GENERAL TERMS AND CONDITIONS OF IF-Adamas B.V. Doetinchem
These general conditions apply to all offers of IF-Adamas B.V. (hereinafter “IF-Adamas”) and all agreements entered into by IF-Adamas. The general terms and conditions of the other party are explicitly rejected. Deviating conditions or stipulations only form part of the agreement insofar as these conditions or stipulations been expressly agreed in writing.
ARTICLE 1 – OFFERS
All offers and quotations are without obligation and purely indicative, unless otherwise agreed in writing. An offer that contains a term can be revoked by IF-Adamas, even after receipt of the order/assignment, provided within five days. Statements of specifications, functionalities, times etc. are done with the best approach, but are not binding on IF-Adamas and the other party can not derive any right from this. On all quotations are the prices applicable at the time of the offer or the conclusion of the agreement, excluding VAT and excluding any other government levies that are for the account of the other party.
ARTICLE 2 – ESTABLISHMENT
An agreement is concluded under the condition precedent that IF-Adamas has approved the order/assignment and confirmed (in writing) or started the execution of the order/assignment.
ARTICLE 3 – PRICE AND PAYMENT
IF-Adamas will send an invoice to the counterparty for the services and / or goods to be delivered by IF-Adamas. The invoice must be paid to IF-Adamas within 14 days after the invoice date, unless another payment term has been agreed in writing. The other party is in default by the mere expiration of the agreed payment term, without any notice of default being required, irrespective of whether the exceeding of the payment term can be attributed to the other party or not. If invoices are not paid within the agreed payment term, the other party will owe the statutory(commercial) interest on the invoice amount to IF-Adamas as of the invoice date of the relevant invoice until the moment of full payment. If invoices are not paid within the agreed payment term, the other party will owe a percentage of 15% of the invoice amount as extrajudicial costs, without prejudice to the right of IF-Adamas to recover the actual costs from the counterparty. Payments from the other party first serve to settle all interest due, then to settle all owed (extrajudicial) costs and finally the oldest due and payable invoices, even if the other party states otherwise when making the payment. Unless otherwise agreed in writing, the other party is not authorized to set off any amount that it owes to IF-Adamas against a claim that the other party claims to have on IF-Adamas.
ARTICLE 4 – DELIVERY OF MOVABLE GOODS
The delivery term stated in the offer and/or order confirmation is not a deadline, even if expressly accepted by IF-Adamas. In the event of late delivery, IF-Adamas will only be in default after written notice of default if it fails to deliver within a reasonable period of time. There can be no question of failure by IF-Adamas if the other party fails in the obligations on which it is based, or there is a justified fear that it will fail in this respect, irrespective of whether this fear is justified. There can also be no question of default of IF-Adamas if the other party does not allow IF-Adamas to execute the agreement, inter alia if the client fails to notify the place of delivery or the data, items or information required for the execution. Delivery is made by Ex Works (EXW) incoterms 2010, unless another Incoterms of the International Chamber of Commerce (ICC) (2010) has been agreed in writing. Delivery takes place by IF-Adamas located in Doetinchem (The Netherlands), unless otherwise agreed in writing. Partial deliveries are allowed. All goods are transported at the expense and risk of the other party, regardless of whether transport costs are charged. If IF-Adamas takes care of sending the goods at the request of the counterparty or if the agreed conditions of the ICC Incoterms imposes this care on IF-Adamas, the time, manner of shipping and shipping route will be at the discretion of IF-Adamas, but remains at the expense and risk of the other party. A warranty claim is not transferable and cannot be pledged to third in the sense of art. 3:83 paragraph 2 of the Dutch Civil Code. The parties can agree otherwise in writing. No guarantees are provided by IF-Adamas with regard to sold goods with the exception of guarantees that have been agreed in writing.
ARTICLE 5 – USE RIGHTS SOFTWARE PACKAGES
By concluding a written agreement with regard to a software package from IF-Adamas, the other party obtains the non-exclusive right to use the relevant software package for the internal operations of the other party. The other party is explicitly not permitted to use the software package for, or by more than the number of users and / or workstations specified in the agreement. The user right can not be transferred by the other party to third parties. Nor is the other party allowed to sublicense the user right to third parties. The software package may only be used by the other party for the purpose for which the software package is intended. The other party is obliged to comply with any applicable user license agreements. The other party is not allowed to change the software package or the underlying source code, to develop it or to add functionalities or to use it (in part) for the development of its own software. The user right also includes the right to upgrades and updates of the relevant software packages, insofar as these become available during the term of the user right, provided that the other party has concluded a maintenance contract with IF-Adamas. IF-Adamas is entitled to make innovations in the software packages it offers, as long as the functionality of the relevant software package does not substantially change. A maintenance contract shall, unless the party to the agreement agree on different term, be concluded for the duration of one (1) year from the date of the written agreement or the starting date agreed in that agreement. After expiry of the term referred to in the previous sentence, the relevant agreement shall be renewed tacitly for a consecutive period of one (1) year, unless one of the parties has cancelled the maintenance agreement in writing at least three (3) months before the end of the period. A partial termination, being a cancellation of the number of users and/or workstations or a cancellation of specific software packages or modules, is possible under the same conditions as described in the previous sentence, provided that the termination is expressly and clearly described which part is canceled. IF-Adamas is entitled to increase the fee annually. Any price changes will be communicated in time by IF-Adamas. Contrary to the previous paragraph, the other party is entitled to cancel the (maintenance) agreement in respect of the relevant software package by registered letter for one (1) month after notification of the price increase. If the other party has not canceled the agreement with regard to the relevant software package within one (1) month after the notification of the increase, the other party shall be deemed to have accepted the price increase. Agreements can be made only in writing that deviate from the provisions of this article.
ARTICLE 6 – INTELLECTUAL PROPERTY
All copyrights, patent rights, trade name rights, trademark rights and other intellectual property rights as well as all similar rights to protect information relating to the products, software packages and know-how of IF-Adamas are the exlcusive property of IF-Adamas or its licensor(s). Also in the event that IF-Adamas develops software and/or a specific module/functionality on behalf of or in consultation with the other party, the intellectual property rights associated therewith are and remain fully and exclusively the property of IF-Adamas. Unless expressly agreed otherwise, these rights will not be transferred to the other party and any provision in an agreement of IF-Adamas cannot be interpreted as a transfer of these rights. The other party is not permitted to use or register any trademark, design or domain name of IF-Adamas or a corresponding name or sign in any country, anywhere in the world. The other party is obliged to inform IF-Adamas immediately in writing if a third party states, whether or not by instituting a legal action against the other party, that a software package supplied by IF-Adamas infringes intellectual property right of that third party. IF-Adamas is authorized to make technical provisions and to change the source code of a software package in order to preserve the intellectual property rights of IF-Adamas or if in the opinion of IF-Adamas the fear exists that the relevant software package infringes rights of the third parties. IF-Adamas is authorized to take a software package with immediate effect from the market and terminate the user rights of the counterparty on the relevant software package if, in the opinion of IF-Adamas, there is a fear that the relevant software packaging infringes rights of third parties. In such a case IF-Adamas is not liable for any damage of the other party for whatever reason: however IF-Adamas is obliged in that case to make an effort to offer the counterparty an alternative software package with a similar functionality as soon as possible. If on the basis of a court order it is considered that a software package of IF-Adamas infringes on rights of third parties and/or has to be removed from the market by order of a court decision IF-Adamas is not liable for any damage of the counterparty from which consequently, the (premature) termination of the right of use of the other party or the return of the relevant software package.