General Terms and Conditions De Hoge Birkt BV (‘De Hoge Birkt’) and the EPWA intellectual property holders Faculteit Diergeneeskunde Universiteit Utrecht and Stichting De Paardenkamp.
Article 1 Applicability
- These General Terms and Conditions govern all offers and agreements of whatever nature between De Hoge Birkt BV (and the Customer (hereafter ‘Agreement’) as well as any obligations arising from these. Provisions varying from these Terms and Conditions must be agreed on with De Hoge Birkt in writing.
- For the purposes of these Terms and Conditions, the term ‘Customer’ means the party placing an order with De Hoge Birkt BV and/or any party who enters or will enter into an Agreement with De Hoge Birkt BV and/ or to whom De Hoge Birkt BV makes an offer or delivers any goods or services, as well as this party’s legal successors.
- The applicability of the general purchase conditions or other general conditions of the Customer is explicitly excluded.
Article 2 Offers
- All purchases from De Hoge Birkt are based or partly based on the data, materials and documents provided by or on behalf of the Customer and De Hoge Birkt is entitled to assume that these data, materials and documents are accurate and complete.
Article 3 Agreement
- An Agreement is concluded when De Hoge Birkt has confirmed an order in writing or when De Hoge Birkt has started carrying out the order. The confirmation of the order is deemed to reflect the Agreement accurately and completely, unless the Customer has objected to it in writing within five business days.
- As for services/deliveries for which no order confirmation is sent because of their nature and/or extent, the invoice constitutes the order confirmation as well. This invoice is deemed to reflect the Agreement accurately and completely, unless the Customer has objected to it in writing within five business days.
- Additions and changes to an Agreement bind De Hoge Birkt only if De Hoge Birkt has confirmed them in writing.
Article 4 Scope of Work
- Customer must ensure that all licenses, exemptions and other administrative decisions necessary to carry out the work are obtained in good time.
- Extra work means any work carried out for the purpose of performing an Agreement concluded with the Customer that is beyond the scope initially agreed on.
- Any extra work automatically affects the agreed-upon price and the agreed-upon time of delivery, which is at the risk and expense of the Customer.
Article 5 Prices
- All prices and rates are including VAT, government levies, import duties, transport costs and packaging costs,
- The prices are based on the prices, rates, taxes, duties and charges, etc. existing at the time of the offer. In the event of an increase in any factor affecting the cost price, De Hoge Birkt is entitled to increase the price accordingly. This price increase does not entitle the Customer to dissolve the Agreement.
- In the event of any Agreement involving a periodic payment obligation, De Hoge Birkt is entitled to adjust prices and rates by giving written notice thereof subject to a period of three months. De Hoge Birkt has the right to increase the prices on a yearly basis according to the CBS Index ‘Zakelijke Dienstverlening’. Prices shall not be adjusted in the event of a price decrease.
Article 6 Claims for faulty deliveries
- Immediately upon delivery, the Customer shall check every consignment to ensure that the right goods have been delivered and for defects, such as any damage and/or incompleteness. Any faulty delivery must immediately be notified to De Hoge Birkt or, if this is impossible, within a period of five business days. The claim submitted must include the delivery or invoice number of the relevant consignment.
- After the period specified in paragraph 1 of this Article has expired, the Customer is deemed to have approved the delivery.
- Where the claim is considered well-founded by De Hoge Birkt, De Hoge Birkt will, at its own discretion and within a reasonable period, either remedy the defect or replace the defective goods or deliver the missing goods without the Customer being entitled to any compensation.
- Claims made under this article do not release the Customer from any payment obligations towards De Hoge Birkt.
Article 7 Payments
- Unless otherwise agreed in writing, payments must be made upon making a purchase.
- In the event of any use charges or amounts for time and material, De Hoge Birkt shall invoice on a monthly basis in arrears. Payment must be made within fourteen (14) days upon the invoice date.
- If De Hoge Birkt considers it appropriate to do so, it may require the Customer to provide security and if this security is not provided, it is entitled to suspend the execution of the Agreement.
Article 8 Delivery time
- All delivery periods mentioned by De Hoge Birkt are approximate and are based on the data and circumstances known to De Hoge Birkt when the Agreement was entered into. The delivery dates mentioned are never to be regarded as strict deadlines. If any change in the data or circumstances results in any delay, irrespective of whether this change was foreseeable, the delivery date is deferred accordingly, without prejudice to the force majeure provisions below. In the event of overdue delivery, De Hoge Birkt must be declared in default in writing, allowing it a reasonable period to effect delivery after the notice of default has been served.
- Circumstances outside of De Hoge Birkt control causing De Hoge Birkt a delay, shall entitle De Hoge Birkt to postpone any of its undertakings as is reasonable having regard to all circumstances. For delays imputable to the Customer, De Hoge Birkt shall be reimbursed for its reasonable costs due to such delay.
Article 9 Delivery
- Unless otherwise agreed in writing, all deliveries are made ex warehouse of De Hoge Birkt. De Hoge Birkt will pass on the relevant costs for this. With effect from the time of delivery, all risks of loss, perishing, damage, etc., irrespective of the cause thereof, pass to the Customer.
- If the goods are available for collection but are not collected by the Customer after the delivery period has expired, the goods are stored at the Customer’s disposal, at the latter’s risk and expense.
- De Hoge Birkt is entitled to deliver an order in its entirety or in successive parts. In the latter case, the Customer is invoiced separately for each partial delivery. If the Customer fails to pay for any partial delivery, De Hoge Birkt is entitled to suspend the further execution of the Agreement or to dissolve the Agreement to the extent that it has not been performed by it, without judicial intervention and without any notice of default served on the Customer being required, without prejudice to De Hoge Birkt right to claim damages and to its right to claim performance rather than dissolution.
Article 10 Intellectual Property
- The ownership of and all intellectual property rights to any products, documents, software, systems, models, algorithms, logarithms delivered as part of the Agreement are always vested in De Hoge Birkt, or its suppliers, unless expressly agreed otherwise in writing. The Customer may neither remove, alter nor reverse engineer any identifying marks relating to the intellectual property rights of the owner.
Article 11 Force majeure
- If De Hoge Birkt is prevented from performing or continuing to perform the Agreement as a result of force majeure of a permanent or temporary nature, De Hoge Birkt is entitled, without any obligation to pay damages, to dissolve the Agreement wholly or partly by a written statement to this effect, without any judicial intervention being required and without prejudice to De Hoge Birkt right to payment by the Customer of goods already delivered by De Hoge Birkt or to suspend the further execution of the Agreement. In the event of suspension, De Hoge Birkt is entitled to dissolve the Agreement wholly or partly as well.
- Force majeure means all circumstances as a result of which De Hoge Birkt is unable to fulfil its obligations temporarily or permanently, such as strikes, transport difficulties, fire, government measures, including in any case import and export bans, quota restrictions and operational breakdowns affecting De Hoge Birkt or its suppliers, as well as any failures on the part of its suppliers, as a result of which De Hoge Birkt can no longer reasonably be expected to perform its obligations towards the
Article 12 Warranty
- Subject to the conditions of this article, De Hoge Birkt warrants that the goods delivered by it are free of material and manufacturing defects and in accordance with the provisions of this article. This warranty means only that De Hoge Birkt agrees to remedy the defects to the best of its ability or replace the goods, at its own discretion.
- Defects must always be notified to De Hoge Birkt before these can be processed. The warranty does not cover the recovery of lost data.
- The warranty does not apply if the defects are wholly or partly the result of incorrect, careless or incompetent use, use for other than normal business purposes, external causes, such as fire and water damage, or if the goods are changed or maintained by parties other than De Hoge Birkt.
- Unless otherwise agreed, the warranty in respect of the goods manufactured by De Hoge Birkt applies for a period of twelve months from the time of delivery.
- De Hoge Birkt performance of its warranty obligations constitutes the only compensation offered. De Hoge Birkt does not have any other obligations and the Customer is not entitled to a claim for dissolution of the Agreement.
- If the goods are purchased by De Hoge Birkt from one of its own suppliers, the warranty is limited to the relevant warranty conditions of this supplier. If appropriate, De Hoge Birkt will inform the Customer about the warranty provisions of the relevant supplier.
Article 13 Liability
- De Hoge Birkt obligation to pay damages, will be limited to a maximum of 15% of the total assignment amount (excluding VAT). If the agreement comprises parts or partial deliveries, the obligation to pay damages is limited to a maximum of 15% (excluding VAT) of the assignment amount of that part or that partial delivery.
- De Hoge Birkt shall never be liable for indirect damages such as but not limited to consequential loss, including business interruption loss, production loss, loss of profit, transport costs and travel and accommodation expenses.
- De Hoge Birkt does not bear any liability for damage or loss of whatever nature arising from damaged devices, incorrect, careless or incompetent use or from any use of goods delivered by De Hoge Birkt for other than normal purposes.
- The Customer shall indemnify De Hoge Birkt and its employees against claims from third parties for compensation of direct and indirect loss or damage which are directly or indirectly caused by the use of the goods supplied by De Hoge Birkt, unless the damage or loss results from intent or gross negligence attributable to De Hoge Birkt or its executive staff.
- If, despite the provisions of this article, De Hoge Birkt is liable for any direct or indirect damage or loss suffered, the liability of De Hoge Birkt is in all circumstances limited to the invoice amount of the Agreement, excluding VAT.
Article 14 Dissolution/Termination
- If the Agreement is entered into for a fixed term, it shall be silently renewed for a term of one (1) year, unless Customer or De Hoge Birkt cancels the Agreement by giving three (3) months written notice prior to the expiry of the initial term or renewal period. .
- If the Agreement is entered into for an indefinite period, the Agreement may be cancelled by either Party taking into consideration the agreed notice period and if not agreed, a notice period of at least three months, De Hoge Birkt shall be entitled to end any service or work, subject to prior notice of at least three (3) months if required by technical, business economic reasons or if products and/or services from third parties, for reasons beyond De Hoge Birkt control, are no longer available. If possible De Hoge Birkt shall offer a replacement service.
- In the event Customer cancels the service prior to the expiry of the term of the Agreement, De Hoge Birkt shall be entitled to the remaining charges that would have been owed if the Agreement had not been cancelled prior to the expiry of the term of the Agreement
- In addition to dissolution grounds that exist at law, De Hoge Birkt shall have the right to dissolve the Agreement in the event: :
- Customer has petitioned for or has been granted suspension of payment; and/or;
- Customer has been declared bankrupt or is the subject of a petition for bankruptcy. .
Article 15 Governing law and Disputes
- All Agreements concluded between the parties and all legal relationships arising therefrom are exclusively governed by Dutch law. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
- All disputes arising from or in connection with the Agreement governed by these Terms and Conditions or in connection with these General Terms and Conditions themselves and their interpretation or execution, are exclusively settled by the Midden Nederland District Court.
Article 16 Confidentiality
- De Hoge Birkt and Customer shall refrain from disclosing to third parties any product, market, customer or company information relating to the other party, unless i) the information is already in the public domain other than through violation of this confidentiality clause, or ii) was developed independently by the disclosing party without making use of this information, or iii) if the other party obtained the information lawfully from a third party who was not bound by a similar obligation of confidentiality, or iv) if the information must be disclosed by law, rules or regulations.
- Parties undertake to use such information solely for performance of the agreement.
- Parties shall impose the same obligations as those mentioned above on persons engaged by them to carry out the Agreement.
- The provisions included in this section ‘ Services’ are applicable next to the General provisions in these General Terms and Conditions, if De Hoge Birkt delivers services (such as but not limited to Platform Services and Connectivity to LoRa, Sigfox or NB IoT networks).
Article 17 General Customer’s Obligations
- In order for De Hoge Birkt to be able to supply the Services to the Customer in a professional and timely manner, the Customer shall:
- Be responsible for any hardware and/or software necessary for the access to the Services;
- Customer shall provide on time in all instances all information, hardware and/or software that may be useful and required for performance of the Agreement and shall guarantee that provided information, hardware and/or software shall be correct and complete.
Article 18 Exclusions
- The Services do not include:
- internet or network connection for use of the Services
Article 19 Rules for usage
- De Hoge Birkt has set out a couple of rules for usage. If the Customer does not adhere to those rules De Hoge Birkt is entitled to block or remove Customer’s account. In that case the Customer is not entitled to any damages or compensation. In the next paragraphs these rules are set out. De Hoge Birkt has the right to report violations if these violations also constitute an offence according to Dutch law.
- It is not allowed to use the Services or the infrastructure of De Hoge Birkt in a way that it causes damages to third parties and/or it causes partial or complete loss or availability of functionality.
- The account credentials are personal and not transferable. The Customer is responsible for those credentials and shall indemnify De Hoge Birkt for any damage caused by unauthorised use.
- De Hoge Birkt is entitled to suspend its services at any given moment. De Hoge Birkt cannot be held liable for any damages or compensation.
Article 21 Processing (personal) data
- De Hoge Birkt processes the Customer’s (personal) data, if any, in accordance with the European and Dutch privacy laws.
- Any (customer) data processed by De Hoge Birkt under the Agreement shall be owned by De Hoge Birkt. De Hoge Birkt shall have the right to use customer data for any marketing and / or research purposes.
- If the agreement stipulates that De Hoge Birkt is obliged to provide some form of information security, this security shall meet the specifications in respect of security agreed between the parties in writing. De Hoge Birkt shall not guarantee that the information security will be effective under all circumstances. If the agreement does not include an explicit description of security measures, the security measures shall be of such a level that, having regard to the state of the art, the sensitivity of the data and the costs associated with the implementation of the security measures are not unreasonable.
- If computer, data or telecommunications facilities are used during the execution of the agreement or otherwise, De Hoge Birkt shall be entitled to assign access or identification codes to the Customer. De Hoge Birkt shall be entitled to change the access or identification codes assigned. The Customer shall treat the access and identification codes as confidential and with due care and shall only disclose these codes to authorised members of staff. De Hoge Birkt shall under no circumstances be liable for any damage or costs arising from the use or misuse of access or identification codes, except where misuse was possible as a result of an act or omission on the part of De Hoge Birkt.
Article 22 Service Levels
- De Hoge Birkt performs to the best of its ability to make the Services available for twenty-four hours per day, seven days a week and strives for an optimal availability and quality of the Services.
- Notwithstanding the foregoing, De Hoge Birkt does not guarantee that the Service will be available at all times and will perform without any limitations or interruptions. The Customer is aware that the quality and availability of the Services can be influenced by external factors that are not attributable to De Hoge Birkt.
- The Customer shall meet any instructions made by De Hoge Birkt in relation to (the use of) the Services. De Hoge Birkt shall in no way be liable for any damage caused by the negligence of said instructions.