General terms and conditions 

1. Definitions

‘NCN": the limited company “NOMA COOL NORD”, whose registered office is at 59818 Lesquin, Rue de la Voyette - CRT 2, 403 658 031, Registrar of the Commercial Court of Lille Metropole.

‘Customer": any professional or private individual, whether or not acting in their own name or through a legal entity, as well as any public body.

‘Services": hire and/or installation of the Machines.

‘Machinery’ means professional cooling and freezing equipment, refrigeration and freezing chambers and insulation equipment, together with associated tools and/or accessories, as offered by NCN, which will be sold/leased to the Customer or installed at the Customer's premises.

2. Scope of Application -  All business transactions between NCN and the Customer shall be governed by (in descending hierarchical order): (1) the written and signed individual agreement, (2) the written order confirmation from NCN, (3) the offer from NCN, (4) these general terms and conditions (hereinafter ‘GTC’) and (5) French law. By placing an order/mission or accessing an offer from NCN, the Customer acknowledges having read and accepted the GTC - which will always be attached to the offer or order confirmation. The GTC shall always take precedence over the Customer's terms and conditions, even if the latter stipulate that they apply to the exclusion of all others. The possible invalidity of one or more clauses of the GTC shall not affect the applicability of all other clauses. In the event of the invalidity of any provision, NCN and the Customer will, to the extent possible and in good faith, seek to replace the invalid provision with an equivalent provision that satisfies the general spirit of the GTC. If NCN and the Customer fail to reach agreement, the competent court may mitigate the invalid provision to the extent (legally) permissible. NCN's failure to demand strict compliance with any provision of the GTC shall not be deemed a tacit waiver of NCN's rights under the GTC and shall not prevent NCN from subsequently demanding strict compliance with such provision.

3. NCN activities - NCN's activities include both business-to-business and business-to-customer: (i) Sale of Machines, both new and second-hand, and both offline and online; (ii) Rental of Machines; (iii) Installation and/or installation of Machines.

I. GENERAL

Section I. applies to all of NCN's activities as set out in Clause 3 (unless expressly stated otherwise).

4. Offer - NCN's catalogues, newsletters, brochures, advertisements, price lists and information on the website (http://www.nomacool.fr) are completely non-binding and are to be regarded solely as an invitation to the Customer to place an order/mission. The stated price, description, properties and functionality of the Machines and/or Services are purely indicative and are not binding on NCN. An offer is only valid for the specific order/assignment to which it relates and therefore does not automatically apply to subsequent similar orders/assignments. The quotation includes only the order/assignment expressly stated therein, to the exclusion of any additional work as a result of a change in the order/assignment by the Customer, unforeseen circumstances or any other reason. A quotation is only valid for the period stated on it. If no duration is mentioned, the duration is one month. The price estimate in the quotation is valid only on condition that the Customer has communicated to NCN all the data necessary or useful for the execution of the order/mission. With regard to the Customer- consumer, NCN specifies on the website and when ordering online, for each Machine sold, the period during which or the date until which spare parts essential for the use of the Machines are available on the market, thus enabling the Customer to make an informed choice.

5. Establishment of the contract - A contract is established only: (i) by its signature by both parties, (ii) after written or electronic confirmation of the order/assignment by a person competent to bind NCN, or (iii) by NCN's commencement of performance of the contract. Any amendments or supplements - after the contract has been concluded - shall only be valid if both parties have agreed to them in writing (inter alia with regard to terms of payment and delivery or performance deadlines). In the absence of the aforementioned written agreement, it shall be assumed that these have been carried out in accordance with the Customer's (oral) instructions. NCN always reserves the right to request additional information concerning the Customer, its activities or its solvency and - in the absence of such information - to refuse or suspend performance of the order/assignment, or to require prepayment or advance payment.

6. Cancellation of the contract

6.1 By the Customer - The Customer may only validly cancel the contract (in whole or in part) if the Customer notifies NCN thereof - at the latest prior to the scheduled delivery date - in writing or electronically. NCN reserves the right to charge the Customer, in the event of such a cancellation (even partial), compensation of 20% of the price (excluding VAT) of the cancelled order, with a minimum of €250.00.

6.2 By NCN - NCN has the right to cancel the order/assignment if it is based on incorrect information from the Customer or if NCN suspects that the Customer is using NCN for reasons that cannot be considered objectively reasonable and acceptable. Furthermore, if NCN is (no longer) in a position to execute the order/assignment (e.g. due to a lack of Machinery in stock), prior to or during the execution of the order/assignment for objective reasons, NCN will inform the Customer as soon as possible, but in any event within a reasonable period of time. In such event, funds already paid, which relate to the order/assignment yet to be fulfilled, will be refunded to the Customer within a reasonable period of time. Under no circumstances shall the Customer be entitled to any compensation whatsoever.

7. Advance payment - NCN always reserves the right to request from the Customer (i) 30% of the total amount by way of advance payment, (ii) payment in full or (iii) a bank guarantee, before proceeding with the execution of the order/assignment. Failure to pay the advance on time, or the full price if so agreed, shall in any event result in the suspension of the delivery and/or performance period. Should the Customer refuse, even after formal notice, to make payment, NCN reserves the right to consider such refusal as a total or partial cancellation on the part of the Customer, in which case the lump-sum compensation provided for in Article 6.1 shall be due.

8. Performance of contract - The Customer is obliged to cooperate smoothly and provide the necessary support in the preparation and execution of the order/assignment by NCN. This includes, among other things, providing all necessary data, documents, dimensions, specifications and instructions required by NCN for the execution of the order/assignment. NCN is not obliged to check the accuracy of the data provided by the Customer and is therefore entitled to rely thereon without more. The Customer shall at all times be responsible for the accuracy and completeness of such data and shall indemnify NCN against any claims by third parties in this respect.

9. Deadlines - Unless expressly agreed otherwise, any delivery and performance deadlines indicated are approximate. Exceeding the agreed deadlines shall not give rise to breach or cancellation of the order/mission, to termination of the contract at NCN's expense, to subrogation or to any fine or compensation of any kind whatsoever. Exceeding deadlines does not relieve the Client of its obligations. The aforementioned deadlines shall expire automatically and shall therefore be extended in the following cases: (i) NCN does not have all the necessary data, documents, dimensions, specifications and instructions from the Customer in good time, (ii) there are still outstanding claims against NCN on the part of the Customer, (iii) changes are made to the order/mission, (iv) force majeure/hardship.

10. Delivery - Transfer of risk - Delivery of the Machines will take place in accordance with the Incoterms mentioned on the written or electronic order confirmation (Incoterms 2010), which will always be, unless expressly stated otherwise, Ex Works (EXW). Any additional costs incurred in taking delivery of the Machinery shall always be borne by the Customer. NCN shall determine, as it sees fit, the manner in which transport takes place and by which means of transport. Notwithstanding the foregoing and in the case of the Customer-consumer, all risk of loss of or damage to the goods shall pass to the Customer-consumer at the time when the Customer-consumer or a third party designated by the Customer-consumer, other than the carrier proposed by NCN, takes physical possession of the Machines and the cost of transport shall only be borne by NCN where this has been expressly agreed in writing between the parties. Except in the case of hire or where expressly agreed otherwise, NCN is not obliged to insure the Machines. The Customer must co-operate in the delivery and take delivery of the Machines at the address indicated by the Customer and at the time agreed. If the Customer refuses delivery, is late, is negligent in providing information or instructions or fails to give such co-operation as is necessary for the transport and/or unloading of the Machines (such as, but not limited to, providing sufficient space for the installation of the Machines), NCN shall be entitled - for the account and at the risk of the Customer - to take all reasonable measures in this respect (such as third-party storage). If the commencement or progress of delivery of the Machines is delayed by factors for which the Customer is responsible, all costs arising therefrom (such as, but not limited to, unnecessary travel costs and waiting time) shall be passed on by NCN to the Customer. All costs incurred for storage in the event of late acceptance shall be borne by the Customer, in any event including transport costs, storage and travel costs and waiting times. NCN reserves the right to make partial deliveries in respect of any order/mission and to invoice for such partial deliveries.

11. Prices - All prices are expressed in euros and exclude VAT and any packaging, transport, delivery, insurance and administration costs, unless expressly agreed otherwise. If the final price of the order/assignment changes by more than 8% between the date of the offer and the conclusion of the contract or if delivery takes place more than three months after the conclusion of the contract, inter alia as a result of an increase in the prices of NCN's suppliers, in the prices of raw materials and materials, wages and social security contributions, currency changes, government charges, taxes, environmental taxes, import and export duties, transport costs or insurance premiums, NCN shall be entitled to increase its prices accordingly, in accordance with the standards permitted by law.

12. Payment - NCN always reserves the right to invoice the price in instalments according to the execution of the order/mission. Unless expressly agreed otherwise, NCN's invoices shall be payable in full by the Customer by bank transfer within the period stated on the invoice (no later than forty-five days end of month from the date of issue of the invoice and in the case of periodic invoices no later than forty-five days from the date of issue of the invoice) and without discount from the date of invoice. Invoices may only be validly contested by registered letter within eight working days of the invoice date, stating the invoice date, the invoice number, all the codes appearing on the labels of the contested Machines, and a detailed statement of the reasons for the dispute. Unconditional payment of part of the invoice amount constitutes express acceptance of the invoice. For Business Customers, any delay in payment of the invoice will result in a flat-rate recovery charge of €40. Partial payments are always accepted with reservations and without the slightest prejudicial acknowledgement, and are first offset against the collection costs, then against the penalty clause, then against the interest due, and finally against the principal amount, with priority being given to the oldest open principal sum. By placing an order/mission, the Customer expressly agrees to the use of electronic invoicing by NCN, unless the parties agree otherwise in writing.

13. Late payment - For each invoice that has not been paid in full or in part by the Customer by the due date, default interest of 1% per month of delay shall be due ipso jure and without prior notice of default, each month commenced being deemed to have elapsed in full, and the amount due shall also be increased by all NCN's collection costs associated with the recovery of the debt, as well as 20% of the invoice amount, with a minimum of €250.00 (excluding VAT), by way of lump-sum compensation, notwithstanding NCN's right to demand higher compensation. If the Client remains in default of payment to NCN in respect of one or more outstanding debts, NCN reserves the right to immediately stop any delivery/performance of the assignment and to consider, without further notice, the other orders/assignments as cancelled, in which case the lump-sum compensation as provided for in Article 6.1 shall be due. In addition, such non-payment shall result in all other invoices becoming immediately due and payable, even those that are not yet due, and all the terms of payment granted shall expire. The same applies in the event of the threat of bankruptcy, judicial or amicable dissolution, suspension of payments, or any other fact indicating the Customer's insolvency.

14. Retention of title - Machines delivered by NCN remain the property of NCN until payment in full of the amount due (principal, interest and costs) by the Customer. The Customer is therefore prohibited from selling the delivered Machines, pledging them to a third party or disposing of them in any way until the price has been paid in full. If the Machines are nevertheless sold to a third party (before the price has been paid in full), the resulting right to the sale price takes the place of the Machines sold. The Customer shall inform NCN immediately and in writing if the Machines are subject to seizure. It is agreed between the parties that the individual transactions/agreements concluded between them shall be deemed to form part of an economic whole and that NCN shall always have a reservation of title to the Machines then in the Customer's possession, for as long as the Customer has an outstanding debt to NCN.

15. Liability - NCN's liability shall never exceed the invoiced value of the order/mission, and shall never exceed the amount of the benefits of the insurance policies taken out by NCN. NCN's liability shall in any event be limited to that imposed by law. NCN shall in no event be liable for any delay in delivery and/or performance of the order/assignment (including any resulting additional costs to the Customer) incurred as a result of the default of NCN's suppliers, the Customer or any other third party. The assignment of the Machines by the Customer or by a third party appointed by the Customer takes place under the Customer's sole responsibility and at the Customer's risk. Under no circumstances shall NCN be entitled to claim compensation for any direct or indirect damage arising from such assignment. Nor shall the Customer be entitled to NCN's guarantee for: indirect damage (such as, but not limited to, loss of profit, damage to the environment, to the business or to third parties and any consequential damage caused by NCN's Machines). Damage arising as a result of erroneous, unreliable, incomplete or untimely data or instructions from the Customer or an agent of the Customer, inter alia in respect of data made available, information and instructions relating to NCN's Services (such as specifications, functionalities, applications, the purpose for which the Machines are intended, quality requirements, etc.). Damage arising out of the use of the Machines in a manner other than that for which they were developed or intended. Damage caused by exposure to pollution or by abnormal or exceptional environmental factors, e.g. poor ventilation and excessive temperature fluctuations. Damage arising from improper storage/preservation of the Machines after delivery, such as, but not limited to, storage in damp, excessively cold or excessively hot conditions. Damage arising from careless and/or inappropriate use or use contrary to the instructions for use of the Machinery. Additional damage caused by continued use or application by the Customer after a defect has been detected. Defects that are caused directly or indirectly by an act of the Customer or a third party, irrespective of whether this was caused by fault, negligence, carelessness or non-application of these conditions. Damage that would not have occurred if the Customer had acted with sufficient diligence to limit the damage. Damage caused by force majeure or hardship, in accordance with the provisions of Article 16. The Customer acknowledges that NCN makes no warranty that the Machines will comply with any regulations or requirements applicable in any jurisdiction, other than regulations or requirements applicable in Belgium, as they apply at the time of delivery of the Machines to the Customer by NCN. NCN shall therefore not be liable for any subsequent changes in law of any nature whatsoever. Finally, NCN can only be held liable by NCN's direct Customer and not by third parties.

16. Force majeure & hardship - NCN shall not be liable for any failure to comply with its obligations caused by force majeure or hardship. Conventionally, the following are considered to be cases of force majeure or hardship all circumstances which, at the time the agreement was entered into, were reasonably unforeseeable and unavoidable, and which, in NCN's opinion, create the impossibility of performing the agreement or make the performance of the agreement financially or otherwise more burdensome or difficult than normally foreseen (such as, but without limitation, war, fire, seizure, delays or bankruptcies of third parties engaged by NCN, shortage of personnel, strike, circumstances relating to the organisation of the business, threat or acts of terrorism and receipt of incorrect instructions from the Customer). The aforementioned situations give NCN the right to request the revision and/or suspension of the contract by simply notifying the Customer in writing, without NCN being or being able to be liable to pay any compensation whatsoever. If the situation of force majeure and/or hardship persists for more than 2 months, the parties have the right to terminate the contract.

17. Set-off - NCN and the Customer shall automatically and by operation of law set off and set off all present and future debts owed to each other. In other words, in the ongoing relationship between NCN and the Customer, the larger claim will always remain at the end of the day, after the aforementioned automatic set-off. This set-off will in any event be enforceable against the receiver and other competing creditors, who will therefore not be able to object to the set-off effected by the parties.

18. Confidentiality & Intellectual Property - Whether the data supplied by NCN has been obtained in writing, digitally or orally, the Customer may not copy it, use it for any purpose other than that for which it was intended, or show it to third parties, except with NCN's prior written authorisation or as soon as the data has become publicly accessible. The obligation of confidentiality shall continue to apply after the expiry of the contract between NCN and the Customer, at least until the data concerned, through no fault of the Customer, have been made available to the public.

19. Personal data - The personal data collected in connection with the sale of Machines is necessary for the management, execution, processing and payment of the Customer's order. This data is kept in secure conditions, using current technology, in compliance with the provisions of the French Data Protection Act. It will be processed by NCN's authorised departments. In accordance with the French Data Protection Act of 6 January 1978, amended in 2004, the Customer has the right to access and rectify any information concerning him or her, which may be exercised by sending an e-mail to the address +++, or by sending a letter by post to the attention of: NOMA COOL NORD+++, accompanied by a copy of an identity document.

20. Competent courts and applicable law - French law applies. Disputes shall be settled by the courts of the district in which NCN has its registered office, unless NCN expressly waives this rule.

21. Language - Unless expressly agreed otherwise, the Customer acknowledges that the language of these terms and conditions shall also be the language of all business transactions with NCN. The initial language of these terms and conditions is French. Where the Customer is a consumer, the initial language of these terms and conditions shall be French. Translations or documents drawn up in another language shall always be purely as a reminder to the Customer. In the event of contradictions, the French version will always prevail. In the case of a Customer-consumer, the French version shall prevail.

SELLING THE MACHINE

SALE general

22. Visible/concealed defects and complaints - The Customer must carry out an initial check immediately upon delivery of the Machine. This obligation to carry out an immediate check relates, inter alia, to: (list is purely indicative) quantity and dimensions, conformity of delivery, visible defects, correct place(s) of delivery, etc. The Customer must notify NCN in writing of any directly verifiable discrepancies, on pain of forfeiture, within 48 hours of delivery and in any event before commissioning. For consumer customers, the statutory warranty for latent defects of 2 years applies from the date of delivery of the Machines (delivery note). All claims based on latent defects must be communicated to NCN by registered post, under penalty of forfeiture, within two months of their discovery by the Consumer-Customer. For Business Customers, hidden defects must be notified to NCN by registered post within one (1) month of the date of delivery of the Machines (packing slip), but in any event within 48 hours of their discovery. If no complaints are received within this period, the Customer shall be deemed to have approved and accepted delivery. The Customer must be able to prove that he/she has correctly stored the Machines, both before and after the discovery of the defects, otherwise the complaint will be inadmissible. Once a defect has been detected, the Customer must immediately stop using the Machine in question. The warranty for hidden defects does not apply when the damage has been caused by misuse or poor maintenance of the Machine. Under no circumstances may the Customer return Machines to NCN on the basis of this clause without NCN's prior consent. NCN reserves the right to inspect and verify the cause of any defects with the Customer on site. NCN shall in no event be liable for loss of or damage to returned Machines until they have been accepted by NCN at its warehouses. Any warranty claims shall lapse in the event of processing, modification or repair by the Customer or third parties or in the event of abnormal or exceptional use, loading and/or wear of the Machines, or in the event of damage caused by force majeure. The Customer is obliged to compensate the costs incurred in connection with unjustified claims. Subject to the mandatory provisions of the local law applicable to the Customer, the warranties offered by NCN to the Customer in respect of a valid claim in respect of the aforementioned visible and hidden defects shall remain limited, at NCN's own option and as it sees fit, to (i) the replacement of Machines which are missing, defective or do not correspond to the purchase with Machines in stock - the Customer shall not, however, be entitled to compensation in the event that there are no Machines in stock with the same properties; (ii) take back defective Machines and issue a credit note to the Customer. Notwithstanding the foregoing and in the case of a Customer-consumer, the following provisions shall apply: - In the event of a lack of conformity, the Customer-consumer shall have the choice between replacing the machine or repairing it, unless the solution chosen by the Customer-consumer entails a manifestly disproportionate cost. - In the event of hidden defects, the Customer-consumer may choose between returning the Machine and having the price refunded, or keeping the Machine and having part of the price refunded. Complaints concerning an invoice must be submitted in writing within 7 days of the invoice date.

Online sales

23. Right of withdrawal - Notwithstanding what is stipulated in article 22, the Customer-consumer has a right of withdrawal with regard to Machines purchased through the web shop. This applies to both new and second-hand sales. On the basis of Book VI Market Practices & Consumer Protection of the Code of Economic Rights, subject to the mandatory provisions of local law applicable to the Customer, the Customer has the right to withdraw from the contract within 14 calendar days, without giving any reasons. The right of withdrawal expires 14 calendar days after the day on which the Customer or a third party designated by the Customer, who is not the carrier, receives the goods physically in his possession. To exercise the right of withdrawal, the Customer must notify NCN (at 59818 Lesquin, Rue de la Voyette - CRT 2), by registered post, of his decision to revoke the contract. The Customer may, but is not obliged to, use the standard withdrawal form for this purpose. The Customer may also complete the standard withdrawal form or another clearly worded statement electronically and send it via our website www.nomacool.fr. If the Customer makes use of this option, NCN will immediately send the Customer an acknowledgement of receipt of the withdrawal on a durable medium (e.g. by e-mail). In order to comply with the withdrawal period, it is sufficient for the Customer to send notification of the exercise of the right of withdrawal before the expiry of the withdrawal period. If the Customer revokes the contract, the Customer shall recover from NCN all payments made by the Customer at that time, without delay and in any event no later than 14 calendar days after NCN has been informed of the Customer's decision to revoke the contract. NCN will then refund the Customer by bank transfer, using the same means of payment by which the Customer made the original transaction, unless the Customer has expressly agreed to a different means of payment; in any event, no charge will be made to the Customer for such refunds. NCN may wait to refund until it has received the returned Machines and the Customer has demonstrated that it has returned the Machines. The Customer must return or hand over the Machines to NCN without delay, but in any event not later than 14 calendar days after the day on which it has notified NCN of its decision to revoke the contract. The direct costs of returning the Products shall be for the Customer's account, including any customs charges if the return shipment is made from Switzerland or another non-EU country, which shall be deducted from the funds to be paid by NCN, unless otherwise agreed. The Customer shall be solely responsible for any reduction in the value of the Machines resulting from the use of the Machines beyond what is necessary to ascertain the nature, characteristics and operation of the Machines. 23.1 Machines returned must not have been put into service and must be in the same condition as at the time of delivery. In addition, the Machines must be returned in the same original packaging in which the Machines were sent, opened or unopened and including all accessories delivered with the Machines, so that NCN may still, after withdrawal, resell the Machines to a third party. 23.2 Business customers do not have a right of withdrawal under any circumstances.

Second-hand sales

Notwithstanding Article 21, the following provisions apply to second-hand sales to Consumer-Customers:

24. Visible defects / spotting and complaints - The Customer declares that he/she is purchasing the Machines in the condition in which they are found and which is known to the purchaser. Complaints about visible defects and/or non-conformity of delivery will only be considered if the Customer has notified NCN in writing within 48 hours of delivery. For consumer customers, the statutory warranty period for second-hand machines is limited to one year after delivery. If, in addition, six months have already elapsed since delivery, the Consumer Customer must prove that the non-conformity or quality defect already existed at the time of delivery. As soon as the non-conformity or lack of quality has been established, the Customer must inform NCN in writing, as soon as possible and in any event no later than two months after the establishment. NCN shall under no circumstances be liable for defects of which the Customer/Consumer was aware at the time of signing the order/mission (inter alia, hidden defects or defects included in the order/mission). In addition, account must be taken of what the Customer-consumer could reasonably have expected, depending on the price and lifespan of the Machine. Once any defect has been detected, the Customer-consumer is obliged to stop using the Machine immediately. In addition, the Customer-consumer is obliged to co-operate to the fullest extent requested by NCN in investigating the complaint, inter alia by enabling NCN to initiate (have initiated) an investigation into the circumstances of the use of the Machine. NCN shall in no event be liable for loss of or damage to a returned Machine until it has been accepted by NCN. The professional customer cannot derive any rights from the above article.

III. INSTALLATION

25. Installation by the Customer - Where it is agreed that the Customer will install the machines purchased from NCN himself or have them installed by a third party, such installation shall take place under the Customer's sole responsibility and at the Customer's risk. Under no circumstances shall NCN be entitled to claim compensation for any direct or indirect damage arising from the installation.

26. Installation by NCN - Where NCN is agreed to carry out installation, the Machines will be installed by installers of NCN's own choice with experience and expertise. NCN accepts sole responsibility for the installation of the Machines, provided that the place of installation is made normally accessible by the Customer and that all equipment, devices and/or local circumstances have been prepared so that no circumstances can arise which could delay, complicate and/or disrupt installation by NCN. With regard to the installation of the Machine at the Customer's premises, NCN shall not be liable under any circumstances for: connecting the machines to the electricity network; drilling (of any kind) into the Customer's floors, ceilings and interior walls; checking the direction of operation on the three-phase network. The Customer is therefore solely responsible for carrying out the aforementioned acts. Notwithstanding the foregoing, the Customer shall in any event, for its own account and at its own risk, ensure that NCN's personnel, as soon as they have arrived at the installation site, can commence and continue to carry out their work during normal working hours and also, if NCN deems it necessary, outside normal working hours, provided that NCN has notified the Customer in good time; that the access roads leading to the place of installation are suitable for the necessary transport and that the Machines, if necessary, can be fully enclosed; that the place of installation indicated is well lit and is suitable for the installation of the Machines; that the electricity network to which the Machines are connected is legally in order; that NCN's personnel are sufficiently informed about the work in progress with the Customer and the risks inherent therein; that the necessary assistance, if requested by NCN, and the equipment necessary for the installation are present. If the commencement or progress of the installation of the machines is delayed by factors for which the Customer is responsible, all resulting costs (such as, but not limited to, unnecessary travel costs and waiting time) shall be passed on by NCN to the Customer. NCN shall not be liable for any damage to the ground, to what is above and/or below the ground. For any other damage that may be caused during installation by NCN's employees, the Customer may under no circumstances deduct the amount of the damage from the invoices to be paid. NCN's insurance company will take care of further processing. Any damage must be reported to NCN by registered post within 24 hours of the work giving rise to the damage.