1.1 These General Terms and Conditions and deviations thereof (“Conditions”) govern all Purchase Orders (“PO”) quotations, proposals, offers and general agreements, from or on behalf of MaxGrip* (“MG”), to a client (“Client”).
1.2 Client and MG (“Parties”) may decide to contract solely on the basis of these Conditions or to enter into separate agreements to govern specific terms arising from the quotations, proposals, offers and POs. However, for the license of MG’s software, Parties shall always enter into a separate software license agreement.
1.3 If Parties decide to contract solely on the basis of these Conditions, Client agrees that:
a) MaxGrip does not accept Clients’ terms and conditions which are contrary to or deviate from these Conditions, as well as Clients’ terms and conditions which are not regulated in these Conditions, unless MG has explicitly consented in writing;
b) Any deviation from these Conditions shall be valid only upon written confirmation signed by Parties.
1.4 If any provision or part of a provision of these Conditions is for any reason or to any extent, invalid or unenforceable, such invalidity or unenforceability shall not in any manner affect or render invalid or unenforceable the other provisions or parts of provisions of these Conditions. In the event of invalidity or unenforceability of any (part of a) provision of these Conditions, Parties shall, at the request of either of them, negotiate in good faith to agree on changes or amendments to these Conditions that may be required to carry out the intention and accomplish the purpose of these Conditions in light of such invalidity or unenforceability.
1.5 Any statement contained in brochures, advertisements, catalogues, standard sheets, price lists and other descriptive publications distributed by MG or published on MG’s websites may be varied by MG from time to time without notice and are not legally binding before MG’s explicit confirmation.
2. POs, QUOTATIONS, PROPOSALS AND OFFERS
2.1 POs, quotations, proposals and offers are only binding after they are accepted in writing. No obligation arises from these until they have been accepted by both Parties.
2.2 Client will provide MG with accurate and complete information upon which MG bases its POs, quotations, proposals or offers.
2.3 POs, quotations, proposals or offers issued by MG are based on estimated or projected quantities and values, and merely constitute an invitation to close a specific agreement. Until the written confirmation of acceptance, POs, quotations, proposals or offers are revocable and subject to change by notice.
3.1 Prices and currencies are as set out in the POs, proposals, quotations or offers. Unless otherwise agreed, MG’s prices do not include Goods and Services tax (“GST”) or any other similar applicable taxes, duties, levies or charges in any jurisdiction. The amount of any taxes levied in connection with POs, quotations, proposals and offers, as well as any separate agreement shall added to each invoice in accordance with the applicable taxes’ laws.
3.2 MG is authorized to adjust any fee each year within reasonable limits. MG will notify Client not later than two (2) months prior to the first invoice on the new fee.
4.1 Unless otherwise agreed by Parties, payment shall be made to MG within 14 (fourteen) days following the date of MG’s invoice. When making a payment, Client must quote relevant reference numbers and the invoice number. All payments due to MG shall be made in full and Client is in no event entitle to make deductions or set-off any amount, including taxes and other counterclaims, except for set-offs with uncontested and/or enforceable counterclaims.
4.2 Client is not entitled to suspend payments to MG. MG reserves the right to request full or partial advanced payment.
4.3 If Client fails to pay the amounts due or to pay the amounts due in a timely manner to MG, MG is entitted:
a) to charge interest on the outstanding amount at the rate usually charged under the applicable laws, including the collection of overdue payments.
b) to require Client to pay in advance for any of the products and services subject of the PO (“Deliverables”) which have not yet been performed;
c) not to perform any further Deliverables until the full payment of the amount due by Client.
4.4 Any complaint with respect to the invoice issued by MG to Client must be notified to MG in writing within 7 (seven) days after the date of invoice. Thereafter, Client shall be deemed to have approved the invoice. The uncontested part of the invoice is due and payable in accordance with clause 4.1 above.
4.5 MG is entitled to suspend any obligations pursuant to the PO, quotation, proposal and offer as well as the obligations of a specific agreement until Client has paid all outstanding amounts in full without prejudice to MG’s right to exercise any other rights (such as the right to claim damages).
4.6 If Client comprises more than one legal entity, each of these entities shall be joint and severally liable to MG in respect of payment of the amounts due to MG.
5. DELIVERY, PERFORMANCE AND ACCEPTANCE
5.1 Any times or dates for delivery and performance by MG are estimates. Unless stated otherwise by MG, MG is entitled to deliver and perform in parts and invoice Client separately.
5.2 Any activation, installation, incorporation, processing, (re) sale or use by Client of the Deliverables provided by MG without MG’s consent or authorization shall be deemed to be an unconditional acceptance by Client.
5.3 Upon acceptance by Client pursuant to this clause 5, MG is discharged of its duties and obligations under this clause 5. Notwithstanding the aforesaid, MG remains responsible for the other obligations set forth in these Conditions.
6. OBLIGATIONS OF CLIENT
6.1 Client will:
a) Co-operate with MG as MG reasonably requires in a timely manner in order to provide the Deliverables;
b) Provide the information and documentation that MG reasonably requires in a timely manner in order to provide the Deliverables;
c) Make available to MG such onsite support facilities as MG requires in a timely manner in order to provide the Deliverables. If Client does not provide the facilities that MG reasonably requires, then any additional costs and expenses which are reasonably incurred by MG will be paid by Client; and
d) Ensure that Client’s staff and agents cooperate with and assist MG in a timely manner in order to provide the Deliverables. Such staff and agents will have the necessary knowledge, expertise and experience and facilities will comply with clauses 6.2, 6.3, 6.4, and 16 of these Conditions.
6.2 If Client fails to make available to MG all material and measures that are reasonably required for the performance of MG, or if Client fails to make these available in a timely manner or as agreed by Parties, MG is entitled to suspend the (further) execution of its obligations without any compensation due to Client.
6.3 Client shall ensure that any facilities reasonably requested by MG, such as a workspace containing computer, data and telecommunication facilities, are provided free of charge. The workspace and facilities shall meet all work, healthy, safety, environmental and welfare standards and regulations as prescribed by legislation.
6.4 If use is made of computer, data or telecommunication facilities, including the internet by MG, Client shall be responsible for selecting the correct resources required for this purpose and for ensuring that these are available in an adequate and in a timely manner, with the exception of those facilities that fall under the direct use and management of MG. MG shall under no circumstances be liable for losses or costs arising as a result of transmission errors, breakdowns or the non-availability of these facilities.
7. CONFORMITY TO SPECIFICATIONS
7.1 Any complaints shall be made in writing and must be received by MG not later than 7 (seven) days from the date of delivery or performance in respect of any defect, failure or shortage which would be apparent from a reasonable inspection on delivery or performance.
7.2 A determination of whether an obligation regarding delivery or performance of Deliverables conforms to the specifications shall be done by MG, after consulting Client, and by analyzing the samples or records retained by MG and in accordance with the methods of analysis used by MG.
7.3 Defects, failures or shortages in parts do not entitle Client to reject the entire Deliverables, unless Client cannot reasonably be expected to accept the remaining non- defective/faulty parts. Complaints, if any, do not affect Client’s obligation to pay as defined in clauses 4 and 6.
8. INTELLECTUAL PROPERTY
8.1 All rights of intellectual property (“IPR”) owned by Client and MG are and will remain the property of Client or MG. This means that each party (“Party”) shall continue to own its existing IPR and future IPR, which is obtained after the entry into force of these Conditions, without conferring any interests therein on the other Party.
8.2 If MG is willing to transfer or assign IPR, such transfer or assignment can only be agreed upon expressly and in writing in a separate agreement. The transfer of an IPR shall not affect MG’s right to carry other obligations which may be similar or derived from the obligations that is being executed or has been agreed on behalf of Client.
8.3 For the applicability of this clause 8, IPR includes property such as copyright, trade name, trademark, patent, processes know-how, domain name, inventions, software and computer programs, source code, symbols, images, designs, research and technical documents and materials, analysis and training material or other utility model, plans, models, drawings, prints, samples, specifications, reports, manuscripts, working notes, documentation, manuals, photographs, negatives, tapes, discs, databases, and other information, data, and items embodied in any tangible form.
9.1 MG warrants that on the date of delivery or performance of its obligations it shall be conform to the specifications, as referred in clause 7.2., as well as the obligations set out in these Conditions. If and to the extent MG is in breach with such warranty, MG shall within a reasonable time remedy the breach at no charge to Client according to the reasonable options available. MG’s obligation to remedy any breach shall be contingent upon receipt by MG of timely notice of any alleged non-conformance.
9.2 MG warrants to execute its obligations with the due care and skill that would reasonably and ordinarily be expected from a professional engaged in providing similar obligations. To the extent provided by the applicable laws, MG does not warrant that Deliverables will be free from defects. MG does not guarantee any fit for the actual and/or intended use or purpose.
10. LIMITED LIABILITY AND INDEMNITY
10.1 Except in the case of death or personal injury caused by MG’s negligence, the liability of MG under or in connection with these Conditions whether arising in contract, tort, breach of statutory duty or otherwise must not exceed the fees paid by Client to MG under clause 4 of these Conditions.
10.2 Neither Party is liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by the other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profit, business or goodwill.
10.3 MG will be maximally liable for an amount of EUR 1,000,000 (one million Euro). The limitations set above apply in aggregate to all causes of action or claims in which MG is considered liable, including, without limitation loss as result of death, physical injury, indemnity, negligence, strict liability, misrepresentations, and other torts.
10.4 Client must indemnify and hold MG harmless from and against all claims and losses arising from loss, damage, liability, injury to MG, its employees and third parties, infringement or third party IP, or third party losses by reason of or arising out of any information supplied to Client by MG, its employees or consultants, or supplied to MG by the Client within or without the scope of these Conditions. In this provision:
10.5 The liability of MG due to the scrambling, destruction or loss of data or documents is excluded in its entirety.
10.6 MG will comply with all regulations and laws related to the Deliverables. MG will indemnify client from and against all actions, costs, claims and demands in respect to any breach thereof.
10.7 A condition for the existence of any right to compensation of damages or losses shall in all cases be that Client notifies MG in writing of the loss or damage as soon as possible after it occurs. Any claims for losses or damages against MG shall expire by the mere passage of twenty four months from the date on which the claim arose without notification received from Client.
11. FORCE MAJEURE
11.1 Neither Party shall be liable in any way for any damage, loss, cost or expense arising out of or in connection with any delay, restriction, interference or failure in performing any obligation towards the other Party caused by any circumstance beyond its reasonable control, including, without limitation, acts of God, laws and regulations, administrative measures, orders or decrees of any court, earthquake, flood, fire, explosion, war, terrorism, riot, sabotage, accident, epidemic, strike, lockout, slowdown, labor disturbances, difficulty in obtaining necessary labor or raw materials, lack of or failure of transportation, breakdown of plant or essential machinery, emergency repair or maintenance, breakdown or shortage of utilities, delay in delivery or defects in goods or services supplied by suppliers or subcontractors as well as electricity failure, faults affecting the internet, computer network or telecommunication facilities (“Force Majeure”).
11.2 Upon the occurrence of any event of Force Majeure, the Party suffering thereby shall promptly inform the other Party by written notice thereof specifying the cause of the event and how it will affect its performance of its obligations under these Conditions. Should a Force Majeure event continue or be expected to continue for a period extending to more than 60 (sixty) days after the agreed delivery date, Parties shall discuss upon the most efficient and fast solution to have the performance of the obligation duly executed under the terms and conditions mutual agreed as well as the terms of these Conditions.
12. INDEPENDENT CONTRACTORS
12.1 MG is an independent contractor. MG is not Client’s agent in any way. MG’s personnel will not under any circumstances be considered employees of Client for any purpose.
13. ANTI-CORRUPTION UNDERTAKINGS
13.1 Parties shall execute their obligations herein agreed in accordance with all applicable laws, rules, regulations and decrees of any governmental or regulatory body having jurisdiction in the territory where these Conditions are legally valid. Parties agree that all invoices, financial settlements, billings and reports rendered to the other Party shall reflect properly the facts about all activities and transactions handled and those documents may be relied upon as being complete and accurate. Parties shall not take any action on other Party’s behalf that would result in inadequate or inaccurate reporting of any assets, liabilities or transactions which would violate any applicable laws. Parties shall not make or give, either directly or indirectly, any improper payments of money or anything of value to a government official, political party or official thereof, or any candidate for political office, in connection with these Conditions. Parties expressly prohibit payment of bribes (including facilitation or “grease” payments) to any Party. Parties agrees to notify the other Party promptly upon discovery of any instance where it fails to comply with any provisions of this clause.
14. SUSPENSION AND TERMINATION
14.1 Either Party may terminate these Conditions by giving 30 (thirty) days notice of termination to the other Party.
14.2 MG is entitled to immediately terminate these Conditions and/or suspend the execution of its obligations, if any of the following events occurs:
a) Any petition of bankruptcy is filled by or against Client;
b) Any action is taken by or against Client under any law the purpose or effect of which is or may be to relieve Client in any manner from any of its debts, or to extend the time of payment thereof;
c) Client makes an assignment for the benefit of creditors or makes any conveyance of any of its property which in the opinion of MG may be to the detriment of Client’s creditors;
d) A receiver or trustee is appointed with authority to take possession of Client’s property or any part thereof;
e) Any licenses, permits or authorizations to conduct any activity described or agreed in these Conditions or the PO are cancelled or revoked and not reinstated within thirty (30) days;
f) Client ceases to do business entirely or in substantial part;
g) Client sells, transfers, or relinquishes any substantial interest in the ownership or active management of Client’s or attempts to assign or transfer in whole or in part these Conditions without MG’s acknowledgement;
h) Client defaults on any indebtedness.
14.3 MG shall under no circumstances be obliged to reimburse any amounts received or to pay any compensation in the event of a termination pursuant to clause 14.
14.4 Any amount that MG has invoiced Client before the termination of these Conditions as well as before the suspension of the execution its obligations shall remain due in full and shall become immediately payable.
15. CONFIDENTIAL INFORMATION, PRIVACY AND DATA PROTECTION
15.1 Client agrees that any commercial, strategic, technical data, knowledge and/or other information connected with these Conditions, including samples or other tangible materials (hereinafter all of the foregoing collectively “MG Confidential Information”) that is disclosed to or otherwise comes into the possession of Client, its customers, affiliates or offices, either orally, in writing or other form, is to be treated as confidential and proprietary. Client agrees that MG Confidential Information will be maintained in strict confidence, not disclosed to third parties and not used for any purpose other than these Conditions.
15.2 The requirement to maintain information in strict confidence, however, shall not apply to MG Confidential Information that: (A) is or becomes generally available to the public through no wrongful act of Client; (B) was in the possession of Client prior to the time it was acquired hereunder and was not acquired, directly or indirectly, from Client or its affiliates or from others under an obligation of confidentiality; (C) is independently made available as a matter of right to Client by a third party without obligations of confidentiality, provided that such third party did not acquire such information directly or indirectly from MG; or (D) is required by law to be divulged on a non-confidential basis, provided that Client must notify MG prior to any disclosure, and must assist MG in obtaining a protective order, including an injunction, or other confidential treatment and otherwise minimizing the extent of disclosure.
15.3 Client agrees to limit access to MG Confidential Information to its employees, agents, representatives, and subcontractors who reasonably require such access for the execution its obligations. Client agrees to require its employees, agents, representatives, and subcontractors to maintain MG Confidential Information in strict confidence. MG must not make nor permit the making of any copies, abstracts, derivatives, or summaries of any MG Confidential Information, except for the execution of these Conditions.
15.4 Responsibility and liability for any data used or connected to these Conditions after the delivery or performance by MG, shall rest solely with Client. Client guarantees to MG that the content, the use and/or the processing of the data provided by Client is not unlawful and does not infringe the rights of third parties. In no event shall MG be responsible or liable for compliance with any legislation or other laws in respect of the protection of personal data of Client or Client’s users.
15.5 Client shall indemnify and hold MG harmless from, and shall compensate MG for any damages, losses, costs and expenses of whatever nature as a result of any claims from third parties whose personal data is recorded or processed within the context of a register of personal data maintained by Client or for which Client is responsible pursuant to the law or otherwise, including any claims of whatever nature by third parties in relation to this data.
15.6 If Parties agree that MG is obliged to provide some information security, this security shall meet the specifications as agreed upon by Parties in writing.
15.7 If computer, data or telecommunications facilities are needed for the execution of these Conditions, MG is entitled to assign access or identification codes to Client. MG shall be entitled to change the access or identification codes assigned. Client shall treat the access and identification codes as confidential and with due care and shall only disclose these codes to authorized members of staff. MG shall under no circumstances be liable for any damage or costs arising from the use or misuse of access or identification codes by Client.
16. WORK, HEALTH, SAFETY, SECURITY AND ENVIRONMENTAL REQUIREMENTS
16.1 MG places prime importance on work, health, safety, security, and environmental (“WHSSE”) issues and requires that Client subscribes to and actively pursue the highest standards of WHSSE performance during the execution of these Conditions.
16.2 Client shall observe and comply with the principles and requirements of WHSSE under legislation and all other laws. Failure of Client to meet these requirements in a way to bring to MG’s employees or MG’s interests any risk relating to the subject of this clause, entitles MG to terminate the PO or these Conditions, in accordance with the provisions of article 14.2
17. GOVERNING LAW
17.1 The Parties’ rights and obligations arising out of or in connection with the PO and these Conditions shall be governed, construed, interpreted and enforced according to the laws of the Netherlands. The United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG) shall not apply.
17.2 The parties agree that any suits, actions or proceedings that may be instituted by any Party shall be initiated exclusively before the competent courts of Utrecht, the Netherlands.
18. SURVIVAL OF RIGHTS
18.1 The Parties’ rights and obligations shall be binding upon and inure to the benefit of the Parties and their respective successors, permitted assigns, directors, officers, employees, agents and legal representatives. Termination of one or more of the Parties’ rights and obligations, for whatever reason, shall not affect those provisions of these Conditions which are intended to remain in effect after such termination.
19.1 The original version of these Conditions is made in the English language. In the event of any inconsistency or contradiction between the English version and any translation thereof, the English version shall prevail.
20.1 No failure or delay by MG in exercising any right, power or privilege under these Conditions will impair the same or operate as a waiver of the same nor may any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
21.1 Unless otherwise permitted in these Conditions, subject to clause 21.2, neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under these Conditions without the prior written consent of the other Party.
21.2 A Party may assign and transfer all its rights and obligations under these Conditions to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under the Conditions.