General conditions Expandable

ARTICLE 1 - DEFINITIONS

In these general conditions and the agreements they have been declared applicable to, the following terms are defined as below:

Expandable: The private limited liability company Expandable B.V. or the legal person linked to it, which declares these conditions applicable in the context of a quotation to or Agreement with Client.

Client: The (legal) person ordering Expandable to make, sell, or rent out Products and/or to carry out Work, or receiving a quotation to that effect from Expandable or otherwise acting as the counterparty of Expandable.

Agreement: The agreement between Expandable and Client consisting of this quotation, these general conditions, the specific conditions and any other conditions as may have been established between Expandable and Client.

User location: location where the Client wishes to or will use the product.

Products: All products sold or to be sold and/or rented out or to be rented out by Expandable to Client, including those further described in the quotation or Agreement.

Services: All services to be provided or already provided by Expandable to Client, including those further described the quotation or Agreement

Work: the activities regarding the installation and/or construction and, if applicable, the dismantling and deliver of the Products.

Delivery: The moment when Expandable has confirmed the date to Client on which the products and/or the Work have been delivered.

ARTICLE 2 – APPLICABILITY

2.1 These general conditions are applicable to all products delivered by Expandable, to all executed Work and provided Services, and are a part of all legal relationships between Expandable and Client, including all offers, quotations, assignments, legal relationships, and agreements with Client and are also applicable to all precontractual situations between Expandable and Client, including negotiations and quotations, also in the event these do not lead to the conclusion of an Agreement.

2.2 Deviating conditions exclusively apply to the extent they have been expressly accepted in writing by Expandable and are only effective for the relevant Agreement(s).

2.3 Modifications and additions to any provision in the Agreement are only effective if they have been confirmed by Expandable.

2.4 The Agreement depicts the full content of the rights and obligations of parties and replaces all previous written and verbal arrangements, statements and/or utterances of parties.

2.5 If any provision of these general conditions for whatever reason is not valid, the conditions will remain effective otherwise and parties will negotiate on the content of a new provision, which provision approximates the content of the original provision as closely as possible.

ARTICLE 3 – QUOTATIONS

3.1. The offer of Expandable which is included, for example, in a quotation always is non-committal, both regarding price, content, implementation, and as to delivery time and availability. If an offer is accepted by Client, Expandable has the right to revoke this offer within two business days after receipt of the acceptance free of charges.

3.2. The content of all price lists, brochures, and other data provided with a quotation is stated with the greatest possible precision. Things may change in prices (for example of raw or other material). The relevant information is therefore only binding for Expandable if it is emphatically confirmed by Expandable in writing. Quotations are based on information provided by Client.

3.3. In case the offer is not accepted by Client, Expandable has the right to bill all costs it has had to incur to make its offer to Client.

ARTICLE 4 – ADOPTION OF THE AGREEMENT

4.1. The Agreement is adopted through the acceptance by Client of the offer of Expandable, or through the confirmation by Expandable of an assignment of Client after receipt of an assignment or through the effective implementation of the order in case by Expandable or the delivery of Products and/or the execution of the Work and/or the provision of the Service.

4.2. For activities for which, for reasons of nature and size, no quotation and/or order confirmation is sent, the invoice also counts as the proof of adoption of the Agreement.

4.3. Every Agreement is adopted subject to the cancellation clause of the creditworthiness of Client.

ARTICLE 5 - PRICES

5.1. All listed prices are exclusive of sales tax (VAT) and exclusive of all other levies, duties, or charges, owed in connection with the implementation of the Agreement. The amounts must therefore still be increased by sales tax. Prices furthermore are exclusive of costs for packaging, transport, Delivery, dismantling, and service/maintenance, unless emphatically agreed otherwise in the Agreement.

5.2. If pursuant to the Agreement partial deliveries will take place, Expandable has the right to intermediately modify the conditions upon the various partial deliveries.

5.3. If prices and/or rates of price-determining factors, such as wages for example, materials, currency differences, import duties, and insurance rates undergo an increase, for whatever reason, Expandable has the right to correspondingly adjust the price in the Agreement.

5.4. If the implementation of the assignment by Expandable upon request of Client, or due to the absence of information or instructions, or for other reasons lying with Client, is delayed, Expandable is authorised to increase the prices as a compensation for the additional costs resulting (for example loss of interest).

ARTICLE 6 – PAYMENT

6.1. The payment of the invoices of Expandable must effectively take place in the currency indicated on the relevant invoices. Invoices must be paid within 14 days after invoice date without any discounts, deductions, or set-offs. Client does not have the right to suspend or set off his payment obligations. The value date indicated on the bank statements of Expandable is considered the day of payment.

6.2. If Client has timely complied with his obligations towards Expandable, Client falls immediately into default, without requiring any default notice. From the moment in which Client is in default until the day of full settlement Client owes default interest in the amount of 1.5% over the amount owed per month or a part thereof, without prejudice to the right of Expandable to compliance, rescission and/or full indemnification pursuant to the law.

6.3. All (actual) collection costs for what the Client owes, both judicial and extrajudicial costs, are borne by Client. This covers, amongst other things, the cost of seizure, bankruptcy application, collection costs, as well as the costs of lawyers, bailiffs, and other experts to be deployed by Expandable.

6.4. Upon first request to that effect from Expandable, Client is bound to settle advance payments to the amounts as indicated by Expandable.

Expandable also has the right to demand sufficient security from the Client, at the latter’s expense and risk. The Client is always obligated to lodge (additional) security upon first request, such as, for example, a bank guarantee or a lien to (all) assets. If the Client is in default with lodging the security required, the contractor is authorised to suspend the activities or to rescind the Agreement. The Client is obligated upon first request to have established a lien (non-possess or not) to the benefit of Expandable on movable property as well as on all current as well as future claims of the Client on third parties, and such as a security for payment of all existing and future claims on the Client, also including those on account of collection costs, interest, and fines. The Client declares to be authorised to pawn. The Client thereby grants an irrevocable authorisation to Expandable to establish a lien on the goods on behalf of the Client, to the benefit of Expandable.

6.5. Invoices are considered to have been accepted by Client and approved if Expandable has not received an objection to them within eight days after invoice date by way of registered mail. The contesting of the accuracy and/or objection against the amount of the invoice does not entail the suspension of the payment obligation of Client.

ARTICLE 7 - DELIVERY/RISK

7.1. Unless established otherwise in writing, Expandable will deliver the products ex works (at the factory). That means that Expandable delivers the good to Client by making them available at its premises to Client. Client is responsible for the collecting, transport, etc. If he wants, Client can also outsource this (at the expense and risk of Client) to Expandable or to a company associated with it.

7.2. The products are at the risk of Client from the moment of delivery or from the moment that receipt is refused or is considered to have been refused.

7.3. Expandable has the right to have delivery take place in batches.

ARTICLE 8 – RECEIPT

8.1. Client is obligated to collaborate on the established date with delivery (for example by (having) picked up the goods), as well as to receive the products. In case of failure to receive the products by Client, Expandable has the right to pass on any costs which may be associated (including the cost of storage, transport, and insurance) as well as the loss of turnover and profit incurred by Expandable to Client.

8.2. Receipt is considered to have been refused if the ordered products have been offered for delivery, but delivery does not take place. The day on which delivery is refused is considered the day of delivery.

8.3. If receipt is refused on the established date, the Agreement enters into effect on the day of Delivery and Client is bound nevertheless to settle the established compensations to Expandable.

8.4. Client safeguards Expandable against all damage and costs, also including lost turnover and profit, as a consequence of non-, non-timely, or incomplete delivery, Delivery or execution of the Agreement as a result of or in connection with circumstances within the sphere of control of Client (including, though not limited to, the lack of necessary facilities, licenses and/or permissions).

ARTICLE 9 – DELIVERY TIMES

9.1. The delivery time and/or implementation period are established by Expandable by approximation. Established terms are not strict time limits, unless expressly established otherwise.

9.2. Upon establishing delivery and/or the implementation period, Expandable assumes that it is able to implement the assignment under such circumstances as are known to it at that moment.

9.3. The delivery time and/or implementation period only enters into effect when agreement has been reached on all commercial and technical details, all necessary information, definitive, approved drawings etc. are in the possession of Expandable, the established (instalment) payment has been received and the necessary conditions for the implementation of the assignment have been complied with.

  1. In case of other circumstances than those which were known to Expandable when it established the delivery time and/or implementation period, Expandable can extend the delivery time and/or implementation period and/or modify it to the extent necessary to carry out the assignment under these circumstances.
  2. In case of additional work, the delivery time and/or implementation period is extended by the time required to (let) supply the material and components for this and to carry out the additional work.
  3. In case of suspension of obligations by Expandable, the delivery time and/or implementation period are extended by the duration of the suspension.
  4. In case of force majeure or unworkable circumstances, such as unworkable weather, the delivery time and/or implementation period is extended with the period of the delay which has resulted.

9.4. Overrunning of the established delivery- and/or implementation period under no circumstance confers the right to be compensated for damages, unless this is established in writing.

ARTICLE 10 – INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS AND EXTENDED RETENTION OF PROPERTY

10.1. It is not permitted to Client to remove or alter any indication regarding intellectual property, including – though not limited to – copyrights, brands, trade names, patents, or other rights from the delivered products.

10.2. Expandable retains all rights of intellectual property, including, though not limited to, copyrights to the offers made by it, provided designs, pictures, drawings, prototypes, and Products. All intellectual property rights which are used or developed by Expandable during or in relation to or as a result of the assignment (such as innovations or further developments), are and remain the property of Expandable. To the extent any right of intellectual property as intended in the preceding sentence legally comes to lie with Client, Client will forthwith inform Expandable accordingly and upon the first request of Expandable and at the expense of Client grant his full collaboration with the transfer of such rights of intellectual property to Expandable, also including, though not limited to, the inscription of such transfer in the appropriate registers, where applicable.

10.3. The rights to the information mentioned in the preceding section remain the property of Expandable, regardless of whether costs have been charged to Client for its manufacture. This information may without the prior written consent of Expandable not be multiplied, used, or shown to third parties. Per violation of this provision, Client owes Expandable an immediately payable fine in the amount of € 25,000 per violation, without prejudice to the right of Expandable to demand full indemnification and compliance with this article.

10.4. If Expandable in derogation to the preceding is willing to commit itself to the transfer of a right of intellectual property, such a contract can only be entered into in writing and emphatically. If parties establish in writing that a right of intellectual property with regard to products developed specifically for Client will be transferred to Client, this does not impair the right or the possibility of Expandable to use and/or exploit the components, general principles, ideas, designs, documentation, works, protocols, standards and the likes which lie at the basis of that development, for other purposes without any restriction, whether for itself or for third parties. Nor does the transfer of a right of intellectual property impair the right of Expandable to make developments for its own benefits or for those of a third party which are similar to or derived from those which have been or are made for the benefit of Client.

10.5. Expandable safeguards Client against any legal claim by a third party which is based on the contention that products developed by Expandable itself violate a right of intellectual property of that third party, on the condition that Client informs Expandable forthwith in writing regarding the existence and leaves the substance of the legal claim and the handling of the case, including the making of any possible settlements, entirely to Expandable. To that effect, Client will grant the necessary authorisations, information, and assistance to Expandable, so as to defend itself, if necessary on behalf of Client, against these legal claims. This obligation to safeguard lapses if the alleged violation is related (i) to material made available by Client for use, processing, transformation, or incorporation, or (ii) to modifications which Client has applied or has had apply by a third party to Products without the written consent of Expandable. If it has been irrevocably established legally that the products developed by Expandable itself violate any right of intellectual property belonging to a third party or if in the opinion of Expandable there is a reasonable chance that such violation occurs, then Expandable will, if possible, make sure that Client can continue to use the delivered Products or functionally equivalent others. Any other or further safeguarding obligation of Expandable is excluded.

10.6. Client guarantees that no third-party rights oppose the provision to Expandable of information and/or material with the objective of use, processing, installation, or incorporation by Expandable. Client safeguards Expandable against any third-party claim which is based on the contention that such provision, use, processing, installation, or incorporation violates any right of that third party.

10.7. Expandable reserves itself the property of all matters delivered by or on behalf of it. The retention of property is extended. Expandable therefore reserves itself the property of all delivered goods (that is, also of goods which have been paid, in case a part has not been paid), on the basis of all (for example: earlier) agreements between Expandable and the Client.

    1. For as long as the Client:
  1. has not (yet) paid the total owed amounts (pursuant to any agreement whatsoever) to Expandable and/or ;
  2. falls short or will fall short in complying with his obligations from this or other agreements and/or;
  3. has not settled claims which result from non-compliance with obligations, such as damage, fines, interest, and costs;

all delivered matters remain the property of Expandable until the Client has fulfilled all his obligations vis-a-vis Expandable. For as long as delivered matters are subject to a retention of property, the Client can and may not alienate, encumber, or transfer these outside the field of his regular operations (neither at the level of property, nor of contractual right).

    1. For as long as delivered matters are subject to retention of property, client may not encumber them. The goods do not fall within the realm of his property. The Client is not authorised, whether in the field of property rights or of contractual rights, to encumber or alienate the goods.
    2. After Expandable has invoked its retention of property, it may recover the delivered matters. The Client will give his full assistance for this upon first request.

10.11 Expandable has a lien and a right of retention on all matters which it has or will have under its control on any account whatsoever, as well as for all claims he has on client or may obtain with regard to anyone desiring their release.

10.12 If the Client, after the matters have been delivered to him by Expandable in conformity with the agreement, has fulfilled his obligations, the retention of property revives regarding these matters if the Client does not fulfil his obligations from an agreement concluded later on. To the extent required, the Client hereby transfers (back) those goods beforehand to Expandable and hereby grants permission and consent for this and authorises Expandable irrevocably to take all such actions to that effect which are useful or necessary to achieve the transfer.

    1. Contractor/seller prior to the intended transfer of property has access at all times to the matters which are his property, wherever they are located.
    2. Upon violation of what is stipulated in this article, client/ buyer forfeits a fine of 100,000 euros, increased by 1,000 euros for every day that the violation continues, with a maximum of 2,000,000 euros.

ARTICLE 11 - ADVICE, DESIGNS, AND MATERIALS

11.1. Client cannot derive any rights from advice and information he receives from Expandable if these do not directly regard the assignment.

11.2. Client is responsible for the drawings, calculations, designs made by or on behalf of him and guarantees the functional suitability of materials prescribed by or on behalf of him.

11.3. Client safeguards Expandable against any third-party claim regarding the use of drawings, calculations, designs, materials, samples, models and the likes provided by or on behalf of Client.

ARTICLE 12 – MAINTENANCE AND USE OF THE PRODUCTS

12.1. For as long as Expandable has an interest in the diligent use of the products (including, though not limited to: during a rental period, or in case of purchase respectively for as long as the products are subject to a retention of property of Expandable and in case a Buy-back option has been established) the rules for maintenance and use of the products below apply.

12.2. Without the prior written consent of Expandable, Client will not apply or allow any changes in or to the products. Notwithstanding the approval of Expandable regarding the preceding, Client will upon first request of Expandable, previous to the returning of Products at his expense, take care of the removal of applied materials and of restoral in the original condition without Client being able in the matter to claim any compensation.

12.3. The application of modifications and/or the carrying out of repairs may exclusively be carried out by Expandable (or by third parties approved by Expandable), unless written consent has been granted to Client to (let) carry out those activities himself.

12.4. Client is supposed to have received the products in good condition and state of repair. Client will use the products diligently in accordance with their end-use and keep the products in good conditions and a proper state of repair at own expense, barring normal wear and aging. All costs for legally mandatory, preventive, corrective, and usage-dependent maintenance to the products is borne by Client.

12.5. Client can deploy Expandable at the expense of Client for the carrying out of the maintenance activities on the products intended in this article, all matters based on a maintenance contract to be concluded between Expandable and Client. This maintenance contract will never regard applied modifications and/or additions which can be undone at the end of the Agreement without damage to the products and without significant costs. Client himself will at all times take care of this at own expense and risk.

12.6. In case of a Buy-back option as intended in the specific conditions for buy-back, Client is bound to conclude a maintenance contract with Expandable, and all matters in conformity with the model maintenance contract provided by Expandable to Client.

12.7. Client is responsible for the daily maintenance of any possible systems. Parties establish that (mandatory) inspections, Risk Inventories and Evaluations, maintenance and/or other measures which must be taken pursuant to a government injunction and/or an order of a utilities company and which regard (the use of) systems which are present in the products, in the widest sense of the term, are borne by Client. This also applies in case Expandable is responsible for the implementation of these measures on grounds of rules established by the authorities. Also intended by these measures is the periodic risk analysis, but also, for example, care for labour conditions. Expandable is not liable for the consequences in case Client does not comply with government requirements. Client safeguards Expandable against claims by third parties concerning.

12.8. In case of frost and snow, Client must take all measures necessary to prevent the freezing of heating systems and/or conduits. Damage to the products due to freezing are borne by Client.

12.9. Expandable has the right to control the products from time to time. In case Expandable holds that the products are used in an improper manner or neglected, Expandable has the right to retake possession of the products and/or to (let) bring matters in proper conditions and in a god state of repair again, and all matters at the expense of Client.

12.10. If at the end of the (rental) term (upon return to the warehouse of Expandable) in the opinion of Expandable the products are no longer in good conditions and a proper state of repair, barring normal wear through use, Expandable will inform Client regarding and (let) bring the products in the original state of repair, at the expense of Client.

12.11. In connection with the use, maintenance, and storage of the products by Client, Client must be compliant with all legal requirements, including requirements of permits or instructions of the competent authorities. If use is made of the public road with the products, Client is obligated to take care of the necessary approvals of the competent authorities.

12.12. Client will not use or store harmful substances in the products, barring if and to the extent it is customary for operational management. Use or storage of harmful substances takes place exclusively at the expense and risk of Client.

12.13. Client will not sell, transfer, (sub-)let or encumber with a limited right or (otherwise) give in use to a third party the products, to the extent not explicitly established otherwise in the Agreement. In case Client acts in violation of this, he will thereby forfeit an immediately exigible fine of € 12,500 per day without requiring any injunction, default notice, or judicial intervention, and without prejudice to Expandable’s right to full indemnification and compliance pursuant to the law.

12.14. Client is bound to take care of the installation and maintaining fencing at the User location if this is required in view of the situation on location and/or such law-enforcement regulations as are applicable there, or other regulations from the competent authorities.

12.15. Client will not (let) transport or move the products without the prior written consent of Expandable.

12.16. If Client requires repair- or maintenance activities, they must take place at a location indicated by Expandable. Client is responsible for and bears the costs of transport to that location. If repair for whatever reason does not take place at a location indicated by Expandable, the costs involved in the repair- or maintenance activities are borne by Client. Expandable can demand an advance payment.

ARTICLE 13 - PERMITS/APPROVALS/FACILITIES

13.1. Client is responsible for and must at his expense make sure that he has at his disposal timely the permits, exemptions, and approvals required for placement, installation, Delivery, use, and dismantling of the products (such as: environmental permit, driveway license, and other permits).

13.2. Client is responsible for and must at his expense make sure that there is timely availability of the facilities required for the placement, installation, Delivery, the use, and the dismantling of the products, including utilities (water, electricity) and all other facilities required.

13.3. Client safeguards Expandable against all damage and costs, also including loss of turnover and profit, as a result of non-, non-timely, or incomplete delivery, Delivery, or implementation of the Agreement as a consequence of or in relation to non-compliance with what is stipulated in this article.

ARTICLE 14 – FISCAL CONSEQUENCES OF TRANSFER

14.1. The fiscal consequences of a modification to the commercial rights and/or future transfer of the products of Expandable to Client are at the expense and risk of Client. Client will safeguard Expandable fully against any possible fiscal claims.

ARTICLE 15 – COMPLAINTS

15.1. If and to the extent in an Agreement a specific purchase appraisal is provided for, Client must inspect the products entirely directly after delivery. Any possible complaints about malfunctions or defects regarding the products, by which must also be intended differences in composition or quality between the delivered products and the description given for it in the Agreement, must be reported no later than within two business days after delivery in written and substantiated form. Malfunctions or defects which demonstrably could not reasonably have been discovered sooner, must be reported immediately upon discovery ad no later than within sixty business days following delivery in written and substantiated form to Expandable. The overrunning of this term will lead to the forfeiture of the rights of Client to obtain compliance and/or indemnification or a remedy otherwise with regard to the relevant defect and/or complaint.

15.2. In case Delivery is established, what is stipulated in article 15.1 also applies to complaints regarding the relevant Products and activities, under the proviso that the term starts as of Delivery.

15.3. Client is bound to keep a defective part and to return it free of shipping to Expandable, upon first request of Expandable.

15.4. If and to the extent a complaint by Client is legitimate pursuant to article 15.1, Client is entitled to (chosen at the free discretion of Expandable) either: (i) restoral free of charges of the defect(s) or improvement of the rejected activities, or (ii) replacement free of charges of the products or the carrying out anew of the rejected activities. Complaints are not accepted if the defects do not hinder or substantially obstruct the use of the products.

15.5. Complaints and objections against the activities, Products and/or the invoice amount do not suspend the payment obligation of Client to Expandable.

15.6. The returning of the products can only take place after the prior written consent of Expandable, under conditions to be established by Expandable.

ARTICLE 16 – NON-PERFORMANCE/TERMINATION OF THE AGREEMENT/COMPENSATION/SUSPENSION

16.1. Expandable is authorised to completely or partially rescind the Agreement (with immediate effect and without requiring a default notice) by way of written notification to Client if Client:

  1. Applies for his own bankruptcy, is declared bankrupt, or requests suspension of payment or has obtained such; or
  2. Undergoes a substantive change to his activities and/or legal and/or organizational set-up, ceases its activities or significantly reduces them, loses the free control or a considerable part of his assets due to an attachment, for example, insolvency, or is placed under guardianship or forced administration; or
  3. Falls short in complying with an obligation pursuant to the Agreement; or
  4. Falls short and compliance is impossible, a situation as intended in article 6:83 BW (Netherlands Civil Code) occurs or a shortcoming repeats itself which was object of the default notice earlier as intended under c in the preceding; or
  5. Undergoes a change to his powers; or
  6. Client fails to settle an invoice amount or a part thereof within the term established for this.
  7. In such cases, Client is considered to be legally in default and all claims of Expandable on Client are immediately exigible and the rescission takes place without prejudice to Expandable’s other rights, such as rights regarding fines past expiry, interest, and the right to compensation for damage. Expandable is not bound to pay any compensation for damage vis-a-vis Client in case of termination of the Agreement in conformity with what is stipulated in this article section.

16.2. In case a third party gives a security right to a Product (subsequently called: “the security holder”), which is the property of Expandable, the Agreement between parties ends with immediate effect in case Expandable finds itself in a state of bankruptcy and/or the security holder of Expandable demands release of the Product on grounds of non-compliance with the obligations of Expandable vis-a-vis the security holder. In such case, Expandable is not bound to pay any compensation to Client. Nor does Client have the right of retention or suspension in that case. In that context, Expandable and the Client also exclude the applicability of the articles 7:226 and 7:227 BW entirely.

16.3. In case a situation occurs such as what is intended in section 1, Expandable and/or a third party to be indicated by it, is authorised to take back the products, free from any rights of Client and without the obligation of re-delivering the products back to Client. In such a case as described in the preceding sections, Expandable and/or a third party indicated by it, is authorised to enter the premises and buildings of Client so as to take possession of the products. Client is obligated to take the necessary measures to enable Expandable to enforce its rights and must timely remove matters which were not delivered by Expandable and find themselves in the products. Expandable is not liable for the matters which find themselves in the products delivered by Expandable at the time of seizure.

ARTICLE 17 – LIABILITY

17.1. Expandable does everything to satisfy Clients and aims for optimal quality. It may occur, however, that Expandable is held legally accountable. In that case, it must limit its liability in the interest of assuring the continuity of its operations. This is why the Client is obliged to take out adequate insurance against the (consequences of the occurrence of) the risks which the agreement between Expandable and Client can entail.

The liability of Expandable towards Client regarding all claims which result from or are related to the (object of the) Agreement is limited.

17.2. Expandable is only liable vis-a-vis Client if Client demonstrates that he has incurred damage due to a substantive error of Expandable which would have been prevented in case of diligent conduct and exclusively for the direct damage which is the direct and immediate consequence of that substantive error.

17.3. Expandable can be insured against certain liability, but this does not always have to be the case. For this reason, several limitations apply to the liability of Expandable. The obligation to compensate damage of Expandable on any grounds whatsoever is limited to such damage as Expendable is insured against on account of an insurance taken out by or for the benefit of Expandable and is never higher than the amount which is disbursed in the relevant case by this insurance (whether or not to Expandable).

If Expandable for whatever reason is not entitled to appeal to the limitation of the preceding paragraph (and the insurer, therefore, for whatever reason does not pay out), the obligation to compensate damage of Expandable is limited to a maximum of the invoice amount which Expandable has billed to the Client (exclusive of VAT). If the agreement consists of components or partial deliveries, the obligation to compensate damage is limited to a maximum of the invoice amount of the relevant component or that partial delivery.

17.4. Under no circumstance is Expandable liable for indirect damage (including, though not limited to, loss of profit, loss of goodwill, loss of business contacts, e.g. as a result of any delays, loss of data, missed savings, damage due to operational stagnation, damage under his supervision – which is intended to include, amongst other things, damage which is caused due to or during implementation of the accepted assignment to matters on which work is done or to matters which are in the vicinity of the place where work is done -, damage caused by intent or deliberate recklessness of helpers, etc.), whatever it is called and by whomever it is suffered.

17.5. Expandable is not liable for damage which could only have been avoided through the action or failure to act which had in in conflict or irreconcilable with legislation and regulations applicable to Expandable, or otherwise with the (professional) rules of conduct applicable to the professionals involved in the implementation of the Agreement. Outside the cases mentioned in articles 17.2 and 17.3, Expandable is not liable for nor obligated to compensate any damage. Parties (Expandable, Client) – at the moment of adoption of this Agreement – have a difference of opinion regarding the answer to the question whether this provision is or will be effective in other cases than those where the damage is a consequence of the aforementioned intent or deliberate recklessness of Expandable or its managing staff. In order to bring that ambiguity to an end, parties establish that these clauses in the cases mentioned in the preceding will always be effective for them. This fact is incorporated in the financial arrangements which parties have made.

17.6. Expandable may set off the obligation to compensate damage against bills not paid and their consequent interest and costs.

17.7. Expandable is bound upon the deployment of third parties by Client to observe due diligence but is not liable for errors and/or shortcomings of these third parties. Exception to this situation are those cases where third parties act as a sub-contractor and under the responsibility of Expandable.

17.8. The liability limitations included in this article are effective both for Expandable (itself) and for its staff (both individually and jointly), as well as for all other parties associated with Expandable and their employees (whether or not deployed for the activities). Only Expandable is liable for damage of Client in connection with the activities, Products and/or the assignment, also if these activities were conducted by its staff (both individually and jointly), other parties associated with Expandable and their employees (whether or not deployed for the activities).

17.9. Expandable has the right at all times to undo the damage incurred by Client in a manner which is appropriate for and is in line with the substance of the assignment and the nature of the activities. Client is obligated to take damage-limiting measures. Others than Client cannot derive any rights from the Agreement and its (non-)execution. Client safeguards Expandable unconditionally against any possible third-party claims. Client safeguards Expandable against all claims from third parties on account of product-liability as a result of a defect to a product which was delivered by Client to a third party or given in use and which (partly) consisted of products and/or materials delivered by Expandable.

17.10. If Expandable despite what is stipulated in the preceding sections of this article is held legally accountable for the damage incurred by Client, that liability is limited in all cases, on whatever grounds, to an amount of € 150,000 per event, whereby a series of related events is considered as a single event.

ARTICLE 18 – FORCE MAJEURE

18.1. If Expandable is unable or not able to adequately fulfil its obligations from the Agreement, as a direct or indirect consequence of circumstances or causes which lie outside its reasonable sphere of control (“Force Majeure”), Expandable is not liable for any damage of Client and fulfilment of the obligations of Expandable is suspended until the moment that Expandable is able again to resume the activities is the manner agreed on.

18.2. If on the part of Expandable a situation of force majeure occurs which has continued for two months, Expandable has the right without any obligation to compensate damage to completely or partially rescind the Agreement, by notification to that effect without any judicial intervention, without prejudice to the right of Expandable to payment by Client for performance already carried out by Expandable before there was a situation of Force Majeure. The two-month term mentioned above will not apply if it cannot reasonably be demanded of Expandable that the Agreement will continue after occurrence of the situation of Force Majeure. In case of termination, Client is not entitled to any compensation.

18.3. By Force Majeure are intended all circumstances as a result of which Expandable is temporarily or permanently unable to comply with its obligations, such as, for example, fire, weather conditions under which as is customary in construction no work can be done (such as frost), strikes or work exclusions, riots, war, government measures such as import or export restrictions, the default of suppliers, power outages, transport issues, natural disasters, malfunctions at the company of Expandable or that of suppliers, electricity malfunctions, theft or embezzlement from Expandable’s warehouses and furthermore all circumstances in which it cannot reasonably be demanded from Expandable that it will (further) fulfil its obligations towards Client. Force majeure on the part of the suppliers of Expandable is also considered Force Majeure of Expandable.

ARTICLE 19 – PROTECTION PERSONAL DATA

19.1. Expandable collects and processes information regarding Client and officials, employees, business relations or representatives of Client (personal data) in connection with the managing of relations with Client, marketing purposes, and the implementation of the Agreement. Client accepts that Expandable processes the personal data for those purposes. Client furthermore accepts that Expandable discloses personal data to its suppliers or to third parties if this is necessary in the context of aforementioned purposes. Client will indemnify Expandable in connection with the preceding and safeguard it against claims by third parties (also including any possible claims of the aforementioned officials, employees, relations, or representatives and/or overseers and authorities).

ARTICLE 20 – IMPLEMENTATION

20.1. Expandable has the right to deploy third parties for the implementation of the Agreement.

ARTICLE 21 – LIMITATION PERIOD

21.1. To the extent it is not established otherwise in the Agreement, rights to claim and other powers of Client vis-a-vis Expandable on any account whatsoever lapse in any case after one (1) year after the moment on which Client became aware or could reasonably have become aware of these rights and powers.

ARTICLE 22 – SEVERAL AND JOINT RESPONSIBILITY

22.1. If multiple (natural or legal) persons have committed themselves as a Client, they always are severally and jointly liable for the entirety towards Expandable for all contracts resulting from the Agreement. The deferral of payment or remission by Expandable for one of the clients or a proposal to that effect regards that client exclusively.

22.2. The contracts from the Agreement are several and joint, also with regard to heirs and rights acquirers.

ARTICLE 23 – APPLICABLE LAW/COMPETENT COURT

23.1. The Agreement and the agreements which are concluded for the implementation of or in connection with this Agreement are governed by and will be interpreted according to Netherlands legislation. The applicability of the Vienna Commercial Treaty 1980 (CISG) is excluded.

23.2. All disputes in connection with this Agreement, or the agreements which are concluded in relation to this Agreement, will be submitted exclusively to the competent court of law of Oost-Brabant, without prejudice to the right of Expandable to submit a dispute to the competent court in the district where Client is established.

ARTICLE 24 – OTHER PROVISIONS

24.1. Expandable has the right to modify these general conditions. Client is supposed to have accepted the relevant modifications if Expandable has not received within 14 days after the written notification by Expandable that modification will take place a written objection against it.

24.2. Unless emphatically established otherwise in the Agreement, the rights of Expandable pursuant to the Agreement apply in addition to and without prejudice to the other rights which Expandable has at its disposal on grounds of applicable Legislation or Regulations.

24.3. The waiver of rights by Expandable can only take place by way of a written notification to that effect. If Expandable does not exercise any of its rights pursuant to the Agreement or postpones its exercise, this cannot be considered as a waiver of that right, not of any other right pursuant to the Agreement.

24.4. Client does not have the right to completely or partially transfer its rights from the Agreement, nor to encumber or otherwise alienate them. This clause is a clause as intended in article 3:83 section 2 BW. This clause thus has both contractual effect and effect in the area of property rights. It is therefore not possible (at the level of property rights) to transfer, encumber, or otherwise alienate rights from this agreement (whether or not partially).

24.5. Expandable has the right to transfer its rights and obligations resulting from the Agreement to a third party and/or to sell the products to a third party. Client hereby grants his unconditional and irrevocable cooperation beforehand for the transfer of the contract.

24.6. Expandable has the right to encumber or cede the products and the rights resulting from the Agreement.

24.7. If and to the extent one or more of the provisions in the Agreement are or become not binding, then the other provisions in the Agreement remain fully effective. In that case, Parties will upon request of a Party enter into consultations with the intention of reaching an agreement on a new provision which is in line with the intentions of Parties at the time of the signing of the Agreement.

24.8. Client commits himself towards Expandable not to use, multiply, or disclose to third parties, information regarding Expandable or relative to the Agreement, otherwise than is strictly necessary for the implementation of the Agreement.

24.9. Expandable is authorised to suspend the fulfilment of its obligations under the Agreement and/or the release of the matters which it has under its control on account of the implementation of the Agreement, until the moment it has received payment for the payment obligations still existing at that time for Client, or until sufficient security has been lodged for fulfilment. Client does not have the right to suspension, retention, or set-offs.

SPECIFIC CONDITIONS FOR WORK

ARTICLE 1 – GENERAL

1.1 These specific conditions are additionally applicable to the provisions of the general part of these conditions.

1.2 In case of conflict between conditions from the general part of these conditions and these specific conditions for work, the present specific conditions prevail.

1.3 Expandable has the right to transfer its rights and obligations pursuant to the Agreement to a third party and/or to sell the products to a third party. Client hereby grants his unconditional and irrevocable assistance beforehand for the transfer of contract.

1.4 Expandable has the right to encumber or to cede the products and the rights resulting from the Agreement.

ARTICLE 2 - REALIZATION, INSTALLATION /CONSTRUCTION, DISMANTLING AND USER LOCATION

2.1 Expandable or a third party indicated by it will take care of the realization, installation and/or construction and, if applicable, the dismantling of the products, unless it is established otherwise in writing.

2.2 Realization, installation, construction, and dismantling costs are borne by Client, are invoiced separately, and are not incorporated in the established compensation, unless established otherwise in writing.

2.3 Client will make sure that the transport vehicles with which the products must be delivered or picked up at Client, in the dimensions as indicated by Expandable or, in its absence, standard transport vehicles have free and unhindered access to the User location.

2.4 Client is responsible for the choice of the User location where the products can be stored properly and safely and must, unless established otherwise, make sure that the underground is sufficiently stable and sturdy to bear the products (whether or not in combination with other Products) and use the products in accordance with their purpose and the specifications of the assignment. Client must make sure that a User location is fully prepared at his expense, including the marketing of the exact User location. Client will make sure that the gradient of the underground of the User location does not exceed 20 degrees from one side to the other.

2.5 Client is responsible for the connections to utilities, also including telephone and cable connections, as well as sewerage and its eventual disconnection, unless established otherwise in writing.

ARTICLE 3 – MODIFICATIONS TO THE WORK

3.1 Modifications to the work result in any case in additional or reduced work if:

  1. there is a situation of a change of design, the specifications, or the specified planning;
  2. information provided by Client does not correspond with reality;
  3. estimated quantities are deviated from.

Modifications to the work result in additional work in any case if legal requirements or rulings by the authorities which set higher standards for the Work than what is stipulated in the agreement lead to changes to the Work which are necessary to comply with those requirements.

3.2 Additional work is calculated on the basis of the value of the price-determining factors which apply at the moment that the additional work is carried out. Reduced work is settled on the basis of the value of the price-determining factors which applied at the moment of conclusion of the Agreement.

3.3 If the balance of the reduced work exceeds that of the additional work, Expandable may apply for the final settlement 10% of the difference of the balances to Client. This provision does not apply to reduced work which is the result of a request of Expandable.

ARTICLE 4 – IMPLEMENTATION OF THE WORK

4.1 Client makes sure and guarantees that Expandable is able to carry out its activities undisturbed at the location indicated by Expandable and at the established time and that it will have at its disposal during the implementation of its activities, the required facilities, such as (though not limited to):

- gas, water, and electricity;

- heating;

- closable dry storage space;

- facilities prescribed on grounds of health and safety legislation.

4.2 Client is liable for all damage, including such resulting from loss, theft, burning or damaging, to matters of Expandable, of Client and/or of third parties, such as tools and material intended for the work, which are located at the place where the activities are carried out or at another place agreed on.

4.3 In case Client is not compliant with his obligations as described in the preceding sections and as a result a delay in the implementation of the activities occurs, Client is liable for all damage for Expandable resulting from the delay.

ARTICLE 5 – DELIVERY OF THE WORK

5.1 The work is considered delivered when:

  1. Client has approved the work;
  2. The Work has been commissioned by Client. In case Client commissions a part of the Work, then that part is considered delivered;
  3. Expandable has notified Client in writing that the Work is completed and Client has not communicated in writing within 14 days after the notification whether or not the work has been approved;
  4. Client does not approve the Work on grounds of minor defects or missing parts which can be restored or back-delivered within 30 days and which do not oppose the commissioning of the work; or
  5. Client does not approve the Work on grounds of complaints which are apparently unfounded.

5.2 If Client does not approve the Work, he is obligated to forthwith communicate this under specification of reasons to Expandable in writing.

5.3 If Client does not approve the Work, he will enable Expandable to deliver the Work anew. The provisions of this article are thereby applicable again (each time).

5.4 Client is liable for damage to undelivered parts of the Work, caused by the use of parts of the Work already delivered, and client safeguards Expandable against third-party claims in the matter of this damage.

 

SPECIFIC CONDITIONS FOR LEASING

ARTICLE 1 – GENERAL

1.1 These specific conditions are additionally applicable to the provisions of the general part of these conditions.

1.2 In case of conflict between conditions from the general part of these conditions and these specific conditions for work, the present specific conditions prevail.

1.3 Expandable has the right to transfer its rights and obligations pursuant to the Agreement to a third party and/or to sell the products to a third party. Client hereby grants his unconditional and irrevocable assistance beforehand for the transfer of contract.

1.4 Expandable has the right to encumber or to cede the products and the rights resulting from the Agreement.

ARTICLE 2 – STATE OF PRODUCTS

2.1 The products are delivered upon the start of the lease and accepted by Client in the state they are in at that moment. Client can also opt upon the start of the Agreement for the wet cleaning of the products carried out by Expandable at the expense of Client. The state upon the start of the Agreement is recorded by or on behalf of Expandable in a delivery report to be attached to the Agreement as an appendix, which delivery report is a part of the Agreement. In the event no delivery report was drawn up upon the start of the Agreement, then the products are considered to have been delivered in the state which Client may expect of a well-maintained matter of the kind which the Agreement is in regard to and without any defects.

2.2 At the end of the Agreement, Client is bound to deliver the products in the state described in the delivery report made at the start of the Agreement, barring normal wear and aging. In the event no delivery report was drawn up at the start of the Agreement, the products are delivered back by Client at the end of the Agreement or at the end of the use to Expandable in the state which Expandable may expect of a well-maintained matter of the kind which the Agreement is in regard to, without any defects and barring normal wear and aging, unless established otherwise in writing. Furthermore, the products are delivered entirely evacuated, free from use and user rights, properly cleaned, and by handing over the keys to Expandable. The matters not removed by Client can be removed at the expense of Client by or on behalf of Expandable. All matters which Client has apparently renounced by relinquishing them in the products at the end of the Agreement, can be removed by Expandable, at its own discretion, without any liability on its part, at the expense of Client. Expandable has the right to have these matters destroyed at its own discretion or otherwise to appropriate these matters and sell them in the manner desired and to keep the proceeds thereof.

2.3 In case of discussion regarding the state of the products at the start of the Agreement, Client is considered to have received the products in proper state and without any defects.

2.4 Before the end of the Agreement, the products must be inspected by parties jointly. Of this inspection, a delivery report is draw up by parties, in which the findings regarding the state of the products are recorded. It is also recorded in this delivery report what activities must still be carried out regarding repairs which have proven necessary upon inspection and overdue maintenance at the expense of Client still, but carried out by Expandable, as well as the manner in which such will take place and the costs which will be billed for this by Expandable to Client.

2.5 If Client, after having been properly enabled to that effect, does not cooperate within a reasonable term with the inspection and/or the recording of the findings and arrangements in the delivery report, Expandable is authorised to conduct the inspection in the absence of Client and to stipulate the delivery report bindingly for both parties. Expandable will forthwith present a copy of this delivery report to Client.

2.6 Expandable will carry out and/or let carry out the activities intended in the delivery report as intended in article 2.4 of these specific conditions to the satisfaction of Expandable, but at the expense of Client at the end of the Agreement. And all matters with the exception of the alterations and or additions which must be undone by Client himself. These will be undone by Client himself before the end of the Agreement. If Client, after having been properly enabled, remains negligent with the carrying out of these activities, Expandable has the right to have these activities conducted himself and to claim the costs involved from Client.

2.7 If Client at the start of the Agreement has opted for wet cleaning by Expandable, Expandable will at the end of the Agreement also take care of this wet cleaning at the expense of Client.

2.8 Regarding the time involved in restoral, counted from the date of the end of the Agreement, Client owes Expandable an amount, calculated against the rental price applicable most recently, without prejudice to the entitlement of Expandable to compensation of further damage and costs.

ARTICLE 3 – END-USE AND PROHIBITION CLAUSE

3.1 The products will be exclusively intended by or on behalf of Client for the use as indicated in the Agreement. Client is obliged to thoroughly inspect the products upon adoption of the Agreement to control whether they are fit or can be rendered fit by Client for the use which Client must dedicate them. Expandable has not investigated the fitness of the products and is only bound to keep Client informed of the defects known to Expandable of which it is aware that they impair their suitability. Expandable is not liable for the consequences of defects which it did not know and was not supposed to know.

3.2 It is not permitted to Client without the prior written consent of Expandable with the products to:

- given them another end-use that what is intended in the Agreement;

- repair or dismantle them completely or partially;

- apply modifications in, on, or to the products and to add matters to them and/or attach those, all matters in accordance with what is stipulated in article 4.2 and 4.3 of these specific conditions;

- have them brought outside the User location;

- concede them to third parties for rent, in sub-let or for use, or to transfer completely or partially the leasing rights to third parties or to introduce them into a cooperative, a partnership or a company or legal person;

- to sell them, transfer them or to encumber them with a limited right.

3.3 If Client acts in violation of what is stipulated in article 3.2 of these specific conditions, then Client forfeits to Client an immediately payable fine in the amount of € 12,500 per day, without prejudice to the right of Expandable to compliance, rescission, and compensation of damages.

ARTICLE 4 - ALTERATIONS AND/OR ADDITIONS

4.1 Client will inform Expandable at all times beforehand in writing about any alteration and/or addition which Client wishes to apply to, in, or on the products. By alterations and/or additions is intended amongst other things the attaching of name indications, advertising, boards, announcements, publications, carpentry, displays, illumination, sun shields, shutters, antennae with accessories, flagpoles, and holes in Products.

4.2 Client will not apply nor allow any alterations and/or additions in, to, or on the products unless it regards alterations and/or additions which can be removed at the end of the Agreement without damage to the products and which can be undone without significant costs and with due regard for what is stipulated in article 4.1 of these specific conditions.

4.3 Expandable has the right to stipulate requirements with regard to the alterations and/or additions desired by Client, such as concerning the implementation, place, dimensions, and choice of material.

4.4 The application of alterations and/or additions which cannot be removed at the end of the Agreement without damage to the products and which cannot be undone without significant costs, may only be carried out by Expandable itself or by third parties approved by Expandable, unless Expandable has granted Client written permission to apply those alterations and/or additions himself and/or to have them applied. Alterations and/or additions which at the end of the Agreement can be undone without damage to the products and without significant costs, can be applied by Client himself, with due regard for what is stipulated in article 4.1 of these specific conditions.

4.5 The responsibility and the costs for (the application of) alterations and/or additions are borne by Client under all circumstances.

4.6 Applied alterations and/or additions are not a part of the products, and such regardless of whether Expandable has granted permission for (having) applies those alterations and/or additions. Expandable is not liable in any manner for the applied alterations and/or additions.

4.7 If applied alterations and/or additions must be removed in connection with maintenance and/or repair activities on the products, the costs of removal, the possible storage, and the renewed application will be, in conformity with this article, at the expense and risk of Client, and such regardless of whether Expandable has granted permission to (let) apply those alterations and/or additions.

4.8 Expandable or a third party approved by it will make available the alterations and/or additions applied by or on behalf of Client which at the end of the Agreement cannot be undone without damage to the products and which cannot be undone without significant costs, both in the event as intended in article 4.7 of these specific conditions and at the end of the Agreement will undo them prior to making available the products to Expandable again, at the expense of Client, unless parties have established otherwise in writing. The alterations and/or additions which at the end of the Agreement can be made undone without damage to the products and without significant costs, will be undone by Client himself.

4.9 Client waives any possible rights and obligations pursuant to illegitimate enrichment in connection with alterations and/or additions applied by or on behalf of him which have not been made undone at the end of the lease.

4.10 Client is bound to forthwith report to Expandable the presence of graffiti, racist slogans and/or other imprints on the products, after which Expandable will (let) remove these at the expense of Client.

ARTICLE 5 – MAINTENANCE

5.1 Client is supposed to have received the products in a proper state and good condition of repair. Client will diligently use the products in correspondence with their end-use and keep the products in a proper state and good condition of repair at his expense, barring normal wear and aging. All costs for legally mandatory, preventive, corrective, and usage-dependent maintenance to the products are borne by Client.

5.2 Client is recommended to deploy Expandable at the expense of Client for the carrying out of the activities on the products intended in article 5.1 of these specific conditions, and all matters on the basis of a maintenance contract to be concluded between Expandable and Client. This maintenance contract will never regard applied alterations and/or additions which at the end of the Agreement can be made undone without damage to the products and without any significant costs. Client will at all times takes care of this at own expense and risk.

5.3 If Client concludes a maintenance contract as intended in article 5.2 of these specific conditions with Expandable, that maintenance contract is effective for the duration of the Agreement, also including extensions. If Client does not conclude a maintenance contract with Expandable, he is held to carry out and/or let carry out the activities on the products intended in article 5.1 of these specific conditions himself and at his own expense. In that context, Client is obligated to annually and for the first time upon adoption of the maintenance contract to present a maintenance plan for approval to Expandable. Expandable has the right to impose conditions for its eventual approval of this maintenance plan. Client safeguards Expandable against claims by third parties in the matter of the maintenance conducted by himself or a third party. Client is liable for all damage which Expandable incurs due to not, not timely, or not correctly conducted maintenance on the products.

5.4 Client is bound to inform Expandable forthwith of maintenance which has become necessary for the products. If Client fails to timely report to Expandable that maintenance is necessary, then Client is obligated to compensate Expandable for the damage which has occurred due to this negligence.

5.5 For maintenance to be carried out by Expandable, barring such activities which do not permit postponement, Expandable will consult with Client beforehand on the manner in which his interests can be best taken into account thereby. If these activities take place outside normal working hours upon the wish of Client, or outside the Netherlands, then the additional costs will be borne by Client.

5.6 Client will forthwith inform Expandable in writing of defects to the products. In that notification, Client grants Expandable a reasonable term, amounting to at least six weeks, barring calamities, to make a start with the resolution of a defect which comes at the expense of Expandable.

5.7 Client is responsible for the daily control of the (collective) drinking water system. If and to the extent required by legislation or regulations, Expandable will upon Delivery of the products to Client provide a “risk analysis” regarding this system and subsequently propose a control plan. For the benefit of the risk analysis, Client must provide Expandable with the necessary information regarding the usage of the system. The cost of the risk analysis and the control plan are borne by Client. Parties agree that (mandatory) inspections, maintenance and/or other measures which must be taken on grounds of a government order and/or an injunction from a utilities company and which regard (the use of) the water systems which are present in the products, in the widest sense of the term, will be carried out by Expandable but will be borne by Client. This also applies in case Expandable is responsible for the implementation of these measures pursuant to rules established by government. Also intended by these measures are the periodic analyses and other obligations which result from the decree on drinking water systems ‘Waterleidingbesluit’. Expandable is not liable for the consequences of legionella contamination and/or other bacteria and/or contaminations which could be present in the drinking water system of the products. Client safeguards Expandable against claims by third parties in the matter.

ARTICLE 6 – DAMAGE AND LIABILITY

6.1 From the moment of delivery or from the moment that acceptance has been refused or is considered to have been refused in the sense of article 8.2 of the general part of these conditions, also if the products are effectively entirely or partially under the control of Expandable or a third party, until the moment of return of the products to the warehouse of Expandable or of third parties indicated by Expandable, the products are entirely at the risk of Client.

6.2 Client is liable for all damage to or in connection with (the use of) the products, regardless of how it is caused or called, and regardless of whether such damage has occurred through the fault of Client or third parties or by any defect, whether or not hidden, to the products, barring the event that Expandable is liable on grounds of provisions of mandatory law regarding (product) liability.

6.3 Client indemnifies Expandable or third parties deployed on behalf of Expandable and safeguards Expandable or third parties deployed on behalf of Expandable against all damage which they may incur due to (entirely or partially) the use of or damage to the products, death or injury or damage to property of Expandable or third parties as a consequence of (entirely or partially) the use of the state of the products, during the period that Client bears responsibility for this as indicated in the preceding section, regardless of its cause, barring the event that Expandable bears responsibility for this pursuant to the Agreement.

6.4 Upon use of the products, Client must take all necessary safety and diligence measures necessary, to avoid the risk of damage or injury to himself or third parties.

6.5 Client timely takes appropriate measures to prevent and limit damage to the products, such as damage as a consequence of short circuit, fire, leakage, storm, frost, snow or any other weather condition. Client will inform Expandable forthwith if such damages or events occur or threaten to occur. Damage to the products as a consequence of the circumstances mentioned above are borne by Client. Client must inform Expandable immediately if damages or events as in article 6.9 of these specific conditions occur or threaten to occur.

6.6 Client is liable towards Expandable for all damage and losses to the products, whatever they are called and however they have occurred, unless Client proves that no blame concerning can be attributed to him, the persons Client has admitted to the products, his staff and the persons for whom Client is liable, or that they cannot be blamed for negligence in the matter.

6.7 Client safeguards Expandable against fines which are imposed on Expandable due to conduct or negligence on the part of Client.

6.8 Expandable is not liable for the consequences of defects which it was not aware of or was not supposed to know upon the start of the Agreement.

6.9 Expandable is not liable for damage caused to the person or goods of Client and Client is not entitled to a reduction of the rental price, nor to set-offs or suspension of any payment obligation or to rescission of the Agreement in case of the reduction of the enjoyment of the lease as a result of defects, including those as a consequence of visible and invisible defects to the products, weather conditions, stagnation in the accessibility of the leased object, vacancy elsewhere, stagnation in the supply of gas, water, electricity, heat, ventilation, or air conditioning, malfunction of the systems and devices, in- and outflow of gases or liquids, fire, explosion, shortcomings in deliveries and Services.

6.10 Client is liable for damage which is the consequence of alterations and/or additions applied by or on behalf of him. Client safeguards Expandable against third-party claims caused by alterations and/or additions applied by Client.

6.11 Expandable is not liable for business damage of Client or for damage as a consequence of the activities of third parties or of impediments caused by third parties to the use of the products, nor for defects which have occurred because Client has not fulfilled his obligations.

6.12 Expandable is authorised to periodically control the products. In case Expandable holds that the products are used in an incorrect manner or are neglected, Expandable has the right to retake possession of the products and/or to (let) bring them in a proper state and condition of repair, all matters at the expense of Client.

6.13 In connection with the use, maintenance, and storage of the products by Client, Client must comply with all legal requirements, including license requirements or instructions of the competent authorities. If use is made with the products of the public road, Client is bound to make sure that

the necessary authorisations, exemptions or permits from the competent authorities are in place.

6.14 Client will not have any (environmentally) hazardous substances, nor use or store them in the products or in the direct surroundings of the products, barring if and to the extent having, using, or storing the substances in the products is necessary for operations of Client. Having, using, or storing (environmentally) hazardous substances takes place exclusively at the expense and risk of Client and after the prior written consent of Expandable.

6.15 The obligations based on the underlying article will remain effective after termination of the lease. The safeguard obligation applies regardless of whether the relevant damage has occurred prior to or after the returning of the products by Client to Expandable or third parties.

6.16 The aforementioned obligations are effective without prejudice to what is stipulated in article 16 of the general part of these conditions.

ARTICLE 7 – RENTAL TERM

7.1 Unless established otherwise in writing, the rental term commences on the day of delivery of the products or alternatively on the moment acceptance has been refused or is considered to have been refused in the sense of article 8.2 of the general part of these conditions, to Client and the Agreement is effective for the established duration.

7.2 After expiry of the period mentioned in article 7.1 of these specific conditions, this Agreement is continued, barring termination through cancellation by Expandable or Client, for the fixed duration intended in the Agreement, unless established otherwise between parties in writing.

7.3 Termination of the Agreement takes place through cancellation by one of the Parties against the end of the current rental period or, in case of an agreement for an unlimited time against any moment and with due regard for a notice period of at least three months.

7.4 Cancellation must take place by way of registered mail or by writ served by a court officer.

7.5 If the products at the end of the Agreement have not been delivered in conformity with what is stipulated in article 2.2 of these specific conditions to Expandable, a new agreement is considered to have been entered into for the same term and under the same conditions as the original Agreement, under the proviso that the rental price applicable in the marketplace at such time will be charged, unless Expandable notifies Client within 2 weeks after the end of the Agreement otherwise. The market-based rental price is the rental price for which Expandable has rented out comparable Products, not long before a new agreement is considered to have been adopted. If the market-based rental price is lower than the rental price applicable most recently pursuant to the Agreement, then the most recent rental price applicable pursuant to the Agreement will remain effective.

ARTICLE 8 – PERMITS

8.1 Client must take care himself of the obtaining of the required permits, certificates, licenses and/or exemptions for the use of the products. The associated costs are borne by Client. Refusal or withdrawal thereof will not constitute grounds for the termination of the Agreement, nor for any other actions against Expandable.

ARTICLE 9 – INSURANCE AND CONCOMITANT COSTS

9.1 Client is obligated to adequately insure and keep insured the products, from the moment of Delivery of the products, through the insurance company of Expandable (SURE) against all insurable damage for the entire duration of the Agreement, and all matters in conformity with an agreement to be concluded between Expandable and Client.

9.2 Concomitant costs such as levies, charges, taxes, and compensations levied in connection with (the use of) the products are borne by the Client from the moment of Delivery of the products, also in case Expandable is billed for this.

ARTICLE 10 - PAYMENTS AND INDEXATION

10.1 The rental price and everything else which Client furthermore owes to Expandable pursuant to the Agreement (such as the costs of transport, delivery, and Delivery), will (unless established otherwise in the Agreement in writing) be settled no later than on the first day of every month in a Netherlands-approved currency – without any suspension, discount, deduction, or set-offs against claims which Client has or believes to have on Expandable – by way of direct debit. Upon the start of the Agreement, Client will undersign an authorisation for this direct debit. Lessee will make sure that sufficient funds are available on the account.

10.2 Compensation for the dismantling and returning of the products must be paid within 14 days after the end of the lease, also without any suspension, discount, deduction, or set-offs against a claim which Client has or believes to have on Expandable.

10.3 Expandable is at liberty, by way of written statement to Client, to apply changes to the place or manner of payment. Expandable has the right to determine from what outstanding claim from the Agreement a received payment is deducted, unless Client emphatically indicates otherwise upon payment. In the latter case, what is established in article 6:50 BW is not applicable.

10.4 Each time an amount owed by Client pursuant to the Agreement has not been immediately settled on the expiry date, Client legally forfeits to Expandable per calendar month from the expiry date for that amount an immediately payable fine in the amount of 2% of what is owed per calendar month, whereby each commenced month is counted as an entire months, with a minimum of € 500 per month.

10.5 The rental price and other compensation as stated in the Agreement will be reviewed per 1 January of each year on the basis of the Consumer Price Index (CPI) as established by the Netherlands statistics institute CBS, series all households (the CPI of October, preceding the start of the Agreement = 100). The modified rental price is calculated according to the formula: the modified rental price is equal to the applicable rental price on the date of modification, multiplied by the index rate of the calendar month which lies four calendar months prior to the calendar month in which the rental price is modified, divided by the index rate of the calendar month which lies sixteen calendar months prior to the calendar month in which the rental price is modified.

10.6 The rental price and other compensations are not altered if the indexation thereof leads to a lower rental price and compensations than the ones applicable most recently. That rental price and compensations applicable most recently remain unaltered in such case, until a next indexation base on the index rates.

10.7 The indexed rental price and other compensations are duly exigible, even if no separate notification is made of the modification to Client.

10.8 If CBS ceases publication of the price index rate referred to or if the grounds for its calculation change, an index rate which is adjustable or comparable to it as much as possible will be applied.

10.9 If prices and/or rates of price-determining factors, such as, for example, wages, materials, currency fluctuations, import duties, and insurance rates undergo an increase, for whatever reason, Expandable has the right to adjust the rental price in correspondence with the market value.

ARTICLE 11 – SECURITY

11.1 Without prejudice to his rights on grounds of the general conditions (see, e.g. art. 6), Client is obligated upon first request to provide a bank guarantee or security deposit as a security for the correct fulfilment by Client of his obligations pursuant to the Agreement. The bank guarantee and/or security deposit must also apply to the extensions of the Agreement and the new rental agreement as intended in article 7.2 of these specific conditions, including modifications thereof and must remain effective until at least six months after the date on which the Agreement has ended. Furthermore, the bank guarantee and/or the security deposit must apply to the legal successor(s) of Expandable. Over the security deposit, no interest is compensated by Expandable.

11.2 In case the security has been drawn from by Expandable, Client will upon first request of Expandable provide for the replenishment of the security deposit or bank guarantee.

11.3 Client is obligated after the upward adjustment of the price upon first request of Expandable to immediately replenish the security deposit or bank guarantee.

11.4 Client is not entitled to the set-off of any amount against this security deposit or bank guarantee.

11.5 If Client does not comply with the obligations described in the preceding regarding security, Client forfeits per violation to Expandable an immediately payable fine of € 250 per calendar day that Client remains in default after such has been pointed out to Client by way of registered mail and a reasonable term has been set for him to resolve the default, without prejudice to the right of Expandable to compliance, rescission, and compensation of damages.

ARTICLE 12 – DEFECT

12.1 A defect to the products can be said to pertain if they, considering the state or a characteristic of another circumstance which cannot be attributed to Client, cannot provide the enjoyment which Client is allowed to expect of it upon conclusion of the Agreement.

ARTICLE 13 – SUBSTITUTION

13.1 During the lease, Expandable has the right to replace the products by other Products of a similar type. Client will give his unconditional collaboration for this. And all matters without entitlement by Client to reduction of the rental price, reduction of another payment obligation, total or partial rescission of the rental agreement and/or compensation for damages.

ARTICLE 14 – RETURNING OF PRODUCTS

14.1 Barring the prior written consent of Expandable, the products may not be returned by Client before the end of the established rental term, and all matters on pain of forfeiture of a fine of € 12,500 per day, without prejudice to the right of Expandable to full compensation (for damages).

14.2 The costs of return shipping are borne by Client.

14.3 If Client, after Expandable has granted him written permission, has returned the products before the end of the rental term to Expandable, Client is bound to pay Expandable the amounts based on the Agreement, starting from the established rental term, as well as the additional (storage) costs as a consequence of the early returning of the products.

ARTICLE 15 - REQUESTS/PERMISSION

15.1 If Expandable or Client wish(es) a deviation from and/or addition to any provision of the Agreement, Client must submit his request for this deviation and/or addition in writing.

15.2 If and to the extent the consent of Expandable is required in any provision of the Agreement, it is only considered granted if provided in writing.

15.3 A permission granted by Expandable is one-off and does not apply to other or subsequent cases. Expandable has the right to subject its consent to conditions.

ARTICLE 16 - COSTS, DEFAULT

16.1 In all cases in which Expandable has issued an injunction, a default notice, or a legal writ to Client, or in case of proceedings against Client, Client is obligated to settle all costs incurred to that effect, both judicially and extrajudicially, with Expandable.

16.2 The costs incurred are set by parties beforehand at an amount which is not lower than the customary rate applied by bailiffs.

16.3 Client is in default through the simple expiry of a certain term.

ARTICLE 17 – LEASING OF MOVABLE PROPERTY, APPLICABLE REGIME, SURFACE RIGHT

17.1 This Agreement regards the leasing of movable property. In that context, only the general provisions of the articles 7:201 through 231 BW (Volume 7, Title 4, Department 4) are applicable. Upon request and at the expense of Client Expandable will deliver the products at the User location as intended in the general part of these conditions and (let) install and/or construct and if applicable dismantle these Products. The delivery, (letting) install and/or construct and possibly dismantle the products by Expandable does not cause any changes to the applicable rules as intended in the preceding.

17.2 Through the delivery and (letting) install and/or construct the products on the User location, Client (in case he is owner of the User location) or otherwise the owner of the User location may contend there is a situation of accession. Only in this connection will Client, if he is the owner of the User location, upon first request of Expandable and prior to (letting) install and/or construct the products for the benefit of Expandable and at the charge of the immovable property on which the products will be installed and/or constructed, establish an (independent) surface right. All matters without Expandable being held to pay retribution and/or other compensation or costs for this. The effective time of this surface right must be equal to the effective time of the Agreement, in that sense that the end of the Agreement also leads to the end of the surface right. The surface right will be established at the expense of Client, and all matters before one of the notaries associated with Taylor Wessing in Eindhoven or Amsterdam.

17.3 If a third party is the owner of the immovable property on which the products are installed and/or constructed, Client will enter into a (main) rental agreement with this third party for the lease of the immovable property for the benefit of (letting) install and/or construct the products for the duration of the (main) rental agreement. Client will also stipulate from the third party the unconditional and irrevocable permission to be able to sub-let the immovable property entirely or partially to Expandable for the benefit of (letting) install and/or construct the products. Client will furthermore get this third party to collaborate, upon first request by Expandable and prior to (letting) install and/or construct the products for the benefit of Expandable and at the charge of the immovable property on which the products will be installed and/or constructed, with the establishment of a (lease-dependent) surface right on the immovable property. And all matters without Expandable being bound to pay any retribution and/or other compensation or costs for this. The surface right will be established at the expense of Client, and all matters before one of the notaries associated with Taylor Wessing in Eindhoven or Amsterdam.

17.4 If Client or the third party as intended in article 17.3 of these specific conditions for leasing does not wish to collaborate with the establishment of the surface right as stipulated in this article, Expandable has the right to immediately terminate this Agreement completely or partially, without any default notice or judicial intervention and without prejudice to Expandable’s other rights, such as rights regarding fines which have already expired, interest, and the right to compensation for damages. Expandable is not bound to pay any compensation for damage to Client in case of the termination of the Agreement pursuant to what is stipulated in this article.

17.5 Client safeguards Expandable against all damage and costs (including any damage, cost, loss, fine, as well as reasonable costs to legally assure its rights) which Expandable incurs or will incur as a consequence of an action or failure to act in violation of this article on the part of Client.

SPECIFIC PROVISIONS FOR SALE

ARTICLE 1 – GENERAL

1.1 These specific conditions are additionally applicable to the provisions of the general part of these conditions.

1.2 In case of conflict between conditions from the general part of these conditions and these specific conditions for work, the present specific conditions prevail.

1.3 Parties exclude the effect of title 1 of Volume 7 BW (Netherlands Civil Code).

ARTICLE 2 – RETENTION OF PROPERTY

2.1. All Products remain the property of Expandable until the moment of full settlement by Client of everything he owes to Expandable. See art. 10 of the General conditions.

ARTICLE 3 - WARRANTY

3.1. Expandable guarantees for a period of six months following delivery:

  1. that the products are compliant with the specifications mentioned by Expandable;
  2. the soundness of the delivered construction and the used material, on condition Expandable was free in its choice thereof.

3.2. If it turns out that the delivered construction and/or the used material was not sound, Expandable will restore or replace these as further stipulated in the Agreement and/or the general conditions.

3.3. Client can only appeal to the warranty after he has already fulfilled all his obligations towards Expandable.

3.4. No warranty applies in case the defects are the result of:

  1. normal wear or aging;
  2. inexpert use;
  3. lack of or incorrectly conducted maintenance;
  4. installation, assembly, modification or repair by Client or by third parties.

3.5. No warranty is granted for delivered products which were not new at the moment of delivery, nor for matters which are prescribed by Client or supplied by or on behalf of him.

3.6. The warranty stipulated in these sales conditions and this article is limited by the provisions of the general conditions, including the limitations to liability, expiry terms, and complaints.

3.7. The warranty as contained in the present article 3 is the sole warranty which Expandable grants to Client. With regard to the products, Expandable emphatically does not grant Client any safeguards, implicit guarantees or guarantees which can be deducted from the Agreement but are not explicitly stipulated as a guarantee in this article 3.

3.8. In case in the Agreement with Client deviating warranty provisions are included, these prevail over the warranty provisions mentioned in this article.

ARTICLE 4 – INFORMATION DUTY

4.1 For as long as the products are still covered by the retention of property of Expandable, Client will forthwith keep Expandable informed telephonically and in writing in case damage to or cause by the products and he will provide to Expandable as soon as possible any possible testimonies and/or other documentation which regard the event.

4.2 Client will in such cases which are indicated for this (e.g. break-in, vandalism, set-up) forthwith have drawn up a police report of the events, as intended in the preceding section and send it to Expandable.

ARTICLE 5 – USE

5.1 For as long as a retention of property or a Buy-back option of Expandable applies to the products, the rules below for maintenance and use of the products are effective.

5.2 Client is considered to have received the products in a proper state and maintenance condition. Client will diligently use the products in correspondence with their end-use and keep the products, at his own expense, in a proper state and state of maintenance, barring normal wear and aging. All costs for maintenance on the products are borne by Client.

5.3 Without the prior written consent of Expendable, Client will not apply or allow any modifications to the products, nor apply material to the products.

5.4 The application of modifications and/or the conducting of repairs may only be carried out by Expandable, unless written consent has been granted to Client to (let) conduct those activities himself.

5.5 Client is bound to deploy Expandable at the expense of Client for the implementation of the activities on the products intended in article 5.1 of these specific conditions, and all matters based on a maintenance contract to be concluded between Expandable and Client. This maintenance contract will never regard applied alterations and/or additions which at the end of the Agreement can be made undone without damage to the products and without significant costs. Client will at all times bear the expense and risk for this himself.

5.6 Client is obligated to forthwith inform Expandable of maintenance which has become necessary for the products. If Client fails to timely report to Expandable that maintenance is necessary, Client is obligated to compensate the damage resulting from this negligence to Expandable.

5.7 In case of maintenance to be conducted by Expandable, barring the activities which do not allow for delays, Expandable will consult with Client beforehand about the manner in which the latter’s interests can be taken into account as much as possible. If these activities take place, at the request of Client, outside normal working hours, then the extra charges of it will be borne by Client.

5.8 Client will forthwith inform Expandable in writing of defects to the products. In that notification, Client gives Expandable a reasonable term which, barring in the event of calamities, amounts to a minimum of six weeks to make a start with the resolving of a defect which is borne by Expandable.

5.9 Expandable has the right to control the products from time to time. In case Expandable holds that the products are used in an improper way or are treated with neglect, Expandable has the right to re-take possession of the products and/or to (let) bring them in a proper state and good maintenance condition again, and all matters at the expense of Client.

5.10 The products are delivered under retention of property or Buy-back option and accepted by Client in the state in which they are at that time.

The state upon the start of the Agreement is recorded by or on behalf of Expandable in a delivery report to be attached to the Agreement and initialled by parties, which delivery report is a part of the Agreement. In the event no delivery report was prepared at the start of the Agreement, the products are considered to have been delivered in the state which Client may expect of a well-maintained matter of the kind which the Agreement is in regard of and without defects.

5.11 Upon invoking the retention of property or the Buy-back option, Client is bound to deliver the products in the state which is described in the delivery report at the start of the Agreement, barring normal wear and aging. In case upon the start of the Agreement no delivery report was drawn up, the products are delivered by Client upon the appeal to the retention of property or the Buy-back option to Expandable in the state which Expandable may expect from a well-maintained matter of the kind which the Agreement is in regard to, without any defects and barring normal wear and aging, unless established otherwise in writing. In addition, the products are delivered completely evacuated, free from use and user rights, adequately cleaned, and under the hand-over of the keys to Expandable. The matters not removed by Client can be removed at the expense of Client by or on behalf of Expandable. All matters which Client has apparently relinquished by leaving them behind in the products upon invoking the retention of property or the Buy-back option can be removed by Expandable, at its own discretion and without any liability on its part, at the expense of Client. Expandable has the right to have these matters immediately destroyed at its own discretion and at the expense of Client or to appropriate these matters and to sell them as it sees fit and to keep the proceeds thereof.

5.12 In case of discussion on the state of the products at the start of the Agreement, Client is supposed to have received the products in a good state and without any defects.

5.13 Before invoking the retention of property or the Buy-back option, the products must be inspected by parties jointly. Of this inspection, a delivery report is drawn up in which the findings regarding the state of the products is recorded. In this delivery report is also recorded what activities regarding the repairs demonstrated necessary upon the inspection as well as the overdue maintenance to be borne by Client must still be conducted at the expense of Client though by Expandable, as well as the manner in which this will take place and the costs which will be billed for this by Expandable to Client.

5.14 If Client, after having been adequately enabled to do so, does not collaborate within a reasonable term with the inspection and/or the recording of findings and arrangements in the delivery report, Expandable is authorised to conduct the inspection in the absence of Client and to establish the delivery report bindingly for parties. Expandable will forthwith provide Client with a copy of this delivery report.

5.15 Expandable will carry out and/or have carried out the activities intended in the delivery report to the satisfaction of Expandable but at the expense of Client after appealing to the retention of property or Buy-back option. And all matters exempting the alterations and/or additions which must be made undone by Client himself. These will be made undone by Client himself before the end of the Agreement. If Client, after having been adequately enabled, remains negligent in carrying out these activities, Expandable has the right to have these activities carried out itself and to claim the costs involved from Client.

5.16 In connection with the use, maintenance, and storage of the products by Client, Client must be compliant with all legal requirements, including requirements for permits or instructions of the competent authorities. Client will not use or store any hazardous substances in the products, barring if and to the extent customary for business operations. The use or storage of hazardous substances takes place exclusively at the expense and risk of Client.

5.17 Client will not sell, transfer or (sub-)let the products, nor encumber them with a limited right or give them otherwise for use to a third party in a manner which this Agreement does not provide for.

5.18 Client is bound to take care of the application and maintaining of demarcations on location if such is required with an eye on the situation there and/or the police regulations applicable there or other regulations of the competent authorities.

5.19 Client will not (let) transport or move the products without the prior written consent of van Expandable.

5.20 Client safeguards Expandable against all damage and costs (including any damage, costs, losses, fines, as well as reasonable costs to legally assure its rights) which Expandable incurs or will incur as a consequence of an action or failure to act of Client in violation of this article.

ARTICLE 6 – SURFACE RIGHT

6.1 For as long as the products still fall under the retention of property of Expandable, Client will, if he is the proprietor of the User location, upon the first request of Expandable and prior to (having) installed and/or constructed the products for the benefit of Expandable and at the charge of the immovable product on which the products will be installed and/or constructed, establish an (independent) surface right. And all matters without Expandable having to pay retribution and/or another compensation and/or costs for this. The effective time of this surface right must be equal to the effective time of the Agreement, in that sense that the end of the Agreement also leads to the end of the surface right. The surface right will be established at the expense of Client, all matters before one of the notaries associated with Taylor Wessing in Eindhoven or Amsterdam.

6.2 If, in derogation to what is stipulated in the preceding section, not Client but a third party is owner of the immovable good on which the products are installed and/or constructed, Client will enter into a (main) rental agreement with this third party for the lease of the immovable properties for the benefit of (letting) install and/or construct the products for the duration of the (main) rental agreement. Client will also stipulate vis-a-vis the third party the unconditional and irrevocable permission to be able to sub-let the immovable property to Expandable for the benefit of (letting) install and/or construct the products for the benefit of Expandable and at the charge of the immovable property on which the products will be installed and/or constructed to collaborate with the establishment of a (lease-dependent) surface right to the immovable property. All matters without Expandable having to pay retribution and/or other compensation and/or costs for this. The surface right will be established at the expense of Client, and all matters before one of the notaries associated with Taylor Wessing in Eindhoven or Amsterdam.

6.3 If Client or the third party does not wish to collaborate with the granting of the surface right as established in this article, Expandable has the right to immediately terminate completely or partially the Agreement without any default notice or judicial intervention and without prejudice to Expandable’s other rights, such as rights regarding fines which have lapsed already, interest, and the right to compensation of damage. Expandable is not bound to pay any compensation of damages to Client in case of the termination of the Agreement, in conformity with what is stipulated in this article.

6.4 Client safeguards Expandable against all damage and costs (including any damage, costs, losses, fines, as well as reasonable costs to assure its rights legally) which Expandable incurs or will incur as a consequence of an action or failure to act on the part of Client in violation of this article.

SPECIFIC PROVISIONS FOR BUY-BACK

ARTICLE 1 – GENERAL

1.1 These provisions are additionally applicable to the provisions of the general part of these conditions.

1.2 To the extent there is conflict between the general part of these general conditions and the specific provisions for buy-back, these specific conditions prevail.

1.3 The terms starting with a capital letter in the specific provisions for buy-back bear the meaning which is attributed to them in these specific provisions for buy-back expressly, or the same meaning as in the Agreement, unless these are deviated explicitly from in specific cases in these specific provisions for buy-back.

ARTICLE 2 – BUY-BACK

2.1 Under the conditions as comprised in these specific provisions for buy-back and the Agreement, Expandable grants Client the option (“Buy-back option”) to resell the products, manufactured and delivered by Expandable to Client under this Agreement, after expiry of a certain term back to Expandable (the “Buy-back”).

2.2 The Buy-back option for a Product can be exercised by Client after expiry of the term established in the Agreement (the “Buy-back date”).

2.3 To exercise the Buy-back option, Client will notify Expandable in writing of:

  1. the fact that he exercises the Buy-back option;
  2. the details of the relevant products, including the number, type, the individual specifications, location, condition, and all other data required by Expandable to determine what Products it regards; and
  3. all other information which is reasonably required by Expandable to evaluate the Buy-back option on its merits; this written notification (the “Option Notification”).

2.4 The Buy-back option expires for Client no later than six months before the Buy-back date elapses. After expiry of that term, Client no longer has the right to exercise the Buy-back option and he no longer is entitled to the right to sell back to Expandable.

2.5 After receipt of the Option Notification by Expandable, Client sells and delivers the relevant products to Expandable, which will purchase and accept these Products under the conditions as comprised in these specific provisions for buy-back from Client.

ARTICLE 3 - PRODUCTS

3.1 The Buy-back option only applies to Products which:

  1. are manufactured and delivered by Expandable to Client pursuant to this Agreement;
  2. are in their original and functional state;
  3. have been serviced pursuant to a maintenance agreement concluded to that effect with Expandable;
  4. do not show any damage or traces of anything but regular use; and
  5. are the full property of Client, have been the unreserved property of Client from the moment of delivery by Expandable and have exclusively been used by Client.

ARTICLE 4 - PRICE

4.1 The purchase price for the products when exercising the Buy-back option is established in the Agreement (the “Buy-back price”).

4.2 From the Buy-back price, all costs are deducted:

  1. which (must) be sustained to restore damage to the products;
  2. which (must) be incurred in connection with dismantling and transport.

4.3 A higher value of the products as a result of any possible provisions attached by Client are not compensated to Client. A reduction of value of the products as a result of any possible provisions as may have been attached by Client, will be deducted from the Buy-back price.

4.4 If as a result of government measures or other circumstances outside of the reasonable sphere of control of Expandable, the value of the Products to be taken back has dropped, Expandable is only bound to compensate this lower value. Client has the right in such cases to have determined the value by external experts, with due regard for what is stipulated in the Agreement.

4.5 In case of buy-back, VAT cannot be invoiced by institutions which are VAT-exempt.

4.6 The Buy-back price will be paid by Expandable to Client after delivery and receipt of the products by Expandable and after deduction of all costs.

ARTICLE 5 – WARRANTY AND DELIVERY

5.1 Client guarantees that the products which are sold by Client under the Buy-back option to Expandable are:

  1. free from any encumbrance, restrictive right, securities or lateral rights or other limitation which can obstruct the free use and property of Expandable;
  2. in good conditions and suitable for (re-)use for the intended purpose, free from defects and damages and are compliant with the specifications;
  3. can and may be sold by Client as the unlimited, 100% owner of the products and that no other than Client can exercise or claim any right regarding the products;

Client guarantees in addition, that he will be able to deliver back all Products which are sold by Expandable under a Buy-back option to Client, after expiry of the Buy-back date.

5.2 In case of a situation in which one or more of the guarantees as intended in article 5.1 of this appendix turn out to be not correct, not complete and/or misleading, Client is liable towards Expandable for and safeguards it against all damage which Expandable incurs in connection with or as a result of the relevant violation of the warranty.

5.3 The products are delivered to Expandable with the cost of shipping included.

ARTICLE 6 – PURCHASE OBLIGATION

6.1 Expandable is bound to purchase and accept the products which are offered by Client under the Buy-back option to Expandable, if and to the extent:

  1. the products are compliant with what is stipulated in article 3.1 and 5.1 of this appendix;
  2. Client fully and completely complies with the provisions of this Appendix;
  3. The value of a Product is not such – whether or not as a result of the costs to be incurred for restoral or dismantling – that purchase by Expandable cannot be demanded from a reasonable commercial perspective; and
  4. No Force Majeure pertains.