Article 1. Definitions
In these General Terms and Conditions:
Article 2. Applicability, changes and additions
2.1 These General Terms and Conditions apply to all quotations and Agreements, including amendments and/or supplements thereto, whereby the User performs Services for a Client, and apply to all legal relationships resulting from or in connection with such Services.
2.2 Deviations from these General Terms and Conditions are only valid after written confirmation by the User. In the event that one or more provisions of these General Terms and Conditions are deviated from, the remaining provisions shall remain in force.
2.3 These General Terms and Conditions also apply to third parties engaged by the User in the performance of the Agreement. These third parties may invoke these General Terms and Conditions directly in their relationship with the Client.
2.4 Without prejudice to the provisions of Article 9 (additional work), amendments to and additions to any provision in an Agreement shall also apply only if they have been recorded in writing by the User; they shall apply only to the Agreement in question.
2.5 The User is entitled to amend or supplement these General Terms and Conditions. Amendments of minor importance may be implemented at any time. Major substantive changes will be discussed with the Client in advance.
Article 3. Quotations, offers, specifications and conclusion of agreements
3.1 User quotations have a validity period of 30 days from the quotation date, unless explicitly stated otherwise.
3.2 An offer or (price) quotation does not bind the User and applies merely as an invitation to place an order.
3.3 Specifications have been prepared with care. However, the User cannot guarantee that no deviations will occur in this regard.
3.4 The Client is not entitled to notify third parties, or allow third parties to become aware, of a quotation and/or specification made on behalf of the User, or to copy (or have copied) or otherwise reproduce the quotation or specification. The Client shall immediately remove from its files, upon the User's first request, any specification received by email and/or any quotation made by the User by email, as well as in any event where a quotation made by the User is not followed by an order.
3.5 An Agreement between the User and the Client shall only be concluded after the Client has signed the quotation or order confirmation received from the User for approval and the assignment has been accepted or confirmed in writing by the User. The User's order confirmation shall be deemed to accurately and completely reflect the Agreement, unless the Client objects thereto immediately and in writing.
3.6 The Agreement includes only those deliveries and services that are expressly mentioned or described in the quotation or the order confirmation. In the event of a discrepancy in this regard, the order confirmation takes precedence over the quotation.
3.7 In the event of a discrepancy between these General Terms and Conditions and the Agreement, the provisions of the Agreement shall prevail.
3.8 The Agreement between User and Client is entered into for a period of one (1) year, unless the nature of the Agreement implies otherwise or if the Parties expressly agree otherwise in writing. The Agreement shall be tacitly renewed each time for a period of one (1) year, unless the Agreement is terminated in writing by one of the Parties no later than one (1) month before the end of the current contract period.
Article 4. General obligations of the User
4.1 The User shall endeavor to the best of its knowledge and ability to perform the Work in accordance with the requirements of good workmanship, based on the state of the art known at that time; the scope of the User's obligations depends on the provisions of the Agreement and furthermore on the Client's own responsibilities and/or obligations or those of third parties engaged by or on behalf of the Client.
4.2 The User is obliged to do that which, according to the nature of the Agreement, is required by law, the requirements of reasonableness and fairness, or custom.
4.3 If and to the extent that proper execution of the Agreement requires this, the User has the right to have certain work performed by third parties.
4.4 The User shall ensure that it is aware of the statutory regulations and government decrees relevant to the Activities, as well as regulations and rules of a special nature, including but not limited to privacy regulations and regulations or requirements in the field of (protection of) data management. If and insofar as obligations for the User arise from the regulations or rules referred to in the previous sentence, it shall comply with them. The User is obliged to handle the data disclosed to it with such care as is required by its confidential nature, all in accordance with the General Data Protection Regulation. This care entails, inter alia, providing for the safekeeping and storage of data in such a way that unauthorized third parties cannot reasonably gain knowledge thereof. Furthermore, the User is obliged to maintain strict confidentiality regarding all information that has become known to it during the conclusion and execution of the Agreement, unless prohibited by law. The duty of confidentiality also extends to the identity of the Client. The User shall also impose this duty of confidentiality on its own personnel and on third parties engaged by it. The duty of confidentiality shall continue to exist in full force and effect after suspension of the performance of the Agreement or termination of the Agreement.
Article 5. General obligations of the Client
5.1 The Client shall ensure that all data which the User indicates are necessary, or which the Client ought reasonably to understand are necessary for the execution of the Agreement, are provided to the User in a timely, complete, and accurate manner. If the data required for the execution of the Agreement are not provided to the User in a timely manner, the User has the right to suspend the execution of the Agreement and/or to charge the Client for the additional costs arising from the delay at the customary rates.
5.2 The Client is obliged to warn the User in writing and within a reasonable time if the Client has actually noticed a shortcoming on the part of the User or should have been aware thereof.
5.3 The Client may only use the User's services for lawful, permitted, and permissible purposes. The Client may not use the User's services (nor assist others in using them) in a manner:
5.4 The Client may not use the User's services, or otherwise in an impermissible or unauthorized manner, or in a way that burdens, impedes, or harms the User, its services, systems, its users, or others. This implies, among other things, that the Client is not permitted to disrupt or interrupt the safety, security, integrity, availability, or performance of the User's services.
Article 6. Commencement and execution of the Work
6.1 The User cannot be required to commence the execution of the Work until all information, data, or goods necessary for this purpose, as referred to in Article 4 and/or 5, are in the possession of the User.
6.2 The User is entitled to commence and/or deliver earlier, unless otherwise provided in the Agreement.
6.3 If the User has specified a period for performance, this is merely indicative. A specified performance period is therefore never to be considered a firm deadline. In the event of exceeding a deadline, the Client must therefore notify the User in writing of the default, granting the User a reasonable period to still perform the Agreement.
6.4 If it has been agreed that the Work will be performed in phases, the User is entitled to postpone the commencement of the Work belonging to a subsequent phase until the Client has approved the results of the preceding phase in writing.
Article 7. Prohibition on taking over personnel
7.1 During the term of the Agreement and for one year after its termination, the Client is not permitted to employ or otherwise engage to work for the Client any employees of the User who have been involved in the execution of the Agreement.
7.2 The Client shall forfeit an immediately due and payable fine amounting to one (1) gross annual salary of the employee concerned in the event of a breach of the obligation referred to in paragraph 1.
Article 8. Suspension, suspension, dissolution and termination
8.1 If the User or the Client fails to fulfill its obligations under the Agreement, the other party is entitled, without prejudice to what is stipulated in the Agreement regarding this, to dissolve the Agreement extrajudicially by means of a registered letter. Dissolution shall only take place after the defaulting party has been given written notice of default and a reasonable period has been granted to remedy the breach.
8.2 Furthermore, either party is entitled, without any notice of default or formal demand being required, to dissolve the Agreement in whole or in part extrajudicially and with immediate effect by means of a registered letter if:
8.3 If, after having been given notice of default, the Client fails to fulfill any obligation arising from the Agreement, or fails to fulfill it fully or in a timely manner, the User is entitled to suspend its obligations towards the Client, without being liable to pay any compensation to the Client. The User is also entitled to do so in the circumstances mentioned under 8.2.
Article 9. Changes / additional and reduced work
9.1 The Client is authorized to instruct the User to make changes. If the Client desires additions or modifications to the services that the User is required to perform pursuant to the Agreement, and the User is of the opinion that these services are thereby increased or expanded, this constitutes additional work, which the User may charge the Client separately, even if a fixed price was previously agreed between the Parties. The User shall charge the additional work to the Client at a time to be determined by it.
9.2 If the User believes that additional work is involved, it shall notify the Client thereof as soon as possible and inform the Client of the consequences thereof for the price and for the period within which the User could fulfill its other obligation under the Agreement.
9.3 The User is not obliged to carry out an instructed change if the change:
9.4 The absence of a written order for additional work does not affect the User's right to charge the Client for such additional work and the Client's obligation to pay the agreed amounts.
Article 10. Prices
10.1 All User prices are expressed in Euros and exclude value added tax.
10.2 Changes in cost-increasing factors occurring after the conclusion of the Agreement may be passed on by the User to the Client.
10.3 If Activities are hindered or suspended through no fault of the User, the resulting costs shall be borne by the Client.
10.4 If, when determining the prices, the User has taken into account a tiered discount (for example, due to the purchase of large quantities of Products or entering into a subscription/bundle for a longer period), then in the event of a change in the situation for which the tiered discount was granted (for example, if fewer Products are purchased or if the subscription is changed to a shorter period), the User is entitled to adjust the prices or to make a subsequent settlement.
10.5 The User is entitled to apply an inflation adjustment annually and once a year – depending on the duration of the Agreement – based on the change in the monthly price index according to the Consumer Price Index (CPI) series for all households (where 2015=100), as published by Statistics Netherlands. The adjusted price is calculated according to the formula: the adjusted price is equal to the applicable price on the adjustment date, multiplied by the index figure of the calendar month that lies four calendar months prior to the calendar month in which the price is adjusted, divided by the index figure of the calendar month that lies sixteen calendar months prior to the calendar month in which the price is adjusted.
Article 11. Payment
11.1 Without prejudice to the provisions of Article 11.2, the Client shall pay the amounts invoiced to it to the User within the payment term indicated on the invoice. All payments shall be made to a giro or bank account number to be designated by the User.
11.2 The User is at all times free to invoice in deviation from the provisions of Article 11.1 and/or, prior to (further) performance, to require the Client to make (partial) prepayment of the agreed amounts or to provide adequate security, in the amount of the sums that the User has or will have to claim from the Client pursuant to the Agreement, whether or not due and payable, at the User's discretion.
11.3 All amounts invoiced to the Client must be paid without discount or deduction. The Client is not entitled to set off. Furthermore, the Client does not have the right to suspend any payment obligation towards the User. Questions regarding the invoice likewise do not suspend the Client's payment obligation.
11.4 The Client shall be in default merely by the expiration of a payment term. In that case, all claims of the User against the Client, on whatever grounds, shall become immediately due and payable.
11.5 The Client shall, without further notice of default, owe default interest on all amounts not paid by the last day of the payment term, from that day onwards, at the statutory (commercial) interest rate applicable at that time plus 5%.
11.6 If the Client is in default towards the User, the Client is obliged to fully reimburse the User for the extrajudicial and judicial costs incurred.
11.7 If, after the Client is in default, the User sends payment reminders or other requests for payment to the Client, these shall not affect the provisions of Articles 11.4, 11.5 and 11.6.
11.8 Any amount received by the User from the Client shall first be applied to satisfy those claims that the User may have against the Client with respect to which the User has not made a retention of title in accordance with Article 12, or can no longer assert such retention of title. Thereafter, any amount received by the User from the Client shall first be applied to satisfy any interest, damages, and costs due.
11.9 This Article 11 does not apply if the Client makes use of free Services (such as the “Public Account”).
Article 12. Ownership, retention of title
12.1 Offers and specifications remain the property of the User.
12.2 Notwithstanding actual delivery of Products by User, ownership of the Products shall only pass to Client after the latter has fully paid all amounts owed or to become owed to User under any Agreement.
12.3 The Client is not entitled to pledge or otherwise encumber Products delivered to him by the User.
12.4 The Client is not permitted to independently modify or reproduce the Product or any part thereof.
Article 13. Inspection and complaints after delivery
13.1 The Client is obliged to carefully inspect the Product purchased by him upon delivery, or have it inspected. Any complaints must be reported to the User in writing by registered mail no later than 8 days after receipt of the Product.
13.2 Defects that could not reasonably have been discovered within the period stipulated in Article 13.1 must be reported to the User in writing by registered mail immediately after discovery.
13.3 The Client is obliged to send the defective Product to the User immediately after discovering the defect.
13.4 If the Client complains about defects in the Product in a timely, correct, and, in the User's opinion, justified manner, the liability arising therefrom for the User shall be limited to the obligation described in Article 14.2, subject to the other provisions of Article 14.
Article 14. Guarantee
14.1 The User warrants to the Client that the Product complies with all legal requirements and with what has been agreed in this regard for a period of 12 months following delivery, provided that it is used normally and carefully, that all (oral) instructions given for this use, and that the Client strictly and fully complies with all its own responsibilities and obligations, and without prejudice to the provisions of Article 14.3. More specifically, for beacons supplied by the User, the operation of the battery is guaranteed for the agreed duration.
14.2 Provided that a complaint has been made in a timely, correct manner and in accordance with the provisions of Article 13, and it has been sufficiently demonstrated that the Product does not conform to what has been agreed in this regard, the User has the choice either to replace the defective Product or to have it repaired. By fulfilling one of the aforementioned performances, the User is fully discharged from its obligations in this regard.
14.3 In the following circumstances, the obligations described in Article 14.2 shall in no case rest upon the User:
Article 15. Liability and indemnification
15.1 If the User should be liable, this liability is limited to what is stipulated in this article.
15.2 The User is not liable for any damage, of whatever nature, that is (partly) the result of the Client's failure to properly, timely, or fully comply with obligations incumbent upon the Client under the Agreement or these General Terms and Conditions.
15.3 Furthermore, the User is not liable for damage caused (in part) by the Client's failure to follow instructions and advice from the User or third parties engaged by the User correctly, timely, or completely.
15.4 The total liability of the User for a demonstrable attributable failure to perform the Agreement or on any other grounds shall in all cases be limited to compensation for the direct material damage suffered by the Client as a result.
15.5 The User shall never be liable for indirect damages, including, but not limited to, business damage, consequential damage, loss of profit and/or stagnation damage, lost savings, and damage due to loss, destruction, or corruption of data.
15.6 If the User should be liable for any (direct) damage, such liability of the User shall in any event be limited to the amount paid out in the relevant case under the liability insurance policy(ies) taken out by the User, increased by the amount of the deductible in accordance with the relevant applicable policy(ies), however, without prejudice to the provisions of the last sentence of this paragraph. Copies of the current policy(ies) with conditions are available for inspection at the User's office. If, for whatever reason, no payment is made under the aforementioned insurance, any liability of the User shall be limited to a maximum of the amount paid by the Client to the User in the year in which the damaging event occurred, with a maximum of € 5.000 per event and a maximum of € 15.000 per year, whereby a series of related events counts as one event.
15.7 The limitations of the User's liability included in this article do not apply if the damage is demonstrably attributable to intent or gross negligence on the part of the User.
15.8 If and to the extent that the Client has insured any risk associated with the Agreement, the Client is obliged to claim any damage under that insurance and to indemnify the User against recourse claims from the insurer.
15.9 The provisions of this article, as well as all other limitations and exclusions of liability mentioned in these General Terms and Conditions, also apply to the benefit of all (legal) persons that the User engages in the performance of the Agreement.
15.10 The Client is at all times liable for damage to and loss of Products delivered to it under retention of title.
Article 16. Force majeure
16.1 The User is not obliged to fulfill any obligation towards the Client if it is hindered in doing so as a result of a circumstance that is not due to fault, nor is it attributable to it pursuant to the law, a legal act, or generally accepted views.
16.2 In these General Terms and Conditions, force majeure is understood to mean, in addition to what is understood in this regard in law and jurisprudence, all external causes, foreseen or unforeseen, over which the User cannot exercise influence, but which render the User unable to fulfill its obligations. In this context, force majeure is defined as the situation in which, beyond the User's control, the network and/or the telephone connection and/or the internet connection used by the Client no longer functions (sufficiently), and the situation in which the hardware supplier or the Client's provider installs updates and/or fails to maintain necessary updates, resulting in the User's system no longer working or functioning improperly. The User shall announce any malfunctions and maintenance (in its own network and the lines to the monitoring centers) exclusively via https://status.x-guard.nl/. It is the Client's responsibility to subscribe to this for the relevant notifications.
16.3 The User is entitled to suspend its obligations under the Agreement for the duration of the force majeure.
16.4 If the force majeure situation continues for longer than six (6) months, either Party shall be entitled to terminate the Agreement in writing, in whole or in part, to the extent justified by the force majeure situation, without any obligation to pay damages to the other Party. In such a case, however, the Client shall still be obliged to take delivery of the Products ordered and already produced by it and to pay for them, as well as to pay for the Products already in its possession but not yet paid for.
16.5 The parties shall notify each other as soon as possible of a (threatening) force majeure situation.
Article 17. Applicable law / disputes
17.1 These General Terms and Conditions and the quotations and Agreements to which they have been declared applicable are governed exclusively by Dutch law.
17.2 All disputes, including those considered as such by only one of the Parties, that may arise in connection with an issued quotation or an Agreement, or these General Terms and Conditions, shall be submitted to the (ordinary) court competent under the law in the district of the User's place of business.
17.3 If any provision of these General Terms and Conditions should conflict with any mandatory legal provision, the provision in question shall be null and void and shall be replaced by a legally permissible comparable provision to be determined by the User. Otherwise, the General Terms and Conditions shall remain in force.
Article 18. Inscriptions
18.1 The headings accompanying the articles of these General Terms and Conditions have no independent meaning whatsoever, neither regarding their content nor their interpretation; they serve merely to promote readability.
Hengelo, September 26, 2022