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General conditions for the services of Simwave B.V.

The general conditions can be downloaded here.

Article 1. Definitions

In these general conditions the following terms have the following meanings:

ContractorThe contractor with these general conditions: Simwave B.V.
ClientAny natural person or legal person with whom the contractor has concluded a contract.
ContractThe contract between the contractor and a client on the basis of which the services will be carried out for the client.
General conditionsThese general conditions
ServicesAll that which is the subject of the contract, including any delivery of a product.

Article 2. Applicability

2.1 These general conditions apply for all offers and contracts between the contractor and a client, insofar as these conditions have not expressly been deviated from by the parties in writing. The applicability of any of client’s conditions is expressly rejected. The general conditions are all applicable in full, unless and insofar in the contract is explicitly agreed upon differently

2.2 The general conditions shall normally be issued to the client upon the sending of an offer or quotation to the client and ultimately upon the placing of the first order.

2.3 In the event of whole or partial nullification or any other invalidity of one (1) or more provisions of these general conditions, the other provisions shall remain in force. For the nullified provision a provision will be replaced which in fact is valid and is most alike to the nullified provision

2.4 The contractor is at all times entitled to change these general conditions. Changes shall become effective as of one (1) month after the written notification of such. If the client is a natural person and he or she does not agree with the changes, in derogation to article 4, paragraph 1, such a client has the right up until the date the changes become effective to cancel the contract as per the date on which the changed general conditions become effective. The absence of a cancellation shall be deemed as an acceptance of the change.

Article 3. Conclusion of an order

3.1 All offers and quotations made by the contractor are without obligation and shall be valid for a period of 30 days unless otherwise is stated in the offer or quotation. In case the contractor bases its offer or quotation on the information the client provided to the contractor the client guarantees the accuracy and completeness of this information

3.2 The prices detailed in quotations are exclusive of VAT and other duties imposed by the government

3.3 The contract shall be effected by the acceptance of a quotation which has been confirmed and signed as approved by the client, or if and insofar as the contractor has accepted or confirmed an order from the client in relation to the quotation in writing.

3.4 The client is obliged to avoid misunderstandings to return a signed copy of the order including the general conditions. In case the client fails to return such signed copy, the contractor can nevertheless conclude that the contract is established due to the fact that the general conditions are common in the business the contractor and the client are in and or earlier business the parties have already concluded.

Article 4. Duration and end of the contract

4.1 The contract shall in each case be entered into for the period detailed in the contract. The contract will be repeatedly tacitly renewed at the end of the first period for an identical period. Both parties can unilaterally terminate the contract. The termination of the contract must take place taking into account a period of notice of at least 3 calendar months and shall be effective as per the end of the agreed period. Notice of termination must be given by registered letter, with the understanding that the period of notice shall only commence as per the date on which the notice of termination has been duly and properly effected by registered letter.

4.2 If the client does not fulfil, or not properly, or not on time, any obligation arising out of a contract concluded with the contractor or under these general conditions, or if there is a serious doubt that the client will be able to fulfil its contractual obligations towards the contractor, the contractor shall have the right, without notice of default or judicial intervention being required, to either suspend the agreed services, or to wholly or partially dissolve the contract, such without the contractor being liable to pay any damages and without prejudice to the further rights accorded to the contractor. Suspension of the services do not cause the release of the obligations of the client related to these and previous/future services, a.o. the payment of the fees related thereto and do not cause a repayment obligation for the contractor related to any advanced payment

Article 5. Prices/payment

5.1 The client shall owe a fee to the contractor that will depend on the services to be supplied by the contractor. This fee will be notified by the contractor in advance. The fee can consist of a fixed amount per period, a fixed amount per training or assessment and/or an amount per hour worked. Insofar as the price has not been notified in advance, the contractor shall be entitled to work in accordance with the usual tariffs charged by the contractor. The fee can be indexed annually in accordance with the common Statistics Netherlands (CBS) price index. All prices are in euros exclusive of VAT and other duties imposed by the government. Payment in other currency is not allowed unless and insofar the contractor has accepted such payment in writing. The currency risk and banking costs involved in payment in other currency and / of from abroad are every time for the risk and expense of the client.

5.2 The contractor is at all times entitled to change the level of the fees and other costs and currency. The changes shall be notified in writing to the client no later than one (1) month before they become effective. If the client is a natural person and he or she does not agree with the changes, in derogation to article 4, paragraph 1, such a client has the right up until the date the changes become effective to cancel the contract as per the date on which the changes become effective.

5.3 The contractor applies a payment period of 14 days after the invoice date. The contractor is entitled to issue interim invoices for a proportionate amount of the services and/or hours worked. All courses and/or use of simulators will be invoiced at the moment of reservation and should be paid in advance. The client is not entitled to any suspension, reduction, sett-off or attachment by a debtor in respect of a (counter)claim against the contractor, unless and insofar specifically agreed to by the contractor in writing.

5.4 The contractor shall be entitled to settle its claims against the client even if those claims have not yet become payable.

5.5 The contractor has the right to cease the delivery of services, or to suspend such, in the event payments are overdue until these obligations have been satisfied in full. In case of suspension the client, at the moment the reason for the suspension has been withdrawn, has to accept the reschedule of the services. The client is also responsible for extra costs involved due to the new planning of the services. The contractor may at its own discretion claim from the client the hand over of securities demanded at the risk and expense of the client.

5.6 In the event of late payment, or repeated demands for such, the client shall be legally in default and the client shall owe statutory trade interest over the entire invoice amount without further notice of default being required. Furthermore, all reasonable costs to obtain fulfilment extrajudicially shall be for the account and risk of the client. The costs shall amount to 15% of the total amount outstanding, with a minimum of EUR 75. The client shall be given one opportunity to remedy the default within 10 days after a written demand or notice of default from the contractor.

5.7 In the event of a dispute, the administrative records of the contractor shall be binding unless there is evidence to the contrary.

Article 6. Liability

6.1 The contractor shall provide services as a service provider on the basis of a so-called obligation to perform to the best of one’s ability. There is therefore absolutely no obligation to achieve a result in the relationship between the contractor and the client. The client shall act under its own responsibility and indemnify the contractor for any claims from third parties as referred to in this article.

6.2 The contractor, including any of its employees, or any persons acting on behalf of the contractor shall not be liable, nor obligated to pay compensation for damages of any nature whatsoever, as a result of the performance or failure to perform services of any nature whatsoever, or the issuing or failure to issue any information of any nature whatsoever. Exceptions to this shall only be allowed insofar as mandatory law does not prohibit such exclusion.

6.3 The contractor, including any of its employees, or any persons acting on behalf of the contractor, does not guarantee the accuracy of data or administrative records or documents or information issued of any nature whatsoever.

6.4 The contractor including any of its employees, or any persons acting on behalf of the contractor shall not be liable if and insofar as it cannot fulfil its obligations as a result of force majeure. The term force majeure shall be understood to include any external circumstance as well as any circumstance which cannot reasonably be for the risk and account of the contractor. At no time shall force majeure give the client the right to cancel the order. However, if the contractor is of the opinion that as a result of the force majeure it will no longer, or at least not adequately, be able to perform, it shall be entitled to cancel the contract without being obligated to pay any (further) compensation.

6.5 The liability of the contractor, if any, is limited to the rectification of any errors made by the contractor. At no time shall the contractor be liable for consequential damages or indirect damage or loss, such as, but not limited to, resulting loss, loss of profit, loss of savings, reduced goodwill, loss due to business interruption, loss as a result of claims from customers of the client or loss in connection with the use of the provided services of the contractor.

6.6 In all cases in which the contractor despite that provided for in article 6, paragraphs 1 to 5, nevertheless is liable to pay damages, at no time shall this be higher than the amount for which the services were carried out and for which has actually been paid by the client in the year in which the damages occurred.

6.7 The client is expected to take out sufficient insurance to cover all business risks within its business, also for the consequences of any shortcomings of the contractor, both for the benefit of the client itself and for the benefit of the contractor, and without any right of recourse against the contractor.

6.8 All the personnel of the contractor, such to include the office staff and the field staff, and such also to include the safety consultants engaged by the contractor and all other natural persons or legal persons engaged by the contractor shall never by liable to the client, with only exception in case of mandatory law.

Article 7. Force majeure

7.1 In these general conditions, force majeure shall be understood to mean an event which cannot be attributed to the defaulting party, and which is not for the account of the defaulting party under the law, a juristic act, or by generally accepted standards.

7.2 The contractor also has the right to invoke force majeure if the circumstances which hinder (further) fulfilment come into effect after the contractor should have fulfilled its obligations.

7.3 During a situation of force majeure, the obligations of the contractor shall be suspended. If the period where force majeure prevents the contractor fulfilling its obligations lasts for more than 2 months, both parties are entitled to dissolve the contract without any obligation to pay compensation in such an event.

7.4 If the contractor has already partially fulfilled its obligations before the force majeure arises, or can only partially fulfil its obligations, it is entitled to invoice separately for that part which has already been carried out and/or can be carried out, and the opposite contract party is bound to pay this invoice as if it were a separate contract. This does not apply, however, if the part which has already been carried out and/or can be carried out does not have any independent value.

Article 9. Intellectual property

9.1 The contractor reserves all industrial and intellectual property rights in relation to data, calculations, methodologies, materials, etc, provided by it, and the inventions, drawings, models, and copyright protected works comprised within such, all this in the broadest sense of the word. The client obligates itself to unconditionally respect the rights of the contractor.

9.2 The copyrights on the products or services supplied shall be remain with the contractor for as long as a written contract has not been agreed between the contractor and the client in relation to the transfer of the relevant copyrights. The copyrights shall also remain the property of the contractor if the know-how or inventions have been acquired during the performance of the work for the client.

9.3 The client shall immediately inform the contractor of any claim of a third party in relation to an infringement of intellectual property rights in connection with the supplied documents or services. In the event of such a claim, only the contractor shall have the right, also jointly on behalf of the client, to conduct a defence against such or to take legal action against this third party, or to reach an amicable settlement with this third party. The client shall refrain from taking all such action insofar as such can reasonably be required from it. The client shall provide its cooperation to the contractor in all such cases.

9.4 All documents issued by the contractor, such as reports, recommendations, manuals, designs, sketches, drawings, software, etc., are exclusively intended to be used by the client, and may not be reproduced, published, or disclosed to third parties without the prior permission of the contractor, such on pain of a fine of EUR 100,000 per event.

9.5 The system documents shall be returned by the client to the contractor when a maintenance contract comes to an end.

Article 10. Disputes and applicable law

10.1 All agreements are subject to Dutch law.

10.2 The district court in the region where the contractor has its registered office shall have exclusive jurisdiction to hear any disputes, unless the sub-district court has jurisdiction. Nonetheless, the contractor has the right to summon the opposite contract party to appear before the court which has jurisdiction under the law and to conclude a dispute in arbitration in accordance with the rules of Tamara, with 1 arbitrator and place of arbitration in Rotterdam and applicable language English

Article 11. Amendment of the conditions

11.1 The version of the conditions applicable at the time the relevant order was concluded shall be applicable in all cases. The conditions are available for inspection at the offices of the contractor.

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