General Terms and Conditions

General Terms and Conditions for the Delivery of Products and/or Services

 

General Terms and Conditions of Delivery and Payment, hereinafter referred to as "Terms and Conditions" of kyterio, a registered trading name of the private limited liability company Europa Marchand Holding B.V., with its registered office in Noordwijkerhout, hereinafter referred to as "kyterio", filed with the Dutch Trade Registry (NL: Kamer van koophandel) under number 27247070.


 

I.               Definitions

 

Agreement     :  the agreements, recorded in a quotation, form, document or in any other way, signed by both

                              :  parties, on the basis of which one or more Products and/or Services are delivered and/or made

                              :  available by kyterio.

Products          :  as referred to and further defined in the Agreement.

Services           :  as referred to and further defined in the Agreement.

Purchaser       :  other party with whom the Supplier concludes an Agreement.

Supplier           :  kyterio

 

 

II.              Realization and Termination


  1. The Agreement shall enter into force at the moment that the order has been confirmed by the Supplier.
  2. If Products are delivered that are susceptible to transfer of ownership, the (part of) the Agreement ends after both parties have fulfilled their obligations. With regard to the delivery of Services, the Agreement is entered into for an indefinite period of time. 
  3. Termination of the Agreement or of the purchase of one or more Services stipulated in the Agreement may be effected by either party in writing, with due observance of the notice period specified in the Agreement for each Service, without prejudice to the current obligations towards each other and third parties and without prejudice to the provisions of Article 9 (confidentiality and security). 
  4. Each of the parties has the right to dissolve the Agreement, in whole or in part, with immediate effect, without further written notice of default and judicial intervention, if the other party has applied for a moratorium or if the other party has been declared bankrupt, or has itself filed for bankruptcy, or if its guardianship order or its administration order has been applied for. 
  5. Furthermore, the parties are entitled to terminate this Agreement with immediate effect if the other party fails to fulfil any obligation under this Agreement and this is of such a serious nature that it cannot reasonably be required to allow the Agreement to continue and the defaulting party, after having been given notice of default by registered letter, remains in default and/or is in default. 
  6. Notice of termination must always be given in writing and by registered mail.



III.            Rates Invoicing and Financial Guarantee


  1. All prices are inclusive of any import duties and in accordance with the specifications in the order confirmation. Prices are exclusive of VAT.
  2. All payments must be made immediately, unless agreed otherwise in writing, by transfer to the bank account indicated on the invoice.
  3. If the Customer has not paid within the period specified in paragraph 2, he shall be legally in default without further notice of default.
  4. In the event that the Customer is in default with regard to his payment obligation, the Customer shall owe the Supplier interest on all late payments, to be calculated from fourteen (14) days after the invoice date, and at the rate of 1.5% for each month or part of a month by which the due date is exceeded. The Customer shall also owe the extrajudicial costs, with a minimum of 15% over the overdue payment, without prejudice to the Supplier's other rights.
  5. The Supplier expressly reserves the right at all times to demand full payment in advance or cash on delivery or any other form of financial security, if and insofar as it deems this necessary in connection with the Customer's financial position, this at the discretion of the Supplier.



IV.            Suspension of Service and Retention of Title


  1. The Supplier reserves the right to temporarily suspend and/or limit the use of the agreed Services if:
  2. The Customer is in default with regard to one of its obligations towards the Supplier with regard to the Services referred to above;
  3. The Customer's actions and/or omissions directly endanger the functioning of the Supplier's system or that of third parties;
  4. It can reasonably be assumed that the Supplier's making data and/or software available or having them processed is unlawful.
  5. The obligation to pay the periodically due fees shall continue to exist during the period of suspension, unless the reason for the suspension cannot be attributed to the Customer.
  6. Services shall be provided again after the Customer has fulfilled his obligations within a period set by the Supplier and has paid the amount determined in this respect for reinstatement.
  7. The expiry of the period referred to in paragraph 2 shall be regarded as a sufficiently compelling reason for terminating the Agreement with immediate effect.
  8. The ownership of all Products delivered by Supplier to the Customer remains with the Supplier as long as the Customer has not fulfilled his payment obligations towards the Supplier in respect of, or in connection with, the delivery of those Products and the Services in connection with the delivery of the Products, and only then transfers to the Customer when the Customer has fulfilled all payment obligations towards the Supplier mentioned in this paragraph.

 


V.             Installation and Acceptance


  1. The Supplier shall ensure that Products and Services are installed in a suitable space, as stated in the Agreement.
  2. If the Customer purchases Products from the Supplier in accordance with the Agreement (rent or purchase), the Supplier shall be responsible for the proper functioning of Products and Services as of delivery.
  3. If the Customer itself supplies Products or goods that the Supplier must install in the space referred to in paragraph 1, the Supplier shall only be responsible for the proper functioning of the Services from the moment of delivery. Failure of Products supplied by the Customer to work properly shall be entirely for the Customer's account during the term of the Agreement, unless otherwise agreed. 
  4. Acceptance of Products and/or Services is deemed to have taken place if, after written notification of readiness by the Supplier, the Customer has not complained within five (5) working days or otherwise stated that it is not satisfied with the performance delivered.



VI.            Warranties


  1. The Supplier shall never be required to provide the Customer with a more far-reaching guarantee on products that the Supplier has obtained from third parties than that which the third party grants the Supplier.
  2. The Supplier shall never provide a guarantee on products supplied by the Customer himself.
  3. The Buyer cannot claim a guarantee if the Buyer is in default vis-à-vis the Supplier.
  4. In the event of a defect or malfunction, the Supplier will make every effort to remedy the defect or malfunction in accordance with the arrangements stipulated in the End-User License Agreement. If the defect or malfunction subsequently turns out not to be due to the malfunctioning of Products or Services as supplied by the Supplier, the full costs of repair will be charged to the Customer according to the then current rates of the Supplier.
  5. With due observance of the provisions of Article 6.1, the Supplier has the choice, when the Customer invokes this warranty provision, to replace or repair the defective part.



VII.          Intellectual and Industrial Property


  1. The Agreement between the parties does not extend to the transfer of any intellectual or industrial property rights, such as but not limited to copyright, patent or trademark rights, or to the transfer of know-how, unless explicitly agreed otherwise and laid down in the Agreement.
  2. If and insofar as the Supplier grants the Consumer a right of use in respect of the Products and / or Services supplied by the Supplier, this shall take place with due observance of the provisions of Article 7 paragraph 1. In case the Product and / or Service concerns the provision of software, the right of use includes the authority to use one copy of the program on the equipment on which the software is installed.
  3. Supplier declares to be authorized to grant a right of use as referred to in paragraph 2 of this article and shall indemnify the Buyer against the claims and rights of third parties with respect to the Products made available by the Supplier on the basis of the Agreement and / or Services. However, only if and in so far as the defense of the proceedings - including all negotiations regarding a possible settlement - will be left entirely to the Supplier and / or its supplier. Supplier and / or its supplier shall, at its option, either:
  4. obtain the right to continue the use of the Product on behalf of the Buyer;
  5. replace the Product (or have it replaced) or change it in such a way that the infringement will no longer exist;
  6. take back the Product against Buyer's credit of the amount, equal to the market value of the Product, taking account of the depreciation to be calculated according to current standards.

 

VIII.         Import and Export of Products and/or Services


  1. If and insofar as the supply and / or use of the Products and / or Services require permits from the Dutch government or the government of the country of origin of the Products and / or Services, irrespective of any contrary provision in the Agreement, any attachment (s) or in the delivery conditions, the Products and / or Services will only be delivered to the Buyer if and as soon as the necessary permits have been obtained.
  2. The Customer is at all times responsible for not using the Products and / or Services delivered by the Supplier in violation of the applicable regulations and / or permits. The Purchaser indemnifies the Supplier against all agreements made by third parties in connection with possible violation of regulations and / or permits.
  3. If the Purchaser transports (personal) data and / or computer programs across national boundaries through the Products and / or Services of the Supplier, the Customer indemnifies Supplier against all liability, costs or damage as a result of claims from third parties, including the government:
  4. in case these (personal) data and / or computer programs are executed in violation of the applicable statutory regulations of the Netherlands;
  5. in the event that these (personal) data and / or computer programs are introduced in violation of the comparable statutory regulations of the exporting country referred to under sub-clause a) above.



IX.            Confidentiality and Security


  1. The parties guarantee to each other the confidentiality of confidential data, information and/or computer programs that become known to them through or as a result of the performance of the Agreement. In this respect, the Parties also guarantee their employees and third parties who can and/or must gain access to those confidential data, information and/or computer programs that are necessary for the correct execution of the Agreement.
  2. Within the framework of the provisions of paragraph 1 of this article, the parties have no obligation to maintain confidentiality with regard to data that are:
  3. already known to the receiving Party, unless the information has been provided on a confidential basis;
  4. Collected by one Party independently from the other Party;
  5. Was lawfully obtained by a Party from a third party without a duty of confidentiality;
  6. Already released by the title holder in the public domain;
  7. contains general ideas, concepts, knowledge or techniques relating to the provision of the Agreement.
  8. The parties shall at all times observe absolute confidentiality with regard to:
  9. The source of the data;
  10. financial, statistical or personal data;
  11. Business data relating to the internal business operations of the other party.
  12. Where necessary, the parties shall ensure that their personnel will comply with the obligations to protect the privacy of the parties in relation to the Products and/or Services delivered, including keeping information about communication traffic confidential. Insofar as third parties are involved in the services within the framework of the Agreement, the parties must guarantee that corresponding provisions are made with regard to those third parties and their personnel.
  13. The Customer is himself responsible for the data and/or software that are processed and/or processed by the Supplier on his equipment and with the aid of his programs for the Customer, unless disclosure is due to an act or omission of the Supplier, his employees and/or third parties hired by him.
  14. The Customer shall indemnify the Supplier against any claim, accusation or action based on the provisions of paragraph 4 of this article.
  15. With the exception of the provisions of the previous paragraphs of this Clause, the Supplier is responsible for the protection of (personal) data that are necessary for the correct execution of the Agreement.
  16. The Supplier shall ensure security as referred to in Article 8 of the Personal Records Act for all data collections that may contain personal data, insofar as such collections are present in the system of the Supplier in the context of the execution of the Agreement as well as in the records kept by him in connection therewith.
  17. The Supplier shall indemnify the Customer against claims from third parties in the event of the Supplier's violation of the provisions of paragraphs 7 and 8 of this article.
  18. Without prejudice to the provisions in article 2 the obligation of confidentiality applies until at least two years after termination of the Agreement or so much longer by virtue of statutory regulations.
  19. If one of the parties fails imputably in the execution of this article, it shall be fully liable for all damage suffered and to be suffered by its other party as a result. For the time being, this damage shall be set at a fixed amount of ten thousand (10.000,--) € Euro per event. If several Customers suffer damage as referred to in this article as a result of one and the same event, the Supplier shall compensate a maximum of five hundred thousand (500.000,--) € Euro for all Customers together.



X.             Liability


  1. In the event of any defect or shortcoming in a Product and/or Service delivered by the Supplier for which the Supplier is liable, the Supplier will never be obliged to do anything other or more than repair or replace the defect or shortcoming.
  2. In particular, the Supplier shall not be liable for any consequential loss suffered by the Customer or third parties, except in the case of gross negligence or gross negligence on the part of the Supplier.
  3. The Supplier's liability as a result of attributable failure in the performance of the Agreement or unlawful acts shall at all times be limited to the amount that will be paid out by the Supplier's liability insurer in the case concerned.
  4. The Supplier is never liable for the consequences for the Customer or third parties of incorrect or unlawful use by the Customer of the Products and/or Services delivered by the Supplier.
  5. The Supplier is never liable for the consequences of the Customer linking the Products and/or Services delivered by the Supplier to Products and/or Services not delivered by the Supplier.



XI.            Final Provisions


  1. Any deviation, addition or amendment by the Customer to the General Terms and Conditions shall only apply if agreed in writing. 
  2. Only the Supplier's General Terms and Conditions apply to all offers, quotations and sales by the Supplier to the Customer, irrespective of any provision to the contrary in the Customer's general terms and conditions of purchase or sale or changes made by the Customer to the order confirmation form. 
  3. In the event of any conflict between provisions in the Agreement, any appendices and the General Terms and Conditions, the following order of priority shall apply:
  4. the Agreement;
  5. the appendices;
  6. the General Terms and Conditions, unless explicitly stated otherwise.
  7. The Supplier reserves the right to amend or supplement the General Terms and Conditions. In the event that any provision of these General Terms and Conditions is deemed null and void by a competent court or is otherwise not declared binding, the other provisions of these General Terms and Conditions shall remain in full force and effect.
  8. Disputes between parties on the basis of the Agreement will exclusively be submitted to the competent court in the District of Amsterdam.



XII.          Applicable Law and Disputes


  1. The Agreement, appendices and the General Terms and Conditions are exclusively governed by Dutch law.
  2. In all disputes between the Supplier and a third party, the competent court in Amsterdam shall be competent to hear the dispute or, at the Supplier's discretion, the competent court in the defendant's place of residence or business.
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