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.

ARTICLE 7 – COURSES

Unless otherwise agreed in writing, courses must be scheduled and commenced within three (3) months of the order date. Up to six (6) working days before the start of the first course day, a course can be moved free of charge to another mutually available day. In all other cases IF-Adamas is entitled to charge 50% of the total course costs and additional costs to the other party due to not taking the course (in time) or rescheduling a course. If participants of courses do not appear or cancel on the day of the course, the full course costs are due. Catching up missed course days is possible in some cases, although that these days will be fully passed on to the other party. In case of insufficient participants IF-Adamas is authorized to move the course (day). IF-Adamas is not liable for damage, in any form whatsoever, of the other party in case it resists a course. Course material provided by IF-Adamas to participants is only intended for personal use by the participants in question. Course materials may not be copied, multiplied or published or in any way provided to third parties.

ARTICLE 8 – DISSOLUTION

IF-Adamas is entitled to dissolve the agreement with immediate effect, without judicial intervention, in whole or in part, to terminate the user right of the other party in respect of a software package and / or suspend the execution of any contractual obligation of IF-Adamas, this without prejudice to the other rights it is entitled to (on performance and/ or compensation) if:

  • De other party acts in violation of any provision of the agreement between the parties, including also explicitly means of violating and / or infringing the intellectual property rights of IF-Adamas or its licensor(s) in respect of its software packages and / or the use of the software packages for a purpose other than that for which they were provided.
  • A (foreign) statutory regulations is applied that aims to liquidate the counterparty or to recognize the debt position of the counterparty, such as bankruptcy (provisional) moratorium and similar statutory regulations.
  • The counter party’s business is shut down or liquidated or a private agreement is offered to creditors by the counterparty.
  • The control over or ownership in the other party changes to another person and/ or parties.
  • The other party, after having been requested to do so in writing, has not provided adequate security within the framework of IF-Adamas within seven (7) days. In these cases, each claim against the other party will be immediately due and payable, without IF-Adamas being liable for damages or any other obligation whatsoever. If the other party is in default for more than fourteen days with payment and/or purchase or wishes to cancel the agreement, IF-Adamas is entitled without further notice to sell the sold goods again or the user right of the counterpart in respect of a software package with immediate to terminate the entrance or to cancel the course (days). In case of dissolution of the agreement by IF-Adamas on the basis of this article or on any other grounds, the other party will owe an immediately due and payable penalty equal to the purchase price that the counterparty owed for the purchase of the products concerned or the due compensation for the minimum duration of the user right for the relevant software packages or the amount of the relevant course, without prejudice to the right of IF-Adamas to recover the full damage from the other party.

ARTICLE 9 – OWNERSHIP RESERVATION

Delivery of sold movable goods takes place under retention of title. This reservation applies in respect of claims for payment of all goods delivered or to be delivered by IF-Adamas to the other party under agreement and / or in the context of the delivery of those goods, as well as in respect of claims due to the default of the other party in the fulfillment of its obligations with regard to any agreement between IF-Adamas and the other party. If-Adamas is entitled in the cases referred to in article 8 to take back the delivered goods that have remained the property in accordance with the first paragraph of this article. Such a take-back applies, unless otherwise stated in writing, as a dissolution of the agreement(s) concluded with the other party, to which dissolution the last paragraph of article 8 applies. The other party irrevocably authorizes IF-Adamas to remove the items in question where they are located. Also in the event that ownership has not yet been transferred to the other party pursuant to this article, the other party is obliged from the moment of delivery in accordance with the applicable Incoterms 2010, to insure the good properly, at least legally, and the levies due by the government for his account. The other party indemnifies IF-Adamas in this respect.

ARTICLE 10 – LIABILITY

IF-Adamas is not liable for damage resulting from any shortcoming in the performance of its obligation(s) towards the other party. Any claim for damages, including those relating to trading loss (loss of interest, loss of income and other indirect damage of whatever nature) and damage as a result of liability towards third parties is expressly excluded, unless there is intent or gross negligence on the part of IF-Adamas or managerial subordinates. IF-Adamas is also not liable for intent or (gross) indebtedness of (non-managerial) subordinates or of third parties that it has engaged in the execution of the agreement. Advices and courses from IF-Adamas are given by her to the best knowledge and skills on the basis of the knowledge, information and state of the art available at that time. The other party can not derive any rights from such advice and courses. IF-Adamas is not liable for advice and training provided or on behalf of it. The use and/or application of advice, whether or not given during IF-Adamas courses, by the other party within its own organization is entirely at the expense and risk of the other party. If-Adamas makes every effort to ensure that its software packages function optimally with the other party that has entered into a maintenance agreement. For this purpose, IF-Adamas makes updates and upgrades of the relevant software packages available to those who have a user right to that specific software package. The other party who has concluded a maintenance agreement also has acces to the telephone helpdesk. If for any reason (certain modules of) the software packages of IF-Adamas (temporarily) do not function optimally or are (temporarily) inaccessible, IF-Adamas is not liable for any reason whatsoever for the damage of the other party as a result of that. Course material from IF-Adamas is compiled by IF-Adamas to its best knowledge and expertise on the basis of the knowledge and state of the art available at that moment. IF-Adamas gives no guarantees about the correctness of the course material and in particular can not guarantee that (at any time) course materials may prove to be outdated as a result of the development of the knowledge and technique. IF-Adamas is not liable for any damage resulting from inaccuracy and/or incompleteness of the course material provided by it. IF-Adamas is not liable for damage to items of third parties that are located on its premises and /or in its building.

ARTICLE 11 – CONVERSION

If one or more provisions from the agreement with the other party are not or not fully legally valid, the other provisions will remain in full force. Instead of the invalid provisions, an appropriate arrangement applies, which approaches the parties’ intentions and the economic result they seek in a legally effective manner as closely as possible.

ARTICLE 12 – APPLICABLE LAW

Exclusively Dutch law applies to all offers and agreements of IF-Adamas, with the exception of the provisions of the section 6.5.3. of the Dutch Civil Code. The applicability of the Vienna Sales Convention (CISG) is expressly excluded. All disputes arising from the agreement between the other party and IF-Adamas or further agreements, which may be the result, will be settled by the competent judge in Arnhem (The Netherlands).