GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY FOR PRODUCTS OF LIFESENSE GROUP B.V., a company organized and existing under the laws of the Netherlands, with its registered seat in Eindhoven, the Netherlands, lodged at the Registry of the Chamber of Commerce under number 63685566.
Article 1. Definitions and Interpretation
1.1 For the purpose of these GTC and all related documents, the capitalized terms as defined below in alphabetical order shall have the following meanings whereby these terms may be used in the singular or the plural form and vice versa, as the context so requires:
‘Agreement’: the agreement concerning the sale and delivery of Products concluded in writing between the Supplier and the Customer of which these GTC form an integral part, including all appendices, subsequent amendments hereof and/or addenda hereto as may be agreed upon in writing between the Supplier and the Customer.
‘Agreement Price’: the total amount of the consideration as specified in the Agreement which is payable by the Customer to the Supplier for the sale and delivery of Products.
‘Confidential Information’: the Agreement, its terms and execution, as well as all information and know-how (including but not limited to designs and other intellectual property rights) furnished by a Party to the other in any form whatsoever or otherwise coming to a Party’s knowledge in connection with the performance of the Agreement and all data derived directly or indirectly from such information and all warranty claims, if any, which may arise under the Agreement.
‘Customer’: the firm or company named as such in the Agreement.
‘Force Majeure’:includes, but is not limited to, Act of God, directive of Government or of persons purporting to act therefore, legislation, war, civil disturbance, fire, drought, failure of power supply, explosion, riot, disturbances or standstill of essential production equipment, flood, earthquake, lock-out, transportation issues, shortage of essential raw materials, strike or other action taken by employees in contemplation of or furtherance of a trade dispute or owing to any liability to procure materials or force majeure of any other nature, including non- or late delivery due to non- or late fulfillment of obligations of subcontractors of Supplier or transportation companies engaged by Supplier and/or solvency and/or liquidity issues and/or bankruptcy of third parties engaged by supplier, in so far as any of these circumstances prevent the Supplier’s performance of the Agreement.
‘GTC’: these GTC of sale and delivery for Products of the Supplier.
‘Group Company’: means, with respect to the Party to which it refers, a (legal) entity that is affiliated with, or that directly or indirectly controls, is controlled by or is under common control with, such Party.
‘Offer’: each offer concerning the sale and delivery of Productsissued by the Supplier to the Customer in writing.
‘Party’: each ofthe Supplier and the Customer separately.
‘Parties’:the Supplier and the Customer together.
‘Products’: the Products and related goods as specified in the Agreement.
‘Purchase Order’: a written purchase order issued by the Customer for the purchase of Products, by virtue of which the Supplier shall deliver Products to the Customer, including any annex, addition or modification thereto.
‘Specifications’: the detailed specifications, descriptions and drawings of Products agreed upon between the Parties and specified and defined as such in the Agreement.
‘Software’: the software used in connection with or embodied in the Products, which is owned by, licensed to or otherwise used by Supplier, or any of its Group Companies, including any and all documentation and/or materials thereto.
‘Supplier’: Lifesense Group B.V. a company organized and existing under the laws of the Netherlands, with its registered seat in Eindhoven, the Netherlands, and its office address at High Tech Campus 12, 5656 AE Eindhoven, the Netherlands, and any of its Group Companies.
1.2 The headings of these GTC are for ease of reference only and are not intended to qualify the meaning of any article or section thereof.
1.3 References to words denoting any gender shall include all genders.
1.4 Any undertaking by a Party not to do an act or thing shall be deemed to include an undertaking not to permit or suffer such act or thing to be done by another person.
1.5 References to the Parties include their respective successors in title and permitted assigns.
1.6 In these GTC the term ‘in writing’ includes by post, fax, e-mail and any other electronic communication device customary in the market.
1.7 Terms and expressions of law and of legal concepts as used in this GTC have the meaning attributed to them under the laws of the Netherlands and should be read and interpreted accordingly.
1.8 If these GTC and/or the Agreement makes any reference to Incoterms such reference shall be to the most recent edition thereof published by the International Chamber of Commerce in Paris, France. In the event of any conflict between the applicable Incoterms and the provisions of these GTC or the Agreement, the provisions of Incoterms shall prevail.
Article 2. Applicability of the GTC
2.1 These GTC apply to all Offers, Purchase Orders and Agreements as well as to all related legal acts of the Parties.
2.2 The applicability of the Customer’s general purchase or other conditions is expressly rejected.
2.3 Any amendments of and/or addenda to these GTC have to be agreed upon in writing by the duly authorized representatives of both Parties.
2.4 A failure by the Supplier to exercise or a delay in exercising a right or remedy provided by these GTC or by law does not constitute a waiver of that right or remedy or a waiver of other rights or remedies. No single or partial exercise of a right or remedy provided by these GTC or by law by the Supplier prevents further exercise of that right or remedy or the exercise of another right or remedy.
2.5 If one (1) or more provisions of these GTC shall be found, by a court with jurisdiction, to be illegal, invalid or unenforceable, it shall not affect the legality, validity or enforceability of any of the remaining provisions of these GTC. The Parties agree to attempt to substitute for any illegal, invalid or unenforceable provision a legal, valid or enforceable provision that achieves to the greatest extent possible the objectives of the illegal, invalid or unenforceable provision.
2.6 These GTC do not derogate from the Supplier’s statutory and common law rights, but are in addition thereto.
2.7 In the event of any contradictions between these GTC and the Agreement, the terms of the Agreement shall prevail.
Article 3. Offers, Agreements and Notifications
3.1 All Offers of the Supplier are non-binding and, unless otherwise declared by the Supplier in writing, valid for a period of 30 (thirty) days after the date thereof. The Supplier reserves the right to withdraw or change its Offers without compensation as long as the Customer did not issue a Purchase Order yet.
3.2 No Purchase Order shall be binding on the Supplier unless it has been confirmed by an authorized representative of the Supplier in writing. Such Purchase Order confirmation shall constitute an Agreement.
3.3 In the event that the Supplier does not respond to the Customer’s Purchase Order within 14 (fourteen) days after receipt thereof the Purchase Order shall be deemed rejected by the Supplier.
3.4 If a Purchase Order is placed by the Customer without a prior Offer and the Customer takes delivery of Products, this shall in any case constitute as Agreement under these General Terms and Conditions and as a confirmation of the Purchase Order. Additional arrangements shall require the written approval of Supplier.
3.5 The Customer cannot derive any rights from oral commitments of the Supplier, unless and to the extent those are confirmed in writing by the Supplier.
3.6 All notifications relating to the Agreement shall be made in writing.
Article 4. Suspension and Dissolution
4.1 The Supplier shall at all times be entitled to suspend the fulfillment of its obligations under the Agreement or to dissolve the Agreement, in the event that:
(i) the Customer does not timely and fully fulfill its obligations under the Agreement;
(ii) the Supplier learns of circumstances giving good ground to fear that the Customer will not timely and fully fulfill its obligations under the Agreement. In such event suspension of the Agreement by the Supplier shall only be allowed in so far the shortcoming justifies such action;
(iii) the Customer has been requested to furnish adequate security to guarantee the fulfillment of its obligations under the Agreement pursuant to article 7.8hereof and this security is not provided or provided insufficiently to the Supplier.
4.2 The Supplier shall furthermore be entitled to dissolve the Agreement if circumstances arise of such nature that fulfillment of the Supplier’s obligations becomes impossible or can no longer be expected in accordance with the requirements of reasonableness and fairness.
4.3 If the Agreement is dissolved pursuant to article 4.2above, the Supplier’s claims against the Customer shall be forthwith due and payable. If the Supplier suspends fulfillment of its obligations, it shall retain its rights under the applicable law and the Agreement.
4.4 Notwithstanding the foregoing sub clauses of this article 4, the Supplier shall always retain the right to claim damages in case of suspension or dissolution.
Article 5. Measurements, weights, images and technical data
5.1 The measurements, weights, dimensions, capacities, prices, technical data and images set out in the Supplier’s Offers, catalogues, website, stock lists and other advertising material are approximate only. These data shall not be binding save to the extent they are expressly guaranteed in the Agreement.
Article 6. Agreement Price
6.1 As consideration for the sale and delivery of Products under the Agreement the Customer shall pay the Supplier the Agreement Price, which is calculated according to the Incoterm “Ex Works”, and specified in the Agreement.
6.2 Unless explicitly stated otherwise, the Agreement Price is always stated exclusive VAT and other government levies, as well as of other expenses possibly to be made within the scope of the Agreement, including costs of packaging, shipment, assembly costs, costs of putting Products into operation, administration costs and insurance charges which shall be added to the Agreement Price and detailed separately on the invoice.
6.3 Unless explicitly agreed otherwise, Supplier is entitled at any time up-to the moment when the Agreement is fully implemented, to change prices. However, if the change of prices results in an exceedance of the Agreement Price with more than 10% (ten per cent) within 3 (three) months after the conclusion of the Agreement, the Customer is entitled to terminate the Agreement in whole or in part, within 5 (five) working days of the date on which Supplier has notified the price increase to the Customer.
6.4 If taxes, levies or import duties which will increase prices are introduced or changed by any government measure, or other government measures are effected after the Agreement is concluded which result in an increase in the cost of Products to be delivered under the Agreement, Supplier shall have the right to pass on this cost increase or the changes even if it had been agreed that the price would be fixed.
6.5 If on the instructions of, or in agreement with, the Customer any change is made, any additional Products are delivered or extra work is performed that is not included in the Agreement, the extra costs thereby incurred shall be charged by the Supplier to the Customer as additional work at the then applicable charging rates.
6.6 Any deduction of the Agreement Price by means of payment discounts have to be agreed upon between the Parties in writing.
Article 7. Payment
7.1 Unless explicitly agreed upon otherwise between the Parties in writing, the Customer shall pay the Supplier’s invoices in Euro and in full without discount, withholding, set-off or counterclaim by means of transfer to the bank account of the Supplier within the term as set out in the Agreement.
7.2 Contestation of an invoice by the Customer shall not suspend the fulfillment of its payment obligations.
7.3 The Customer is only entitled to offset- or retention rights if the Customer’s counterclaims are legally established, uncontested or recognized by the Supplier. Moreover, the Customer shall only be entitled to retention rights in relation to the original Agreement.
7.4 In the event that the Customer fails to timely fulfill its payment obligations, then the Customer shall be in default by operation of law and owe an interest charge equal to the statutory interest rate, however the interest rate owed shall in no event be lower than an interest of 1% (one per cent) per month on the amount due and payable. The interest on the amount due and payable shall be calculated as from the date the Customer is in default until the date that the Supplier has received the full outstanding amount. The foregoing shall be in addition to and not in lieu of any other rights and remedies the Supplier may have at law or in equity for such default.
7.5 All judicial and extrajudicial costs related to the enforcement and collection of payments due by the Customer to Supplier and not received in time, shall be borne by the Customer.
7.6 In the event that: a) the Customer’s company is wound up; b) the ‘Wet Schuldsanering Natuurlijke Personen’ (WSNP) is declared applicable (in case of a sole proprietorship); c) the owner of the Customer dies (in case of a sole proprietorship); d) the owner of the Customer is placed under conservatorship (in case of a sole proprietorship); e) the Customer’s company is attached; f) the Customer’s company is declared bankrupt; and/or g) a suspension of payment is granted to the company of the Customer; Supplier’s payment claims against the Customer shall forthwith become due on the Supplier’s demand.
7.7 Payments made by the Customer may be allocated by the Supplier in the first place to reduce the costs, subsequently to reduce the interest due and finally to reduce the principal sum and the accrued interest. In the event that the Customer designates a different sequence of attribution, the Supplier shall have the right to refuse an offer for payment by the Customer. Further, the Supplier shall be entitled to refuse the full payment by the Customer of the principal sum if it does not include due interest, the accrued interest and the costs.
7.8 If the Customer does not properly fulfill its payment obligations, as well as in the event that the Supplier for any reason whatsoever deems that the Customer will not properly fulfill its payment obligations, the Supplier may at all time require adequate security from the Customer such as a bank or performance guarantee for the proper fulfillment of the Customer’s payment obligations and suspend delivery of Products until such adequate security has been received. The Customer shall provide the Supplier with any such requested adequate security at the Supplier’s first request. If the suspension lasts for more than 30 (thirty) days and the Customer does not provide the Supplier with such adequate security within this term, the Supplier shall be entitled to terminate the Agreement.
Article 8. Delivery of Products
8.1 Unless otherwise agreed upon between the Parties in writing, the Supplier shall deliver Products according to the Incoterm “Ex Works”, on the delivery date or within the delivery term set out in the Agreement. Upon such delivery, the risk of loss of, or damage to, Products shall transfer from the Supplier to the Customer.
8.2 If the Customer refuses to take delivery of Products; delivery has been proved impossible; or the Customer fails to provide the Supplier with the information or instructions necessary for the delivery to be carried out, the Supplier shall be entitled to:
(i) store Products at the Customer’s risk and expense; or
(ii) withdraw from the Agreement; and
(iii) claim damages from the Customer for non-performance.
8.3 If the Supplier has given a date or term of delivery it shall only be indicative and never constitute a term to be observed on penalty of forfeiture of rights. The Supplier shall at all times use its reasonable efforts to deliver Products on time. If the Supplier expects a delivery term to be exceeded, it shall forthwith notify the Customer thereof in writing. In such case, the Supplier shall use its reasonable efforts to deliver the Customer Products as soon as possible and keep the Customer updated of the situation.
8.4 A failure to deliver Products in time does not entitle the Customer to suspend or fail to comply with its contractual obligations or to claim damage.
8.5 The delivery term commences once the Supplier has received all information required for such delivery from the Customer and all other necessary conditions for performance of the Agreement have been fulfilled. If there are circumstances of which the Supplier was not aware at the time the delivery period was determined, such delivery period can be extended by the Supplier up to a maximum period equal to 2 (two) times the initial delivery period. In the case of additional work, the delivery period shall be extended by the time required for the delivery of the materials and parts and to carry out the additional work.
8.6 Unless otherwise agreed upon in the Agreement, the Supplier shall be entitled to deliver Products in partial shipments. In such event the Supplier shall be entitled to invoice the delivered Products separately. Any delay of a partial delivery shall not relieve the Customer of its obligation to accept the remaining delivery of Products. Further, the Supplier reserves the right, without compensation to the Customer, to adjust the quantities of Products to be delivered as stated in the Agreement according to the quantities available to the Supplier at the respective delivery times.
8.7 The Customer shall be obliged to provide the assistance and co-operation necessary and required by the Supplier in order for or on behalf of the Supplier to perform the delivery immediately, explicitly including the obligation to accept and take delivery of Products purchased.
Article 9. Export Control
9.1 The delivery of Products may be subject to laws, customs and export control regulations of the European Union. Each Party shall comply with such laws, customs and regulations and shall not export Products without first obtaining all required governmental authorizations or licenses. Notwithstanding anything to the contrary in these GTC or any Agreement, the Supplier shall in no event be obliged to deliver any Products or perform any of its obligations under these GTC or any Agreement until the required approvals relating to the export regulations abovementioned have been obtained. Each Party agrees to provide the other Party with such information and assistance as may reasonably be required by the other in connection with securing such authorizations or licenses, and to take timely action to obtain all required support documents. The Supplier shall be entitled to terminate the Agreement or part thereof, if the respective necessary approval(s) according to the applicable export regulations cannot be obtained within a reasonable time period.
Article 10. Inspection & Complaints
10.1 On forfeiture of all warranty claims, the Customer shall inspect Products or have them inspected immediately after the delivery thereof, but in any case within twenty (20) days of the date of delivery. The Customer shall examine whether the quality and the quantity of the delivered Products comply with the Agreement. Sample testing shall also be performed if this can reasonably be expected of the Customer.
10.2 Any claim regarding the quantity of Products delivered must be noted at the time of delivery on the consignment note or delivery invoice, in default of which the quantities indicated on the consignment note or delivery invoice constitute compelling evidence against the Customer.
10.3 Visible shortcomings have to be communicated in writing to the Supplier within 20 (twenty) days following the delivery of Products. Non-visible shortcomings also have to be reported in writing within 20 (twenty) days following their detection but no later than 6 (six) months following delivery. Any such written complaint should contain a precise description of the defect and detailed delivery information of Products such as delivery date and time, delivery note number and box number. Claims which are not filed in accordance with this procedure shall not be taken into consideration.
10.4 Complaints with regard to delivered Products do not relieve the Customer of its payment obligations.
10.5 Should the Customer fail to timely notify the Supplier of any defective Products in accordance with this article 10, Products shall be considered accepted by the Customer and all warranties and remedies with regard to detected or detectable defects in Products shall be excluded.
10.6 If any delivery of Products contains negligible defects, the Customer shall accept such delivery.
10.7 If the Customer wishes to return defective Products, it shall do so following the prior written consent of Supplier.
Article 11. Retention of Title
11.1 The Supplier retains ownership of the delivered Products, including designs, sketches, drawings, films, software, (electronic) files, and so forth, until the date on which the Customer has completely fulfilled all of its obligations under all Agreements. However, if and to the extent that this would be in favour of the Supplier, shall be deviated from the previous regime pursuant to article 10:128 paragraph 2 DCC, stating that the legal consequences of a retention of title for Products intended for export shall be governed by the law of the state of destination, if under such law the property rights do not cease to have effect, until the Agreement Price is paid in full.
11.2 Until full payment of the Agreement Price, the Customer shall not be authorised to pass on the Products to third parties for their use, to hire them out, pledge them, transfer title or otherwise to dispose of them or encumber them. The Customer shall, however, be entitled to sell and to deliver the Products in accordance with their purpose to third parties in the context of its normal business activities.
11.3 The Customer shall at its own expense insure Products subject to retention of title and keep them insured against all types of damages, such as but not limited to, damage caused by fire, explosion and water as well as against theft with an insurance company of financial repute. The insurance coverage has to be adequate to cover the value of new Products. The Supplier shall be the beneficiary of any indemnity which might be paid by the insurance company. On the request of the Supplier the Customer shall make the respective insurance policy available for inspection as well as evidence of the payment of the insurance premiums.
11.4 If third parties seize Products subject to retention of title or wish to establish or assert a right to such Products, the Customer shall forthwith inform the Supplier thereof.
11.5 In the event that the Supplier wishes to exercise its ownership rights under this article 11, the Customer shall give the Supplier or third parties appointed by the Supplier, now for then, unconditional and irrevocable permission to access all of the locations where the Products are located in order for the Supplier to take them back.
11.6 Demand for, or recovery of, Products or documents of title by the Supplier shall not of itself discharge the Customer’s liability to pay the whole of the Agreement Price and take delivery of Products or the Supplier’s right to sue for the whole of the Agreement Price. The Supplier shall however in such case be entitled to dispose of said Products or to terminate the Agreement without any liability towards the Customer.
11.7 The Customer shall inform the Supplier without delay regarding any obligation to register a retention of title in an official register or any other formal obligation necessary for the retention of title to be valid in the country where Products shall be delivered. The Customer shall at its own costs fully cooperate, assist and give all consents to the Supplier regarding any formal obligation necessary to achieve a valid retention of title.
11.8 If the laws of the country in which Products are located after delivery do not permit the Supplier to retain the title to said Products, but allow the retention of similar rights to the delivered Products, the Customer shall provide the Supplier with such other equivalent right and shall assist the Supplier in the fulfillment of any form requirements necessary for such purpose.
Article 12. Warranty
12.1 The Supplier undertakes to carry out the Agreement with due skill and care and warrants its Products to be free from material defects in material and workmanship. In the event that the Supplier undertakes to design and/or develop and/or deliver a Product in accordance with the Specifications then the Supplier warrants that the Products shall comply therewith. In all cases, the warranty period shall commence on the delivery of the Products (as set out in article 8hereof) and end as specified and disclosed with or on each Product, but at least for a minimum period of three (3) months from the date of delivery (as set out in article 8hereof).
12.2 The warranties set out in article 12.1apply to defects that appear under the conditions of operation provided for by the Agreement and in particular do not apply in any of the following cases:
- a) Products that have been altered or repaired by anyone other than the Supplier without the Supplier’s prior written consent;
- b) Products that have been damaged by circumstances beyond the reasonable control of the Supplier;
- c) Products that have been improperly used or maintained by the Customer;
- d) Products that have been subjected to conditions of use and/or maintenance not in conformity with the Supplier’s instructions;
- e) Products that have been damaged by negligence or lack of caution of the Customer, by abuse, improper installation or application, or negligence in use, improper storage, transportation or handling, or Products which in any way have been tampered with;
- f) when an item is purchased by the Supplier as a component part of the Products, except to the extent to which such item or items are covered by the warranty of the original manufacturer, if any. However, no warranty of a component part shall extend beyond the warranty period set out in article 12.1above;
- g) when an item which is a component part of the Products has been furnished by the Customer to the Supplier;
- h) defects which only marginally reduce the value or the suitability of the Products. A marginal defect exists in particular if the defect can be removed without significant effort by the Customer itself;
- i) normal wear and tear of the Products.
12.3 In the event that the Customer deems the Products to be defective and the warranty period set out in article 12.1above has not expired, it shall, on forfeiture of all warranty claims, notify the Supplier of all particulars thereof within two (2) weeks after discovering the alleged defect. However, the Customer is only entitled to claim under this warranty if it has complied with all its obligations towards the Supplier.
12.4 If the Supplier determines that the Products indeed are defective, the Supplier shall, at its option:
(i) repair the defective Products in situ; or
(ii) have the defective Products or parts thereof returned for repair; or
(iii) replace the defective Products; or
(iv) replace the defective parts of the Products in order to enable the Customer to carry out the necessary repairs at the Supplier’s expense and instructions; or
(v) credit the relevant portion of the Product related invoice accordingly.
The Supplier shall at all times have the right to inspect the Products claimed to be defective and shall have the right to determine the cause of such alleged defect. In all cases the Customer must enable the Supplier to repair any defect. The remedies set out in this article 12.4shall be at the Supplier’s sole discretion.
12.5 The warranty as set out in this article 12does not cover any transportation costs for return of Products and/or parts thereof, or for reshipment of any repaired or replaced Products and/or parts thereof. Defective Products and/or parts replaced in accordance with this article 12shall be placed at the disposal of the Supplier. Repair or replacement deliveries do not interrupt or prolong the warranty period.
12.6 The Supplier will not accept the return of any Products unless it has given its prior written authorization to the Customer.
12.7 The warranty conditions laid down in this article 12 are in lieu of all other warranties, legal, express or implied, including but not limited to any warranties of merchantability or fitness for a particular purpose or against infringement, all if which are hereby expressly disclaimed. The Customer acknowledges that the remedies provided herein are exclusive and in lieu of all other warranties. The Customer assumes full responsibility for the use and application of the Products and accepts the Supplier’s design and material selection in placing its Purchase Order. Furthermore, the Customer acknowledges that the Supplier is not a medical organization. The Products are intended for enhancing the enjoyment of life by means of a healthy lifestyle or protective undergarment. The Products, information and advice of the Supplier cannot be considered as a substitute for medical advice or diagnosis, or as its replacement or substitute for professional medical advice or treatment by a registered doctor or other specialist. The Supplier cannot assure that the desired objectives are achieved by means of the use of the Products.
Article 13. Liability
13.1 If the Products delivered by the Supplier to the Customer under the Agreement do not comply with the Specifications or are not free from material defects in material and workmanship, the Supplier’s liability vis à vis the Customer shall be limited to the arrangements set out in Article 12 of these GTC. For the avoidance of any doubt, the provisions of this Article 13 do not affect product liability based on mandatory provisions by Dutch law.
13.2 Unless these GTC provide otherwise, the Supplier’s liability for direct damages shall at all times be limited to:
(i) the amount the Customer was obliged to pay for the delivery of the Products which caused the direct damage (exclusive VAT); or
(ii) if the damage is covered by the Supplier’s commercial liability insurance, the amount actually paid out by the insurer.
13.3 The Supplier shall not be liable for:
(i) indirect damage, including but not limited to, consequential damage, loss of profit, lost savings and damage due to business stagnation; and
(ii) any death or physical injury of employees of the Customer howsoever caused and no matter whether the death or physical injury results wholly or partly from any act or omission on the part of the Supplier and/or its Group Companies, their employees or any other third party.
13.4 The limitations and exclusions of liability set out herein do not apply in the event that the damage is caused by wilfulness, gross fault or gross negligence on the part of the Supplier.
13.5 If the Customer acts on behalf of one or more third parties then,
notwithstanding the liability of those other parties, the Customer is liable to the Supplier as though it were acting on its own behalf.
Article 14. Indemnity
14.1 The Customer indemnifies the Supplier against all liability of the Supplier to any third party by virtue of any technical working principles supplied or mandated by the Customer, and used by the Supplier in the delivery of its Products. The examination of any infringement of third-party rights by virtue of the Customer supplied and mandated technical working principles shall be at the initiative and expense of the Customer. If there is any infringement of such third-party rights, the Supplier shall respect such rights and as far as possible propose an alternative solution.
14.2 Unless under a non-appealable final judgement it is decided that gross negligence or intention exists on the part of the Supplier, the Customer shall indemnify and hold the Supplier harmless from and against all claims and causes of action for damages and expenses of every kind and character including costs of suit and reasonable attorney’s fees asserted against the Supplier, its agents, servants and employees arising out of or in any manner connected with the Product or use of the Product. This includes, but is not limited to, all claims and causes of action resulting fromany death or physical injury of employees of the Customer howsoever caused and patent or trademark infringement, which are based, in whole or in part, from Products manufactured to the Customer’s specifications.
14.3 The Supplier warrants that, at the time of making the Offer to the Customer, it is not aware of any infringement of third-party intellectual or industrial property rights, or other rights. If the Supplier has manufactured and delivered Products according to designs, drawings or other instructions from the Customer, then the Customer guarantees that this will not infringe any third-party intellectual or industrial property rights, or other rights. The Customer indemnifies the Supplier against any third-party claim alleging infringement of its intellectual- or industrial property rights.
Article 15. Lapse of rights
15.1 Legal claims pursuant to the Agreement or unlawful acts must be instituted by the Customer within 1 (one) year of the right to the claim coming into force, in the absence of which the legal claim shall lapse.
Article 16. Intellectual- and Industrial Property
16.1 The Customer acknowledges that the Supplier retains ownership of any intellectual- and industrial property rights with regard to the Products and in any plans, Specifications, images, schedules, designs, sketches, drawings, films, software and other material or (electronic) files (the “Information”) made available in relation to the Agreement and that the Customer shall have no rights of exploitation thereof, irrespective of the fact whether they have been handed over to the Customer or via the Customer to third parties and irrespective of whether the Customer charged the Supplier for the production of such materials.Further, the Customer may not use any part of the techniques illustrated in such Information to improve its own Products. The Customer shall return the Information at the Supplier’s first request.
16.2 The Customer shall not remove designations of intellectual- and industrial ownership, nor shall he provide copies of identical designations.
16.3 The Customer will not attempt to seek or claim any interest in the Supplier’s intellectual- and industrial property rights, or assist any other party to assert any interest in the Supplier’s intellectual- and industrial property rights. The Customer acknowledges that any improvement or enhancement of Supplier’s intellectual- and industrial property rights which may result from work performed by the Customer shall remain the exclusive property of Supplier and the Customer irrevocably assigns to Supplier all right, title and interest the Customer may have in any improvements or enhancements, to Supplier’s intellectual- and industrial property rights. The Customer will not hinder Supplier in any application or other measure taken by Supplier to protect or exploit improvements to Supplier’s intellectual- and industrial property rights.
16.4 The Supplier shall reserve the right to use the knowledge gained due to the execution of the Agreement for other purposes, in so far no Confidential Information of the Customer hall be brought to the notice of third parties when doing so.
Article 17. Software
17.1 If applicable, Products sold includes the appropriately licensed Software normally provided therewith by the Supplier or the manufacturer. Software shall remain the property of its licensor. The terms and conditions of any software license agreement covering the Software are incorporated herein by reference and supersede anything to the contrary herein, and Customer agrees to be bound by such terms and conditions, particularly those limiting the use and transfer of the Software. Except as otherwise permitted therein, Customer shall use the Software only with Products and shall not copy, remove, sublicense, rent, transfer, assign, sell, alter, modify or encumber the software without licensor’s prior written consent. Software is warranted only to the extent provided for directly by the licensor. The Supplier makes no warranty as to the performance of any Software. Customer shall be fully responsible for, and shall indemnify, hold harmless, and, if so requested by the Supplier, defend the Supplier from and against, all matters whatsoever arising out of or in connection with or relating to vendor-supplied Software, including, without limitation, the ownership, copyrights, licensing, licensing terms, licensed quantities, warranties, functionality, fitness for use, operation, installation, and de-installation thereof.
Article 18. Data
18.1 The Customer shall at all times comply with any obligations under Dutch laws regarding data protection and any other relevant (European) data protection regulations (the “Privacy Laws”). The Customer shall (i) take appropriate security measures to protect the confidentiality of the (personal) data provided by the Supplier, (ii) inform the Supplier, on the Supplier’s request, about the security measures taken in respect to the foregoing, and (iii) notify the Supplier of any breach of personal data in accordance with and within the timeframe stipulated in the Privacy Laws. Upon request of the Supplier. If applicable, the Customer is obliged to enter into a data processing agreement with the Supplier.
Article 19. Force Majeure
19.1 The Supplier shall not be liable for any failure to fulfill any terms of the Agreement to the extent that such fulfillment has been delayed, hindered, interfered with or prevented by any circumstance whatsoever which is not within its reasonable control and which amounts to an act of Force Majeure.
19.2 The Supplier shall inform the Customer of all the circumstances and particulars which prevent the Supplier from performing its obligations under the Agreement. The Supplier shall consult the Customer about the measures to be taken in order to limit the consequences of the situation of Force Majeure to a minimum and to safeguard the execution of the Agreement.
19.3 The Supplier shall exert its reasonable efforts to cure any event of Force Majeure to the extent that it is reasonably possible to do so and may at its option suspend performance of the obligation affected by the Force Majeure during the period such Force Majeure continues, without incurring any liability on account hereof.
19.4 If the Force Majeure continues for a period of more than 3 (three) consecutive months, then either Party shall be entitled to terminate the Agreement by written notice to the other Party.
Article 20. Secrecy
20.1 The Parties shall be bound to secrecy of all of each other’s Confidential Information and shall use the same solely for the purposes of performing the Agreement.
20.2 The Parties will cause their officers, directors, employees, agents and Group Companies to abide by the terms of this article 20. Each Party will be responsible for any breach by its officers, directors, employees, agents and Group Companies of this article 20.
20.3 If a statutory provision or a judicial decision compels the Supplier to convey Confidential Information of the Customer to third parties designated by law or by the court and the Supplier cannot for that purpose invoke a legal right to refuse to give evidence of such a right acknowledged or allowed by the competent court, the Supplier shall not be held to pay damages or compensation and the Customer shall not be entitled to demand the dissolution of the Agreement on the ground of any damage resulting from said circumstance.
Article 21. Assignment and Subcontracting
21.1 The Supplier is at all times entitled to assign all or part of its rights and/or obligations under the Agreement to an Group Company or third party after prior written notice thereof to the Customer.
Article 22. Non-employment of Supplier’s personnel
22.1 Throughout the term of the Agreement and for a period of 1 (one) year following the termination thereof, the Customer shall not in any way hire or employ in any other way, be it directly or indirectly, staff of the Supplier, the Supplier’s Group Companies or of enterprises whom the Supplier has engaged to execute the Agreement and who are/were involved in the execution thereof, without prior proper businesslike consultation of the Supplier on this matter, which consultation has to be recorded in writing, all in accordance with the requirements of reasonableness and fairness.
Article 23. Applicable law and disputes
23.1 These GTC are construed in accordance with and governed exclusively by the laws of the Netherlands. The applicability of the 1980 Vienna Sales Convention (“CISG”) is hereby excluded, as well as any other present or future terms of any international convention governing the purchase of moveable property, insofar as such terms can be excluded.
23.2 In case of any disputes arising out of or relating to these GTC, the Parties shall endeavour to settle such disputes amicably. If the Parties are unable to, the dispute shall be exclusively submitted to the jurisdiction of the competent courts of Rechtbank Oost-Brabant, the Netherlands.