customer the right to reject the entire delivered performance.
7.11 The Customer is obliged to meticulously inspect the delivered products for damage, defects, and quantities immediately upon delivery. The Customer's right to invoke a breach by E2C shall lapse if the Customer fails to file a written complaint with E2C within a reasonable period and, in any event, within 8 days of discovering or reasonably should have discovered the breach, providing detailed justifications.
7.12 Any right of retention shall cease once the Customer has processed, modified, or amalgamated the products or a portion thereof.
7.13 The Customer shall possess no rights in relation to defects other than those explicitly outlined in this warranty.
8. Liability & Indemnification
8.1 All limitations and exclusions of liability also extend to the benefit of E2C's directors, its employees, and all legal entities or individuals engaged in the execution of the agreement or any tasks on behalf of the Customer.
8.2 To the extent permitted by applicable law, any form of liability on the part of E2C is excluded, except in cases of intentional misconduct or conscious recklessness by E2C.
8.3 If the exclusion of liability is not legally permissible, the total collective liability of E2C, resulting from attributable failure to perform the agreement or for any other reason, is limited to the compensation of actual direct damages suffered, up to a maximum of the price agreed upon for that particular agreement, as paid by the Customer (excluding VAT). If the agreement primarily encompasses a contract of longer than one year, the price agreed for the agreement is deemed to be the total of the fees (excluding VAT) agreed for one year. In no event, however, shall the total compensation for damages exceed €10,000 (ten thousand euros). Direct damages are to be construed solely as:
a. reasonable costs incurred by the counterparty to bring E2C's performance under the agreement into conformity with its provisions; nevertheless, this substitute damage shall not be reimbursed if the agreement is terminated by or at the request of the Customer;
b. reasonable costs incurred to ascertain the cause and extent of the damage, insofar as the determination pertains to direct damage within the meaning of these terms and conditions;
c. reasonable costs incurred to prevent or mitigate damage, to the extent that the counterparty can demonstrate that these costs have resulted in the limitation of direct damage within the meaning of these terms and conditions.
8.4 E2C's liability for damage to the Customer's property or for indirect damages, consequential damages, loss of profits, missed savings, imposed fines, diminished goodwill, business interruption damages, damages arising from claims by the Customer's customers or suppliers, mutilation or loss, or disclosure of data or documents, and all other forms of damage, regardless of the cause, is excluded.
8.5 If the damage is covered by the Customer's insurance, E2C is not obliged to compensate for such damage.
8.6 A prerequisite for the accrual of any right to compensation is that the Customer notifies E2C in writing and holds E2C liable no later than 30 days after the occurrence of the grounds for liability. Claims by the Customer against E2C for compensation and other powers and claims shall expire one year after the event giving rise to the damage or claims, whether directly or indirectly.
8.7 A series of interconnected events causing damage shall be considered one event for the purposes of this article.
8.8 The execution of the agreement occurs solely for the benefit of the Customer. Third parties can never derive rights from the execution of the agreement by E2C. The Customer shall indemnify E2C against claims from third parties alleging to have suffered damage through or in connection with work performed by E2C on behalf of the Customer.
9. Personal Data and Privacy
9.1 In cases where an agreement involves the processing of personal data, both parties shall adhere to their obligations under relevant legislation. Both parties shall implement suitable technical and organizational measures to safeguard personal data against loss and any unlawful processing.
9.2 The Customer hereby provides instructions and authorizes E2C to process personal data required for the execution of the agreement and the utilization of E2C's services. E2C shall process this data for well-defined purposes, including:
- Evaluating and accepting (potential) Customers, engaging in and fulfilling agreements with or on behalf of Customers, and managing financial transactions;
- Conducting analyses of personal data for statistical and scientific purposes, product development, and management reporting;
- Conducting (targeted) marketing activities to establish, maintain, or expand relationships with Customers, while considering specific characteristics;
- Complying with legal obligations.
10. Intellectual Property Rights and Statements
10.1 All intellectual and industrial property rights concerning the equipment or other materials supplied by E2C, including analyses, designs, documentation, reports, and quotations, are exclusively vested in E2C, its licensors, or suppliers. The Customer shall only obtain the temporary usage rights explicitly granted in these terms and under the law. Any other or broader rights of the Customer to reproduce or disclose are excluded. Usage rights are granted on the condition that the Customer has fully satisfied all fees owed to E2C, irrespective of the legal basis.
10.2 In cases of ambiguity regarding the rightful owner of any intellectual or industrial property rights, it shall be presumed that E2C is the rightful owner, unless the Customer can establish the contrary.
10.3 The Customer is prohibited from removing or altering any indications concerning the confidential nature, copyrights, trademarks, trade names, or other rights of intellectual or industrial property from the materials supplied.
10.4 The Customer shall not make any mention of E2C or utilize the (brand) name of E2C as a reference in publications or advertising materials unless otherwise expressly agreed in writing.
11. Applicable Law and Competent Court
11.1 All legal relationships and agreements between E2C and the Customer are governed by Dutch law, with the explicit exclusion of rules of private international law, including the Vienna Sales Convention.
11.2 Any disputes arising from the Agreement or agreements resulting therefrom shall be exclusively settled by the court in Rotterdam. However, E2C reserves the right to refer a dispute to the competent court in accordance with applicable laws or treaties.
