GENERAL TERMS AND CONDITIONS SMART LIFE B.V.

Article 1. General.

  1. These general terms and conditions (hereinafter „Terms“) apply to any tender, offer, agreement and related legal transactions between Smart Life B.V., a company organized under the laws of the Netherlands, registered at the Dutch Chamber of Commerce under number 68039824 (hereinafter referred to as „Smart Life“), and any third party (hereinafter called „Counterparty“).
  2. In case Smart Life enables third parties for the execution of the agreement, these conditions also apply to these third parties.
  3. (Former) employees of Smart Life and its managing board are also able to rely on these conditions.
  4. The applicability of purchase conditions or other general conditions of the Counterparty is explicitly rejected.
  5. If one or more clauses of these terms would be at any time wholly or partially nullified or destroyed, the remaining clauses will remain fully applicable. Smart Life and the Counterparty shall then enter into negotiations to agree on new clauses to replace the nullified or destroyed clauses, whereby the purpose and intent of the original clauses will be observed as much as possible.
  6. If uncertainty exists regarding the interpretation of one or more clauses of these terms, the interpretation should occur in accordance to the terms and conditions.
  7. If between parties a situation arises that is not regulated by these general terms of delivery, then the situation should be assessed in accordance to the general terms of delivery.
  8. If Smart Life does not require strict compliance with these conditions, this does not mean that the clauses do not apply, or that Smart Life renounces the right to demand strict compliance with the clauses of the conditions in other cases.

Article 2. Tenders and Offers.

  1. All tenders and offers of Smart Life are without obligation and are valid for 30 days. A tender or offer expires if the product to which the tender or offer relates became unavailable in the meantime.
  2. Seller cannot be kept to its tenders and offers if the Counterparty can reasonably understand that the tenders or offers, or any part of them, are an obvious mistake or error.
  3. The prices mentioned in a tender or offer are exclusive of VAT and other government levies.
  4. If the acceptance (whether or not on subordinate points) deviates from the offer included in either the tender or the offer Smart Life cannot be bound to it. The agreement in that case is not in accordance with this deviating acceptance, unless Smart Life states otherwise.
  5. A composite quotation does not compel Smart Life to perform part of the assignment for a corresponding part of the quoted price. Tenders and offers do not automatically apply to future orders.

Article 3. Delivery times and delivery.

  1. The delivery times specified by Smart Life are expected delivery times and can never be regarded as a deadline. The Counterparty must take this into account when making agreements with its customers.
  2. Smart Life shall notify the Counterparty as soon as possible of any delay in delivery and informs the Counterparty about the new expected delivery time. Smart Life shall not be held liable towards the Counterparty for damage resulting from a delay in delivery, and delay does not give the Counterparty the right to terminate the agreement.
  3. The Counterparty is obliged to accept the purchased goods at the moment they are made available to him or delivered to him (or to a third party designated by the Counterparty) („delivery“). The risk of loss, damage or depreciation is passed to the Counterparty at the time of delivery.
  4. If the Counterparty refuses or fails to provide information or instructions necessary for the delivery, the goods will be stored at the expense and risk of the Counterparty. The Counterparty in that case owes all additional costs, including by all means the cost of storage and transport. Storage of property referred to here does not affect the obligation of the Counterparty to purchase the goods.

Article 4. Implementation en modification of the agreement.

  1. Smart Life is entitled to execute the agreement in parts and to invoice in corresponding parts.
  2. If Smart Life requires data from the Counterparty for the implementation of the agreement, the execution period does not begin sooner than after the Counterparty has provided accurate and complete data to Smart Life. Specified delivery times change accordingly.
  3. If, after the agreement has been made, it turns out that for a proper implementation for Smart Life it is necessary to modify or supplement, whether or not on designation of competent authorities, the parties will be times enter in mutual deliberation on modification or supplementation of the agreement. Parties shall take into account their reciprocal cognized reasonable interests and write agreements on modification or supplementation in a record as much as possible. Smart Life is entitled, if no agreement is reached on modification or supplementation of the agreement, to terminate the agreement with immediate effect by means of a written statement. Assuming that Smart Life has made reasonable efforts to complete or change the agreement in consultation with the Counterparty, Smart Life shall not be bound to compensate for incurred damage of the Counterparty as a result of the termination.
  4. If the agreement is modified or supplemented and would therefore be changed in a qualitative and / or quantitative way, this can have consequences for the originally agreed price and / or delivery time. Seller will notify the Counterparty in advance as much as possible. The Counterparty accepts the possibility of modification or supplementation of the agreement, including the change in price and time of implementation.
  5. Seller is entitled to increase the agreed price, even if the price was not given with a proviso, under the following circumstances:
  6. a) if the price increase is the result of a modification to the agreement;
  7. b) if the price increase results from an obligation under the law of Smart Life;
  8. c) if in the agreed price the costs, rights or taxes are increased.
    A change of prices or fees to be charged is no reason for the Counterparty to terminate the agreement or to suspend its obligations under the agreement.

Article 5. Payment.

  1. Payment must always be made within 30 days of the invoice date, in a way indicated by Smart Life in the currency stated in the invoice, unless otherwise specified by Smart Life. Smart Life is entitled to invoice periodically.
  2. If the Counterparty fails to make be times payment of an invoice, then the Counterparty is, without further legal notice, in default. The Counterparty is then due to pay an interest of 3% per month, unless the legal interest rate for commercial transactions is higher, in which case the legal interest is due to be paid. The interest on the amount due will be calculated from the time that the Counterparty is in default until the moment of payment of the full amount owed.
  3. Smart Life has the right to debouch the payments made by the Counterparty in the first place to reckon up the costs, then to reckon up the interest and finally to reckon up the principal amount and the current interest.
  4. Objections to the amount on a bill do not suspend the obligation to pay. The Counterparty is not entitled to a deduction, suspension or settlement of any amount due to Smart Life.

Article 6. Suspension and termination of the agreement.

  1. Each party is entitled to terminate the contract out of court by means of a registered letter or to suspend its performance if the other party fails, even after a written notice stating a reasonable time for complying, to fulfill its obligations to comply with the agreement.
  2. Each party is entitled, without any warning or notice of default, to terminate the contract by means of a registered letter if:
    • a) the other party applies for or is granted (temporary) suspension of payments;
    • b) the other party is declared bankrupt;
    • c) the other party is liquidated or discontinued;
    • d) a substantial part of the assets of the other party is seized or if any other circumstances occur that prevent the party to freely dispose of his assets;
    • e) the other party cannot be deemed to meet the obligations under the agreement in other ways.
  3. Smart Life has, leaving his other rights under the law unimpeded, the right to suspend the fulfillment of its obligations and / or terminate the agreement with immediate effect if:
    • a) the Counterparty has not fulfilled its payment within the term of payment
    • b) after the agreement is concluded Smart Life becomes aware of circumstances that give good reason to fear that the Counterparty will not (be able to) meet the obligations;
    • c) the Counterparty has agreed to provide security for the fulfillment of his obligations under the agreement and this security fails or is insufficient;
    • d) it can no longer be demanded from Smart Life to honor the agreement against the originally agreed conditions because of delay caused by the Counterparty. Suspension of the obligations or termination of the agreement by Smart Life for the aforementioned reasons leave other rights unaffected, including the right of compensation for damages and costs. Smart Life shall not be kept liable to the Counterparty to pay any damages or costs in the event of suspension or termination on the above grounds.
  4. Smart Life is also entitled to terminate the contract in whole or in part, if circumstances arise that are of such nature that fulfillment of the agreement or unaltered conservation of the agreement cannot reasonably be expected of Smart Life.
  5. Subject to the provisions of this article and the provisions in article 10 (liability), in the event of termination of the agreement by an accountable shortcoming by one of the parties, the other party is entitled to compensation for the damage that has occurred.

Article 7. Ascendancy.

  1. Parties are not obliged to fulfill any obligation to the other party if they are hindered by a circumstance that is not due to debt, nor under the law, a legal act or is due to traffic concepts.
  2. Ascendancy on part of Smart Life is understood, in addition to what it says in the law and jurisprudence, as:
    • a) the occasion that Smart Life doesn’t deliver a performance, service or thing properly or in time that is important in connection with the performance;
    • b) strikes that prevent the fulfillment of the obligations of Smart Life, directly or indirectly;
    • c) disruptions in traffic, both nationally and internationally, both on water and on the road;
    • d) government measures, nationally or internationally, that prevent Smart Life to fulfill its obligations in a timely or properly way;
    • e) a lack of raw materials and other goods and services that are required for the establishment of the agreed performance.
  3. Smart Life is also entitled to call for ascendancy if the circumstance that hinders (further) fulfillment of the agreement, occurs after Smart Life should have fulfilled his obligation.
  4. Parties can suspend the obligations under the agreement during the period of ascendancy. When this period lasts longer than two months, each of the parties is entitled to terminate the contract in whole or in part, without any obligation to pay damages to the other party.
  5. If Smart Life at the time of the ascendancy had already partially fulfilled or will be able to partially fulfill the obligations under the Agreement, and the fulfilled or the to fulfill parts merit independent value, Smart Life is entitled to invoice the already fulfilled or the to be fulfilled part separately. The Counterparty is obliged to pay this invoice as if it were a separate agreement.

Article 8. Retention of ownership.

  1. All the goods delivered by Smart Life under the Agreement remain property of Smart Life until the Counterparty meets all obligations under the agreement with Smart Life.
  2. By Smart Life delivered goods, that pursuant to paragraph 1 are part of the retention of ownership, may not be resold and may never be used as payment. The Counterparty is not entitled to pawn or encumber in any other way the goods that are part of the retention of ownership.
  3. The Counterparty must always do what can be reasonably expected of him to secure the property rights of Smart Life.
  4. If third parties seize the under retention delivered goods or want to establish rights on them the Counterparty is obliged to immediately notify Smart Life.
  5. The Counterparty is obliged to recognizably label and store the items delivered under retention of ownership and to insure the goods and keep them insured against fire, explosion and water damage, and theft and give the policy of this insurance to Smart Life on first request in order to disclose. In case of a possible payment by the insurance Smart Life is entitled to these amounts.
  6. In case Smart Life wants to exercise the property rights indicated in this article, the Counterparty gives unconditional and irrevocable consent in advance to Smart Life and by Smart Life appointed third parties, to enter all the places where property of Smart Life is located and to take back all those goods.

Article 9. Non-conformity and guarantees.

  1. The goods delivered by Smart Life meet the usual requirements and standards that at the time of delivery could be reasonably stated and for which they are meant in normal use within Europe. The delivered goods are meant for use within Europe. When outside Europe the Counterpart himself needs to verify whether the use is suitable for use there and whether they meet the conditions made.
  2. The Counterparty is obliged to (have) investigate(d) the goods immediately when they are made available or delivered to him. The Counterparty must examine whether the quality and / or quantity of delivered goods correspond with what was agreed and meet the requirements that the parties thereto have agreed. Visible defects must be reported in writing to Smart Life immediately upon discovery and in any case within 5 days of delivery.
  3. Defects, other than defects that can be discovered on research at delivery, must be reported by the Counterpart to Smart Life within 14 days (of reasonable possibility) of discovery.
  4. Notification of any defect should include a detailed description of the defect, in order for Smart Life to be able to respond adequately. The Counterparty needs to give Smart Life the opportunity to (have)investigate(d) a complaint.
  5. Respecting the obligation of the Counterparty to examine the available and delivered goods for visible defects, and the obligation to report any defects within the mentioned term in writing to Smart Life, Smart Life is required only to rectify the shortcoming in the goods delivered in one of the following ways:
    1. a) repairing the defect;
    2. b) replacement of defective goods by taking them back and deliver new goods;
    3. c) financial compensation for the defect;
    4. d) take back the goods and refund the price paid or, if the goods were not paid yet by the Counterparty, credit the invoice / invoice amount.
      Smart Life is only obliged to repair the defect in one of the ways listed here. Smart Life is not obliged to compensate for other damages suffered by the Counterparty, including explicitly meant the costs of disassembly and / or (re) assembly.
  6. Any right of the Counterparty to repair, replacement, compensation or return of goods because of a defect, expire two (2) year after delivery.
  7. Any claim by the Counterparty to repair, replacement, compensation or return of goods will be withdrawn if a defect is caused by or resulting from improper or inappropriate use, improper storage or transportation or maintenance by the Counterparty and / or third parties, when without the written consent of Smart Life, the Counterparty or third parties have made or tried to make changes to the goods, attached other goods that should not be attached to them or if they were processed, modified or installed in an other than the prescribed manner. The Counterparty is not entitled to warranty if the defect is caused by or arising from circumstances after delivery where Smart Life has no influence on, including weather conditions (such as but not limited to, extreme temperatures or rainfall), transportation, installation et cetera.
  8. Where applicable the Counterparty can make a claim against the manufacturer directly on the manufacturer ́s warranty. Smart Life grants the Counterparty all reasonable assistance when invoking warranty claims of the Counterparty against the manufacturer.
  9. If the Counterparty complains be times this doesn’t suspend the payment obligation. The Counterparty in that case remains obligated to purchase and pay for other items ordered.
  10. If a defect is reported outside of the notification deadlines in this article, the Counterparty is not entitled to repair, replacement, compensation or return of goods.
  11. If it is established that a complaint is unfounded, then the costs incurred by Smart Life in connection with handling the complaint, including the research costs, are to be paid by the Counterparty.

Article 10. Liability.

  1. If the Counterparty defaults in the proper, be times and complete fulfillment of the abidance to which he is obliged to Smart Life, the Counterparty is liable for all damages (including all reasonable costs of obtaining satisfaction in and out of court) directly or indirectly done to the side of Smart Life.
  2. Leaving unhindered the other determined conditions, Smart Life’s liability is at all times limited to direct damages, up to the amount that the insurance of Smart Life provides coverage for.
  3. Seller is never liable for indirect damage, including (at least) consequential damages, lost profits, lost savings, damages resulting from claims of customers of the Counterparty and damage due to business stagnation or other stagnation.
  4. The damage to be reimbursed by Smart Life will be tempered if the value of the delivered goods is in no proportion to the injury suffered by the Counterparty.
  5. The limitations of liability included in this article do not apply if the damage is due to intent or gross negligence of Smart Life or his senior subordinates.

Article 11. Recall.

  1. The Counterparty is obliged to cooperate fully with Smart Life if Smart Life for any reason whatsoever proceeds to withdrawal goods delivered or to give warnings of goods in connection to delivered goods.
  2. If Smart Life conducts a recall the Counterparty is obliged to deliver or sell back, at first request of Smart Life, all matters that are the subject of the recall that he has in stock, for a compensation of the price paid.
  3. In case the goods that are part of the recall have already been (re)sold and delivered, the Counterparty cooperates fully and gives Smart Life all information necessary according to Smart Life, to be able to inform customers or end users be times regarding a recall.
  4. Reasonably incurred costs by the Counterparty associated with the provision of assistance to a recall will be reimbursed by Smart Life.

Article12. Safeguarding.

  1. The Counterparty safeguards Smart Life against any third party claims related to the goods delivered to the Counterparty by Smart Life.
  2. If Smart Life in that respect should be addressed by a third party, the Counterparty is obliged to assist Smart Life both in and out of court to assist and immediately do all that can be expected in that case. If the Counterparty defaults in taking adequate measures Smart Life is, without notice, entitled to do so. All costs and damages done on the part of Smart Life, are for the account of the Counterparty.

Article13. Applicable law and disputes

  1. On all legal relations between Smart Life and the Counterparty only Dutch law applies, also if a contract is wholly or partially endorsed abroad or if the Counterparty is located outside the Netherlands. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG/Vienna Convention) is excluded.
  2. The parties will only appeal to the courts after their uttermost effort to solve a dispute by mutual agreement. The Amsterdam District Court in authorized to hear disputes between parties.