MAINTENANCE AND SERVICE CONTRACT
The undersigned:
1.
the private limited company Somfy Nederland B.V., registered office in
Hoofddorp, with offices at Diamantlaan 6, 2132 WV Hoofddorp, legally
represented by its director Mr S. van Witzenburg, hereinafter referred to as
"Somfy";
and
2.
________________________________________________, registered office in
__________________________________________________________, legally
represented by its director _______________________, hereinafter referred to as
"the Client";
agree that Somfy, with or without the assistance of third parties that it engages,
commissioned by and for the account of the Client, will be responsible for the provision
of maintenance and service tasks to the following central unit for the purpose of solar
shading, hereinafter referred to as: "the installation":
brand:
Somfy
type:
__________________
number:
__________________
address:
__________________
telephone:
__________________
contact person at the location:__________________
The agreement between Somfy and the Client, hereinafter referred to collectively as "the
Parties", has been concluded under the following conditions:
1.
1.1
1.2
1.3
Maintenance
The maintenance of the installation will be performed one (1) time per year on a
date agreed by the Parties.
If the installation is not already being maintained by Somfy, the first annual
maintenance will consist of an inspection of the installation. Any faults identified
at the inspection will need to be repaired at the Client's expense before Somfy
carries out the first service.
Without prejudice to the provisions of article 1.2, the maintenance shall consist of
the following activities:
a.
checking and, if necessary, adjusting the set values via the building
controller, including the primary functionalities of "sun" and "wind" and,
where applicable, "rain";
b.
cleaning the solar sensors and checking the connections;
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c.
d.
e.
f.
g.
h.
i.
j.
cleaning the wind meter and, where applicable, the wind direction meter,
and checking the connections;
cleaning the rain meter and checking the connections;
cleaning the outside temperature sensor and checking the connections;
checking the connections in the "outside sensor box" for corrosion and
damp and, if necessary, replacing the seal on the outside sensor box;
if desired by the user: adjusting the settings, for example clock functions,
delay times, sun "down" or "up";
updating the "operating" software if a computer is connected (with the
Animeo Compact, IB+ and KNX systems);
drawing up a report on the operation of the solar shading;
if the solar shading is non-operational: carrying out a check of the fuse in
the motor controller, and replacing this fuse if necessary.
2.
Service
With regard to the provisions of articles 1.2 and 3, Somfy will, in consultation
with the Client, ensure that installation breakdowns and malfunctions are dealt
with as quickly as possible.
3.
Excluded activities
The following activities are not covered by this agreement:
a.
the repairing of defects identified during the inspection referred to in
article 1.2;
b.
work on solar shading or other products controlled by the installation;
c.
work resulting from improper use of the installation, force, damp, thermal
expansion of the motor, incorrect limit switch settings, the use and
operation of the wrong switchgear, overload, incorrect operation of
accessories, electrical connections that violate current installation
regulations and/or conflict with the key points given in the catalogue;
d.
the repairing of issues resulting from work performed by third parties not
contracted by Somfy;
e.
the repairing of issues resulting from the outage or interruption of a utility,
electrical switches on an incorrect setting, and/or defective electrical fuses
if the defect was not caused by a short-circuit in the installation;
f.
if no freeze protection is installed: the repairing of defects caused by
freezing of the installation or defects resulting from lightning strikes;
g.
the repairing of defects caused by failure to perform repairs or work
deemed necessary by Somfy;
h.
the repairing of defects that (otherwise) have arisen because the Client has
failed to fulfil a commitment made in this agreement.
4.
4.1
Price and hourly rate
For the first contract year, the Client is due to pay Somfy the price of
€850 excluding VAT.
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4.2
4.3
5.
5.1
5.2
5.3
The price given includes:
a.
annual maintenance as described in 1.3.
b.
the travel expenses incurred by Somfy in carrying out the maintenance and
service activities covered in this agreement, unless Somfy is unable to
perform its work due to the Client, in which case the Client, in addition to
the travel expenses of €75 excluding VAT, will also be required to pay
€45 excluding VAT to Somfy for every hour that Somfy loses during
standard working hours.
Unless the Parties agree otherwise in writing, the price given and the rate given
will increase annually according to the consumer price index (CBS).
Payment
The Client must make payment within the period specified on Somfy's invoice,
unconditionally and without postponement, discount or deduction.
The Client is in default at the expiration of the payment period, without Somfy
being required to serve notice. During this default period, the Client is liable for
default interest of 1% per month or part thereof on outstanding debts.
In response to a request from Somfy, which may be made either prior to or during
the execution of the agreement, the Client will make full or partial payment or
make a guarantee for the fulfilment of its payment obligations.
6.
Other obligations of the Client
The Client is required to:
a.
provide Somfy with provide unrestricted access to the installation;
b.
use or require the use of the installation in accordance with the operating
instructions and in accordance with the regulations laid down by the
government or other appropriate authorities;
c.
inform Somfy in writing, without delay, of any change in the
circumstances and/or nature of the installation's use;
d.
shut down the installation immediately and inform Somfy immediately in
the event of any abnormal phenomenon involving the installation;
e.
abstain from carrying out or authorising any work on the installation
without written permission from Somfy.
7.
Force majeure
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In this agreement, force majeure ("non-attributable non-compliance") shall mean:
any circumstance which cannot be viewed as Somfy's fault in a subjective sense
which makes it impossible or too impractical for Somfy to meet its commitments
or a part thereof. In the event of force majeure, Somfy is entitled to suspend the
fulfilment of its commitment or part thereof and the Client may not claim
compensation for non-compliance or damages. If the period of force majeure lasts
longer than one month, each of the Parties is authorised to dissolve this agreement
in whole or in part without being required to pay compensation, with the proviso
that if Somfy has partially fulfilled its commitment before or after the
commencement of force majeure, then Somfy is always entitled to a proportionate
share of the relevant fee.
8.
9.1
9.2
9.3
9.4
Suspension, termination
Without prejudice to any other rights to which it is entitled pursuant to the law
and/or this agreement, Somfy is authorised to suspend or, without being required
to provide any notice of default or judicial intervention, dissolve this agreement in
whole or in part by written notice to the Client if: (a) the Client fails to fulfil a
commitment arising from this agreement, or does not do it properly or in a timely
manner, and/or; (b) Somfy has good grounds to fear that the Client will fail to
comply with one or more of its commitments, and/or; (c) the Client has been
declared bankrupt, has filed for bankruptcy, an automatic stay, whether or not
provisional, has been granted to the Client or a request for one has been made, or
a statutory debt restructuring scheme has been applied with respect to the Client
or a request for one has been filed. If the Client defaults after notice of default in
accordance with both the law and this agreement, Somfy will not, in the case
referred to in (a), pursue full or partial termination of this agreement, unless it has
provided written notice to the Client giving a reasonable deadline for compliance,
and compliance has not occurred before this deadline.
Liability
Somfy's total liability for any loss suffered by the Client and/or third parties, for
any reason whatsoever, is limited to the amount for which Somfy's liability
insurance covers in the case in question, in addition to the amount of the
deductible that, according to the terms of the policy, is not the responsibility of
the insurer. If, for whatever reason, no pay-out is due under the said insurance,
Somfy's total liability shall in all cases be limited to the amount given in article
4.1 excluding VAT.
Somfy is only required to compensate for personal injury and for matters
described in the terms of its liability insurance policy.
Somfy is not liable for any damage resulting from changes to the installation
made by the Client or by third parties or resulting from the use of the installation
in combination with any hardware or software not supplied by Somfy.
Somfy is not liable for any faults or failings of third parties which it has brought
in to implement this agreement.
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9.5
9.6
9.7
9.8
9.9
9.
10.1
10.2
A precondition for the existence of any right to compensation is always that the
Client must report the damage to Somfy in writing immediately, but no later than
14 days after the Client become aware of the damage or could reasonably have
been expected to have been aware of it.
Under penalty of all rights being terminated, the Client is required to provide
Somfy with all co-operation required in its investigation into the cause, nature and
extent of the damage for which compensation is being claimed.
Under penalty of all rights being terminated, any legal proceedings must be before
the courts no later than 1 year after the timely notification of the damage.
The Client must safeguard Somfy against any form of liability that third parties
might impose on Somfy in respect of work carried out by Somfy. The Client is
responsible for compensating Somfy for the reasonable costs of defence against
third party claims.
Somfy will not claim a limitation on its liability, and the Client will not be obliged
to safeguard Somfy, as long as the damage is the direct consequence of deliberate
or purposeful recklessness on the part of Somfy or executive employees forming
part of the company's management.
Duration
This agreement is contracted for the duration of one (1) year from the date on
which the agreement is signed by both parties.
Subject to termination by one of the Parties with a notice period of at least three
(3) months, this agreement will automatically be extended for additional periods
of one (1) year each.
10.
11.1
Third-party clause
The terms of this agreement may also be invoked by Somfy's directors and
shareholders, by those who may or may not be employed by Somfy on the basis
of a labour agreement, and by all natural and legal persons who are brought in by
Somfy in the execution of this agreement.
11.
12.1
12.2
Applicable law and disputes
The legal relationship between the Parties will be governed by Dutch law.
Disputes between the parties which cannot be resolved by mutual agreement will,
insofar as they fall under the jurisdiction of the civil court, will be settled by the
Amsterdam District Court to the exclusion of all other courts in the first instance,
without prejudice to Somfy's authority to bring a dispute before any other
competent court.
Thus agreed and signed:
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place: Hoofddorp
date: _______________
place: _______________
date: _______________
Somfy Nederland B.V.
represented by:
The Client
represented by:
S. van Witzenburg
________________
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