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 (i) all Quotations given by User and Agreements concluded between User and Customer; (ii) deliveries of goods that are delivered by a third party on behalf of the User; (iii) any further or follow-up agreements between the User and the Customer. The Customer is deemed to have understood and agreed to the above.
2.2 The applicability of any terms and conditions of the Customer is expressly rejected.
2.3 If the User and the Customer agree to depart from these General Conditions in one or more Agreements, that does not affect the provisions of any previous 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 therein by the User. If the User has not stated a period in its Quotation, the Quotation automatically lapses after 14 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 but not limited to pricelists, brochures, catalogues, leaflets, etc., are as accurate as reasonably possible. 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 as of the date of the confirmation of the order in writing by the User or the date 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 issued, the Agreement is not concluded, contrary to the above provisions, until the User or its authorized representative accepts those conditions and/or changes in writing.
4.1 Unless otherwise stated, the prices in a Quotation are de-nominated in euro’s, 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. 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 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 to immediately adjust prices if a statutory price- determining factor so requires. The User will inform the Customer of any such changes to the prices of Goods within a reasonable period. 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 one month. 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 in 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 in-form 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 conclusion of the Agreement 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 at the conclusion of the Agreement. Those delivery periods are always target dates, do not bind the User and are stated for information purposes only, unless the Parties otherwise expressly agree in writing. The User will use its best endeavours to observe the delivery period in question, but the mere exceeding of a delivery period does not constitute a breach of any of the provisions of these General Conditions. 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. The agreement regarding the transport of the Goods is an additional agreement, whereby the transport of the Goods and the Goods itself 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 the Goods 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 will store the Goods at the User’s property or at a third party for the Customer’s account and risk, including the risk of loss of quality; or
b. to terminate 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 and any damages suffered.
5.9 The Customer must do everything that may reasonably be expected of it to enable the User to deliver the Goods in time, failing which the User has the right to suspend its obligation to deliver.
6. Amendment of an Agreement and additional work
6.1 If it becomes apparent during the performance of the Agreement that proper performance of the Agreement re-quires 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 amended, 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 hereby 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 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 proposed by the User, 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 upon.
6.5 Without being in breach of the Agreement, the User can refuse a request by Customer 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 per-formed or Goods to be delivered in that regard.
6.6 If the User is required to perform work for the Customer, regardless the reason therefore, that has not been recorded in writing in an Agreement between the Par-ties, or if costs are incurred due to actions of the Customer in connection with such work, that work and those costs are regarded as additional work and are charged as such. The Customer must pay the costs of such additional work.
6.7 The occurrence or performance 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 All Goods delivered under this Agreement remain property of the User, until the Customer has paid in full all current or future amounts payable to the User for such Goods, within the limits of Section 3:92 of the Dutch Civil Code.
7.2 The title to the Goods does not pass to the Customer if and/or because the Customer processes or treats the Goods received from the User, the Goods will remain property of the User until the obligation set out in article 7.1 has been met by the Customer. The Customer merely holds the Goods on behalf of the User.
7.3 The Customer must (i) maintain adequate insurance for the Goods delivered but not yet paid for in full; (ii) 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; (iii) 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 under this article or the User has valid reason to fear that the Customer will not perform its obligations under this article, the User may remove or have removed – at the Customer or at a third party holding the Goods for Customer – the Goods delivered to the Customer that are subject to the retention of title referred to in paragraph 1 of this Article. The Customer is required to fully cooperate with the removal of the Goods. If and when the Customer does not cooperate nor pays the amounts due, it will incur a fine payable immediately of 10% of the price for the Goods per day that the amounts owed to the User are not paid, without prejudice to the User’s right to demand performance of the obligations under this article and/or damages.
7.5 The market value of the Goods on the day of repossession on the basis of this Article will be credited to the Customer.
7.6 After payment of the amounts in full title to the Goods is transferred to the Customer subject to an undisclosed pledge for the benefit of the User, if such is requested by the User. Those rights of pledge shall serve as additional security for the payment of any and all claims that the User has or will have against the Customer under this Agreement. At the User’s first request the Customer will sign a deed of pledge and will register that deed with the appropriate 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 under this Agreement.
8.2 If the Goods referred to in paragraph 1 of this Article, that are retained by the User, are destroyed or damaged in whole or in part or if their value decreases without that being due to intent or gross negligence on the part of the User, the Customer cannot claim any damages possibly suffered in connection 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.
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 disco-very, but in no event 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 discovery, 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 (i) a detailed description of the defect; (ii) the invoice number and the packing slip related to the delivery, as 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, the Customer’s rights regarding the possible defect lapse by operation of law.
9.5 The User will use its best endeavours to assess whether the complaint is valid within 14 days after receiving it.
9.6 If a complaint is declared valid, by the User or otherwise, the User may at its discretion either correct the relevant part of the delivery, redeliver the Goods to the Customer, or send the Customer a credit note for the relevant part of the delivery, which is then considered cancel-led. 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 only with the User’s prior written consent. Return shipments that are not preceded by a complaint and the relevant details regarding the complaint are not permitted. If the Customer returns the Goods contrary to these provisions or without a valid reason, the User will keep those Goods available to the Customer for the Customer’s account and risk, insofar as the User does not refuse those Goods. The User then holds those Goods without in any way acknowledging the validity of a claim under warranty or alike on the part of the Customer. 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. The Customer is obligated to have and maintain adequate insurance with regard to the foregoing 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 as such.
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 etc. that are considered reasonable by market standards or that cannot be avoided for technical reasons, as well as normal wear and tear of the Goods delivered, in no event constitute a breach under the Agreement on the part of the User.
10.5 Minor differences in the quantity ordered, i.e. of less than 5%, in no event constitute a breach under the Agreement 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 a breach under the Agreement on the part of the User.
11 Product recall
11.1 In urgent cases – whereby the User will assess whether or not a case is urgent –, in any event including the situation in which the Goods delivered or to be delivered do not meet the statutory requirements, the Customer is required, at the User’s first request, to return the Goods already delivered to the User and, if the Customer has al-ready delivered the Goods to third parties, to recall them from the third parties in question.
11.2 If the User performs a product recall as stated in paragraph 1, the Customer must take all the measures that the User considers necessary and must comply with all the instructions given by the User regarding the products re-call. The Customer must also take all necessary and reasonable measures to limit the loss suffered by it and the User to the maximum extent possible.
11.3 If the User decides to perform a product recall, it is only required 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 or damages 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. Force majeure in any event includes strikes, 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 loss longer than two months Parties are entitled to terminate the Agreement without being liable for any damages towards the other party if the force majeure continues for more than 30 days.
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 or any performance of the obligations under the Agreement during the event of force majeure.
13.1 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 owed to 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 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 Complaints regarding the correctness of an invoice or the services provided therefore in no event give the Customer the right to suspend payment or any of its other obligations under the Agreement.
13.6 The Customer is in no event entitled to settle or set off any amounts owed by it and/or claims held against it by the User with amounts owed to it and/or claims held by the Customer against the User, irrespective of the fact whether such amounts and/or claims are payable.
13.7 If the Customer fails to pay the invoice within the payment term, 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 owed and payable to 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.
13.8 All costs incurred by the User in enforcing its rights under the Agreement 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 and include all legal and other professional costs in full. The Customer furthermore owes interest on the collection costs due.
13.9If the User incurs any loss or damages as a result of the Customer’s refusal to pay, regardless the reason therefore, the Customer is liable for such loss and/or damages.
13.10Payments 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.
13.11 If the User considers it desirable and in any event if the Customer fails to perform any payment obligation on irrespective of the ground therefore, 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.
13.12 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) and are jointly and severally liable for any losses or damages incurred by the User under the Agreement in connection with failure by the Customer(s) to per-form its obligations under the Agreement.
13.13 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.
13.14 If the Customer fails to comply with Article 13.2, a request from the User as referred to in Article 13.13, 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 terminate the Agreement with the Customer in whole or in part without any notice of default being required, without incurring any liability 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 any loss and/or damages as a result of the Customer’s failure to pay, the Customer is liable for such loss and/or damages and those costs; or
c. to suspend its obligations under the Agreement in whole or in part as referred to in Article 14.
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 after conclusion of the Agreement circumstances come to the User’s attention providing the User valid reason to fear that the Customer will fail to perform one of its obligations under the Agreement 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, a resolution has been adopted to wind up the Customer or the Customer to enter into a merger, prejudgment attachment or attachment in execution has been or is levied on any part of the Customer’s assets, or the Customer fails to perform any of its payment obligation to the User, all of the Customer’s payment obligations to the User on any ground whatsoever will be immediately due and payable in full. The User has the right to demand immediate payment of or security for those immediately payable claims.
15.2 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 and/or damages 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 connection to its obligations under the Agreement, that total liability is in any event limited by the following provisions:
a. the User is in no event liable for any loss incurred be-cause the User based its actions on incorrect information/files provided by the Customer;
b. the User will in any event only be liable for direct damages, the User is in no event liable for any indirect damages including, but not limited to loss of profit, lost income, lost turnover, lost savings, or loss caused by business interruption or other interruption;
c. the User’s liability 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 cover the case at hand, the User’s liability, is limited to:
– the net amount of the invoice for the Goods to which the event relates or, if several invoices re-late to the event, the net amount of the last of that series of invoices that the User sent to the Customer before the date of the event; or
– if the 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; or
– EUR 20.000, – depending on which ever amount is lowest.
16.2 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 the loss. This term does not apply if the Customer can prove that the loss could not be reported within the stipulated period for a valid reason.
16.3 Any liability claim against the User lapses 12 months after the Customer became or could reasonably have become aware of the event.
17.1 The Customer is liable for any and all damages, loss, costs and expenses incurred by the User, the companies affiliated with it or third parties that result from or have arisen in connection with any breach in the performance of the Customer under the Agreement, irrespective of whether the loss, damage, costs or other expenses were caused by the Customer, its employees, or any other natural person or legal entity for which the Customer is reasonably responsible.
17.2 The Customer fully indemnifies and will keep indemnified the User and its affiliated companies and hold them harmless from and against all third-party claims regarding damages, loss, costs and expenses of third parties arising from or related to any breach in the performance of the Agreement by the Customer or other third parties for which the Customer is reasonably responsible, as a result of a any and all claims filed, proceedings instituted or imminent proceedings by those third parties, 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 by third parties, the Customer must assist to the best of its abilities, the User both in proceedings in and out of court and must immediately do any and all things that may be reasonably expected of it in that case and/or requested by the User.
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 provide evidence that it is adequately insured. The Customer will pay the deductible. 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 will always make every effort to limit the loss or damages incurred by the User or any third party.
17.6 If the Customer fails to take adequate measures, including insurance, 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, advice, brochure, newsletter, book or other published material.
18.2 The delivery of the Goods by the User to the Customer under the Agreement expressly does not constitute a transfer of any intellectual or industrial property right by the User to Customer. 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 re-produce 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 will be used in the performance of the Agreement and/or have been included in the Goods and/or in advice, including but not limited to pro-ducts, 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.
18.4The Customer hereby transfers to the User, or will do so at User’s first request, the copyright as well as all other intellectual and industrial property rights, including databank rights and user’s rights in relation to copies, translations, adaptations, adjustments or works that the Customer has developed for the User, as well as rights to all the rest that the Customer has made for the execution of the Agreement, such as any software programmes, patent applications, research, website contents and design, software applications and the related documentation and files. This transfer is hereby accepted by the User respectively will be accepted by the User.
18.5 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.
18.6 The Customer will always fully respect all intellectual and industrial property rights of the User.
19.1 The Customer must observe confidentiality with regard to information, regardless the medium used, provided by the User under the Agreement, that the Customer knows or could reasonably assume to be confidential.
19.2 Both during the Agreement and after its termination the Customer must treat all the information that it has received from the User 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 Customer will also impose this obligation on its employees and on any third parties that it engages in the performance of the Agreement.
19.3 If the Customer violates the prohibitions of Article 19.1 and/or 19.2 of these General Conditions, it forfeits to the User, without any notice of de-fault being required, for each violation a penalty payable immediately, not subject to litigation, of €50,000 (in words: fifty thousand euro’s) and an amount of €2,500 (in words: two thousand five hundred euro’s) for each day or part of a day the Customer’s violation continues, without prejudice to the User’s right to separately claim reimbursement of loss or damages 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 the Agreement, including intellectual property rights, to a third party or to sublicense, encumber or pledge such rights or obligations.
20.2 The User has the right to sell and/or transfer its rights and/or obligations under the Agreement to a third party and/or 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 The Agreement, these General Conditions and any disputes or claims arising out of or in connection with the Agreement or these General Conditions are governed by the law of The Netherlands exclusively, 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 by the competent court of The Hague, the Netherlands, The Hague location, un-less mandatory rules of law provide otherwise-se. The User nevertheless has the right to present the dispute to the court that has jurisdiction by law.