Who we are
These are the general terms and conditions of SOFWORX B.V., registered in the Dutch Chamber of Commerce under number 87867338. In these general terms and conditions SOFWORX B.V. will be further referred to as “we”, “us”, or “our”. We are the user of these general terms and conditions as referred to under Article 6:231 of the Dutch Civil Code. Our group companies, officers and employees may also rely on these general terms and conditions towards you, in particular with respect to the limitations of liability in Section 10 (‘Liability’).
In these general terms and conditions “Products and Services” means any work, services, goods, equipment, materials, software, files, website(s), mobile application(s), documentation, productions, media, content, information, data, hardware, systems, devices, networks or infrastructure, either from us or made by us, offered by us, performed or provided by us, or sold, delivered, implemented or installed by us.
These general terms and conditions
These general terms and conditions are applicable to and are part of our quotation(s), offer(s), our agreement(s) with you, our communication(s) with you, each of our Products and Services or the use thereof (including downloading or installing software or other programs), and any other legal relationship between you and us. These general terms and conditions are also applicable to our communication(s) and the use of our website.
The applicability of (general) terms and conditions or other provisions or conditions either from you or of anyone else, is explicitly rejected. Any deviation from our agreement with you or from these general terms and conditions will only be valid and legally binding if we have confirmed such deviation explicitly and in writing. Any deviation will only be valid for a specific case or a specific agreement, and not for other cases or for new or amended agreements. Any budgets, measurements, notes, drawings or other particulars or terms or conditions communicated to us only form part of our agreement with you if any of those have been explicitly agreed by us in writing.
General
All our offers (in any form whatsoever) are made without commitment and can be revoked by us within 2 business days after acceptance. Except if we have explicitly and in writing stated otherwise, any offer from us will lapse after 30 days after the date of the offer, unless the offer has been rejected by you beforehand. After that, the offer is no longer valid.
No rights or expectations may be derived from a cost estimate or budget communicated by us, unless you and us have explicitly agreed otherwise in writing. All terms and dates (including of delivery, release or completion) communicated by us or agreed between you and us are estimated target terms or dates that do not bind us and are indicative only. Article 6:83 of the Dutch Civil Code is not applicable to us and we will therefore not be in default before we have received a (written) notice of default.
To the extent there is a service agreement between you and us as referred to under Article 7:400 § 1 of the Dutch Civil Code, and we are the service provider, then the Articles 7:401, 7:402, 7:403, 7:404, 7:408 and 7:409 of the Dutch Civil Code will not be applicable.
The words and phrases “written” and “in writing” means by letter, facsimile, e-mail or any other electronic method of communication, provided that the message is readable and reproducible.
What we do
Products and Services that we make available, will be made available ready to use. Ready to use means that the Products and Services will be ready to be used by a reasonable operating, competent, knowledgeable and careful person who has followed-up all our advice, training and instructions (to the extent made available by us) with respect to the use of the respective Products and Services.
We do not warrant that any Products and Services will be free of defects or function without interruption. To the extent any Products and Services are made available, delivered, implemented or installed, you accept such Products and Services on an ‘as is, where is’ and ‘as available’ basis, meaning in the condition in which such Products and Services are in at the time they are made available, delivered, implemented or installed by us, including with all visible and non-visible errors and defects.
Third-party components (which may include work, services, goods, equipment, materials, software or other programs, files, website(s), mobile application(s), documentation, productions, media, content, information, data, hardware, systems, devices, networks or infrastructure) may be included in any of the Products and Services. You acknowledge and agree that defects or errors in third-party components may not be fixed or solved. We are not liable for any third-party components. To the extent any third-party license supersedes our agreement with you, such license governs your use of such third-party components.
Goods
Goods will be delivered to the premises agreed between you and us. You will fully cooperate with the delivery, including by taking delivery, unloading and inspecting the goods delivered at the agreed location as soon as possible. If it has been agreed that the goods will be delivered to a premises designated by us, you will remove the goods, at your expense and risk, from that premises as soon as possible on the date that the goods are delivered. This may mean that you will have to load and/or unload the goods, pack them, transport them, insure them and do anything else to deliver the goods in good condition at another premises. If it has been agreed that the goods will be delivered to a premises designated by you, we will select the means of transport, the carrier and the method of delivery. You hereby agree to this and will do everything in your power to assist us in this and to cooperate.
If for any reason whatsoever (including force majeure) you do not take delivery and/or discharge the goods as soon as possible in accordance with clause 5.1, we may do anything we deem appropriate, including keeping, storing, taking back, transporting, delivering elsewhere or loading all or part of the goods, at our sole discretion. If we do so, then (i) we will notify you, (ii) you will bear the full risk of this, (iii) we will not be responsible or liable, (iv) we may cancel the order in whole or in part, but you will still be obliged to fulfil all your (payment) obligations towards us, and (v) you will bear all additional costs.
We may give an indication of the date of delivery of the goods to you at the premises agreed between you and us. This is an estimate. The actual date of delivery may deviate (strongly) from this. We are not liable if the actual date differs from the date we have given as an indication. A delivery date is never essential, not even if you have informed us that delivery before or on a certain date is essential.
Unless we have expressly agreed otherwise with you in writing, the goods are at your risk from the moment the goods are made available to you at a premises specified by us, whether or not the goods have been delivered at that time and whether or not ownership has been transferred. This also means that you are fully responsible and liable from that moment on for the destruction, loss or deterioration of the goods (e.g. during transport or upon delivery to you), irrespective of the cause.
Unless we have expressly agreed otherwise with you in writing, all costs of delivery (including those of weighing and counting), costs of any deed of sale and costs of transfer shall be borne by you.
If less goods have been delivered than agreed between you and us, you will notify us immediately in writing, stating the number of units delivered. If you have not reported this to us in writing within 1 (one) day after the date of delivery, we will not be liable and will not be obliged to compensate you for any damage or other disadvantage. If you have reported this to us in writing in accordance with this clause on time, we will check our records. If our records (also) show that less goods have been delivered than agreed between you and us, we may deliver the remaining number of goods (or part thereof) as agreed between you and us, within a reasonable period, subject to the conditions already agreed between you and us, except (of course) the date of delivery. We may also deduct the amount of goods not delivered (or part thereof) from the total price on a pro rata basis and send you a credit invoice for that amount. If we do so, we will not be liable and we will not be obliged to compensate you for any damage or other disadvantage. If our records do not show that less goods have been delivered than agreed between you and us, we will send you a copy of our records and likewise we will not be liable and will not be obliged to compensate you for any damage or other disadvantage.
If you are of the opinion that delivered goods show a defect and that defect is material in the sense that the goods do not function as intended, you will report this to us in writing within 10 (ten) working days, together with a description of the defect and photographs or other evidence. If you have not reported this to us in writing within 10 (ten) working days from the date of delivery, we will not be liable and we will not be obliged to compensate you for any damage or other disadvantage. If you have reported this to us in writing in accordance with this clause, you must return the defective goods to us as soon as possible. You will ensure that the defective goods are delivered to us in the same condition and within 60 (sixty) days as in which they were when delivered by us. After delivery of the goods returned by you, we will examine the goods and investigate the defect. If such examination shows that there is no defect, or at least no material defect as referred to in the first sentence of this clause, then (i) we will inform you of the results of the examination, (ii) all costs relating to the return of the goods and the examination will be for your account, (iii) we may, at your expense, redeliver the goods within a reasonable time subject to the conditions already agreed between you and us, except (of course) the date of delivery, and (iv) we will not be liable and will not be obliged to compensate you for any damage or other disadvantage. If such an investigation shows that there is a material defect as referred to in the first sentence of this clause, we may still deliver the number of defective goods (or part thereof) without the defect within a reasonable period of time, observing the conditions already agreed between you and us, except (of course) the date of delivery. We may also deduct the number of defective goods (or part thereof) from the total price and send you a credit invoice for that amount. If we do so, we will not be liable and we will not be obliged to compensate you for any damage or other disadvantage.
You expressly agree that the goods may deviate from examples, illustrations, samples or models. All examples, illustrations, samples or models are provided as a guide only. You also expressly agree that the goods may not be suitable for any other use than that expressly indicated by us. Final specifications, including dimensions and weight, may deviate.
Title 7.1 of the Dutch Civil Code does not apply.
Your obligations
You will observe and strictly comply with any restrictions on the use of our Products and Services. You are responsible and liable for the use (including non-use or incorrect use) of any of the Products and Services and for determining whether such Products and Services are fit for a particular purpose or suitable for any intended use.
You will ensure that only qualified users will use any Products and Services (and no one else).
You are fully responsible and liable (at your own risk and costs) for:
the use (including any results of such use), the management and control, and your settings of any of the Products and Services; and
securing and maintaining the Products and Services.
You will not change any of the Products and Services entirely or partially without our explicit prior written permission.
You must notify us immediately (both on request as on your own initiative) in writing of all things that may be of reasonable importance to us in connection with exercising our rights or fulfilling our obligations to you. In any event, you must notify us immediately (both on request as on your own initiative) in writing of the following:
a representation or warranty under clause 8.1 (‘Your warranties’) below is or becomes incorrect in any respect;
you do not or insufficiently understand our information;
you are or become aware of an error, defect, mistake, omission, or incorrect or misleading representation of yourself or of us, or in any of our Products and Services, or in our communication;
you have a complaint about us or you are of the opinion that we are or could be liable;
you anticipate that you will or reasonably may become in breach with any obligation towards us, irrespective of the reason thereof;
you are unable to pay your debts as they fall due, you are declared bankrupt, a suspension of payments is granted with respect to you, you become subject to debt restructuring, or something similar happens with respect to you;
your contact details or bank details change.
Payment Conditions
If you are ordering or purchasing Products and Services from us for the first time, we will invoice the total price after receipt of an order, except if we have explicitly agreed otherwise in writing with you. In such case we will prepare delivery of any Products and Services only after we have received payment of the total price. In all other cases we will invoice the total price at shipment of the order. The payment term of our invoices is 30 (thirty) days after the invoice date. After expiration of this term, you will automatically be in default, without any notification, notice or other act is required. Simultaneous, you will then also owe us the statutory commercial interest as referred to in Article 6:119a of the Dutch Civil Code, and a compensation for extrajudicial costs.
Immediately upon your breach with any payment obligation, you will become liable to pay us all extra-judicial and judicial costs, including collection costs, and you will immediately owe us an amount of EUR 25 (twenty-five euros) in administration costs per outstanding claim. If you subsequently fail to pay the full amount due within 5 working days, you will also owe us (further) extrajudicial collection costs. The extrajudicial collection costs amount to 15% of the total amount owed by you (excluding VAT), with a minimum of EUR 250 (two hundred and fifty Euros).
Except if we have explicitly agreed otherwise in writing with you, all prices, rates and fees are in Euro (EUR) and you will ensure that we only receive amounts in Euro (EUR). You must pay us the full invoiced amount, without discount, deduction, withholding, set-off, suspension or counter-claim. Any costs (such as costs of banks), fees, taxes, levies, and duties, are for your account.
Except if we have explicitly agreed otherwise in writing with you, all stated prices, rates, fees and other amounts are exclusive of value added tax (‘BTW’) and other taxes, levies and duties that are governmentally imposed. Such prices, rates, fees and other amounts will therefore be increased by value added tax (‘BTW’), and other taxes, levies and duties if applicable.
Except if we have explicitly agreed otherwise in writing with you, you will bear the costs in connection with entering into an agreement with us (including all negotiations, investigations, notifications and other preparatory work), obtaining the agreed Products and Services (including costs to access and to make use thereof), and fulfilling your obligations to us.
Your representations and warranties
As long as you have obligations to us, or as long as we can exercise rights against you under or in connection with an agreement between you and us, or as long as you are using or have the possibility to use any of our Products and Services (whatever term is longer), you represent and warrant the following:
you have not provided us with incorrect, misleading or material incomplete information and you will not provide incorrect, misleading or material incomplete information to us (where material incomplete information means that we, by absence of such information, were not able or will not be able to take a sufficiently informed decision with respect to an agreement with you, including the rights or obligations under such agreement and/or the consequences thereof);
you have all permits, licenses, approvals and consents to exercise your profession or business, to enter into an agreement with us, and to duly fulfil your obligations to us (including these general terms and conditions);
you are fully authorized to enter into and to perform agreements and other obligations with us, and there is nothing (including any law, requirement, or other obligation) that could obstruct or prevent you to enter into and to perform agreements and other obligations with us;
in relation to us and to our Products and Services, you will always comply with all applicable laws, regulations, requirements, and other obligations (which may include the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010), and you will always act diligently;
you will not do anything that may harm or may cause damage to us, our reputation, or that may lead to negative publicity for us; and
you will not in any way misuse any of our Products and Services, which includes abuse, fraud or any impermissible act.
The burden of proof that you actually observe the statements and warranties under clause 8.1 above lies with you. You will evidence this in writing to us.
Retention of ownership
In this Section 9 (“Retention of ownership”), “to make available” (or conjugations thereof) means the actual giving of control over goods by or on behalf of us to you. This transfer of control takes place either by you taking delivery of goods or by a delivery of goods to a location designated by you, agreed between us and you, or known to us as a location of yours.
All goods made available to you are delivered to you under retention of ownership as referred to in Article 3:92 § 1 of the Dutch Civil Code and remain our property until you have completely, irrevocably and unconditionally fulfilled all your payment obligations under all your agreements with us.
You are not permitted to (re)sell, deliver, transfer, dispose of, alienate, rent out, make available, encumber (including with a right of pledge or another limited right) or use as a means of exchange or payment, any goods that are subject to retention of ownership, except with our prior, express and written consent.
You are obliged to secure, protect and insure all goods made available by us which are subject to retention of ownership against fire, explosion and water damage, and against theft.
You hereby, in advance, give us (or others we may involve for this purpose) permission and access to enter the locations where the goods are located in order to repossess such goods if we wish to exercise retention of ownership.
Liability
If we are not liable pursuant to this section 10, it means that we are not liable in its broadest sense, including with respect to obligations (for compensation of damages or otherwise) under agreement or pursuant to law, for damages, loss or other disadvantages, and for any obligation to repair or to substitute, but always except for intent or gross negligence on our part. Any exclusion or limitation of liability in these general terms and conditions shall also apply to our (former and present) group companies, directors and employees.
Our obligations, work and services are deemed to be fulfilled based on our efforts, not on the achievement of any result. This means that we do not warrant any intended result. You also explicitly accept that the Products and Services may not be fully or partially fit for a particular purpose or suitable for any intended use. E.g. we will also not be liable if any of the Products and Services does not meet your specific needs or demands or is not to your (or anyone else’s) taste, if it otherwise fully meets the agreed specifications.
We are not liable if such liability is resulting from or in connection with:
your own breach or tort (where it does not matter if such breach or tort is attributable to you); or
your use of any of our Products and Services or not or wrongly following our instructions with respect to our Products and Services or the use thereof.
We may involve others, or use or involve Products and Services of others to make any of the Products and Services available, or to fulfil any of our other obligations. Examples include banks, utility providers, and transporters. We are not liable for others (including others involved by you), including how they (i) do anything, too late, not good, or not at all, or (ii) comply, comply too late, comply not good, or not comply at all with any obligation, e.g. of any law or regulation.
We are not liable for immaterial damages or indirect damages. Indirect damages include consequential damages, such as loss of revenue, income or profit, loss of customers, third party claims, loss of contracts or business, loss of production, loss of (anticipated) savings, interruption of operations, loss of goodwill or reputation, loss of access information (such as access codes or certificates), decrease in value of goods, destruction, corruption or loss of (digital) data or documents, and other consequential damages.
If we are liable, we will only be liable in the event of intent or gross negligence on our part. Our maximum liability to you is further limited to the amount we have actually received from you under the agreement between you and us in the 12 months prior to the month in which the liability has occurred, always limited to a maximum amount of EUR 100,000 (one hundred thousand Euros) for our total liability to you.
We will not be liable after 2 years have lapsed since the relevant Products and Services were performed, delivered or made available, or would have been performed, delivered or made available under our agreement with you, without a breach of the relevant delivery obligation that is attributable to us. The expiration term as referred to in the previous sentence is not applicable if prior to the lapse thereof you have taken legal action against us with respect to such liability.
You will indemnify us and hold us harmless in full against all direct or indirect actions, demands, (legal) claims, or (legal) proceedings by or from others (including supervising authorities and similar bodies, such as the Tax Authorities, Consumer Authorities or Privacy Authorities) against us, resulting from or in connection with:
your breach or tort (where it does not matter if such breach or tort is attributable), including a breach of any obligation under these general terms and conditions; or
your use, provision (to others) or offer of any of the Products and Services, or not or wrongly following up our requirements, instructions or conditions regarding any of the Products and Services, or the use thereof; or
you acting contrary to any law or regulation, or any (other) obligation or requirement (including any obligation you have to us or anyone else).
Without prejudice to Article 6:75 or Article 6:162 paragraph 3 of the Dutch Civil Code, a failure in the fulfilment of an obligation or a wrongful act committed by us cannot be attributed to us if such failure or wrongful act is due to one or more of the following circumstances:
environmental events affecting 50% (fifty percent) or more of our business, such as lightning, flooding, earthquake, natural disasters or other adverse weather conditions;
events that have a major impact on the region(s) in which we operate, as a result of which all or part of our operations have been affected, such as war, blockades, riots or government measures;
work-related events affecting 30% (thirty percent) or more of our employees, such as strikes, industrial disputes or illness (including an epidemic or pandemic);
events not caused by us, such as fire, explosion, water damage, terrorism, hostage-taking and/or an immediate threat thereof to us, our business operations or our employees; or
other events not caused by us that have affected all or part of our business operations, such as disruptions or (technical) defects (including electricity failures or malfunctions or (technical) defects to the internet, telephone network, computer or telecommunications network), traffic disruptions, failures by third parties (including utility providers or banks) regardless of whether these failures are attributable to us.
We may also invoke clause 10.9, Article 6:75 or Article 6:162 paragraph 3 of the Dutch Civil Code with respect to our obligations if any force majeure occurs on your part as a result of which you fail to fulfil any obligation towards us or if such failure is foreseeable as referred to in Article 6:80 paragraph 1 of the Dutch Civil Code. If we invoke clause 10.9, Article 6:75 or Article 6:162 paragraph 3 of the Dutch Civil Code, we will do our best to inform you accordingly.
In the event of force majeure, we may do any of the following:
we may suspend the performance of obligations for as long as the force majeure lasts or for as long as is reasonably necessary;
we may change our prices, rates and fees, including prices for Products and Services, to the extent reasonably induced by the force majeure event; and/or
we may terminate our agreement(s) with you with immediate effect or by a specified date.
If we do this, we will inform you as soon as we can. We will then also do our best to provide you with an explanation. You accept our choice and the consequences thereof irrevocably and unconditionally in advance. Article 6:78 of the Dutch Civil Code does not apply. If the force majeure lasts longer than 20 days and we have not terminated our agreement with you, we will enter into negotiations with you about our agreement with you, whereby each party must take the other party’s justified interests into account.
This Section 10 will survive the termination or expiry (for any reason whatsoever) of our agreement with you and will remain in full force and effect.
Confidentiality
For the purposes of this Section 11 (‘Confidentiality’), “Confidential Information” means any knowledge, information or goods received or obtained in any way or form from or relating to us concerning our business or affairs (including group companies), including information relating to activities, trade secrets, business plans and other plans, dates, finances, formulas, IP-Rights (as referred to in Section 12 ‘Intellectual Property’), information (technology) systems, know-how, suppliers and customers, market information, designs, price information, processes, tests, reports, software, programmes and code, specifications, statistics, technical information, inventions, employees and other staff, working methods, and other information that should reasonably be understood as company data, and in any case including all information derived therefrom, such as analyses, summaries, studies, and other material.
You will keep and treat all Confidential Information strictly confidential. ‘Strictly confidential’ is in any case understood to mean that Confidential Information will not be multiplied, disclosed, distributed, reproduced or imitated (in whole or in part), except if this is necessary for the proper performance of the work agreed upon.
As an exception to clause 11.2, you may disclose and multiply certain Confidential Information after you have demonstrated to us in writing that one of the following cases occurs:
disclosure/multiplication of Confidential Information is required by or pursuant to any applicable law;
disclosure/multiplication of Confidential Information is required by written order, instruction or decision of a competent judicial authority, supervisory authority or administrative body as referred to in Article 1:1 of the Dutch General Administrative Law Act, on the condition that such Confidential Information is clearly marked as “confidential” or comparable; or
we have given our express prior written consent for the disclosure/multiplication of specific Confidential Information;
always on the condition that (i) no more Confidential Information will be disclosed/multiplied than is strictly necessary, (ii) not to anyone else than is required, (iii) we are informed by you in writing and in detail at the earliest possible stage of the (intended) disclosure/multiplication, and (iv) to the extent possible, the party to whom the Confidential Information is disclosed will comply with this Section 11.
You will take, maintain, and, if necessary, modify appropriate technical and organisational measures to protect Confidential Information held by you in any way from damage, destruction, loss, alteration, falsification, unauthorised distribution or access, unauthorised alteration and/or disclosure, or any other form of unlawful processing.
At the end of your agreement with us or within 5 days of our first written request to do so, you will immediately cease all use of Confidential Information and you will ensure that every Specialist immediately ceases to use Confidential Information. You will also ensure that all Confidential Information is (permanently) destroyed or, if we so request, returned to us. This will also be applicable to information that has been duplicated or stored in any form whatsoever. You will immediately confirm in writing to us that and which Confidential Information has been returned and/or permanently destroyed.
This Section 11 will survive the termination or expiry (for any reason whatsoever) of our agreement with you and will remain in full force and effect.
Intellectual property
In these general terms and conditions “IP-Rights” means all rights of intellectual and industrial property, both in the Netherlands as abroad. This includes copyrights, rights related to copyright, database rights, patents, brands, trade names, plant-breeders’ rights, domain names, and comparable rights. For example rights on texts, images, videos, icons, logos, software and scripts.
You agree and acknowledge that we (and/or our licensors or suppliers) are the sole owner and holder of the Products and Services and everything in connection with it, and of all IP-Rights with respect to the Products and Services.
It is not permitted to offer, disclose, multiply, adapt, extend, transform, enhance, imitate, reproduce, adjust, compile, summarise, change, or otherwise affect any of the Products and Services, except with our prior written explicit permission, or to use any of the Products and Services in another way than agreed between you and us in writing. If you nonetheless do this or have someone else do this, then we will immediately become the sole owner of all IP-Rights with respect to such adaptation, extension, transformation, enhancement, imitation, reproduction, adjustment, compilation, summary, change, or otherwise affected version. In such event, you will do everything to give effect to the previous sentence.
It is not permitted to fully or partially offer, (re)sell, transfer, alienate, assign, distribute, or grant a (sub) license or a right, such as a limited right, with respect to any of our Products and Services, or to any results from research or analysis of any of our Products and Services, except with our prior written explicit permission.
You will not remove or change any information or indication concerning IP-Rights, such as texts, images, icons, or logos, in any of the Products and Services, except with our prior written explicit permission.
Term and termination
Except if we explicitly agree otherwise with you in writing, our agreement with you is entered into for an indefinite period.
We may terminate an agreement between you and us with immediate effect in the following circumstances:
a statement or warranty under clauses 8.1 (‘your warranties’) above is or becomes incorrect in any way whatsoever; or
you are in breach with any other obligation towards us, after 14 days have passed since we have notified you to fulfil such obligation.
Changes
We may unilaterally change or supplement our agreement with you (including any annexes thereto and these general terms and conditions) at any given time:
if we think this is necessary in connection with laws or regulations or any change in laws or regulations;
in connection with a notification or other communication of any supervising authority or similar body, such as the Tax Authorities, the Netherlands Authority for Consumers and Markets (‘ACM’), the Dutch Authority for the Financial Markets (‘AFM’) or the Dutch Privacy Authority (‘AP’);
in connection with a ruling in any legal proceedings; or
if such change or supplement is beneficial or neutral for you, or does reasonably not have a material adverse effect on you.
If we do this, we will notify you. The change or supplement becomes effective 14 days after we notified you, except if there is an urgent reason for the change or supplement to become effective on any other moment. After such term, the changed or supplemented provisions will be applicable, and you will be deemed to have irrevocably and unconditionally agreed to such change or supplement.
Otherwise our agreement with you (including any annexes thereto and these general terms and conditions) can only be changed or supplemented by both parties in writing.
Miscellaneous
If any provision (or part thereof) is or becomes invalid, void or unenforceable, such invalidity, nullity or unenforceability does not affect the remaining provisions. If any provision (or part thereof) is or becomes invalid, void or unenforceable, the parties will be bound by a provision that is valid, non-void and enforceable, which provision will have a similar effect as the original provision as much as possible.
Anyone who is not a party to an agreement between us and you cannot derive any rights from it. No agreement between you and us contains a third-party clause as referred to in Article 6:253 of the Dutch Civil Code. The foregoing does not apply to our group companies, officers and employees, who may invoke these general terms of delivery against you. In such case our agreement with you contains an irrevocable third-party clause which can be accepted at any time, free of charge, by any of our group companies, directors or employees. Neither party may claim performance against such third party as referred to in Article 6:256 of the Dutch Civil Code.
If we have entered into an agreement with you, such agreement replaces and terminates all communications, statements, (draft) agreements, warranties and undertakings exchanged by us with you prior to such agreement regarding subject matters of such agreement, except if we have otherwise determined. General terms and conditions or other conditions or provisions from you or from any other are explicitly rejected.
An extract from our books provides full and binding evidence towards you, except if you provide written counter evidence.
You may not transfer or assign our agreement with you or any right and/or obligation under or in connection with an agreement between you and us (including claims) entirely or partially, except with our explicit prior written permission. For the avoidance of doubt, this clause also applies to granting any (sub)license or limited rights (such as the right of pledge) by you. This clause has property law consequences.
You give us permission and cooperation in advance to transfer or assign our agreement with you or any right and/or obligation under or in connection with an agreement between you and us (including claims) entirely or partially. For the avoidance of doubt, this clause also applies to granting limited rights by you (such as the right of pledge).
You explicitly waive:
any right to demand or otherwise effect full or partial dissolution or annulment of the agreement between you and us (including these general terms and conditions), e.g. pursuant to Article 6:228, 6:258 or 6:265 of the Dutch Civil Code;
any right to demand a change to the agreement between you and us (including these general terms and conditions), e.g. pursuant to Article 6:230 or 6:258 of the Dutch Civil Code; and
any right to otherwise affect the agreement between you and us (including these general terms and conditions) in any other way to our disadvantage.
You hereby explicitly waive your right to set-off any debt to us with any claim you have against us, except with our prior written approval. You hereby explicitly waive your right to suspend any of your obligations towards us.
Applicable law and venue for disputes
All our agreements with you (including these general terms and conditions) are governed by Dutch law.
If you have a complaint or if you are not satisfied about us, please notify us. If we do not come to a mutually satisfying resolution of our dispute, then we agree that all disputes will be settled exclusively in accordance with the Arbitration Rules of the Netherlands Arbitration Institute (‘Nederlands Arbitrage Instituut’), subject to the following:
the arbitral tribunal shall be composed of 3 (three) arbitrators;
the arbitral tribunal shall be appointed according to the list procedure;
the place of arbitration shall be Amsterdam, the Netherlands;
the proceedings shall be conducted in the English language, which also includes that all documents delivered to or by the arbitrator(s) shall be conducted in English;
the arbitral tribunal shall decide as amiable compositeur;
consolidation of the arbitral proceedings with other arbitral proceedings, as provided for in Article 1046 of the Dutch Code of Civil Procedure and Article 39 of the Arbitration Rules of the Netherlands Arbitration Institute, is excluded;
neither the parties nor the arbitration institute shall publish the arbitral award;
the arbitral award is binding and may be enforced in any court of competent jurisdiction.
This Section 16 will survive the termination or expiry (for any reason whatsoever) of our agreement with you and will remain in full force and effect.
