Table of Contents1 Definitions2 Applicability4 Prices3 Quotations and the conclusion of an Agreement5 Performance of an Agreement and delivery6 Amendment of an Agreement and additional work7 Retention of title8 Right of retention9 Duty to investigate/complaints10 Performance by the User/warranties/breach11 Product recall12 Force majeure13 Payment14 Contract period and termination15 Fear of non-performance16 Liability17 Indemnification18 Intellectual and industrial property rights19 Confidentiality/non-disclosure20 Transfer of rights and obligations21 Governing law and disputes
GENERAL DELIVERY CONDITIONS
BIRD CONTROL SOLUTIONS
In these General Terms and Conditions, the terms listed below have the following meaning:
a. General Conditions: the terms and conditions as set out below.
b. User: one or more of the following parties to the agreement in which these general terms and conditions have been declared applicable: (i) Aero Bird Control Solutions B.V. (Chamber of Commerce number 56565976), (ii) Offshore Bird Control Solutions B.V. (Chamber of Commerce number 56565666) and/or Bird Control Systems B.V. (Chamber of Commerce number 54337712), each a private company with limited liability,having its registered office in Delft, the Netherlands, maintaining a place of business Molengraaffsingel 12, (2629 JD) Delft.
c. Customer: any party that enters into or intends to enter into an agreement with the User.
d. Quotation: any oral or written offer made by the User to the Customer.
e. Agreement: any agreement concluded between the User and the Customer, any amendment or addition to that agreement, and/or any other juridical or other acts performed in the preparation and performance of that agreement.
f. Goods: all movable property that the User supplies to the Customer under the Agreement.
g. Parties: the User and the Customer.
2.1 These General Conditions govern all Quotations given by and Agreements concluded with the User.
These General Conditions also govern deliveries of goods that are delivered by a third party on behalf of the User. These General Conditions also govern any further or follow-up agreements between the User and the Customer. The Customer is deemed to have agreed to this.
2.2 Departures from these General Conditions are valid only if expressly agreed in writing between the Parties.
In that case the departing provisions expressly agreed on prevail. The applicability of any conditions of the Customer is expressly rejected.
2.3 If the User departs from these General Conditions in one or more Agreements with the Customer, that does not mean that such departure also applies to earlier or subsequent Agreements between the User and the Customer.
2.4 If one or more of the provisions of these General Conditions are void or voided in whole or in part, the other provisions of these General Conditions will continue to apply and the Parties will consult in order to agree on an
alternative provision that is in keeping with the Parties’ intention in drawing up the void or voided provision.
3 Quotations and the conclusion of an Agreement
3.1 All Quotations given by the User are subject to contract and are valid for the period stated by the User. If the User has not stated a period in its Quotation, the Quotation automatically lapses after 30 days. The User may revoke all Quotations at any time, also if the Quotation states a term for acceptance.
3.2 The documents that form part of the Quotation, such as pricelists, brochures, catalogues, leaflets, etc., are as accurate as possible but subject to contract. They are made available to the Customer for information purposes only and cannot bind the User in any manner whatsoever. The documents in question furthermore are and remain the User’s (intellectual) property.
3.3 The User cannot be held to its Quotation if the Customer can reasonably understand that the Quotation or any part of it contains an obvious mistake or clerical error.
3.4 An Agreement is concluded only if the Customer accepts the User’s Quotation in writing. If the Customer places an order with the User either orally or in writing for the delivery of Goods without that order being preceded by a Quotation, or if both of the Parties have not or not yet signed the Quotation, the Agreement is deemed to have been concluded when the User confirms the order in writing or when the User commences the execution of the order at the Customer’s request.
3.5 If the Customer accepts a Quotation, the User nevertheless has the right to revoke its Quotation orally or in writing within seven days after receipt of the acceptance, in which case no Agreement is concluded between the Parties.
3.6 If the acceptance of the Quotation includes any conditions and/or changes by the Customer compared with the Quotation that the User has given to the Customer, the Agreement is not concluded, contrary to the above provisions, until the User or its authorised representative accepts those conditions and/or changes in writing.
4.1 Unless otherwise stated, the prices in a Quotation are denominated in euros, are exclusive of VAT, import duties, freight charges, shipping and administrative costs, and other government charges, and are exclusive of any other costs incurred in relation to the Agreement. The User may pass on those charges and costs separately.
4.2 The prices of the Goods to be delivered by the User stated in a Quotation or Agreement are based on delivery ex warehouse Delft, the Netherlands. This factually means exclusive of costs related to any transport from the User’s warehouse to the Customer’s address.
4.3 The User has the right to change the prices or parts of the prices of any Goods not yet delivered and/or paid for if one or more cost factors change(s) after the conclusion of the Agreement in such a way as to directly influence the price of the Goods to be delivered. The User also has the right immediately to adjust prices if a statutory pricedetermining factor so requires. If the Customer is under a periodical payment obligation, the User has the right to adjust the applicable prices and rates subject to a notice period of at least three months. If the changed prices differ more than 15% from the prices originally agreed, the Customer has the right to dissolve the Agreement.
4.4 The User assumes is drawing up Quotations that it will be able to perform its work in normal and customary
circumstances. If any special circumstances occur as a result of which the User incurs extra costs, the User will inform the Customer accordingly and have the right to charge the extra costs to the Customer.
4.5 The relevant documents and data in the User’s accounting records or systems serve as full evidence of the performances provided by the User and the amounts payable by the Customer for those performances, without prejudice to the Customer’s right to provide evidence to the contrary.
5 Performance of an Agreement and delivery
5.1 After an Agreement has been concluded, the User will deliver the Goods in the manner recorded in the Agreement.
5.2 All delivery periods stated and/or agreed on are based on information and circumstances known to the User on the conclusion of the Agreement. Those delivery periods are always target dates, do not bind the User, are stated for information purposes only and are in no event of the essence, unless the Parties otherwise expressly agree in writing. The User will use its best endeavours to observe the delivery period in question to the extent possible, but the mere exceeding of a delivery period does not constitute breach. Late delivery in no event gives the Customer the right to dissolve the Agreement or to claim damages.
5.3 In all cases the User delivers the Goods ex works, Delft, the Netherlands, as regulated in the ICC Incoterms. All risks in Goods to be delivered by the User pass to the Customer the moment the User delivers the Goods to the Customer. However, the Goods remain the User’s property until the entire price has been paid.
5.4 If the Customer wishes the User to arrange for transport of the goods from its warehouse to an address to be stated by the Customer and the User agrees to do so, that does not mean that the delivery takes place on a later date or at a place other than that stated in Article 5.3. That agreement regarding the transport is an additional agreement, whereby the transport is entirely for the Customer’s account and risk.
5.5 The Customer must take delivery of the Goods the moment they are delivered.
5.6 The User has the right to deliver in parts (partial deliveries), which it may invoice separately. The Customer is required to pay those partial invoices in accordance with Article 13 of these General Conditions.
5.7 If the Customer refuses to take delivery of the Goods ordered, the User has the right: a. to deliver the Goods by means of written notice, in which case the User stores the Goods at the User or a third party from the moment of the written notice for the Customer’s account and risk, including the risk of loss of quality; or b. to dissolve the Agreement in whole or in part and to sell and deliver the Goods to a third party or third parties.
5.8 If the User incurs loss, in any form whatsoever, due to the Customer’s refusal to take delivery of the Goods ordered, the Customer is liable for that loss.
5.9 The Customer must do anything that may reasonably be expected of it enable the User to deliver in time, failing which the User has the right to suspend its delivery obligation.
6. Amendment of an Agreement and additional work
6.1 If it becomes apparent during the performance of an Agreement that proper performance of the Agreement requires amendments or additions, the Parties will amend the Agreement in a timely manner and in consultation.
6.2 If the nature, scope or content of the Agreement is changed, that can have consequences for the price originally agreed and the term for performance originally stated. In that case the User will inform the Customer beforehand to the extent possible about the new price and performance period. The Customer accepts the possibility of amendment of the Agreement, including changes in the price and performance period.
6.3 If the Agreement is amended, including an addition, the User has the right to suspend performance of the original Agreement until the Customer states in writing that it accepts the price, performance period and other conditions stated for the performance of the amended Agreement.
6.4 If proper performance of the Agreement requires an amendment to the Agreement, the Customer is required to cooperate within reason. If the Customer refuses within a reasonable period to approve in writing the changes to be made, the User has the right to terminate the Agreement in whole or in part without being liable for damages towards the Customer. If the Customer withholds its approval on unreasonable grounds, it is required to pay
the User the price originally agreed, regardless of whether the User has terminated the Agreement.
6.5 Without being in breach of performance of the Agreement, the User can refuse a request to amend the Agreement if that might have consequences in terms of quality and/or quantity, for instance with regard to the work to be performed or Goods to be delivered in that regard.
6.6 If the User is required to perform work for the Customer, on any ground whatsoever, that has not been recorded in writing in an Agreement between the Parties, or if costs are incurred due to actions of the Customer, that work and those costs are regarded as additional work and are charged as such. The Customer must arrange for payment of those costs.
6.7 The occurrence of additional work or the need to perform additional work during the performance of the Agreement in no event gives the Customer the right to terminate or dissolve the Agreement.
7 Retention of title
7.1 Title to the Goods that the User delivers to the Customer does not pass to the Customer until the Customer has paid all current or future amounts payable to the User on the grounds of all the Agreements with the Customer and all the Goods delivered in that regard, within the limits of Section 3:92 of the Dutch Civil Code.
7.2 The User does not lose its title or reserved title if and/or because the Customer processes or treats the Goods received from the User. In that case the Customer automatically holds the Goods on behalf of the User.
7.3 The Customer must (1) insure the Goods delivered but not or not yet paid for or paid for in full; (2) at the User’s request immediately transfer to the User by means of assignment all rights of action that the Customer may have against third parties with regard to the Goods delivered by the User; (3) inform third parties that the Goods that the User has delivered to the Customer have been delivered by the User to the Customer subject to retention of title if the Customer has not or not yet paid for all or part of those Goods.
7.4 If the Customer fails to perform its obligations or if there is valid reason to fear that it will not perform its obligations, the User has the right to remove or cause the removal of the Goods delivered that are subject to the retention of title referred to in paragraph 1 at the Customer or at third parties that are holding those Goods for the Customer. The Customer is required to fully cooperate on pain of a penalty payable immediately of 10% per day or part of a day on which the Customer fails to perform this obligation of all the amounts that the Customer owes the User, without prejudice to the User’s right to demand performance of the obligations referred to in the preceding sentence and/or damages.
7.5 The market value of the Goods taken back on the date on which they are taken back on the grounds of this Article will be credited to the Customer.
7.6 Moreover, the Customer delivers all Goods subject to an undisclosed pledge on the Goods for the User’s benefit. After the retention of title lapses, title to the Goods is therefore transferred to the Customer subject to an undisclosed pledge for the benefit of the User. Those rights of pledge serve as additional security for the payment of any and all claims that the User has or acquires against the Customer on any ground whatsoever. At the User’s first request the Customer will sign a deed of pledge and will register that deed with the tax authorities.
8 Right of retention
8.1 The User has a right of retention in respect of all Goods that are in the User’s possession of or on behalf of the Customer until the Customer performs all its obligations towards the User, on any ground whatsoever.
8.2 If the Goods referred to in paragraph 1 of this Article are destroyed or damaged in whole or in part or if their value drops without that being due to intent or gross recklessness on the part of the User, the Customer cannot claim any damages in relation to those Goods.
9 Duty to investigate/complaints
9.1 The Customer must check within eight days after delivery of the Goods whether their quantity and quality are correct and are in conformity with the Agreement concluded between the Parties.
9.2 If the Customer discovers any defect in the quantity and/or quality of the Goods delivered, the Customer must notify the User of the defect in writing immediately after it is discovered but no later than eight days after delivery of the Goods. If the Customer proves that it could not reasonably have discovered the defect within that period (hidden defect), it must notify the User in writing of the defect within eight days after it is discovered, or in any event within eight days after it could reasonably have been discovered.
9.3 The written notification referred to in Article 9.2 must contain as detailed a description as possible of the defect. In that notification the Customer must furthermore state the invoice number and the packing slip related to the delivery, to enable the User to respond to the claim as adequately as possible.
9.4 If a complaint is not reported within the term stated in Article 9.2 and/or does not meet the requirements stated in Article 9.3, all the Customer’s rights regarding the defect established or the shortcoming established lapse by operation of law.
9.5 The User will use its best endeavours within 14 days after receiving a complaint to assess whether the complaint is valid.
9.6 If a complaint is declared valid, by the User or otherwise, the User may at its option either correct the relevant part of the delivery, redeliver to the Customer, or send the Customer a credit note for the relevant part of the delivery, which is then considered cancelled. If a complaint is declared valid, the Customer is not entitled to any damages or compensation other than that referred to in the preceding sentence and does not have the right to cancel or terminate the Agreement.
9.7 The Customer may return Goods to the User within 14 days after purchase. The Customer will return the Goods in the original package including all accessories. The costs of return shipments are payable by the Customer.
9.8 Complaints do not release the Customer from its payment obligations.
9.9 If for any reason whatsoever the User is in default in the timely and/or correct delivery of confirmed orders, it is not liable for damages unless otherwise agreed in specific cases or unless the Customer proves intent or gross negligence on the part of the User or its managing directors. The Customer must take out insurance to cover this risk.
10 Performance by the User/warranties/breach
10.1 The User will use its best endeavours to deliver Goods in the same quantity and of the same quality as ordered by the Customer and confirmed by the User.
10.2 Statements made by or on behalf of the User regarding the quality, composition, applications, properties in the broadest sense etc. of the Goods delivered are regarded as warranties only if expressly confirmed in writing by the User in the form of a warranty.
10.3 If the Customer has used,treated or processed the Goods delivered by the User in whole or in part, or has delivered them to third parties, the User is deemed to have properly performed the Agreement.
10.4 Minor differences in quality, colour, size, weight, finishing, design my etc. that are considered permissible on the market or that cannot be avoided for technical reasons, as well as normal wear and tear of the Goods delivered, in no event constitute breach on the part of the User.
10.5 Minor differences in the quantity ordered, i.e. of less than 5%, in no event constitute breach on the part of the User. 10.6 If the Goods delivered are in conformity with the Agreement but prove to be unsuitable for the purpose for which the Customer wishes to use them, that is at the Customer’s risk and does not constitute breach on the part of the User.
11 Product recall
11.1 In urgent cases, in any event including a case in which the Goods delivered or to be delivered do not meet the statutory requirements, whereby the User will assess whether or not a case is urgent, the Customer is required at the User’s first request to return the Goods already delivered to the User and, if the Customer has already delivered the Goods to third parties, to recall them from the third parties in question. If the User performs a product recall as described above, the Customer must take all the measures in that regard that the User considers necessary and must comply with all the instructions given by the User regarding the products recall. The Customer in its turn must also take measures to limit the loss to the extent possible and must use its best endeavours in that regard. If the User decides to perform a product recall, it is required only to either replace the Goods or to send the Customer a credit note for the Goods recalled. In the event of a product recall the User is not liable for any loss incurred by the Customer.
12 Force majeure
12.1 In these General Conditions force majeure on the grounds of Section 6:75 of the Dutch Civil Code means, in addition to its meaning in legislation and case law, all external causes and their consequences, either foreseen or unforeseen, that are beyond the User’s control and as a result of which the User is unable to perform its obligations or such performance is onerous and/or unreasonably costly for the User to such an extent that the User cannot reasonably be required to perform the Agreement. This in any event includes strikes in the business of the User or of third parties, as well as extreme weather conditions, machine breakdowns, machine failures, interruptions in the supply of power, and the User not being provided or not being provided in a timely or proper manner with a performance that is relevant to the performance to be provided by the User itself. The User also has the right to invoke force majeure if the circumstance that prevents performance or further performance of the Agreement occurs after the User should have performed its obligation.
12.2 During the event of force majeure the User has the right to suspend its obligations under the Agreement. If that period last longer than two months, both the User and the Customer have the right to dissolve the Agreement without being liable for any damages towards the other party.
12.3 The User has the right to claim payment in respect of any performance already provided by or on behalf of the User under the Agreement with the Customer before the occurrence of the event of force majeure.
13.1 The User determines the payment conditions. The User is free to demand a down payment before commencing the performance of the Agreement.
13.2 Unless otherwise agreed, the Customer must pay any and all amounts that it owes the User within 30 days of the invoice date. The value date on the bank statement is decisive and is regarded as the date of payment.
13.3 Any discount for prompt payment of an invoice that the User offers the Customer lapses by operation of law if the Customer fails to pay the invoice within the term stipulated by the User.
13.4 If the Customer has any complaints regarding the invoice received, it must inform the Use of those complaints in writing within five working days after the date of the invoice, failing which the invoice is deemed to be correct.
13.5 The Customer in no event has the rightto suspend its obligations towards the User and/or to set them off against any claim that the Customer has against the User. Complaints regarding the amount of an invoice or the services provided therefore in no event give the Customer the right to suspend payment.
13.6 If the Customer fails to pay the invoice within the term for payment, the Customer is automatically in default without any notice of default being required. The Customer owes contractual interest at a rate of 1% per month or part of a month on the amounts that it then owes the User, unless the statutory interest or commercial interest is higher, in which case that statutory interest or commercial interest applies. The interest on the amount due is charged from the moment the Customer is in default until the moment of payment of the entire amount due.
13.7 All costs, both in and out of court, incurred by the User in enforcing its rights are payable by the Customer. Contrary to the relevant statutory regulations, the out-of-court costs are set at 15% of the amount in question, subject to a minimum of €200, excluding VAT. The Customer furthermore owes interest on the collection costs due.
13.8 If the User incurs any loss as a result of the Customer’s refusal to pay, in any form whatsoever, the Customer is liable for that loss.
13.9 Payments by the Customer are first deducted from the costs and interest due (in that order) and then from the principal and interest accrued, whereby older claims have priority over new claims. Without being in default, the User may refuse an offer of payment if the Customer states a different order of allocation of the payment. The User may refuse full repayment of the principal if the default interest, accrued interest and collection costs are not also paid at the same time.
13.10 If the User considers it desirable and in any event if the Customer fails to perform any payment obligation on any ground whatsoever, the User has the right after the conclusion of an Agreement, contrary to the agreed payment arrangement, to demand payment in advance or security for the Customer’s payment obligations. The Customer must comply at the User’s first request.
13.11 If the Agreement has been concluded with more than one Customer, all the Customers are jointly and severally required to perform the payment obligations under the Agreement (irrespective of the name on the invoice).
13.12 The User may at any time request the Customer to make payment in advance or obligate the Customer to cooperate in a credit assessment if the User wishes to insure the orders to be delivered by it at a credit insurer of its choice.
13.13 If the Customer fails to comply with Article 13.2, fails to comply with a request from the User as referred to in Article 13.12, or refuses to cooperate in a credit assessment, or if no positive credit assessment is issued, the User has the right:
a. to deliver the Goods by means of written notice, in which case the Goods are stored at the User or at a third party from the moment of the written notice, for the Customer’s account and risk, including the risk of loss of quality, until the entire purchase price has been paid; or
b. to dissolve the Agreement with the Customer in whole or in part without any notice of default being required and to sell or deliver the Goods to a third party or third parties. In that case, if the User incurs costs in doing so or incurs loss in any other manner as a result of the Customer’s failure to pay, the Customer is liable for that loss and those costs, which it must reimburse; or
c. to suspend its obligations towards the Customer under the Agreement in whole or in part as referred to in Article 14. In the event of dissolution, termination or suspension of the Agreement, the User is in no event liable for damages towards the Customer unless the dissolution, suspension or termination is based on facts and circumstances for which the User is to blame. If the User opts to suspend its obligations towards the Customer in whole or in part, the provisions of Article 14 apply to the Parties.
14 Contract period and termination
14.1 The User has the right without any judicial intervention to prematurely terminate all Agreements concluded between the User and the Customer by giving written notice, without being liable for damages and without prejudice to any of its other rights, in the following cases:
a. if the Customer is declared bankrupt or is granted a suspension of payment;
b. if a petition in bankruptcy or a petition for a suspension of payment is filed against the Customer;
c. if the Customer offers its creditors a composition;
d. if the Customer ceases or is about to cease its business;
e. if any circumstances that have come to the User’s attention after conclusion of the Agreement are valid reason to fear that the Customer will fail to perform its obligations or will do not do so correctly and/or in time, and/or if in the User’s opinion collection of current or future claims cannot be guaranteed;
f. if the Customer fails to perform any obligation that it is under on the grounds of an Agreement concluded between the User and the Customer or by law, or to do so in full or in time, and is in default; g. if due to a delay on the part of the Customer the User can no longer be required to perform the Agreement on the conditions originally agreed; or h. if circumstances occur of such a nature that performance of the Agreement is impossible or if circumstances otherwise occur of such a nature that the User cannot reasonably be required to continue the Agreement unamended.
14.2 On termination of the Agreement all the claims that the User has against the Customer fall due immediately and the User is entitled to payment for the work performed and of the costs incurred until the moment of termination.
14.3 If the Customer is to blame for termination on the grounds of Article 14.1, the User is entitled to reimbursement of the loss, including the costs, consequently incurred by it.
15 Fear of non-performance
15.1 If circumstances that come to the User’s attention after conclusion of the Agreement are valid reason to fear that the Customer will fail to perform one of its obligations or to do so correctly and/or in time, including bankruptcy or suspension of payment or a pending petition for one of those measures against the Customer, if a resolution has been adopted to wind up the Customer or to enter into a merger, if prejudgement attachment or attachment in execution has been or is levied on any part of the Customer’s assets, or if the Customer fails to perform any payment obligation towards the User, all of the Customer’s payment obligations towards the User on any ground whatsoever fall due immediately and in full. The User has the right to demand immediate payment of or security for those immediately payable claims.
15.2 In that case the User has the right to suspend performance of its obligations towards the Customer until payment has been made and/or security has been provided for all its payment obligations. If the User does so, it is not under any obligation whatsoever to reimburse any resulting loss or costs incurred by the Customer.
15.3 The Customer is liable for any resulting loss on the part of the User.
16.1 If it is established in court or otherwise that the User may be liable towards the Customer for loss incurred in regard of the Agreement, on the grounds of a wrongful act or on any other ground, that total liability, including any payment obligation based on Sections 6:230 and/or 6:271 of the Dutch Civil Code, is in any event limited by the following provisions:
a. the User is in no event liable for any loss incurred because the User based its actions on incorrect information/files provided by the Customer;
b. the User is in no event liable for any loss of profit, lost income, lost turnover, lost savings, or loss caused by business interruption or other interruption;
c. the User’s liability, including any payment obligation on the grounds of Sections 6:230 and/or 6:271 of the Dutch Civil Code towards the Customer is in any event limited to the amount paid in the case in question by the User’s liability insurance;
d. if for any reason whatsoever the User’s liability insurance does not make payment, the User’s liability, including any payment obligation on the grounds of Section 6:230 and/or Section 6:271 of the Dutch Civil Code is limited to: – the net amount of the invoice for the Goods to which the harmful event relates or, if several invoices relate to the harmful event, the net amount of the last of that series of invoices that the User sent to the Customer before the date of the harmful event; or – if the harmful event is not related to the delivery of Goods or if no invoice has been sent in that regard, the net amount of the most recent invoice that the User sent to the Customer before the date of the harmful event;
e. if for any reason whatsoever the User’s liability insurance does not make payment, the User’s total liability, including any payment obligation on the grounds of Section 6:230 and/or Section 6:271 of the Dutch Civil Code towards the Customer in respect of its failure to perform or to perform in a timely and/or proper manner, or on any other ground whatsoever, irrespective of the number of harmful events, in no event exceeds the net amount of the most recent invoice that the Users sent to the Customer before the date of the harmful event, on the understanding that the User’s maximum total liability will in no event exceed €20,000.
16.2 These limitationsdo not apply only in the event of intent or gross recklessness on the part of the User and/or managing directors of the User.
16.3 All employees of the User may invoke the above provisions against the Customer and if necessary against third parties on the same grounds as the User.
16.4 Any loss for which the User can be held liable must be reported to the User as soon as possible but no later than 15 days after the loss occurs, on pain of forfeiture of the right to claim damages. This term does not apply if the Customer can prove that the loss could not be reported earlier for a valid reason.
16.5 Any liability claim against the User lapses 12 months after the Customer became or could reasonably have become aware of the harmful event.
17.1 The Customer is liable for any and all damage, loss, costs and expenses incurred by the User, the companies affiliated with it or third parties as a result of or related to any breach in the performance of an Agreement by the Customer, irrespective of whether the loss was caused by the Customer, its employees, any other natural person or legal entity, or any goods for which the User is liable by law.
17.2 The Customer fully indemnifies the User and its affiliated companies and hold them harmless from and against all third-party claims regarding damage, loss, costs and expenses of third parties arising from or related to any breach in the performance of an Agreement by the Customer or other third parties as a result of a claim filed, proceedings instituted or imminent proceedings, including but expressly not limited to claims within the meaning of Section 6:185 in conjunction with Section 190 of the Dutch Civil Code, and the deductible referred to in those Sections, as well as claims based on infringement of any intellectual property rights related to Goods delivered.
17.3 If the User is held liable on that ground by third parties, the Customer must assist the User both in and out of court and must immediately do any and all things that may be expected of it in that case.
17.4 The Customer must take out adequate insurance in order to cover the performance risk referred to above. At the User’s first request the Customer must demonstrate that it has performed that obligation. The deductible is payable by the Customer in all cases. If the Customer can claim payment under an insurance agreement with regard to its possible liability towards the User, the Customer must ensure that those payments are made directly to the User. Any payment made to the User under a liability agreement entered into by the Customer is without prejudice to the User’s claims for damages against the Customer insofar as they exceed the payment.
17.5 The Customer must always make every effort to limit the loss.
17.6 If the Customer fails to take adequate measures, the User has the right, without any notice of default, to do so itself. All resulting costs and loss on the part of the User and third parties are entirely for the Customer’s account and risk.
18 Intellectual and industrial property rights
18.1 Without the User’s prior written consent, the Customer may not use the User’s name or trademarks, or any words, pictures or symbols that in the User’s opinion may imply the User’s involvement in or approval of any written or oral advertisement or performance, logbook, plan drawn up by the User, advice, brochure, newsletter, book or other published material.
18.2 The Goods that the User delivers to the Customer under an Agreement expressly do not constitute transfer of any intellectual or industrial property right. All works that the User makes available to the Customer under the Agreement remain the User’s property. The Customer may use those works only for and with regard to the performance of the Agreement, within the limits of the Agreement, and may not in any manner reproduce or publish those works, make them available to third parties in whole or in part, or use them in any other manner without the User’s express prior written consent.
18.3 All intellectual and industrial property rights, including but not limited to trademarks, copyrights, design rights and database rights, trade name rights and patents that have been used or that arise in the performance of the Agreement and/or have been included in the Goods or in advice, including but not limited to products, production processes, applications, drafts, designs, drawings, inventions, models, techniques, works, procedures, results, creations, presentations, computer programs, know-how, data collections and other knowledge, are vested exclusively in the User, unless otherwise agreed.
18.4 The User is not permitted to remove or change any reference to copyrights, trademarks, trade names or other intellectual and industrial property rights regarding the Goods delivered by the User or the related materials.
18.5 The Customer must always fully respect all intellectual and industrial property rights of the User.
19.1 Both Parties must observe confidentiality regarding information that the Parties know or could reasonably assume to be confidential.
19.2 Both during the Agreement and after its termination the Parties must treat all the information that they have received from each other for the performance of the Agreement as confidential and may not disclose that information to any third party, unless such disclosure is necessary for the performance of the Agreement, and may not use such information for any purposes other than the performance of that Agreement. The Parties will also
impose the obligations arising from this Agreement on their employees and on any third parties that they engage in the performance of the Agreement.
19.3 If the Customer violates the prohibitions in Article 19.2 of these General Conditions, it forfeits to the User, without any notice of default being required, for each violation a penalty payable immediately, not subject to litigation, of €50,000 (in words: fifty thousand euros) and an amount of €2,500 (in words: two thousand five hundred euros) for each day or part of a day on which the Customer’s violation continues, without prejudice to the User’s right to separately claim reimbursement of loss and/or performance of the Agreement.
20 Transfer of rights and obligations
20.1 The Customer does not have the right to sell and/or transfer its rights and/or obligations under an Agreement to a third party.
20.2 The User has the right to sell and/or transfer its rights and/or obligations under an Agreement to a third party and to transfer its entitlement to payment of any amounts to a third party without the customer’s prior written consent.
21 Governing law and disputes
21.1 All legal relationships to which the User is a party are governed exclusively by Dutch law, also if all or part of an obligation is performed abroad or if the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention 1980 (CISG) is expressly excluded.
21.2 Any disputes arising in relation to an Agreement (including disputes regarding the existence and validity of an Agreement) will be settled exclusively by the competent court in the district of Noord-Holland, the Netherlands, Haarlem location, unless mandatory rules of law provide otherwise. The User nevertheless has the right to present the dispute to the court that has jurisdiction by law.