GENERAL CONDITIONS OF SALE AND DELIVERY
(to a consumer)
of the private limited company Mylaps B.V., domiciled at Haarlem
1. GENERAL PROVISIONS
ARTICLE 1 – GENERAL
1.1 If and to the extent that it has not been explicitly agreed otherwise, these conditions are applicable to all offers and agreements of MylapsB.V. (to be referred to hereinafter as: “Mylaps” or “Seller”) with a consumer (a natural person not in the course of a profession; to be referred to hereinafter as: Buyer) as well as to any other legal relationships existing between Seller and Buyer.
1.2 Any deviations from and supplements to these conditions shall be effective only if they have been explicitly agreed upon in writing.
1.3 In the event that any provision of these general conditions is invalid or is nullified (in whole or in part), the other provisions of these general conditions shall continue to be in full force and effect.
1.4 In all cases in which the agreement between Seller and Buyer terminates, these general conditions of sale and delivery shall continue to govern the relationship(s) between parties to the extent that such is required for its liquidation.
ARTICLE 2 – OFFERS AND CONCLUSION OF THE AGREEMENT
2.1 All Seller’s offers remain valid for 30 days, unless otherwise agreed, and are fully free of engagement at all times. This is also applicable to the prices and other conditions specified therein. The offers shall be deemed to be a whole at all times.
2.2 Seller reserves the right to revoke any offer submitted by it within seven days from its acceptance by Buyer.
2.3 An offer shall be accepted in writing (which shall include but not be limited to a digital messages like e-mail). A contract of sale is concluded with Buyer at the time Buyer accepted the offer from Seller in Writing.
2.4 Verbal undertakings shall be binding upon Seller only if and to the extent that they have been confirmed explicitly in writing by Seller to Buyer. Agreements with Seller’s subordinates shall be binding upon Seller only when they have been confirmed in writing by Seller.
2.5 Data contained in catalogues, samples, pictures, drawings, specifications of weights and measures, etc. shall be binding only to the extent that they have been explicitly agreed upon in writing in the quotation or in the order confirmation.
ARTICLE 3 – PRICES
3.1 The prices quoted are excluding any Tax, forwarding charges and carriage.
3.2 The price stated in the quotation is decisive.
3.3 Any tax increases and increases in other governmental duties after entering into the agreement shall be for Buyer’s account.
3.4 In the event that a price is increased after acceptance of the order as referred to in article 2, Seller shall have the right to change the price offered or agreed upon accordingly by means of a written notice to Buyer, in which case Buyer shall have the right to terminate the agreement by means of a written notice within eight days from receipt of said notice. After expiration of said term Buyer shall be deemed to have accepted the price change.
ARTICLE 4 – DELIVERY
4.1 Delivery is effected by making the goods available ex Seller’s works, unless parties specifically agree otherwise.
4.2 Should parties agree that the goods are to be forwarded, the costs for the forwarding are to be paid by Buyer. Failing any special instructions concerning delivery, it shall be effected in the manner customarily applied by Seller; however, it cannot be guaranteed that thus the cheapest means of transport will be used. If delivery free domicile has been agreed, Seller shall determine how the goods are delivered. Any additional charges caused by Buyer’s instructions are for Buyer’s account
4.3 The goods are at Seller’s risk until the moment of delivery. From the moment of delivery, the goods are at Buyer’s risk. However, when Buyer is imputably in default complying with its obligation to take delivery, the goods are at Buyer’s risk from the moment he is imputably in default.
4.4 If material is received in bad condition, the Buyer should require the agent of the transportation company to make notation of delivery condition on freight and immediately file a damage claim. Shortage claims can only be considered when made in writing within 5 days from receipt of shipment. Mylaps will assist in obtaining prompt adjustment on damage claims. Forwarded goods are insured only at Buyer’s explicit request and for Buyer’s account.
4.5 Pursuant to article 10 of these general conditions, the title to the goods delivered shall be transferred only when the full purchase price of the goods has been paid.
4.6 When the goods have not been taken delivery of by Buyer after expiration of the term of delivery or if Buyer fails to provide information required for delivery, the goods shall be stored for Buyer’s account and at Buyer’s risk. In that case all additional costs, in any case including storage charges, shall be payable by Buyer. Consequently, Seller is not liable for any damage to the goods. When the term of five days offered by Seller for Buyer to remedy its failure to take delivery has been exceeded:
a penalty falling immediately due amounting to € 500.- for each day Buyer continues to fail to fulfil its obligation to take delivery shall be payable by Buyer up to a maximum of € 5.000,-, without prejudice to Seller’s right to claim full compensation. The penalties forfeited are not susceptible to set off.
the storage charges shall be payable to Seller.
4.7 Without prejudice to the provisions elsewhere in these general conditions in respect of extension of the term of delivery, the term of delivery shall be extended by the duration of the delay arising on the part of Seller as a result of Buyer not fulfilling any obligation ensuing from the agreement or failing to lend any co-operation to be demanded from it for performance of the agreement.
4.8 Seller has the right to lay down minimum quantities for the goods to be supplied by it or to determine that an order will be delivered in batches. If the goods are delivered in batches, Seller has the right to invoice each batch separately.
4.9 In the event of a Buyer wishing to suspend deliveries, Mylaps requires 30 days prior notice thereof in writing to this effect. Buyer is responsible for all shipping costs related to the goods, unless specifically agreed otherwise. Mylaps is entitled to charge the actual costs of return shipping, when Buyer cancels a purchase order.
4.10 Seller shall package the goods in accordance with the usual standards it applies. If the Buyer desires a specific manner of packaging, it shall bear the related additional costs. The Buyer shall handle the packaging released with the products delivered by the Seller in a manner that is consistent with the applicable government regulations. The Buyer shall indemnify the Seller against third-party claims based on non-compliance with such regulations.
ARTICLE 5 – TERM OF DELIVERY
5.1 The term of delivery is based on the working conditions prevailing at the time when the agreement is entered into and on timely delivery of the goods ordered for carrying out the order. In case of any delay through no fault of Seller caused by a change in said working conditions or by the materials ordered for carrying out the delivery not being delivered in a timely manner, the term of delivery shall be extended if required and Buyer shall not have the right to rescind the agreement and neither shall Seller become liable for damages.
5.2 The term specified in the order confirmation or otherwise is based on an estimate. Although it will be attempted to maintain the term of delivery to the greatest possible extent at all times, this term is not a deadline. The term of delivery being exceeded shall, without notice of summons, not entitle Buyer to cancel or rescind the agreement or to terminate the agreement otherwise or to suspend or refuse payment of the price agreed upon and shall neither entitle Buyer to any compensation.
5.3 In the event that delivery of the goods does not take place at the time specified, Seller shall be entitled to a term of thirty days for subsequent delivery. This term commences on the day of receipt of a registered notice of summons from Buyer.
ARTICLE 6 – MODIFICATIONS
6.1 Seller shall have the right to supply goods deviating from those agreed upon if the deviations constitute changes in the goods to be supplied, the packaging or the documentation pertaining thereto which are required to comply with applicable statutory regulations or if the modifications to the goods are minor.
6.2 Delivery of a part of the quantity ordered being effected or not being effected shall not affect the other parts of the order.
ARTICLE 7 – LIABILITY
7.1 Seller shall be liable exclusively for the goods delivered. Said liability does not extend any further than to the product or parts of the product delivered being repaired/replaced or the purchase price of the goods being refunded by Seller. Seller shall not be liable at any time for (damages resulting from) installation and/or use of the goods.
7.2 Seller shall also be liable for damage demonstrably incurred by Buyer due to the unavailability of internet services. Insofar the damage is due to an imputable failure of the internet services. Said liability does not extend the maximum of € 25,- per disadvantaged party.
7.3 Seller’s total liability on account of imputable default shall be limited to compensation of loss up to once the net invoice value of the goods of the relevant order delivered maximum. Seller’s liability shall under no circumstances exceed the amount Seller shall receive from its insurer regarding this event.
7.4 As compliance with the provision in paragraph 1 of this article constitutes the only and the total compensation, Seller shall not be liable at any time for any other (direct or indirect) loss, such as business interruption, loss of profit, loss of orders, decline of sales, loss of sales or production, the production process coming to a standstill or being slowed down, full or partial damage or loss caused by or ensuing from goods supplied by Seller, loss as a result of personal injury, loss on account of liability to third parties or any (consequential) damage and/or loss whatsoever.
7.5 The restrictions specified in the preceding paragraphs of this article are not applicable if and to the extent that the damage and/or loss is caused by intent or gross culpability on the part of Seller.
7.6 Furthermore, Seller’s liability on account of imputable default in complying with the agreement arises in all cases only if Buyer gives Seller notice of default in writing properly without delay giving a reasonable term for rectifying the default and Seller continues to be imputably in default in fulfilling its obligations also after expiration of said term. The notice of default shall contain a description of the default that is as complete and detailed as possible, enabling Seller to respond adequately.
7.7 On each occasion any right to compensation shall be conditional upon Buyer notifying Seller of the damage and/or loss in writing as soon as possible after its arising. Any claim for compensation against Buyer shall lapse after three months have elapsed from the claim arising and Seller has not been duly notified. If Buyer has notified Seller and has held Seller liable duly observing the provision in the preceding sentence, the claim shall lapse nevertheless if Buyer has not instituted legal proceedings against Seller with the authority competent thereto within twelve months from the notice.
7.8 If Buyer does not comply with the instructions of, carries out repairs by third parties, makes modifications to the goods supplied, uses hard and/or software and/or batteries from a third party, or buys or sells the goods supplied at the second-hand market, Seller shall not be liable in any way for any damage to those goods and/or any damage resulting from those goods. Seller will, under no circumstances, be liable for damage resulting from improper use of the goods supplied, including but not limited to improper attachment to other objects. In the event Buyer violates its obligations set out in this article, it shall forfeit a penalty not susceptible for mitigation of € 1.000,-, notwithstanding Seller’s right to additional compensation, notwithstanding Seller’s right to additional compensation.
7.9 Buyer shall be liable and shall indemnify Seller for proper disposal and/or recycling of the goods delivered to Buyer and Buyer shall comply with all applicable local, regional and national laws, regulations, rules and ordinances, including European laws and legislation concerning on waste electrical and electronic equipment (among other things directives 2002/96/EG en 2003/108/EG).
7.10 Seller shall not be liable at any time for errors contained in the supporting technical documentation.
7.11 The restrictions to Seller’s liability contained in these general conditions shall be deemed to have been stipulated also for third parties involved in the delivery of the goods purchased by Buyer.
7.12 Buyer shall indemnify Seller against, or shall compensate Seller for any claims from third parties for compensation of any damage and/or loss and for payment of any penalty or fine for which Seller’s liability in its relationship with Buyer is excluded in these conditions.
ARTICLE 8 – PAYMENT
8.1 To the extent that it has not been otherwise agreed upon, payment shall be made immediately upon the order, but no later then the day of delivery, without any discount or set off by Buyer.
8.2 To the extent that a payment obligation results from the extension of the agreement between Parties, Seller will be authorized -by the acceptance of these general conditions of sale and delivery- to collect the invoice automatically from the account/credit card of Buyer.
8.3 Payments through any bank shall be deemed to have taken place on the value date of Seller’s giro or bank.
8.4 As the occasion arises, Seller shall have the right to demand partial payment in advance or to send the goods subject to cash on delivery.
8.5 In the event that Buyer has not paid the invoice amount appearance the day of delivery, or to the extent that has been agreed otherwise on the agreed date, Buyer shall be in default from the date on which said term has expired by operation of the law without any notice of default being required. Interest shall then be payable by Buyer at the rate of 2% a month for each month or a part thereof that has elapsed, up to the date of full payment. Moreover, Seller shall then have the right to terminate the agreement in full or in part by a mere declaration on its part without any judicial intervention being required, to take back the goods supplied and/or to claim compensation, while in that case all other amounts payable by Buyer to Seller shall then fall immediately due. Buyer is liable, without any summons or notice of default being required for this purpose, for any judicial and extrajudicial expenses, made by Mylaps as a result of the non-fulfilment of Buyers’s obligation. The height of these expenses will be a minimum of 15% of the amount owed by Buyer.
8.6 Bounced cheques and all reversals will be subject to a 25 EURO fee.
ARTICLE 9 – DISCOUNTS, ETC.
9.1 Discounts, bonuses, etc. are payable by Seller only if agreed upon in writing and if Buyer has fully met all its obligations for the relevant period.
ARTICLE 10 – RETENTION OF TITLE
10.1 Seller shall retain title to all goods delivered by it to Buyer until the purchase price of all such goods has been paid in full. In addition, retention of title shall be applicable to the sums that may become payable to Seller in its capacity of Seller by Buyer on account of Buyer failing to fulfil one or more of its obligations to Seller. Moreover, Seller shall retain title to the goods when any amount is payable by Buyer to Seller on account of delivery or operations, including interest and charges, until Seller has been paid in full.
10.2 For as long as the title to the goods delivered has not been transferred to Buyer, it shall not be permitted to pledge the goods or to grant any other right thereto to any third party, except for the provisions in paragraph 7 of this article. Seller reserves the right to establish a pledge as referred to in section 3:237 Netherlands Civil Code on goods delivered, the title to which has been transferred to Buyer by payment and which are still in Buyer’s possession, as additional security for claims, other than those referred to in section 3:92 subsection 2 Netherlands Civil Code, which Seller in its capacity of Seller or on whatever account may still have on Buyer.
10.3 Buyer shall keep the goods delivered subject to retention of title carefully in custody and as identifiable property of Seller and insure the goods for the duration of the retention of title against damage caused by fire, explosion and water as well as against theft. Buyer shall submit the policy of said insurances to Seller for inspection at its first request.
10.4 As soon as Seller notifies Buyer of its wish to that effect, any claims of Buyer on the insurers of the goods by virtue of the insurances referred to in paragraph 3 shall be pledged to Seller in the manner set out to in section 3:239 Netherlands Civil Code as additional security for Seller’s claims on Buyer.
10.5 If Buyer fails to fulfil its financial obligations to Seller or Seller has good grounds to fear that it will fail to fulfil said obligations, Seller shall have the right to take back the goods delivered subject to retention of title. When the goods have been taken back Buyer may be credited for them at their market value, which in any case shall not exceed the original price, less the expenses involved in taking back the goods.
10.6 Buyer shall be permitted to sell and transfer the goods delivered subject to retention of title to third parties in the scope of its normal business operations. In case of sale on credit Buyer is obliged to stipulate retention of title to its customers pursuant to the provisions in this article. The first Buyer is obliged to establish immediately an undisclosed pledge to Seller on its claims on the second Buyer which purchased on credit.
10.7 Buyer shall not assign or pledge any claims it has on its customers to third parties without Seller’s prior permission in writing. Furthermore, Buyer undertakes to pledge said claims to Seller, as soon as Seller has notified it of its wish to that effect, in the manner referred to in section 3:239 Netherlands Civil Code as additional security for its claim on Buyer on whatever account.
10.8 As an occasion as referred to in paragraph 5 of this article arises, Seller shall be entitled to unimpeded access to the goods. Buyer shall lend every co-operation to Seller to give Seller the opportunity to exercise the right to retention of title by taking back the goods, including any (dis)assembly required.
ARTICLE 11 – NON-DISCLOSURE
11.1 Buyer shall not to disclose any information about Seller’s business known to it to third parties. This obligation to observe secrecy shall continue to be effective after termination of the agreement.
11.2 Any models, drawings and information materials made available by Seller to Buyer shall remain the property of Seller, even if costs were charged for such materials. Such models, drawings and information materials must not be shown and/or made available to third parties and Buyer shall not have the right to retain a copy of such models, drawings or information materials, unless specifically agreed otherwise.
11.3 In the event that Buyer violates its obligation set out in the first and second paragraph, it shall forfeit a penalty not susceptible to mitigation of € 1,000.- for each violation, notwithstanding Seller’s right to additional compensation..
ARTICLE 12 – INTELLECTUAL PROPERTY RIGHTS
12.1 Buyer is not permitted to remove or change any mark concerning the confidential nature or concerning copyrights, brands, trade names or any other rights of intellectual or industrial property from the website, databases, equipment or materials.
12.2 In case that goods bearing Seller’s trademark are processed in other goods or are used for composing other goods, Seller’s trade name must be used only if Seller has given its explicit written permission thereto and the goods have been manufactured in accordance with applicable national and European regulations and are in conformity with prevailing technology.
12.3 All rights of intellectual property, including but not limited to trademarks, patents and authorial rights will remain the property of Seller. Unless specifically agreed otherwise, at no time is there to be considered a transfer of rights of intellectual property to Buyer.
12.4 To the best knowledge of Mylaps, its products do not infringe intellectual property rights of third parties.
ARTICLE 13 – FORCE MAJEURE
13.1 Any deficiencies of Seller in complying with the agreement cannot be attributed to Seller if it is not to be blamed for such deficiencies and if they are neither imputable to it pursuant to the law, the agreement with Buyer or generally accepted standards (force majeure). Force majeure shall include force majeure faced by suppliers of Seller.
13.2 Any deficiencies of Seller in complying with the agreement as a result of war, mobilisation, unrest, flood, traffic jams, stagnation in or reduction or discontinuation of the supplies by public utility companies, machinery breakdown and other accidents, strikes, lockout, actions by trade unions, export restrictions, other measures taken by the government, materials and semi-finished products required not being delivered by third parties, intent or gross negligence of assistants and other similar circumstances shall be designated as not being imputable to Seller and shall not entitle Buyer to rescind the agreement or to any compensation.
13.3 In case of such change in the circumstances as (further) fulfilment of Seller’s obligations becoming harmful to Seller to the extent that this cannot be demanded from Seller in reason, Seller shall have the right to suspend performance of the agreement without any judicial intervention being required or to rescind the agreement in full or in part without Seller being obliged to pay any compensation for any loss suffered by Buyer or by third parties.
13.4 If during the state of force majeure Seller is still partly capable of performing, it shall have the right to deliver such performance and invoice such performance separately as if it were a separate agreement.
13.5 If the state of force majeure has continued for one month or, if it is to be expected that the state of force majeure will continue for more than one month, both Seller and Buyer may terminate the agreement prematurely without giving any notice. If the agreement, compliance with which was prevented temporarily by force majeure, is still complied with, premature termination is no longer possible. In any case of premature termination on account of force majeure, Buyer shall still pay the instalments or the parts payable in advance of the price agreed upon for the period before the state of force majeure commenced.
ARTICLE 14 – IMPUTABLE DEFAULT
14.1 In case of imputable default or if it is anticipated that Buyer will fail to fulfil any obligation, Seller shall have the right to suspend the agreement entered into or to rescind it without any judicial intervention or any notice of default being required. The agreement is rescinded by means of a written notice. Any expenses incurred by Seller as a result of suspension of the delivery to Buyer shall be for Buyer’s account.
14.2 Seller shall also have the rights referred to in paragraph 1 if Buyer is in a state of bankruptcy, its bankruptcy is applied for, if it has applied for or obtained a moratorium of payments, its assets are attached or its company is being liquidated.
14.3 If a situation as referred to in paragraphs 1 and 2 hereinbefore arises, all outstanding amounts payable by Buyer to Seller shall fall due and become demandable immediately without any further authorisation being required.
ARTICLE 15 – COMPLAINTS
15.1 Buyer shall cause the goods purchased to be inspected on delivery or as soon as possible. In such inspection Buyer shall verify whether the goods delivered are in conformity with the agreement, namely:
-whether the right goods have been delivered;
-whether the quality of the goods delivered is in conformity with the quality agreed upon;
-whether the goods delivered comply with the quality requirements agreed upon or – failing such requirements – whether they comply with the requirements that may be made for normal use.
15.2 Goods returned must be in their original individual packaging. Returns will not be accepted after 8 days following receipt unless authorized in writing by Mylaps. Non-stock items, items purchased specifically to a customer’s requirements, will not be subject to credit or exchanged under any circumstances whatsoever.
ARTICLE 16 – WARRANTY
16.1 Mylaps warrants that, for the specific agreed period from the date of shipping the goods are covered by this warranty with defects, as determined solely by Mylaps, caused by faulty materials, workmanship or design will be repaired or replaced (to the sole discretion of Mylaps), unless such defects were the result of any of the following: shipping; improper installation, maintenance or use; abnormal conditions of operation; attempted modification or repair by the Buyer or any third party; use of the goods in combination with other items; or an act of God. If repair or replacement of the goods is not possible or economical for Mylaps may, at its option, refund the purchase price of the goods or deliver replacement goods at its sole discretion. Mylaps’s liability shall be strictly limited to replacing, repairing or issuing credits at its option.
16.2 All parts replaced shall be the property of Seller.
16.3 Mylaps shall not incur any liability under the above warranty unless:
Mylaps is promptly notified in writing upon discovery by the Buyer that such goods do not conform to the warranty and the appropriate invoice number and date of purchase information is supplied, and a copy of the original invoice is supplied to Mylaps;
The alleged defective goods are within two weeks after notification of Mylaps as mentioned under a) returned to Mylaps carriage prepaid;
Examination by Mylaps of goods shall confirm the alleged defect exists and has not been caused by misuse, neglect, method of storage, faulty installation, handling, or by alteration or accident.
With respect to Mylaps decoders, Buyer has upgraded the firmware in its decoder within one month after Mylaps has offered to provide Buyer with such upgraded firmware.
16.4 If the requirements set forth above are not complied with, the warranty/guarantee shall not apply and Mylaps shall be discharged from all liability arising from the supply of defective goods. Except as expressly as provided in this section, Mylaps makes no representations or warranties of any kind, nature or description, express or implied, including without limitation, any warranty of merchantability, warranty with respect to third party products, fitness of the goods for any particular purpose, or noninfringement, and Mylaps hereby disclaims the same. Mylaps makes no warranty that the operation of any equipment, software or firmware will be uninterrupted or error free.
16.5 Seller shall not have any obligations concerning fixing errors reported after the expiry of the applicable warranty period, unless Parties have concluded a maintenance agreement which includes such a duty to fix.
16.6 Seller shall either charge work and repair costs falling outside the scope of this warranty in accordance with its usual rates, or it will return the malfunctioning product to Buyer. In case the product is returned to Buyer, a handling fee of € 25,- will be charged. Stipulations regarding delivery, as set out in articles 4.1, 4.2 and 4.3, are applicable on the return of malfunctioning products as mentioned in this section.
16.7 The rights from this warranty accrue to the Buyer without prejudice to the rights and claims conferred to Buyer by law.
ARTICLE 17 - TECHNICAL ADVICE & PUBLISHED INFORMATION
17.1 Any technical advice and/or (installation) services given by and/or drawings and instructions by Mylaps shall not amount to a warranty as to fitness for any purpose other than in accordance with the manufacturer’s original specifications.
17.2 Buyer shall bear the risk of selecting the equipment and or software purchased. Seller shall not warrant that the equipment or software is appropriate for the use intended by the Buyer, unless the intended uses have been clearly specified without reservation in writing between the Parties.
17.3 If a Buyer uses software that was developed and/or supplied by Mylaps, any print out or any other form of distribution of the results shall have the web address of Mylaps www.mylaps.com. Also if results generated with Mylaps software are first exported to another program like Microsoft Excel, these web addresses shall be printed on each of the printed pages. If Mylaps software is used to display the information to monitors or TV screens, here also the logos and/or web addresses will be mentioned. Mylaps reserves the right to prohibit certain forms of (commercial) exploitation of results generated with Mylaps software, to its discretion.
2. FIRMWARE AND SOFTWARE
ARTICLE 18 - FIRMWARE
18.1 Should the products delivered by Mylaps consist, in whole or in part, of firmware, then this article is applicable, in addition to the rest of these general terms and conditions. Should the firmware-specific stipulations deviate from the “general” stipulations from these general terms and conditions, the firmware-specific stipulations are binding.
18.2 Buyer acknowledges that goods delivered by Mylaps may include firmware. Mylaps reserves all rights concerning this firmware. With the purchase of a product, Buyer will obtain no more than a non-exclusive license to use the firmware with the goods delivered and solely in accordance with the function Mylaps intended for the Firmware.
18.3 Mylaps has the right to terminate the license agreement mentioned in 18.1 in case of misuse of the firmware, in which case no entitlement to compensation whatsoever exists for Buyer.
18.4 Buyer may not copy, compile, reverse compile, disassemble, analyze or reverse engineer any aspect of the delivered products, including the firmware.
18.5 Buyer acknowledges that the products supplied by Mylaps are technical in nature. To obtain accurate results from the Mylaps decoder, Buyer must use only Mylaps hardware, software and other material provided by Mylaps. In order to protect Mylaps from any third party claims, Buyer agrees to refrain from using any Mylaps hardware with any non-Mylaps hardware or non Mylaps approved software.
18.6 In the event Buyer violates its obligations set out in Clause 18 of these General Conditions, it shall forfeit a penalty not susceptible to mitigation of € 10.000 for each violation, notwithstanding the right to additional compensation.
ARTICLE 19 – SOFTWARE
19.1 Should the products delivered by Mylaps consist, in whole or in part, of software, then this article is applicable, in addition to the rest of these general terms and conditions. Should the software-specific stipulations deviate from the “general” stipulations from these general terms and conditions, the software-specific stipulations are binding.
19.2 Seller shall be allowed to take technical measures to protect the software or with a view to agreed restrictions in the duration of the right to use the software. The Buyer shall not be allowed to remove or evade such a technical measure. If security measures result in the Buyer being unable to make a back-up copy of software, the Seller shall provide Buyer with a back-up copy upon request.
19.3 Unless Seller provides a back-up copy of the software to the Buyer, Buyer may make one back-up copy of the software, which may only be used to protect against involuntary loss of possession or damage. The back-up copy may only be installed after involuntary loss of possession or damage. A back-up copy must have the same labels and copyright designations as are present on the original version.
19.4 Buyer shall be entitled to correct errors in software provided to it if that is necessary for the intended use of the software. In these general terms and conditions, "errors" shall mean a substantial failure to meet the functional or technical specifications stated in writing by Seller and, in the case of custom-made software and websites, the functional or technical specifications expressly agreed between parties in writing. An error shall only exist if Buyer can prove it and if it can be reproduced. Buyer shall be obliged to notify Seller of errors immediately.
19.5 Seller shall grant Buyer the non-exclusive right to use the software. Unless specifically agreed otherwise, no rights, including rights of intellectual property, are transferred to Buyer. Buyer shall always strictly comply with the use restrictions agreed between parties. Subject to the other provisions in these general terms and conditions, the Buyer’s right of use shall only include the right to load and run the software.
19.6 Buyer may only use the software in its own company or organization on one processing unit and for a specific number or type of users or terminals for which the right of use has been furnished. Insofar as not otherwise agreed, the Buyer’s processing unit on which the software is used for the first time and the number of terminals connected to that processing unit at the time of initial use shall be considered the processing unit and number of terminals for which the right of use has been furnished. In the event there is a malfunction in the aforementioned processing unit, the software can be used on another processing unit for the duration of the malfunction. The right of use may pertain to multiple processing units insofar as this is expressly apparent from the agreement between parties.
19.7 The right of use shall not be transferable. Buyer shall not be allowed to sell, lease, sub-license or alienate the software and data carriers on which it has been recorded, grant restricted rights to this software or these data carriers or provide them to a third party in any manner or for any purpose whatsoever, give a third party remote or non-remote access to the software or place the software with a third party for hosting, not even if the third party in question will only use the software for the Buyer’s benefit. Buyer shall not modify the software except in
connection with fixing errors. Buyer shall not use the software to process data for third parties ("time-sharing"). The software's source code and the technical documentation generated in developing the software shall not be made available to Buyer, not even if Buyer is prepared to pay financial compensation for making them available. Buyer acknowledges that the source code is confidential in nature and that it includes the Seller’s trade secrets.
19.8 Buyer shall immediately return all copies of the software in its possession to Seller after the right to use the software ends. If parties have agreed that the Buyer shall destroy the copies concerned when the right of use ends, Buyer shall provide written notice of such destruction to seller immediately.
19.9 Seller shall deliver the software to Buyer on the agreed type and format of data carriers and, if installation by Seller has been agreed in writing, shall install the software at Buyer’s. In the absence of express agreements in this regard, Buyer itself shall install, set up, design parameters for and tune the software and, if necessary, adjust the equipment and user environment used in this connection. Unless expressly otherwise agreed, Seller shall not be required to convert data.
19.10 Buyer shall accept the software in the condition in which it is at the time of delivery, hence, with all apparent and non-apparent errors and other defects.
19.11 Seller shall do its utmost to fix errors in the software within the meaning of Article 19.4 to the best of its ability within a reasonable time period, if they have been reported in writing and in detail to Seller within three months after delivery. Repairs shall be performed free of charge, unless the software has been developed at Buyer’s instruction, in which case Seller shall charge the repair costs according to its usual rates. Seller may charge the repair costs according to its usual rates if there have been operating errors or improper use on Buyer’s part or other causes not imputable to Seller. Seller’s obligations shall not include fixing mutilated or lost data. The warranty obligation shall be extinguished if Buyer makes changes or has made changes to the software without Seller’s written permission, which permission shall not be withheld on unreasonable grounds.
19.12 Errors shall be fixed at a location to be determined by Seller. Seller shall be entitled to install temporary solutions, program bypasses or problem-avoiding restrictions in the software.
19.13 Seller shall not have any obligations concerning fixing errors reported after the expiry of the guarantee period referred to in Article 19.11, unless parties have concluded a maintenance agreement which includes such a duty to fix.
ARTICLE 20- ENVIRONMENT REQUIREMENTS AND INSTALLATION
20.1 Buyer shall ensure an environment which meets the requirements specified by Seller for the equipment in a particular case (for example, concerning temperature, humidity, technical environment requirements and the like).
20.2 If the Parties have expressly agreed on this in writing, Seller shall install the equipment or Buyer has it installed. Any requirement by Seller to install equipment shall not include the requirement to install software or to convert data.
20.3 If Seller has undertaken to perform installation, Buyer shall provide a suitable installation site with all necessary facilities, such as cable work and telecommunications facilities, before delivery of the equipment and follow all instructions of Seller necessary for the installation.
20.4 To enable Seller to perform the necessary work, Buyer shall give Seller access to the installation site during Seller's normal working days and hours.
Article 21 - The equipment of the Seller's Supplier
21.1 If and insofar as the Seller provides equipment from third parties to the Buyer, those third parties' terms and conditions shall replace the deviating provisions in these general conditions and shall apply with regard to that equipment, provided that the Seller notifies the Buyer in writing and send these terms and conditions free of charge. The Buyer shall accept the aforementioned third-party terms and conditions. If and insofar as the aforementioned third-party terms and conditions are deemed or declared inapplicable to the relationship between the Buyer and the Seller for whatever reason, the provisions in these general conditions shall fully apply.
3. COMPETENT COURT AND APPLICABLE LAW
ARTICLE 22 – APPLICABLE LAW
All agreements to which these conditions are applicable in full or in part shall be governed by Dutch law.
ARTICLE 23 – COMPETENT COURT
Any disputes that might arise from the agreement to which the present general conditions are applicable in full or in part or from any subsequent agreements shall be adjudicated exclusively by the court competent thereto in the district of Haarlem (the Netherlands), without prejudice to Seller’s right to cause any dispute to be adjudicated by the court of the place of residence or domicile of Buyer.
If Buyer at the time of entering into the agreement is domiciled in the Netherlands, any dispute will be adjudicated by the competent court in the Netherlands.