Terms and Conditions

TERMS AND CONDITIONS

HHELDEN IN IT BV / HEROES IN MARKETING 2022

PART A: General part

  • Definitions
    • Offer: Any offer by the Contractor to

Client.

  • Advising: Giving advice in the general sense of the word, which in any case includes advice in the field of automation and/or organization, performing applicability research, performing system analysis, advising with regard to Equipment and/or software to be applied by the Client, providing support in the development of software, giving and/or organizing instruction, courses or workshops and instructing and supervising employees.
  • GENERAL TERMS AND CONDITIONS OF DELIVERY 2021: These general terms and conditions of delivery, consisting of:

‐              Part A with general provisions;

‐              Part B with additional provisions concerning the provision of services, including R&D, Consulting, service and training and further including contracting of work excluding the development of Software;

‐             Part C with additional provisions regarding the development and/or delivery of Software.

  • Documentation: brochures, product information, provided by the Contractor

factory drawings, instructions, test certificates, catalogues, price lists, leaflets and all in or with a

Offer or data provided during the performance of the Agreement, such as, for example, but not limited to: designs, drawings/images, plans, descriptions, explanations, ideas, models, samples, tables, diagrams, databases, software, calculations and all other information its nature is confidential.

  • Defect: There is a defect if the Item Delivered by the Contractor to the Client on the basis of the Agreement is incomplete and/or does not meet the specifications and/or

it does not possess the property(s) that have been explicitly confirmed in Writing to the Client by the Contractor before or when the Agreement is concluded.

  • Supplied: The delivered by the Contractor on the basis of the Agreement, including the (part of) the Work and/or the Work that the Contractor has performed on the basis of the

has delivered the Agreement to the Client or has performed it for the Client.

  • Immediately: As soon as reasonably possible, but no later than the next full two working days.
  • Assignment: The agreed Work as well as the agreed Work and the rest to be delivered by the Contractor on the basis of the Agreement.
  • Order Confirmation: The Written notification from the Contractor to the Client in which the content of the Agreement is summarized. The Order Confirmation will usually describe the scope of the agreed delivery and the agreed prices and conditions.
  • Client: The party to whom the Offer made by the Contractor is addressed, to whom the Contractor has delivered and/or with whom the Contractor has entered into an agreement.
  • Contractor: Company/trade name: Helden In IT BV / Heroes In Marketing

Business address: Prof.van der Waalsstraat 3B, 1821BT Alkmaar

Visiting address: Kanaaldijk 301, 1825 DB Alkmaar

Phone number: +31 (0)85 070 5828

E-mail address: info@heroesinmarketing.nl

Chamber of Commerce number: 81254768

VAT identification number: NL862020177B01

  • Agreement: The Agreement between the Client and the Contractor, including any amendment(s) agreed upon after its conclusion, and the agreed additional work and less work.
  • Parties: Client and Contractor.
  • Party: One of the Parties.
  • Written: Correspondence by fax, registered letter, bailiff’s writ or regular mail. This also includes correspondence by electronic medium (such as, for example, by e-mail or web form) insofar as none of the Parties has demonstrably objected to the use of the electronic medium in question.
  • Supplier: The party from which the Contractor obtains the goods it offers.
  • Work: The item of a material nature or parts thereof that must be created by the Contractor for the Client to fulfill the Agreement, such as, for example, a device, machine, semi-finished product, construction, installation or other item.</li >
  • Work: The work that the Contractor performs for the Client for the implementation of the Agreement regarding the delivery of services, insofar as these do not relate to the creation of a Work for the Client. This could include, for example, doing

of research and development (R&D), conducting feasibility studies, Consulting, developing, designing, building and supplying and/or adapting software, ssystems or control systems, designing mechanical and electrical installations, providing service and maintenance, assembly, disassembly, installation, disassembly, coupling and disconnection, installation, construction, dismantling, demolition adjustment, calibration, validation, configuration, adjustment and setting work, commissioning, testing, calibration, inspection, inventory, training, workshops, supervision, etc. In general, services provided are often charged per hour on the basis of subsequent calculation when it concerns a pure best efforts obligation.

  • Applicability of the GENERAL TERMS AND CONDITIONS OF DELIVERY 2021, titles and language
    • Applicability

These Terms and Conditions apply to every Offer, to every delivery from the Contractor, to every Agreement between the Contractor and the Client and to all other legal relationships between the Client and the Contractor. Deviations from this GENERAL

DELIVERY TERMS AND CONDITIONS 2021 only apply to the extent that these have been confirmed expressly and In Writing by the Contractor to the Client.

  • Authorized persons

Only employees employed by the Contractor, who are authorized to do so according to the trade register of the Chamber of Commerce, are authorized to perform legal acts on behalf of the Contractor. Legal acts performed by persons other than those authorized to do so according to the trade register cannot be invoked against the party on whose behalf the legal acts were performed unless the Contractor has ratified these legal acts In Writing. Legal acts include making an Offer, guaranteeing certain properties of a product, making promises about delivery dates, changing agreements made earlier, entering into an agreement, etc.

  • Requirements for digital communication During the existence of the legal relationship, the Contractor may set requirements for communication between the Parties or the performance of legal acts via digital media.
  • Contract titles

The titles and articles of the GENERAL TERMS AND CONDITIONS OF DELIVERY 2021 are for the sole purpose of facilitating their reading and clarity and have no other meaning. In particular, the titles will not be used for the interpretation of the GENERAL TERMS AND CONDITIONS OF DELIVERY 2021.

  • References

Where in GENERAL DELIVERY CONDITIONS 2021 reference is made to article numbers,

those article numbers refer to the relevant articles from the GENERAL

TERMS OF DELIVERY 2021 unless it appears from the text that the reference refers to articles from another document or source.

  • Proof of receipt

If the recipient disputes that certain Written correspondence has reached him, the burden of proof is on the sender that the recipient has received such correspondence. In the case of correspondence by electronic medium, data regarding dispatch and receipt as registered on the Contractor’s server(s) will serve as the only proof, unless there is convincing evidence to the contrary.

  • Meeting priority agreements

Insofar as a stipulation in parts B or C of the GENERAL DELIVERY TERMS AND CONDITIONS 2021 applies to the relevant Agreement or to a part thereof and a stipulation from part B or C conflicts with a stipulation from Part A, the stipulation from the parts will prevail. B or C above the relevant clause from Part A with which it conflicts.

  • Language

The GENERAL DELIVERY TERMS AND CONDITIONS 2021, drawn up in the Dutch language, apply over the GENERAL DELIVERY TERMS AND CONDITIONS 2021, translated into English or another language.

  • Coulance

If, for whatever reason, the Contractor does not at any time invoke any provision of these GENERAL DELIVERY TERMS AND CONDITIONS 2021, it does not thereby reject the right to invoke this at a later stage.

  • The Offer and the conclusion of the Agreement
    • Without obligation

Each Offer is without obligation unless a term for acceptance has been set in the Offer. A non-binding Offer can be withdrawn without delay after acceptance. In that case, no Agreement will be concluded.

  • Offer and acceptance

The Agreement is concluded by means of a Written Offer and its acceptance with due observance of Articles 3.4 to 3.7.

  • Sales via webshop

In derogation from the other provisions of this article, in the event that an order is placed via a webshop, the Agreement will only be concluded at the moment that it has been confirmed in Writing by the Contractor to the Client by means of an Order Confirmation.

  • Changed acceptance To the extent that the Client’s acceptance of aIf the offeree made deviates from the Offer on any point, the Agreement will only be concluded at the moment that the Contractor confirms the conclusion and the content of the Agreement in Writing by means of an Order Confirmation, unless the Client objects to this In Writing Without Delay.
  • Non-written acceptance

If the Offer or the acceptance or the Offer and the acceptance did not take place In Writing, the Agreement will only be concluded at the moment that the Contractor confirms the formation and the content of the Agreement by means of an Order Confirmation, unless the Client objects to this In Writing Without Delay.

  • No Agreement after objection

In the cases in which the Agreement is concluded on the basis of Article 3.4 or 3.5 at the moment that the Order Confirmation has been received by the Client and the Client objects to it Without Delay In Writing, no Agreement will be concluded.

  • Agreement upon commencement of delivery

If, for whatever reason, the procedure as described in Article 3.2, 3.4, or 3.5 is deviated from, for example because the communication was only oral, the Agreement will nevertheless be concluded with due observance of the following. The Agreement is then concluded at the moment that the Contractor actually starts the execution of the Agreement or gives instructions to third parties to do so. In such a situation, unless the Client provides proof to the contrary, the invoice is deemed to fully and correctly reflect the contents of the Agreement.

  • Additional information Documentation provided by or on behalf of the Contractor binds the Contractor only insofar as the Offer explicitly refers to information from this Documentation.
  • Documentation in singular

The Contractor will provide Documentation in a single copy free of charge insofar as this has been agreed or is important in the opinion of the Contractor. The Client will owe the Contractor a reasonable fee for additional copies of such Documentation.

  • Provide security

At the Contractor’s first request, the Client will provide adequate securities to the Contractor at its own expense with regard to the timely fulfillment of its obligations under the Agreement.

  • Enable third parties

The Contractor is authorized to engage third parties for the execution of the interim

Agreement concluded between the parties and to charge the costs thereof to the Client in accordance with that Agreement.

  • Secrecy
    • Prohibition

Without the Written permission of the Contractor, the Client is prohibited from copying or multiplying Documentation or parts thereof in any way whatsoever, to disclose it to third parties, to allow third parties to use it, to sell it to third parties or to make it available to third parties. to set.

  • Right of use Documentation The Client is only permitted to use Documentation insofar as this is necessary for the conclusion or fulfillment of the Agreement. At the Contractor’s first request, as well as if the Agreement is not concluded, terminates prematurely or is cancelled, the Client must immediately return all Documentation provided to it to the Contractor at its own expense.
  • Limited circle of readers

The Client will only share the Documentation within its own organization with its own employees and insofar as this is necessary for the conclusion or fulfillment of the Agreement. By receiving the Documentation, the Client guarantees that it has taken and will take adequate measures in good time to prevent the Documentation or parts thereof from leaking out to persons other than the persons/third parties who are allowed to take cognizance of the Documentation on the basis of this article.

  • Change of the Agreement
    • Written Only

An amendment to the Agreement can only be agreed in Writing. In the event that

Parties have reached agreement on a specific change to the Agreement, the Contractor will confirm the change to the Client In Writing. This confirmation will in any case show what the substantive, financial and temporal consequences of the change are.

  • Content of amended Agreement

The amended Agreement will be, subject to

Written proof to the contrary to be provided by the Client, deemed to have been established in accordance with the contents of the Written confirmation referred to in the previous sentence, unless the Client objects to this In Writing Without Delay. In the event that the Client makes a timely objection in Writing as referred to in the previous sentence, the amendment of the Agreement will bearrival not realised.

  • Or amended execution If the Parties agree on the desired amendment to the Agreement, but the Written Requirements as stipulated in Article 5.1 have not been met, and the Contractor, with the knowledge of the Client, complies with the Agreement in an amended form, unless proof to the contrary is provided by the Client, the by the Client of

The invoice or invoices received by the Contractor are deemed to reflect the correct content and scope of the amended Agreement.

  • Costs Already Delivered

If an amendment to the Agreement has been agreed, the Client is in any case obliged to reimburse the Contractor the agreed price for the Items already Supplied by the Contractor up to the time of amendment.

  • Cost of changes

If an amendment to the Agreement has been agreed, the Client must reimburse the costs associated with this and to be determined in all reasonableness by the Contractor as a result of the amendment. This may include the cost price of materials or manpower already purchased, price changes of supplies, or cancellation costs as a result of canceling supplies that were initially necessary for the fulfillment of the unaltered Agreement.

    • Delivery times change if an amendment to the Agreement has been agreed, the Contractor has the right to deviate from previously agreed delivery times and lead times insofar as it deems necessary to be able to fulfill the Agreement in the amended form.

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  • Premature termination
    • Mutual consent

The parties can jointly agree that the Agreement will terminate prematurely and under what conditions such termination will take place.

  • Terms and Conditions for Early Termination

Termination will not take place until after:

‐ the agreement to termination has been confirmed in Writing by the Contractor to the Client, stating all conditions agreed in connection with the termination; ‐   The Client has not immediately objected to the confirmation referred to in the previous paragraph;

‐              all terms and conditions that are Parties in connection with the premature termination

agreed and included by the Contractor in the Written confirmation have been fully fulfilled.

  • Reimbursement

If the Parties have agreed a fee in the context of the premature termination that the Client must pay to the Contractor, then in addition to the provisions of article

6.2 the Agreement will not end before the payment referred to above has been received by the Contractor.

  • Prices
    • Euros

Unless stated otherwise in the Offer, all prices are in euros and excluding VAT, excluding import duties and other levies, taxes or excise duties, excluding packaging costs, excluding insurance costs and excluding disposal fee(s).

  • Costs of transport and insurance in the Netherlands

Unless otherwise agreed, upon delivery within the Netherlands, the costs of transport and insurance shall be borne by the Client.

  • Costs of transport and insurance abroad

For delivery outside the Netherlands, unless otherwise agreed, delivery takes place ex-works manufacturer in accordance with the most current version of the Incoterms at the time the offer is made.

  • Other costs

The costs of assembly, installation, addition or removal, connection or disconnection, construction, connection, adjustment, adjustment, calibration, validation, calibration, instruction, tests, checking and commissioning are only included in the price, at least part of the delivery, insofar as the Parties have agreed this in Writing.

  • Currency changes > +/‐ 2%

In the event of a non-binding Offer and also if this reservation is included in a non-binding Offer, the Contractor is entitled to adjust prices if the official currency parity at the time of delivery deviates by more than 2% from the currency parity on the date on which the Offer was made. , the latter parity being set at 100.

  • Risk
  • Delivery

theft, damage, destruction or deterioration to the Client at the time of delivery of the goods concerned, with due observance of the other provisions of this article.

  • Risk transport abroad

In the event of delivery outside the Netherlands, the risk associated with the transport is arranged in accordance with the provisions of the Incoterms agreed by the Parties

(see article 7.3).

  • Transport risk within the gates The risk during transport on the premises of</li†

The Client is at all times at the expense of the Client unless the Client can prove that the damage was caused by intent or gross negligence on the part of the Contractor’s management.

  • Risk after transport abroad

In the event of delivery outside the Netherlands, the risk of theft, damage or deterioration will in any case pass to the Client at the moment that the Contractor has fulfilled all its obligations in accordance with the agreed provisions of the Incoterms.

  • Risk actions

Except in cases of intent or gross negligence by the Contractor’s management and unless otherwise agreed, without prejudice to the provisions of Article 18, the following risk shall be borne by the Client:

The risk of loss, theft, damage, destruction or deterioration of the Items Delivered by the Contractor, the properties of the Client and those of third parties, in connection with the Contractor’s performance of work for, among other things,

but not limited to assembly, installation, extension or removal, connection or disconnection, construction, connection, adjustment, adjustment, calibration, validation, calibration, instruction, testing, checking and commissioning.

  • Risk matters under the Contractor

If the Contractor does business for

The Client has separated from its other stock items but has not yet delivered for whatever reason, or if the Contractor retains items for the Client’s benefit from the Client, for example for repair, inspection, calibration, validation, training, testing or for whatever , the risk of loss, theft, damage, destruction or deterioration is for the account of the Client, unless the risk in question has materialized as a result of intent or gross negligence on the part of the Contractor’s management.

  • Risk return of goods  Client

In the event that the Contractor has goods from the Client in its possession for, for example, repairs, inspection, etc. and these goods have to be sent or transported for whatever reason, the risk of loss, theft, damage, destruction or deterioration during that transport occurs. account of the Client.

  • Administration costs

The Contractor may, for assignments that have been

The amount to be determined by the contractor shall not exceed the risk of transport in the Netherlands, a fee to be determined by him as a contribution to the In case of shipment within the Netherlands, the risk of administrative and logistics costs will be charged.

  • Time of delivery

In the case of delivery within the Netherlands, the time of delivery is the time when the goods to be delivered are unloaded or unloaded at the place agreed for this purpose. In the case of delivery outside the Netherlands, the moment of delivery is the moment at which the Contractor has fulfilled all obligations in accordance with the provisions of the Incoterms agreed by the Parties (see Article 7.3). For the moment at which the risk passes, see Article

8, for the moment when ownership is transferred see article 16.

  • Notification of transport damage, etc.

The Client must report any shortages, shortcomings and damage directly to the Contractor In Writing within 24 hours after delivery, failing which the goods will be deemed to have reached the Client in good order, complete and without damage or damage.

  • Delivery in parts

The Contractor is entitled to deliver the goods to be delivered in parts and to invoice these parts separately.

  • Accept

Insofar as a test, trial or inspection (hereinafter: ‘Acceptance test’) has been agreed with regard to a delivery and a Defect is established, then the Defect must be reported immediately with due observance of the provisions of Article 17.4. If no Defect has been reported Immediately after the Acceptance Test with due observance of the provisions of Article 17.4, the delivery shall be deemed to be in accordance with the Client’s justified expectations.

  • Returns

Return to the Contractor of goods delivered by the Contractor or any part thereof, for whatever reason, can only take place after prior Written permission and only in accordance with any shipping instructions from the Contractor to the Client.

  • Do not purchase goods

In the event that the Client does not accept a delivery offered by the Contractor or has indicated that it will not accept it, the Contractor is nevertheless entitled to charge the relevant goods to the Client and the Contractor is furthermore entitled to supply these goods at its own discretion and at the expense and risk. of the Client on (doand) strike as long as it seems sensible to him, without prejudice to all other rights that the law grants him in connection with non-compliance by the Client.

  • Permits

The Client must itself and at its own expense ensure that the permits, concessions, licenses, permissions, etc. are obtained that are necessary for the Contractor to properly fulfill all its obligations arising from the Agreement.

  • Call orders
    • Definition

The parties can agree that the Client will purchase a certain quantity within a certain period and that the Client will purchase this quantity in more than one separate delivery, according to a concrete call-off schedule. This appointment is hereinafter referred to as ‘Call-off order’. In that case, the Contractor has the right to invoice the separate deliveries referred to above separately.

  • Deliveries according to the on-call schedule If an On-Demand Order has been agreed, the Client will offer the individual partial deliveries on the agreed delivery dates, without the Client having to act.
  • Deviation from the on-demand schedule After an On-Demand Order has been agreed, the Parties may agree that a specific delivery time will be deviated from from the on-call schedule with due observance of the following paragraphs of this article.
  • Written confirmation A change to the schedule will only come into effect after the changed delivery dates of the relevant partial deliveries have been confirmed in Writing by the Contractor to the Client.
  • Keep in stock longer

If, as a result of an agreed change to the call-off schedule, the Contractor has to keep goods in stock for longer than would be the case if the original call-off schedule had been followed, the Contractor will keep these at the expense and risk of the Client.

  • Change schedule and end date

If the Parties agree on a new delivery date for a specific partial delivery of an On-Demand Order, the other agreed delivery dates for partial deliveries will remain unchanged, so they will not automatically be included. A newly agreed delivery date of a partial delivery cannot be later than the originally agreed delivery date of the last partial delivery of the On-Demand Order. If the Client wishes to change the delivery date of the last term of the On-Demand Order, the Agreement must be amended for this purpose as described in Article 5.

  • Interrupt call order

An On-Off Order can only be terminated prematurely with the consent of both Parties, with due observance of the provisions of Article 6. If the agreed price was based on the purchase of a specific volume and if a higher price would have been charged for the final purchase of a lower volume , then the Client is in any case obliged to pay the difference without prejudice to the provisions of Article 6.

  • Spare parts
    • After warranty period

After expiry of the agreed warranty period, the Contractor cannot be obliged to supply spare parts for delivered goods.

  • Guarantee on spare parts

If the Contractor supplies or installs spare parts to repair a Defect, the warranty period for these spare parts will not start again. The warranty period of the original delivery remains unchanged.

  • Parts no longer available

Insofar as the Contractor is under an obligation under the law or the Agreement to:

supply spare parts for goods or parts thereof previously delivered to the Client, this obligation will lapse at the moment that the Contractor no longer has these spare parts in stock and they are also not available on the market under reasonable conditions through the regular channels.

  • Comparable goods/parts In the event that the Contractor is obliged to replace goods or parts thereof delivered to the Client, it is free to supply a comparable good or part insofar as it deems it suitable for the same normal use. for which the good or part thereof to be replaced was suitable.
  • Consumables

Insofar as the Parties have not made any Written agreements regarding the deliverability of consumables, the Contractor is no longer obliged to be able to supply consumables after the agreed warranty period has expired.

  • Delivery times
    • Foreign Supplies

It is possible that the goods offered by the Contractor, such as parts, semi-finished products or raw materials required for the production thereof, hereinafter: ‘Foreign Supplies’, directly or indirectly.ect are supplied from various continents and countries and/or are obtained from different suppliers. The Contractor cannot rule out the possibility that in exceptional cases these Foreign Supplies will be difficult to obtain or even impossible to obtain for some time as a result of, for example, scarcity of raw materials on the world market, environmental disasters and significant fluctuations on the supply side. As a result, it is not always possible for the Contractor to predict exactly when delivery can be made when the order is placed. In order to inform the Client as accurately as possible, the Contractor will use the working method as described in the following paragraphs of this article.

  • No deadlines

The Contractor specifies the estimated delivery times in its Offer. After the Agreement has been concluded, the Contractor can verify these estimated delivery times and confirm them to the Client. The verified delivery times may differ from the estimated delivery times from the Offer. Neither the estimated delivery times nor the verified delivery times are deadlines.

  • Extend delivery times

Because unexpected situations may arise during the purchase, production, assembly and transport of the ordered goods and of the materials, raw materials and semi-finished products processed therein, over which the Contractor has no reasonable influence in its opinion, the Contractor has the right to change the verified delivery times. can be extended by a maximum of four weeks. To this end, the Contractor will send a confirmation before expiry of the verified delivery period, containing the new verified delivery time(s).

  • Termination after four extensions The Client is authorized to terminate the Agreement in whole or in part if the expected delivery time has been extended more than four times. If the Client terminates the Agreement on the basis of this provision, this will not lead to any obligation on the part of one of the Parties to compensate damage suffered by the other party as a result of such termination.
  • But deadlines

If, at the request of the Client, the Parties have agreed that deliveries must take place on a specific day and that it has been made known in Writing before or at the conclusion of the Agreement that a later delivery is not acceptable, the Contractor will agreed delivery times will not be in default until after he has been given notice of default In Writing and he has been offered a reasonable term to still deliver. In order to determine the reasonable term, the current delivery times and production lead times, the duration of any transport(s) and the availability of raw materials and building materials must in any case, but not exclusively, be taken into account.

  • Force Majeure (Not Attributable Shortcoming)
    • In case of force majeure no obligation

Neither Party is obliged to fulfill any obligation, including any guarantee obligation agreed between the Parties, if it is prevented from doing so as a result of force majeure.

  • Scope

Force majeure also includes: (I) force majeure of Suppliers of Contractor, (II) failure to properly fulfill obligations of Suppliers prescribed by Client to Contractor, (III) defectiveness of goods, equipment, software or materials of third parties the use of which has been prescribed by the Client to the Contractor,

(IV) government action, (V) power outage, (VI) outage of the Internet, service providers, computer network or telecommunications facilities, (VII) war, (VIII) work occupation, (IX) strike, (X) general transportation problems and (XI) the unavailability of one or more staff members whose personal effort is necessary in connection with the fulfillment, (XII) terrorist attacks or occupations, (XIII), epidemics and pandemics, (XIV) financial crises, (XV) the failure of the payment network of the relevant banks.

13.3  Dissolve

If a force majeure situation lasts longer than ninety days, each of the Parties has the right to dissolve the Agreement in writing. In that case, what has already been performed on the basis of the Agreement will be settled proportionally, without the Parties otherwise owing each other anything. The parties will immediately make payments to be made in connection with this settlement.

13.4 Notification of force majeure If the Contractor wishes to invoke force majeure, he will inform the Client of this as soon as this is practically possible. The consequences of force majeure take effect from the moment that the leading circumstance, cause or event has occurred.

13.5       Suspend

If the Contractor is prevented from fulfilling any due and payable obligation due to force majeure,

To comply with the Client and the force majeure situation will be of a temporary or transient nature in the opinion of the Contractor, the Contractor is entitled to

Suspend the agreement until the circumstance that caused the force majeure situation no longer exists.

13.6       Priority

If the Contractor is prevented from fulfilling its obligations with regard to one or more of its customers or Clients as a result of force majeure, but not the obligations with regard to all customers and Clients, the Contractor is entitled to decide at its own discretion which of the obligations and against which customers and Clients he will fulfill, as well as the order in which this will happen.

  • Warranty
    • Product warranty

With due observance of the other provisions of these general terms and conditions, the Contractor only guarantees that the Item Delivered, with the exception of consumables, meets the product specifications at the time of delivery and that it possesses the properties confirmed in Writing by the Contractor to the Client before or at the time of the come from the Agreement.

  • Further guarantee/Functional guarantee: The parties can agree that the Contractor will provide a guarantee that goes further than the product guarantee as referred to in Article 14.1, with due observance of the provisions of this paragraph. The Contractor only guarantees that the Items supplied will function and/or perform in a particular way in combination with items supplied by third parties and/or in combination with items from the Client (for example in a process, in a machine or in an installation of the Client). , hereinafter: “Working guarantee”, when and insofar as this is explicitly stated In Writing by before or at the conclusion of the Agreement

The Contractor to the Client has been confirmed with due observance of Article 2.2. The conditions for the creation of an obligation of result with regard to a Work, as included in Article

28.4 also apply to the creation of a Performance Warranty. A Functional Guarantee lapses at the moment that after delivery it appears that there are circumstances that, in the opinion of the Contractor, negatively affect the functioning of the Items delivered and that were not already reported to the Contractor by the Client before or when the agreement was concluded and were confirmed in writing by the Contractor to the Client. Insofar as not otherwise agreed, a Functional Warranty lapses after 12 months after delivery.

  • Term

Unless other warranty periods are stated in the Offer, the warranty stated in 14.1 for new items is 12 (twelve) months from the time of delivery. Unless stated otherwise in the Offer, no warranty is given on used goods delivered by the Contractor.

  • Reporting Defect during warranty If the Client has become aware of a Defect and wishes to make a claim under warranty regarding the defective delivery, the Client must report this Defect with due observance of the provisions of Article 17.4 on pain of forfeiture of the right to do so.
  • Repair or replacement If, in the opinion of the Contractor, there is indeed a Defect that can be attributed to it and if the Client is entitled to a warranty as referred to in Article 14.1 with regard to this Defect, the Contractor will, at its discretion or for the repair of this Defect or for the replacement of the defective item, unless this repair or replacement cannot be expected in all reasonableness.
  • How to recover

The Contractor is free to carry out the repair of a Defect itself or to outsource this or to engage third parties for this.

  • Send to Contractor

Goods that qualify for the guarantee must be delivered to the Contractor by the Client at its own expense. All costs that arise as a result, such as, but not limited to, costs related to installation and removal, installation, calibration, verification, start-up, loss of production, waiting time, production standstill, packaging, insurance and transport are for the account of the Client.

  • Reimbursement costs

If, in the opinion of the Contractor, the goods sent to the Contractor under warranty do not show any Defects after inspection, or if the Client is not entitled to a warranty, the Client is obliged to reimburse the Contractor for all costs for inspection, storage and shipment.

  • What is not covered by the warranty Without prejudice to the other provisions of this article, the Client shall under no circumstances be entitled toreally under warranty:

‐              if the Item Supplied has not been used for the purpose and under the circumstances for which it was supplied;

‐              if the Item Supplied is used in violation of the instructions and regulations, etc.;

‐              with regard to items made available for processing by the Client;

‐              If the alleged Defect is the result of wear and tear as a result of normal use;

‐              on Work performed that has the nature of a best efforts obligation;

‐              on matters prescribed by the Client or which have been obtained by the Contractor from third parties designated by the Client.

  • Void warranty

All warranty claims lapse immediately at the moment that, without the Contractor’s Written consent:

‐              changes, adjustments and/or repairs have been made to the Deliverable;

‐              the Deliverables are or have not been used or treated accurately in accordance with the supplied and/or applicable (factory) instructions or instructions for use;

‐              the Deliverables are or have been used or treated injudiciously in any other way;

‐              a software adjustment or upgrade has taken place in or with regard to the Deliverables that have not been made by the Contractor itself or by a third party designated by the Contractor;

‐              the Delivery is or has been used or applied for purposes other than those for which it is intended;

‐              The Items delivered are or have been used in a way that the Contractor could not reasonably have foreseen on the basis of the information provided by the Client to the Contractor before or upon conclusion of the Agreement.

14.11 Waiver of warranty obligations

As long as the Client does not or does not fully comply with one or more of its obligations towards the Contractor under any Agreement, the Contractor is released from its

warranty obligations from the moment that the Client fails to properly fulfill its obligations until the moment that the Client has properly fulfilled all its obligations towards the Contractor again. The warranty period continues during the period that the Contractor is released from its warranty obligations.

14.12     Damage during the warranty period  Insofar as the Contractor is obliged during the warranty period to compensate damage or costs that the Client has suffered as a result of a Defect, the fulfillment of the warranty obligation by the Contractor shall apply as sole and full compensation. 15  Collateral Rights

15.1       Right of retention

The Contractor has a right of retention on all goods that are held by or on behalf of the Client under the Contractor, regardless of the cause or reason thereof, as long as the Client has not fulfilled all its obligations towards the Contractor.

15.2  Case formation

If the Client (also) forms a new item from goods delivered by the Contractor, the Client will form the newly formed item for the Contractor until the Client has fulfilled all its obligations towards the Contractor under the Agreement. In that case, the Contractor has all rights as the owner of that formed item until full payment is made by the Client. By entering into the Agreement with the Contractor, the Client grants him permission to enter his sites and buildings in order to take possession of his properties.

15.3       Right of pledge

At the first request of the Contractor and at the expense of the Client, the Client will cooperate with the establishment of a non-possessory pledge on newly formed goods as referred to in Article 15.2, in which goods delivered by the Contractor have been processed, as long as the Client has not yet fulfilled all its obligations towards the Contractor. fulfilled.

  • Retention of title
    • Extensive caveat

Without prejudice to the provisions of article 8 regarding the risk and the transfer thereof, all goods delivered by or on behalf of the Contractor remain the property of the Contractor until the Client has fulfilled all its due and payable obligations towards the Contractor.

  • Good care

The Client is obliged ‐ as long as the property of the goods delivered by or on behalf of the Contractor still vests in the Contractor pursuant to the provisions of Article 16.1 ‐ to keep these goods separated from other goods in such a way that they can be easily and clearly identified as the Contractor’s goods.

  • Reclaim

In the event of non-payment of any amount due and payable by the Client to the Contractor, and furthermore in the event that the Agreement ends other than upon completion, the Contractor is entitled to return the goods in respect of which the retention of title applies as property.order and to take the related measures or have them taken, after settlement of any payments already made in respect of those goods, without prejudice to the right of the Contractor to demand compensation for any loss or damage. In the event of such non-payment or termination of the Agreement, any claim the Contractor has against the Client is immediately due and payable.

  • Return of goods At the Contractor’s first request, the Client must provide a power of attorney for the immediate retrieval of the goods not yet fully paid for, wherever they may be. The Client undertakes to cooperate at the Contractor’s first request in order to give the Contractor the opportunity to exercise its retention of title, including any disassembly, expansion, closure, disconnection, etc.
  • Consequences of sale

The Client is entitled to sell or use goods in respect of which a retention of title in favor of the Contractor applies in the context of normal business operations; however, no security right may be established on these goods, while the Client may not perform any acts with regard to these goods, whereby they would become part or component of one or more other goods. In the event that goods are re-delivered in respect of which a retention of title in favor of the Contractor still applies, the Client is obliged to retain ownership thereof itself and, at the Contractor’s first request, to pay all claims against the Client’s debtor, up to the amount due, to the Contractor. cedars.

  • Prevent damage,

Notification Default

  • Care Contractor

In the performance of the Agreement, the Contractor will exercise the care that may reasonably be expected of it. Nevertheless, it cannot be ruled out that the Items Delivered by the Contractor will not arrive at the Client without Defects as a result of events during transport or unforeseen circumstances, or that it will show Defects as a result of the method of use by the Client.

  • Prevent damage

The Items Supplied by the Contractor may possibly be used in processes or installations of the Client. The way in which the Deliverables are built in or used, the circumstances under which the Deliverables are used and what specific requirements are imposed on the Deliverables are usually not fully known to the Contractor. If the Delivered Item unexpectedly shows a Defect, this can cause damage for the Client. The amount of that damage depends to a large extent on the way in which the processes and installations of the Client are set up and what those processes and installations serve. Important are, for example, the manner and speed of monitoring, whether or not redundant versions, frequency and depth of inspections, types and manner of alerting in the event of malfunctions, permanent or non-permanent supervision, malfunction handling routines and related business processes, quality of maintenance, etc. Because If all the aforementioned parameters are within the domain of the Client, the Client is responsible for taking adequate measures to prevent unnecessary or unnecessarily high damage in the event that a good delivered by the Contractor becomes defective.

  • Warning

The use of items that do not function properly can have serious consequences for the functioning of processes or installations of which the Deliverable is part or for the persons involved. This is therefore strongly discouraged by the Contractor.

  • Notification Defect

The Client must report a Defect In Writing to the Contractor Immediately after it has become aware of this or could or should have been aware in all reasonableness if it had taken adequate measures as referred to in Article 17.2. The notification of the Defect must be so specific that it is clear to the Contractor without further inquiry what the nature of the Defect is and what actions may reasonably be expected of it. When reporting the Defect, all relevant circumstances that are or could be important for an assessment of the circumstances of the Defect must be described.

  • Liability
    • Conditions for compensation for damage

Except in the event of intent or gross negligence on the part of the Client’s management and with due observance of the other provisions of the GENERAL DELIVERY TERMS AND CONDITIONS 2021 and in particular the other paragraphs of this article, the Contractor is only obliged to compensate the Client for damage suffered as a result of of a Defect. The obligation to compensate damage ordoes not arise until each of the following conditions is met:

‐              the Defect must be reported by the Client to the Contractor in the manner as described in Article 17.4;

‐              there must be default as described in Article 18.2 and Article 18.3;

‐              the damage must be attributable to the Contractor;

‐              The client has made it sufficiently plausible that he has satisfactorily

has taken precautionary measures to prevent or limit the damage as referred to in Articles 17.2 and 17.3, among other things.

18.2 Absence period

The Contractor is in default during the time that the performance is not forthcoming after it has become due and payable and the requirements of Article 18.3 have been met, except insofar as the delay cannot be attributed to it or compliance is already permanently impossible in the opinion of the Contractor.

18.3       Notice of default

The default as referred to in Article 18.2 only takes effect when the Contractor is given notice of default by the Client by means of a Written demand, setting a reasonable term for compliance, and compliance is not forthcoming within this term. In determining the reasonable term, the delivery times and production lead times applicable at the time of the notice of default, the duration of any transport(s) and the availability of raw materials and building materials must in any event, but not exclusively, be taken into account.

18.4       Liability insurance

The Contractor can but does not have to insure itself against damage that may arise as a result of a shortcoming attributable to it in the fulfillment of its obligations towards

Client. If the Contractor has taken out liability insurance, this may affect the maximum amount for which it can be held liable in the event of such a shortcoming. By entering into an Agreement, the Client accepts that it is responsible for checking in advance whether the cover offered by the liability insurance taken out by the Contractor is, in its opinion, sufficient for the relevant Assignment. The Contractor will send a copy of the relevant insurance policy sheet to the Client at the Client’s first request.

18.5       Limitation of Liability

If the Contractor, on the basis of an attributable shortcoming in the fulfillment of the

Agreement or on whatever legal basis is liable to the Client and is obliged to compensate his damage, the obligation to compensate damage is limited to compensation for direct damage and to a maximum of the amount involved in the Agreement (excl. VAT). If it mainly concerns a continuing performance contract with a term of more than one year, the amount involved in the Agreement is set at the total of the fees (excl. VAT) stipulated for one year. In any case, the obligation to pay compensation is limited to a maximum of €500,000 (five hundred thousand euros).

In the event that the insurer pays out an amount in connection with the Contractor’s liability as referred to above, the obligation to compensate damage is moreover limited to the amount that the insurer pays out for the relevant case or to what is covered by the insurance.

18.6       Exclusion of liability for indirect damage The Contractor’s liability is excluded for indirect damage or consequential damage, which in any case includes:

‐              damage other than damage for the Contractor to remedy the direct consequences of the non-compliance;

‐              damage due to lost profits, production standstill, destruction or deterioration of goods as a result of production standstill, lost savings, business interruption or reduced goodwill;

‐              damage as a result of claims from third parties, including customers of the Client;

‐              damage related to the use of items prescribed by the Client to the Contractor, such as, but not limited to: installations, tools, machines, materials or data, information or software of third parties;

‐              damage related to the engagement of suppliers, programmers, consultants or inspectors prescribed by the Client to the Contractor;

‐              damage resulting from mutilation, destruction, or loss of data, settings of digital equipment, software, information, data or documents.

The exclusions and limitations referred to in this article will lapse if and insofar as the damage is the result of intent or gross negligence on the part of the Contractor’s management.

18.7       Other exclusions

The Contractor’s liability is furthermore excluded for:

‐              The direct and indirect consequencesof non-punctual compliance by the Client with the user or operating instructions;

‐              Normal wear and tear, and damage and/or wear caused by improper use and as a result of overload or any other form of abnormal use.

‐              Abnormal or unforeseen circumstances, or circumstances that the Contractor should not reasonably have taken into account on the basis of the information submitted to it when the Agreement was concluded;

‐              Damage against which the Client could have insured itself.

18.8       Cumulation

The exclusions and limitations of the Contractor’s liability as described in Article 18 do not affect the other limitations and exclusions as included in the GENERAL DELIVERY TERMS AND CONDITIONS 2021.

18.9       Limitation

Any claim that the Client has against the Contractor lapses by the mere lapse of twelve months after the claim arose and in any case after three years after the delivery by the Contractor, regardless of the legal basis of the claim.

18.10 Disclaimer

The Client will indemnify and hold harmless the Contractor with regard to all claims by third parties for compensation for damage suffered by these third parties, including claims for product liability and violation of intellectual property rights, as a result of a good delivered by the Client to these third parties that also consisted of Contractor delivered goods.

18.11     Reliance on GENERAL DELIVERY TERMS AND CONDITIONS 2021 by others  The provisions of this article as well as all other limitations and exclusions of liability mentioned in the

GENERAL DELIVERY TERMS AND CONDITIONS 2021 also apply in favor of employees employed by the Contractor and of all (legal) persons that the Contractor uses in the performance of the Agreement and for the benefit of the group of which it forms part.

18.12    General terms and conditions third parties  With regard to goods and services which

The Contractor has involved a third party, the provisions applicable to the relevant agreement regarding warranty, spare parts and liability also apply to the Agreement between the Contractor and the Client, if and insofar as the Contractor invokes them. By entering into an Agreement, the Client gives the Contractor the authority to accept a limitation of the liability of this third party.

  • Intellectual property rights
    • Ownership

All intellectual property rights, hereinafter referred to as ‘IP’, on the items supplied, developed or made available by the Contractor to the Client, including Documentation, inventions, ideas, software, ICs, data files, diagrams, equipment, samples, circuits , methods, arrangements, installations, solutions, analyses, designs, reports, quotations ‐ rest exclusively with the Contractor or with its licensor(s) or its Supplier(s).

  • Right of use for deliveries

Unless otherwise agreed In Writing, the Client will only receive perpetual, non-exclusive and non-transferable user rights in connection with the agreed deliveries, insofar as applicable, for the specific application for which the delivery was intended and exclusively for use in the country where the delivery is made according to the Agreement. had to take place.

  • Moment of transition right of use

The user rights referred to in Article 19.1 will not transfer to the Client until the relevant deliveries are complete and have taken place properly and the Client has fulfilled all its obligations towards the Contractor under the Agreement.

  • Registration of IP rights

Insofar as registration is required with regard to the rights referred to in 19.1 before the relevant right arises, the Client is prohibited from performing the registration acts in question or having them performed without Written permission from the Contractor.

  • Breach

In the unlikely event that a good sold by the Contractor to the Client in the Netherlands infringes an intellectual property right of a third party, and the Client is held liable in this regard, the Client is obliged to immediately inform the Contractor of this in writing. In that case, the Contractor is entitled, at its own discretion, to remedy this infringement by:

‐              the right to use that good to

to provide the Client, either

‐              modify the good in such a way that it no longer infringes, or

‐              supply a non-infringing replacement good, or

‐ to refund the purchase price to the Client after the good has been received back from himhours less a reasonable compensation for the period that the Client has had the good at its disposal.

With regard to infringement of an IP right outside the Netherlands, the Client will not be able to assert any claim or have any claim against the Contractor.

19.6  Exclusion of liability IE

The Contractor is not liable for the infringement of any intellectual property right or any other exclusive right which is the result of:

‐              any change in or to a good sold or delivered by or on behalf of the Contractor;

‐              any use or application of such a good other than that prescribed by the Contractor or which the Contractor may rely on under the Agreement;

‐              integration, use or application with goods, including (parts of) systems and networks, not sold and delivered by or on behalf of the Contractor;

‐              a software adjustment that has not been made by or on behalf of the Contractor.

  • Payment
    • Payment conditions

The Client will pay the invoices in accordance with the payment conditions stated on the invoice. If no specific conditions are stated on the invoice, the Client will pay within fourteen (14) days after the invoice date stated on the invoice. The Client is not entitled to set off or suspend payment. The value date indicated on the Contractor’s bank statements on which a payment is received is considered to be the day on which the payment is made.

  • Payment order

Any payment made by the Client – ​​if applicable – firstly serves to settle the interest owed by it and the collection costs and administration costs owed to the Contractor, and then to settle the outstanding claims in order of age.

  • Late payment

If the Client does not pay amounts owed by it to the Contractor on time, the Client will owe statutory interest for commercial transactions on the outstanding amount, without the need for a reminder or notice of default, to be calculated cumulatively per month. If, after a payment reminder, demand or notice of default, the Client also fails to fulfill its payment obligations within a reasonable term, it will be in default by operation of law. From that moment on, in addition to the costs established at law, the Client is also obliged to reimburse the Contractor for the judicial costs actually incurred by the Contractor and the extrajudicial costs actually incurred, including the costs charged by party and/or judicial experts.

  • Advertising invoice

Complaints with regard to an invoice must be submitted to the Contractor in writing within 8 (eight) days after the date of that invoice.

  • Payment obligation remains

Reporting a Defect as described in article 14.4 and/or article 17.4 discharges

The Client does not fulfill its payment obligations towards the Contractor.

  • Termination Agreement
    • Dissolution or fulfillment

In the event that one of the Parties is in default, this gives the other Party the authority to dissolve the Agreement in whole or in part, without prejudice to the authority to claim performance.

  • Compensation of damage In the event of dissolution by the Client, the Contractor is not obliged to pay compensation to the Client.
  • Immediate termination

The Contractor may dissolve the Agreement without notice of default with immediate effect if the other party is declared bankrupt, assigns an estate, (provisional or final) suspension of payments is granted, in the event that the entire assets of the other Party or part thereof is laid or in the event that the other Party’s business is liquidated or terminated.

  • Consequences of dissolution

If a Party dissolves an Agreement pursuant to the provisions of this article, the amounts owed by the Client to the Contractor at the time of termination will remain due in full and the Client will owe interest and costs in respect of these amounts in accordance with the provisions of the GENERAL TERMS AND CONDITIONS OF DELIVERY 2021, without prejudice to the right of the Contractor to claim compensation, to use the rights arising from retention of title to take other

(legal) measures and other rights accruing to the Contractor.

  • Cancellation at the request of the Client
    • Mutual consent The Client can request the Contractor to agree to the cancellation (cancellation) ofn an already placed but not yet executed Agreement. Cancellation of an Agreement cannot take place before the Parties have reached an agreement in Writing on the cancellation conditions, including the amount of the cancellation costs, and after all agreed cancellation conditions have been fully met in the opinion of the Contractor.
    • Time of cancellation As long as the Parties have not reached agreement on the cancellation conditions or as long as the cancellation conditions have not been fully met in the opinion of the Contractor, the Agreement will continue and the Parties remain obliged to fully comply with their mutual obligations under that Agreement. come.
    • Amount of cancellation costs The amount of the cancellation costs will be determined by the Contractor on a case-by-case basis. The following factors are important for determining the amount of the cancellation costs:

‐              the amount involved in the Agreement;

‐              the extent to which the implementation of the Agreement has already progressed;

‐              the type of Agreement (delivery of goods, development order, delivery of work, service agreement, training/education, etc.);

‐              the costs already incurred by the Contractor up to the time of cancellation, the obligations that the Contractor has already entered into in connection with the performance of the Agreement;

‐              the actions that the Contractor must take in connection with the cancellation;

‐              the profit that the Contractor forfeits as a result of the cancellation.

  • Damage due to cancellation In the event of cancellation of an Agreement, the Contractor will under no circumstances be obliged to compensate any damage that the Client suffers or could suffer as a result of that cancellation.
  • Applicable law and disputes
    • Dutch law

Dutch law applies to every Offer made by the Contractor, to every Agreement entered into by or on behalf of the Contractor and to every other legal relationship between the Parties. The applicability of the Vienna Sales Convention 1980 is excluded.

  • Forum selection

Disputes arising from an Agreement concluded between the Contractor and the Client will be submitted to the competent court in the district in which the Contractor is established as the court in the first instance, on the understanding that if a specific court has been designated as the competent court under mandatory law, the dispute will be settled. by the judge thus designated as the court of first instance, without prejudice to the Contractor’s right to seize and to take or have other provisional measures taken at the place(s) before those judicial authorities where this appears to the Contractor to be desirable.

  • Other

The provisions of Article 23.2 do not affect the Contractor’s right to submit a dispute to the competent court in accordance with the normal rules of competence, or to have it settled by means of arbitration or a binding advice.

  • Validity

In the event that any provision of these GENERAL TERMS AND CONDITIONS OF DELIVERY 2021 should be invalid and/or unenforceable in whole or in part, as a result of any statutory regulation, court order, or any directive, decision, recommendation or measure of any local, regional, national or supranational authority or body, or otherwise, this will have no effect

for the validity of all other provisions of these GENERAL

DELIVERY TERMS AND CONDITIONS 2021. If a provision of these GENERAL DELIVERY TERMS AND CONDITIONS 2021 should not be valid for a reason as referred to in the previous sentence, but would be valid if it had a more limited scope or scope, then this provision will automatically apply with the most far-reaching or most comprehensive, more limited scope or purport with which or in which it is valid.

  • Deposit
  • Applicability
    • Work and Work

The provisions in Part B of the GENERAL DELIVERY TERMS AND CONDITIONS 2021 apply to all legal relationships between the Client and the Contractor regarding the performance of Work and the acceptance of Work, without prejudice to the applicability of the provisions of Part A of the GENERAL TERMS AND CONDITIONS OF DELIVERY 2021 which, to the extent applicable , also apply to the delivery of Work and the acceptance of Work.

  • Part B > Part A

The provisions of Part B of the GENERAL DELIVERY TERMS AND CONDITIONS 2021 therefore supplement the provisions of Part A of the GENERAL DELIVERY TERMS AND CONDITIONS 2021.conflict with a provision of Part A of the GENERAL TERMS AND CONDITIONS OF DELIVERY 2021, the provision of Part B of the GENERAL TERMS AND CONDITIONS OF DELIVERY 2021 shall prevail to the extent of the conflict.

  • Definitions
    • Contracting Work: The creation (making, building, delivery) of an item of a material nature on the instructions of the Client. This may include, for example, making an installation, test set-up, system, machine, device, printed circuit board, switch box, etc. For the realization of the Work, the Parties will usually agree on a target price, record specifications and agree on more and more less work and the method of administration and testing.
    • Design data: All data and circumstances, including information, data, specifications, requirements, method of use and environmental conditions, on the basis of which the Contractor must perform Work or deliver a Work or which it must otherwise take into account in the execution of the Agreement, insofar as these have been provided by the Client before or during the conclusion of the Agreement and have been confirmed by the Contractor to the Client. Insofar as additional relevant data and/or circumstances become known to the Contractor during the execution of the Agreement, these will only become part of the Design Data if this has been explicitly confirmed in Writing by the Contractor to the Client.
    • Order: The order to perform Work and/or deliver a Work as specified in the Agreement and the GENERAL DELIVERY TERMS AND CONDITIONS 2021 and Design Dates.
  • The Assignment

PART B: Concerning Agreements to perform Work and accept Work. These general terms and conditions have been filed with the Chamber of Commerce Noordwest (Alkmaar), under number x.

  • To come into being

The Agreement regarding the delivery of Work and/or a Work can only be concluded In Writing with due observance of article 3. The effect of article 3.7 is excluded for the delivery of Work and of a Work.

  • Size

The scope of the Assignment and the specifications with which the Deliverables must comply are solely determined by what the Parties have agreed on in Writing.

  • Effort obligation

The Work to be performed by the Contractor is of the nature of

best efforts obligations, unless it has been explicitly agreed that these have the character of an obligation of result and the intended result is described with sufficient precision with due observance of the provisions of the following paragraph.

  • Result obligations The parties can agree In Writing that the Contractor must achieve a concrete result by executing the Assignment. In that case, there is only a result obligation if the following conditions are also met:

‐              all Design Data required by the Contractor that are important for achieving the agreed result must have been reported by the Client to the Contractor before or during the conclusion of the Agreement and confirmed by the Contractor to the Client;

‐              after the Agreement has been concluded, in the opinion of the Contractor, the information, data and circumstances referred to in the previous point have not been adversely affected;

‐              the criteria on the basis of which and the circumstances in which it is assessed whether the agreed result has been achieved must be crystal clear and objectively measurable in the agreed manner;

‐              the manner in which the Parties determine whether the agreed result has been achieved must be confirmed in Writing by the Contractor to the Client before or upon conclusion of the Agreement.

28.5       Partial result obligation

Insofar as the Parties have agreed on a result obligation, but the conditions for this have not been fully met, the Agreement has the character of a best efforts obligation insofar as the Contractor is of the opinion that the guaranteed result could not be achieved as a result of non-compliance with the aforementioned requirements.

  • Scope
    • Base for the Activities and Work

The Contractor will perform the agreed Work and realize the agreed Work on the basis of the Design Data.

  • Format Design Data

The Client will provide the Design Data digitally as much as possible in the agreed format. If nothing has been agreed about this, the Design Data will be delivered digitally in the format specified by the Contractor. Necessary adjustments, order, conversions and

Sorting of the Design Data will be carried out by the Client at the Contractor’s first request.

  • Access systems

Insofar as the Contractor deems it necessary for the performance of the Work to have access to the installations, networks or systems of the Client, the Client will provide its cooperation without delay. The Contractor is not liable for damage or costs as a result of the use of the networks, systems or installations of the Client, unless the Client proves that the damage or costs are the result of intent or gross negligence on the part of the Contractor’s management.

  • Correctness of Design Data The Client guarantees the correctness and completeness of the Design Data. If, in the opinion of the Contractor, imperfections in the

Design data arise, he is entitled to suspend his Work until the moment that the imperfections have been removed by the Client. In such a case, the Client will in any case, without prejudice to the Contractor’s right to compensation for damage,

The Contractor owes the applicable compensation for what has already been performed in execution of the Agreement, while the Contractor is then also entitled to charge additional costs in accordance with its usual rates. The Client cannot derive any right to compensation from the suspension by the Contractor, regardless of the legal basis.

  • Client information obligation The Client is obliged to provide all relevant data and circumstances that lie within its domain and for the execution of the

Agreement could be important, to be made known to the Contractor in a timely manner.

  • Delivery time
    • Start of delivery period

If a specific delivery period has been agreed by the Parties, this period starts on the day following the day on which, insofar as applicable, each of the following conditions is met:

‐              the Agreement regarding the Assignment has been concluded;

‐              all Design Data necessary in connection with the performance of the Assignment, in the opinion of the Contractor, have been made available by the Client in the correct format;

‐              insofar as an advance payment has been agreed, this has been received by the Contractor;

‐              the day on which, in the opinion of the Contractor, all formalities ‐ necessary in connection with the execution of the Assignment ‐ have been complied with, including obtaining permits;

‐              insofar as work has to be done on a site to be designated by the Client or on an installation, network or system to be designated by the Client in connection with the performance of the Assignment, this/it is/is ready for this in the opinion of the Contractor. and the Contractor has unimpeded access thereto or has been made available to him.

30.2       Delivery date instead of delivery term  If no delivery term but a delivery date has been agreed, the delivery term is equal to the number of days between the time when the Agreement is concluded and the agreed delivery date. This term will not commence before the time when all the conditions referred to in Article 30.1 have been met. In that case, the time of delivery will be the time when the aforementioned delivery period has expired with due observance of the other provisions of Article 30.

30.3       Delay

If a delay occurs during the execution of the Assignment that cannot be fully attributed to the Contractor, the delivery period will be extended by the duration of that delay.

30.4       Extension of delivery time

If, during the execution of the Assignment, the conditions for commencement of the delivery period as described in Article 30.1 are no longer met and the progress of the agreed Work and/or the Work is hindered in the opinion of the Contractor, the delivery period will be extended by the number of days that those conditions are no longer met.

30.5       Not a strict delivery term  The agreed delivery term is an estimated delivery term, based on ‐ at the time the Offer is made ‐ delivery times of Suppliers, information and circumstances known to the Contractor. If circumstances arise during the delivery period through no fault of the Contractor as a result of which the agreed delivery period is no longer feasible, the delivery period will be extended insofar as necessary in the opinion of the Contractor.

30.6       Delay > 16 weeks

In the event that the total delay as referred to in Article 30.5 exceeds 16 (sixteen) weeks, the Client has the right to terminate the Agreement. In that case, Opdrthe Contractor is not obliged to compensate any damage or costs that the Client suffers as a result of the later delivery and/or the termination.

  • Facilitation by Client

31.1       Obligations of the Client

Except if and insofar as expressly agreed otherwise, the Client itself – in the opinion of the Contractor – will provide sufficient and timely for:

‐              earth, paving, pile driving, breaking, foundation, concrete, carpentry and upholstery or other ancillary works, of whatever nature;

‐              good and constant accessibility of the place(s) and guidance to/at the place(s) where the Contractor must have access in connection with the performance of the Assignment;

‐              drawings, Documentation, plans, diagrams and explanations required by the Contractor regarding the Client’s site and the items thereon;

‐              the required help for placing or moving items that cannot reasonably be handled by two people, as well as the hoisting and/or lifting equipment and similar aids to be operated;

‐              making scaffolding, scaffolding and ladders available, setting up and removing scaffolding, scaffolding and ladders after completion of the Work;

‐              the supply of fuels, energy and auxiliary materials such as compressed air, gas, water, electricity, gas oil and petrol, supply and discharge pipes, and the required connection points, necessary for the execution of the Order and any testing and commissioning;

‐              the provision of switching and protective equipment and cables for the electric motors and/or other electrical equipment to be supplied or used, with the exception of starting and rheostats that are part of the electrical equipment. ‐           during the duration of the execution of the Assignment

making available, in the immediate vicinity of the place(s) where the Assignment is to be performed, of a dry, heated, illuminated and separately lockable space of sufficient size, as accommodation for the workmen concerned and for the storage of the materials to be processed or use materials and tools and personal property of the workmen as well as making a toilet available.

‐              work required to restore parts that have become dirty, damaged or disrupted, or which no longer function, in a good and usable condition, unless the contamination or damage was done by the Contractor’s subordinates;

‐              starting up and/or keeping in operation and/or stopping installations that fall under the management of the Client insofar as this is desirable or necessary for the execution of the Assignment;

‐              sufficient lighting and, if applicable, bringing and maintaining the required or desired temperature and humidity of the place(s) where the Assignment is to be performed, such that the Activities or the Work can proceed without difficulty;

‐              applying for and timely payment of the amount owed with regard to power supply lines, connections, precario rights, nuisance law permits, permits pursuant to the Environmental Management Act and other legislation relating to the environment, building or renovation permits and other legal requirements.

31.2 Excess materials  Replaced, removed or removed materials become the property of the Contractor unless he does not make use of that right.

  • More/less work
    • Changes/extensions/restrictions

The parties can agree on a change or more or less work of the agreed Work or the Work. If a fixed price has been agreed in the Agreement, the Contractor will inform the Client of the financial, time and other consequences of the desired change.

  • More/less work is an amendment to the Agreement If the Parties agree on a change or more or less work, this shall be regarded as an amendment to the Agreement as referred to in Article 5.
  • Delivery times are included If the Parties agree on an amendment to the Agreement, the agreed delivery term or delivery date will be extended respectively

advanced by the number of days necessary for the implementation of the amendment to the Agreement.

  • Necessary change If the Contractor is of the opinion, in connection with the performance of the Work or the Work, that a change and/or extension thereof is necessary or in all reasonableness desirable, he will inform the Client about this. If the Client has not agreed In Writing to the proposed change(s) and/or extension(s) and the associated price change within 14 (fourteen) days, the Contractor willmer are entitled to suspend the fulfillment of its obligations towards the Client. In that case, the Client will be held

are to pay the Contractor compensation for the Work already performed and the Deliverables on the basis of the applicable rates of the Contractor, without prejudice to the right of the Contractor to compensation for the damage suffered by him.

  • Payment for additional work

Unless otherwise agreed, additional work can be invoiced separately by the Contractor after this additional work has been completed according to the Contractor.

  • Delivery and acceptance
    • Milestones

If it has been agreed that the Assignment will be performed in phases, the Contractor is entitled to postpone or suspend the Activities and deliveries with regard to a next step or phase or any part of those Activities or deliveries until the Client has received the results of the previous step(s) or phase(s) has approved in Writing in accordance with the agreed test criteria.

  • Test period

Unless otherwise agreed, the Client will test the Deliverables within the test period of 8 (eight) working days against the agreed test criteria, to be calculated from the moment that the Contractor has indicated that the Deliverables are ready for purchase.

  • Extension test period

If during the execution of the test(s) it appears that the progress of the test(s) is hindered by a Defect in the Deliverables, the Client will inform the Contractor of this in as much detail as possible In Writing; in such a case, the test period will be interrupted until the Deliverable is again presented for testing.

  • Reporting Defects to Items Delivered during tests The Client will immediately notify the Contractor of any Defects that come to light during the tests or during the warranty period. The Contractor is not obliged to rectify a Defect until it has received all available data from the Client that is required for the correction of the Defect.
  • Costs of repair of Defects The repair of a Defect identified during the tests will take place free of charge if a fixed price has been agreed. If no fixed price was agreed, the Contractor is entitled to a reasonable compensation in accordance with the agreed prices and rates for the efforts involved in repairing the Defect.
  • Test criteria

The test criteria should preferably be agreed in Writing by the Parties before or when the Agreement is concluded. Subjective criteria are not part of the test criteria. Criteria agreed at a later date only apply insofar as they have been confirmed in Writing by the Contractor to the Client. The Client cannot rely on the fact that the Delivered Items do not meet certain requirements if these requirements are not part of the agreed test criteria. If the test criteria are not met, there is a Defect as referred to in Article 1.5.

  • Time of delivery Delivered

The Items supplied have been duly delivered and accepted at the earliest of the following times:

‐              the moment at which the Client has inspected the Deliverables after testing according to the agreed test criteria and has not identified an essential Defect as referred to in Article 33.9;

‐              the moment at which the test period has expired, counting from the day following the day on which the Contractor has notified the Client In Writing that the Items supplied are ready for purchase and the Client has failed to test the Items supplied within the test period;

‐              the moment at which the test period has expired, counting from the day following the day on which the Contractor has informed the Client In Writing that the Deliverables are ready for purchase and the Client has not informed the Contractor In Writing about an essential Defect (as described in Article 33.9 ) to the Deliverable;

‐              the moment that the Client has actually put the Deliverable or the installation of which it forms part or became part after installation into use;

‐              the moment at which the Client has paid the invoices relating to the Deliverables.

33.8       Work after delivery

Insofar as the delivery of a Work has been agreed and the Contractor must still perform Work in connection with that Work (for example calibration or giving instructions), the Work will nevertheless be deemed to have been delivered and accepted when the Work itself, pursuant to Article 33.7 shall be deemed to have been delivered and accepted.

33.9       Essential Defect

An essential Defect is understood to mean a deficiencythat in the opinion of the Contractor significantly impedes the normal functioning or normal use of the Deliverables.

33.10     Non‐Essential Deficiency Recovery

If only one or more non-essential Defects are established in the context of tests in connection with the purchase, the Item delivered will be deemed to have been delivered. The Contractor is obliged to repair this(these) non-essential Defect(s) as soon as possible. A non-essential Defect does not entitle the Client not to purchase the Items supplied, to dissolve the Agreement in whole or in part or to suspend payments.

33.11     Advices

Advice, information, data and/or suggestions from the Contractor regarding the use, placement, commissioning, installation, expansion, etc. of the Deliverables only have the character of a guarantee of, for example, efficiency, accuracy, compatibility with other matters, operation in a specific environment. or installation, etc., when this has been explicitly agreed with due observance of the provisions of Article 14.2.

  • Warranty
    • Switch determination

The warranty provisions of Article 14 of the GENERAL TERMS AND CONDITIONS OF DELIVERY 2021 also apply to the delivery of a Work and of Work, insofar as they may apply to it in view of the specific nature of the Deliverable.

  • In accordance with agreed specifications. The Contractor guarantees to carry out the Activities and the Work with due observance of the Design Data and to perform them in such a way that they comply with the agreed specifications and the requirements that can be reasonably imposed on them, with due observance of Article 28.2.</ li>
  • Warranty period under normal use

Unless otherwise agreed, the warranty period applies to use during working days of eight (8) hours per day. If the Item is used during working days of more than eight (8) hours per day, the actual warranty period is correspondingly shorter.

  • Exclusion

The Contractor does not give any warranty on items that have been assembled, installed, adjusted, calibrated, validated, tested, inspected, adjusted and/or put into operation, etc. by or on behalf of the Contractor, but which have not been supplied by or on behalf of the Contractor itself.

  • Liability

Without prejudice to the provisions of Article 18, the following provisions shall apply.

  • Exclusions regarding Activities

The Contractor is not liable for any damage or costs incurred as a result of:

‐              performing Work on or in connection with goods supplied by third parties;

‐              incorrect, late or incomplete Design data submitted by the Client;

‐              performing Work for the use, testing, commissioning or decommissioning of a Work of which goods supplied by third parties form part or in which such items have been assembled or installed;

‐              performing Work on a Work that has become part of a Client’s item (for example by building it in) in the period prior to the time when the Delivered Items have been duly completed and accepted;

‐              items used at the request, advice or direction of the Client in the performance of Work;

‐              Work performed by persons recommended or designated by the Client.

35.2 Exclusions regarding Furthermore, the Contractor is not liable for damage or costs as a result of:

‐              the design or parts of the design of the Work insofar as this design/these parts of the design has not been made entirely by the Contractor itself;

‐              malfunctioning of the Client’s machines, installations or processes of which the Deliverable has become part in the period prior to the time when the Deliverable was properly delivered and purchased;

‐              the use of certain parts in the Work to the extent that those parts are applied

at the request, advice or direction of the Client or which are obtained from a Supplier designated or recommended by the Client.

PART C: Concerning Software Development and Delivery

  • Applicability
    • Supplies of Software

The provisions in Part C of the GENERAL TERMS AND CONDITIONS OF DELIVERY 2021 apply to all legal relationships between the Client and the Contractor regarding the development and/or delivery of Software or adjustments thereto, without prejudice to the provisions of Part A and Part B of the GENERAL TERMS AND CONDITIONS OF DELIVERY 2021 .

  • Part C prevails

The provisions of Part C of the GENERAL TERMS AND CONDITIONS OF DELIVERY 2021 supplement orp the provisions of Part A and Part B of the GENERAL DELIVERY TERMS AND CONDITIONS 2021. When a provision of Part C of the GENERAL DELIVERY TERMS AND CONDITIONS 2021 also applies and conflicts in whole or in part with a provision of Part A or Part B of the GENERAL TERMS AND CONDITIONS OF DELIVERY 2021 , the provision of Part C of the GENERAL

DELIVERY CONDITIONS 2021 to the extent of the conflict.

  • Notes on Software

Designing, creating or writing Software and related activities is considered to be the provision of services. Within the GENERAL DELIVERY TERMS AND CONDITIONS 2021, the creation of Software falls under Work (see, among other things, Article 1.19).

  • Definitions
    • Customized Software: Software, websites, protocols or operating systems developed by the Contractor on behalf of the Client, or adjustments to existing software, websites, protocols or operating systems developed on the Client’s behalf.
    • Standard package: The software that is or has been offered on the market by the Contractor as standard software in the general sense of the word, whether or not adapted, set up, configured, changed or expanded for the benefit of the Client.
    • Software:           Standard package and/or  Customized Software.
  • General
    • License Agreement

If Software is supplied by the Contractor and the modalities of its use are not regulated in a separate license agreement, the provisions of Part C of the

GENERAL TERMS AND CONDITIONS 2021 applicable to the deliveries and use of such Software as applicable. If the use is regulated in a separate license agreement regarding Software supplied by the Contractor, the provisions in that license agreement will prevail over those in Part C of the GENERAL TERMS AND CONDITIONS OF DELIVERY 2021.

  • Service‐/maintenance agreement

If a service or maintenance agreement has been concluded by the Parties with regard to Software supplied by the Contractor, the provisions therein with regard to the reporting and repair of Defects, maintenance of old releases and costs shall apply over the relevant provisions of Part C of the GENERAL TERMS AND CONDITIONS OF DELIVERY 2021.

  • Scope of use

Upon delivery of the Software, the Client acquires the non-transferable, non-exclusive right to use that Software for its own use, for the application for which the Software was sold, for the location for which the Software was sold. Unless otherwise agreed, the right of use referred to above commences at the moment that the Client has fulfilled all its obligations towards the Contractor. The right of use does not include the right to change or modify the Software and is not transferable.

  • Further rights

Parties can make additional agreements about more far-reaching rights.

  • Duration

If no duration of the right of use of a Standard Package has been agreed, it is stated in Article

38.3 certain right of unlimited duration.

  • Own use and further development The Contractor is at all times entitled to use, apply, further develop and sell to third parties Software developed by, on behalf of or on behalf of it.
  • Warranty

Unless otherwise agreed, contrary to the term referred to in Article 14.3, the warranty period with regard to Software is 3 (three) months from delivery. Unless explicitly agreed otherwise with due observance of the provisions of Article 2.2 and Article 28.4, the Contractor does not guarantee that the Software supplied by it is suitable for the intended and/or actual use by the Client.

  • Report Defect

The Client will report a Defect without delay after it has become aware of it

contractor. Article 33.4 also applies to reporting a Defect.

  • Fix Defect

Insofar as the Contractor is obliged to take care of the repair of a Defect, it will do this to the best of its ability.

  • Costs of recovery after improper use

If, in the opinion of the Contractor, a Defect is wholly or partly caused by or is related to injudicious use or by other causes not attributable to the Contractor, or if the Defect already occurred during the execution of the tests as referred to in Article

33.2 could have been determined, all costs of repair will be borne by the Client.

  • Limitations of warranty after modification

The Contractor is released from its warranty obligations if the Software has been adapted or changed by others than the Contractor.

  • Software is not error-free The Contractor does not guarantee that the Software is error-free, will function without interruption or without Defects or that all Defects will be repaired or improved.
  • New releases

When with regard to a Contractor

developed Standard Package a maintenance agreement has been concluded, the Contractor will make this version available to the Client when an improved version of the Standard Package becomes available on the market.

  • Old releases

After the expiry of three (3) months from the moment of marketing a new version of a Standard Package, the Contractor is no longer obliged to repair Defects in an older version thereof. If a new version of the Standard Package offers new options and/or functions compared to older versions, the Contractor is entitled to demand a fee for making that new version available.

  • Third party package

If the Contractor does not provide a Standard Package developed in-house, but grants the right to use a Standard Package in accordance with the provisions of a usage or license agreement from or with a third party, or if maintenance with regard to a Standard Package is carried out on the basis of of or in accordance with the provisions in an agreement between the Contractor and a third party, the provisions of Articles 38.1 to 38.14 of the GENERAL DELIVERY TERMS AND CONDITIONS 2021 do not apply, but only the provisions of the relevant agreement(s) between the Contractor and that third party ( n). By entering into the Agreement, the Client authorizes the Contractor to purchase the software necessary for the performance of the Assignment and to agree to the associated license conditions. The Contractor will inform the Client at its request about the relevant applicable provisions.

  • Wet Bescherming Persoonsgegevens The Client indemnifies the Contractor against claims from third parties whose personal data is registered or processed insofar as these claims relate to data and Software supplied by the Contractor to the Client or data processed by the Contractor for the Client.
  • Licenses Client

By entering into the Agreement, the Client guarantees that insofar as the Contractor must make use of software, systems, platforms, data and accounts in the Client’s possession for the performance of the Work, the Client has sufficient rights to do so, such as licenses, access rights and permissions. The Client indemnifies the Contractor against all claims from third parties insofar as the Client does not have the rights referred to above.

  • Custom Software
    • Recovery costs during warranty

Only if a fixed price has been agreed for the development of Custom Software, the Contractor will not charge any costs for repairing the Defect. If no fixed price has been agreed, the Contractor is authorized to charge the costs associated with the repair to the Client.

  • Source code customization

Unless otherwise agreed, the source code is not part of the Customized Software to be delivered. If the Parties have agreed that the source code is part of the delivery, the right of use as referred to in Article 38.3 also includes the right to adjust or change the Software supplied by the Contractor. If the Contractor is legally obliged to provide the source code to the Client, the Client must pay a reasonable fee for this.

  • Standard package
    • License includes one installation

The Standard Package may only be used by the Client on one processing unit, on the understanding that in the event of a malfunction, the software of the Standard Package may be used temporarily on a second processing unit, but only until the malfunction has been eliminated.

  • Copies

If and insofar as no other conditions have been set by the Contractor, the

The Client is entitled to make a maximum of two backup copies of the Standard Package for security purposes; these copies may only be used to replace unusable original material. The copies must bear the same labels and indications as the original material.

  • Sourcecode Standard Package

The source code of a Standard Package will not be made available to the Client.

  • Ownership

Ownership of the Standard Package and the rights of IE with regard to the Standard Package are not transferred bydelivered to the Client by the buyer. The Client will fully respect the property rights and rights of IP regarding the Standard Software. The Client will not remove indications concerning intellectual property rights such as copyright indications and will not make them illegible or unrecognizable.

  • Secrecy

By entering into an agreement which relates to or also relates to a

The Contractor developed Standard Package declares that the Client is aware that the

Standard package contains confidential information and business secrets of the Contractor.

The Client is obliged to keep the Standard Package secret and not to disclose it or cause it to be disclosed to third parties.

ALGEMENE LEVERINGSVOORWAARDEN 2021 Helden In IT BV / Heroes In Marketing

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