General conditions

Article 1 General

These terms and conditions apply to every offer, quotation and agreement between, hereinafter referred to as: “Contractor“, and a Client to which Contractor has declared these terms and conditions applicable, insofar as these terms and conditions have not been deviated from expressly and in writing by the parties.

“these terms and conditions shall also apply to actions of third parties engaged by the Contractor in the context of the/an order”. Contractor. These general conditions are also written for the employees of Contractor and its management.

The applicability of any purchase or other conditions of the Client is expressly rejected.

If one or more provisions of these general terms and conditions are at any time wholly or partially void or voidable, the other provisions of these general terms and conditions shall remain in full force. The Contractor and the Principal will then enter into consultations in order to agree on new provisions to replace the void or voided provisions, taking into account as much as possible the purpose and meaning of the original provisions.

If ambiguity exists regarding the interpretation of one or more provisions of these general terms and conditions, then the interpretation must take place “in the spirit” of these provisions.

If a situation arises between the parties that is not governed by these general terms and conditions, this situation should be judged in the spirit of these general terms and conditions.

If Contractor does not always require strict compliance with these terms and conditions, this does not mean that the provisions thereof do not apply, or that Contractor would to any extent lose the right to require strict compliance with the provisions of these terms and conditions in other cases.

Article 2 Quotations, offers

All quotations and offers made by Contractor are without obligation, unless a deadline for acceptance is specified in the quotation. If no acceptance period is set, the offer always expires after 30 days.

Contractor cannot be held to its quotations or offers if the Client can reasonably understand that the quotations or offers, or any part thereof, contain an obvious mistake or slip of the pen.

The prices stated in a quotation or offer are exclusive of VAT and other government levies, any costs to be incurred in connection with the agreement, including travel and accommodation, shipping and handling costs, unless otherwise indicated.

If the acceptance (whether or not on minor points) deviates from the offer included in the quotation or the offer, Contractor shall not be bound by it. The agreement will then not be established in accordance with this deviating acceptance, unless Contractor indicates otherwise.

A composite quotation does not oblige Contractor to perform part of the assignment at a corresponding part of the quoted price. Offers or quotations do not automatically apply to future orders.

Article 3 Contract duration, performance deadlines, transfer of risk, performance and modification of agreement, price increase

The agreement between the Contractor and the Client is entered into for a definite period, unless the nature of the agreement dictates otherwise or if the parties expressly agree otherwise in writing.

If a deadline has been agreed or specified for the performance of certain work or for the delivery of certain goods, this shall never be a deadline. If a deadline is exceeded, the Client must therefore give the Contractor written notice of default. The Contractor should be given a reasonable period of time to still perform the Agreement.

The Contractor shall perform the Agreement to the best of his knowledge and ability and in accordance with the requirements of good workmanship. All based on the then known state of the art.

The Contractor has the right to have certain work performed by third parties. The applicability of Sections 7:404, 7:407 (2) and 7:409 of the Dutch Civil Code is expressly excluded.

If work is performed by the Contractor or third parties engaged by the Contractor in the context of the assignment at the Client’s location or a location designated by the Client, the Client shall provide the facilities reasonably required by those employees free of charge.

Contractor is entitled to execute the agreement in several phases and invoice the part thus executed separately.

If the Agreement is performed in phases, the Contractor may suspend the performance of those parts belonging to a subsequent phase until the Client has approved in writing the results of the preceding phase.

The Client shall ensure that all information, which the Contractor indicates is necessary or which the Client should reasonably understand is necessary for the performance of the Agreement, is provided to the Contractor in a timely manner. If the data required for the execution of the agreement are not provided to the Contractor in time, the Contractor shall be entitled to suspend the execution of the agreement and / or charge the Client for the additional costs resulting from the delay according to the then customary rates. The execution period shall not begin until after the Client has made the data available to the Contractor. Contractor is not liable for damages of any kind due to Contractor having relied on inaccurate and/or incomplete data provided by the Client.

If during the execution of the agreement it appears that for a proper execution thereof it is necessary to modify or supplement it, then the parties will timely and in mutual consultation adapt the agreement. If the nature, scope or content of the agreement, whether or not at the request or indication of the Client, the competent authorities et cetera, is changed and the agreement is thereby changed in qualitative and / or quantitative respect, this may have consequences for what was originally agreed. This may also increase or decrease the amount originally agreed upon. To the extent possible, the Contractor will quote prices in advance. An amendment to the agreement may further alter the originally specified period of performance. The Client accepts the possibility of amending the agreement, including the change in price and term of execution.

If the agreement is amended, including an addition, Octrooibureau Novopatent shall be entitled to execute it only after the person authorized within Octrooibureau Novopatent has given his approval for it and the Client has agreed to the price and other conditions specified for the execution, including the time to be determined for its execution. Failure to perform or not immediately perform the modified agreement does not constitute a breach of contract by Contractor and is not a ground for the Client to terminate or cancel the agreement.

Without being in default, the Contractor may refuse a request to amend the Agreement if this could have qualitative and / or quantitative consequences, for example, for the work to be performed or goods to be delivered in that context.

If the Client should default in the proper fulfillment of what he is obligated to do towards the Contractor, then the Client shall be liable for all losses on the part of the Contractor caused directly or indirectly as a result.

If the Contractor agrees with the Client on a fixed fee or fixed price, the Contractor shall nevertheless be entitled at all times to increase this fee or price without the Client in that case being entitled to dissolve the Agreement for that reason, if the increase in the price results from a power or obligation under the law or regulations or is caused by an increase in the price of raw materials, wages et cetera or on other grounds that were not reasonably foreseeable at the time the Agreement was concluded.

If the price increase other than as a result of an amendment to the agreement exceeds 10% and takes place within three months of the conclusion of the agreement, then only the Client who is entitled to invoke Title 5, Section 3 of Book 6 of the Dutch Civil Code is entitled to dissolve the agreement by a written statement, unless the Contractor is then still willing to perform the agreement based on the originally agreed amount;

if the price increase results from a power or obligation incumbent on the Contractor under the law;

if it is stipulated that delivery will take place more than three months after the conclusion of the agreement;

or, on delivery of an item, if it has been stipulated that delivery will take place more than three months after the purchase.

Article 4 Suspension, dissolution and early termination of the agreement

Contractor is authorized to suspend the fulfillment of the obligations or to dissolve the Agreement, if the Principal does not fulfill the obligations under the Agreement, does not fulfill them in full or in a timely manner, after the conclusion of the Agreement Contractor learns of circumstances that give good reason to fear that the Principal will not fulfill the obligations, if, when the Agreement was concluded, the Client was requested to provide security for the fulfilment of its obligations under the Agreement and this security is not provided or is inadequate or if, due to a delay on the part of the Client, the Contractor can no longer be required to fulfil the Agreement against the originally agreed conditions.

Furthermore, the Contractor is authorized to dissolve the Agreement if circumstances arise which are of such a nature that fulfillment of the Agreement is impossible or if other circumstances arise which are of such a nature that unaltered maintenance of the Agreement cannot reasonably be required of the Contractor.

If the agreement is dissolved, the Contractor’s claims against the Client shall be immediately due and payable. If Contractor suspends fulfillment of its obligations, it retains its claims under the law and agreement.

If the Contractor proceeds with suspension or dissolution, he shall in no way be liable for compensation for damages and costs incurred in any way.

If the dissolution is attributable to the Client, Contractor shall be entitled to compensation for damages, including costs, incurred directly and indirectly as a result.

If the Client fails to fulfill his obligations arising from the agreement and this failure to fulfill his obligations justifies dissolution, then the Contractor is entitled to dissolve the agreement immediately and with immediate effect, without any obligation on his part to pay any compensation or indemnification, while the Client is obliged to pay compensation or indemnification for breach of contract.

If the Agreement is terminated prematurely by Contractor, Contractor shall, in consultation with Client, arrange for the transfer of work yet to be performed to third parties. This unless the termination is attributable to the Client. If the transfer of the work involves additional costs for the Contractor, they will be charged to the Client. The Client is obliged to pay these costs within the time period specified for this purpose, unless the Contractor indicates otherwise.

In case of liquidation, of (application for) suspension of payments or bankruptcy, of seizure – if and to the extent that the seizure has not been lifted within three months – at the expense of the Client, of debt restructuring or any other circumstance as a result of which the Client can no longer dispose freely of his assets, the Contractor will be free to terminate the agreement immediately and with immediate effect or to cancel the order or agreement, without any obligation on his part to pay any compensation or indemnification.

The Contractor’s claims against the Client shall in such case be immediately due and payable.

If the Client cancels a placed order in whole or in part, the work that was performed and the items ordered or prepared for it, plus any supply and delivery costs thereof and the labor time reserved for performance of the agreement, will be charged in full to the Client.

Article 5 Force Majeure

The Contractor is not obliged to fulfill any obligation to the Client if he is prevented from doing so as a result of a circumstance that is not due to fault, and is not for his account under the law, a legal act or generally accepted practice.

In these general terms and conditions, force majeure means, in addition to its definition in the law and jurisprudence, all external causes, foreseen or unforeseen, which the Contractor cannot influence, but which prevent the Contractor from fulfilling his obligations. This includes strikes at Contractor’s company or third parties. Contractor also has the right to invoke force majeure if the circumstance preventing (further) fulfillment of the agreement occurs after Contractor should have fulfilled its obligation.

Contractor may suspend the obligations under the agreement during the period that the force majeure continues. If this period lasts longer than [object Object], then either party is entitled to dissolve the agreement, without obligation to pay damages to the other party.

To the extent Contractor has already partially fulfilled his obligations under the agreement at the time of the occurrence of force majeure or will be able to fulfill them, and the part fulfilled or to be fulfilled respectively has independent value, Contractor is entitled to separately invoice the part already fulfilled or to be fulfilled respectively. The Client is obliged to pay this invoice as if it were a separate agreement.

Article 6 Payment and collection costs

Payment shall always be made within [object Object] of the invoice date, in a manner to be indicated by Contractor in the currency invoiced, unless otherwise indicated in writing by Contractor.

Contractor is entitled to invoice periodically.

If the Client fails to pay an invoice on time, the Client shall be in default by operation of law. The Client shall then owe the statutory interest rate. Interest on the amount due will be calculated from the time the Client is in default until the moment of payment of the full amount due.

Contractor shall be entitled to have the payments made by the Principal go first of all to reduce the costs, then to reduce the interest falling due and finally to reduce the principal sum and current interest. The Contractor may, without thereby being in default, refuse an offer of payment if the Client designates a different order for the allocation of payment. Contractor may refuse full repayment of the principal sum, if such repayment does not also include accrued and current interest and collection costs.

The Client shall never be entitled to set off any amount owed by it to the Contractor. Objections to the amount of an invoice do not suspend the payment obligation. The Client who is not entitled to invoke Section 6.5.3 (Articles 231 to 247 of Book 6 of the Civil Code) is also not entitled to suspend payment of an invoice for any other reason.

If the Client is in default or omission in the (timely) fulfillment of its obligations, all reasonable costs incurred in obtaining satisfaction out of court shall be borne by the Client. The extrajudicial costs are calculated on the basis of what is customary in Dutch collection practice, currently the calculation method according to Rapport Voorwerk II. However, if the Contractor has incurred higher costs for collection that were reasonably necessary, the actual costs incurred will be eligible for reimbursement. Any judicial and execution costs incurred will also be recovered from the Client. The Client shall also owe interest on the collection costs due.

Article 7 Retention of title

Anything delivered by Contractor under the agreement remains the property of Contractor until Client has properly fulfilled all obligations under the agreement(s) concluded with Contractor.

The deliveries made by Contractor, which pursuant to paragraph 1. subject to retention of title may not be resold and may never be used as a means of payment. The Client is not authorized to pledge or otherwise encumber anything subject to retention of title.

The Client must always do everything that can reasonably be expected of him to secure the Contractor’s property rights.

If third parties seize the goods delivered under retention of title or wish to establish or assert rights to them, the Principal shall be obliged to notify the Contractor immediately. The Principal further undertakes to insure and keep insured the goods delivered under retention of title against fire, explosion and water damage as well as against theft and to make the policy of this insurance available for inspection by Contractor on demand. In the event of any insurance payment, the Contractor shall be entitled to such monies. To the extent necessary, the Client undertakes vis-à-vis the Contractor in advance to cooperate with everything that may be necessary or desirable in that context.

In the event Contractor wishes to exercise his property rights indicated in this article, the Client gives unconditional and irrevocable permission in advance to Contractor and third parties to be appointed by Contractor to enter all those places where Contractor’s property is located and to take it back.

Article 8 Warranties, investigations and complaints, limitation period

The goods to be delivered by Contractor shall meet the usual requirements and standards that can reasonably be set for them at the time of delivery and for which they are intended in normal use in the Netherlands. The warranty mentioned in this article applies to items intended for use within the Netherlands. In the event of use outside the Netherlands, the Client must verify for himself whether it is suitable for use there and meets the conditions imposed on it. In such cases, the Contractor may set other warranty and other conditions regarding the goods to be delivered or work to be performed.

The warranty mentioned in paragraph 1 of this article applies for a period of [object Object] after delivery, unless otherwise follows from the nature of the delivered goods or the parties have agreed otherwise. If the warranty provided by Contractor concerns a good produced by a third party, the warranty is limited to that provided by the producer of the good for it, unless otherwise stated.

Any form of guarantee will lapse if a defect has arisen as a result of or arising from injudicious or improper use thereof or use after the expiration date, improper storage or maintenance thereof by the Client and / or by third parties when, without the written consent of the Contractor, the Client or third parties have made changes to the case or have tried to make changes to it, have attached to it other items that should not have been attached to it or if they have been processed or treated in a manner other than prescribed.

Nor is the Client entitled to any warranty if the defect was caused by or is the result of circumstances beyond the control of the Contractor, including weather conditions (such as, for example, but not limited to, extreme rainfall or temperatures) et cetera.

The Principal shall be obliged to examine the delivered goods, or have them examined, immediately at the time that the goods are made available to him or the work in question has been carried out respectively. In doing so, the Principal shall examine whether the quality and/or quantity of the delivered goods corresponds to what has been agreed and meets the requirements agreed upon by the parties in this respect. Any visible defects must be reported in writing to Contractor within [object Object] after delivery. Any non-visible defects must be reported in writing to Contractor immediately, but in any case no later than fourteen days, after their discovery. The notification must contain as detailed a description of the defect as possible so that Contractor is able to respond adequately. The Client must give the Contractor the opportunity to investigate a complaint (or have it investigated).

If the Client complains in a timely manner, this does not suspend his payment obligation. The Client shall in such case also remain bound to take delivery of and pay for the other items ordered and what he has instructed Contractor to do.

If a defect is reported later, the Client is no longer entitled to repair, replacement or compensation.

If it has been established that a good is defective and a complaint about it has been filed in time, Contractor will, at Contractor’s discretion, replace the defective good within a reasonable period of time after receiving it back or, if returning it is not reasonably possible, written notification regarding the defect from Principal, or take care of repairing it or pay replacement compensation to Principal. In the event of replacement, the Client shall be obligated to return the replaced item to Contractor and provide ownership thereof to Contractor, unless Contractor indicates otherwise.

If it is established that a complaint is unfounded, then the costs incurred as a result, including the research costs, incurred on the part of Contractor as a result will be borne in full by Principal.

After expiration of the warranty period, all costs for repair or replacement, including administration, shipping and call-out charges, will be charged to the Client.

Notwithstanding the statutory limitation periods, the limitation period for all claims and defenses against Contractor and third parties engaged by Contractor in the performance of an agreement is [object Object].

Article 9 Liability

If Contractor should be liable, this liability shall be limited to what is regulated in this provision.

The Contractor is not liable for damages of any kind caused by the fact that the Contractor relied on incorrect and/or incomplete information provided by or on behalf of the Client.

If Contractor should be liable for any damage, Contractor’s liability is limited to a maximum of once the invoice value of the order, at least to that part of the order to which the liability relates.

The Contractor’s liability shall in any event always be limited to the amount paid by its insurer in the case in question.

The Contractor shall only be liable for direct damages.

Direct damage is understood to mean exclusively the reasonable costs incurred to establish the cause and extent of the damage, insofar as the establishment relates to damage within the meaning of these terms and conditions, any reasonable costs incurred to have the Contractor’s faulty performance comply with the agreement, insofar as they can be attributed to the Contractor, and reasonable costs incurred to prevent or limit damage, insofar as the Principal demonstrates that these costs led to the limitation of direct damage as referred to in these general terms and conditions. Contractor shall never be liable for indirect damages, including consequential damages, lost profits, missed savings and damages due to business interruption.

The limitations of liability contained in this article do not apply if the damage is due to intent or gross negligence on the part of the Contractor or his managerial subordinates.

Article 10 Indemnification

The Client shall indemnify the Contractor against any claims by third parties, who suffer damage in connection with the performance of the Agreement and the cause of which is attributable to parties other than the Contractor. If the Contractor should be held liable by third parties on that account, the Client shall be obliged to assist the Contractor both extra-judicially and judicially and to do immediately all that may be expected of him in that case. Should the Client fail to take adequate measures, Contractor shall be entitled, without notice of default, to take such measures itself. All costs and damages incurred on the part of the Contractor and third parties as a result shall be borne in full by the Client.

Article 11 Intellectual property

Contractor reserves the rights and powers vested in him under the Copyright Act and other intellectual laws and regulations. Contractor has the right to use the knowledge gained by the execution of an agreement on its side also for other purposes, to the extent that no strictly confidential information of the Client is brought to the knowledge of third parties.

Article 12 Applicable law and disputes

All legal relationships to which the Contractor is a party shall be governed exclusively by Dutch law, even if an obligation is wholly or partially performed abroad or if the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention is excluded.

The court in the Contractor’s place of business shall have exclusive jurisdiction to hear disputes, unless otherwise required by mandatory law. Nevertheless, the Contractor has the right to submit the dispute to the court with jurisdiction under the law.

The parties will only appeal to court after they have made every effort to settle a dispute by mutual agreement.

Article 13 Location and modification of general terms and conditions

These terms and conditions are filed with the Chamber of Commerce 70305161.

Applicable is always the last filed version or, as the case may be, the version valid at the time the legal relationship with Contractor was established.

The Dutch text of the general terms and conditions is always decisive for their interpretation.