NOWOS general terms and conditions (January 2022)
Article 1: NOWOS BV (“NOWOS”) is a private company with its registered office in Amsterdam and registered in the Trade Register of the Chamber of Commerce under number 74037536. NOWOS performs repair and overhaul work and develops lithium-ion batteries or accumulators. In addition, NOWOS provides customised advice and services with regard to all aspects of: safe handling, administration and compliance in relation to lithium-ion batteries or accumulators and all other (logistical) processes related to lithium-ion batteries or accumulators.
NOWOS provides its services and activities, regardless of whether a remuneration has been agreed, only subject to these general terms and conditions. These general terms and conditions may only be deviated from if this has been agreed by NOWOS in writing.
Article 2: NOWOS will perform an assignment solely for the benefit of the client. If the assignment has been issued by more than one client, the clients will be jointly and severally liable for the performance of the obligations vis-à-vis NOWOS. Third parties cannot derive any rights from the assignment and the work and/or services performed in this context or otherwise.
NOWOS provides consultancy services whereby the scope will be described in a “Statement of Works”. A Statement of Works will be agreed between NOWOS and the client for the specific consultancy project and updated from time to time specifying works to be carried out and deliverables to be provided by NOWOS. NOWOS shall use its reasonable endeavours to ensure that the same personnel provide the consultancy services for a project. The client shall not at any time during a project or for a period of 18 months following its expiry or termination employ or solicit for employment or engage on any basis any member of NOWOS’s personnel. The client shall provide NOWOS with such information and access to such facilities and personnel as NOWOS shall reasonably require in order to provide the consultancy services. The client acknowledges that NOWOS’s ability to provide the consultancy services and to meet any time frame agreed is dependent on the client providing that information and access and providing those decisions and instructions at the times required by NOWOS. NOWOS shall charge and the client shall pay the amounts set out or calculated in accordance with the relevant Statement of Works.
Article 3: All prices, quotations and invoices from NOWOS are exclusive of VAT (still to be increased by VAT), unless expressly agreed otherwise. The rates for goods and services are based on the cost prices known at that time. Increases thereof, which NOWOS could not foresee at the time of the offer or the conclusion of the agreement, may give rise to price increases. NOWOS can also index its rates annually on the basis of the service price index (SPI) of Statistics Netherlands. Offers are valid without obligation and apply no more than one month, unless a different term for acceptance is stated in the offer. If the offer is not accepted within that period, the offer will automatically lapse. Delivery periods in NOWOS’ quotations are indicative and do not entitle the client to dissolution of the agreement or compensation if they are exceeded.
Article 4: NOWOS’ invoices must be paid within fourteen days without any right of suspension or set-off. NOWOS is entitled to set off any advance paid by the client against its oldest outstanding invoice. If the client fails to pay within the agreed period, it will be in default by operation of law – without any warning being required. If the client does not do so, NOWOS may initiate collection proceedings. The costs of such collection shall be borne by the client. NOWOS is entitled to charge the client extrajudicial collection costs of 15% of the outstanding principal sum from the time the client is in default. In the event of liquidation, bankruptcy or suspension of payments of the client, all claims of NOWOS against the client will become immediately due and payable and NOWOS may set off any debts to the client.
Article 5: All goods and parts delivered by NOWOS will remain the property of NOWOS until the client has paid the entire agreed price and all outstanding amounts (extended retention of title). Until then, NOWOS may invoke its retention of title and take back the goods. In the event of non-payment of the work performed by NOWOS for the client, NOWOS shall be entitled to suspend its work until full payment of the outstanding invoices has been made. In that case, default of credit is involved and any liability on the part of NOWOS for damage due to late delivery or otherwise is excluded. If goods have not yet been delivered but the agreed advance or the price has not been paid as agreed, NOWOS shall have the right of retention. In that case, the item will only be delivered after the client has paid the full amount outstanding.
Article 6: If, in the performance of an assignment as a result of an act or omission, an event occurs that leads to liability of NOWOS vis-à-vis the client, that liability will always be limited to the amount paid out in the business liability insurance taken out by NOWOS in the relevant case, plus the amount of the excess charged by the insurer to NOWOS.
If NOWOS – for whatever reason – is not entitled to the business liability insurance for damage as a result of (business) liability, NOWOS’ liability will be limited to the amount charged and paid by the client in the relevant calendar year. The limitation of liability referred to in this article does not apply insofar as damage is the result of deliberate recklessness or deliberate failure on the part of NOWOS. Each claim for damages lapses one year after the day following the day on which the client has taken note of the damage and NOWOS as the party held liable for it. The client remains owner of its batteries and therefore responsible for insurance of these batteries for loss. NOWOS cannot be held liable for the loss of batteries during transport, storage or repair.
Article 7: Personal data of the Client will only be processed in the context of the execution of the assignment. NOWOS processes personal data in accordance with the GDPR. NOWOS does not process personal data of the end users of the client; parties will therefore not enter into a processor agreement.
Article 8: The client will make all information relevant to the performance of the assignment available to NOWOS. The client warrants the accuracy, completeness and reliability of the data and documents made available to NOWOS, even if they originate from third parties. It is the client’s responsibility for NOWOS to be able to start the assignment on time. If the client fails to provide the data and documents requested by NOWOS or does not provide them properly or in good time and the performance of the assignment is delayed as a result, the ensuing additional costs and additional hours worked by NOWOS may be charged to the client.
Article 9: NOWOS will perform the agreement to the best of its knowledge and ability. NOWOS has a best-efforts obligation to achieve the agreed objective. NOWOS is entitled to have work performed by third parties. As far as possible, the choice of third parties to be engaged by NOWOS will be made in consultation with the client and with due care. NOWOS is authorized by the client to accept any third-party liability limitations on behalf of the client. Agreements between the client and the service provider will be entered into for an indefinite period of time, unless the nature of the agreement dictates otherwise or the parties have expressly agreed otherwise in writing.
Article 10: Unless the parties have agreed otherwise in writing, NOWOS retains all intellectual absolute rights to all designs, drawings, writings, data carriers or other information. The intellectual rights referred to may not be copied, shown to third parties and/or made available or used in any other way without the written permission of NOWOS.
Article 11: NOWOS accepts products for analysis, inspection and repair. NOWOS does not accept any waste. Repairs made by NOWOS are made with original components, or components similar to the original. NOWOS has a best-efforts obligation to make repairs in line with the conditions set out in the UN38.3 and the CE marking of products. The availability of original components, or components similar to the original, determines the repair time. Where repairs are made at the client’s request that are not in line with the UN38.3 and the CE marking, this will be done entirely under the responsibility of the client.
NOWOS warrants that (repair) services to batteries will comply with their description and that all components or products in use will be free from material and manufacturing defects for six (6) months from the date of completion of the work. This warranty is an express limited warranty. If non-compliant services are provided or if there is a defect in a replacement component or product during the applicable warranty period, NOWOS will at its option either (a) perform the services again to comply with their description, (b) repair or replace the component or product using parts or products that are new or equivalent to new in terms of performance and reliability, or (c) refund the amounts paid to NOWOS for the service.
Defects resulting from deliberate intent, failure to perform regular or prescribed maintenance, incorrect installation/connection by third parties, poor treatment, incorrect (or normally unforeseeable) use and/or repairs or changes not performed by NOWOS are excluded from warranty.
Article 12: Unless otherwise agreed in writing, these general terms and conditions apply to all agreements with NOWOS. In addition, these terms and conditions also apply to supplementary assignments and follow-up assignments.
Article 13: The legal relationship between NOWOS and its client is governed exclusively by Dutch law, even if an obligation is performed, in full or in part, abroad, or if the party involved in the legal relationship has its registered office there. The client must report complaints about the work performed by NOWOS directly to NOWOS in writing. The complaint contains the most detailed description of the failure, so that NOWOS can respond adequately. The parties will not appeal to the court until they have made efforts to settle a dispute in mutual consultation. The court in Amsterdam (the Netherlands) has exclusive jurisdiction to hear disputes that may arise between NOWOS and a client.
These terms and conditions have been drawn up in Dutch, French and English. In the event of a dispute about the content or purport of these terms and conditions, the Dutch text will be binding.