Chamber of Commerce No. for Rotterdam: 23078395
Article 1: Applicability/definitions
1. These Terms and Conditions apply to all offers and to all purchase and sales agreements as well as all agreements for professional services of Uvar Intech B.V. d/b/a/ BERMAD Holland established in ‘s-Gravendeel, hereinafter to be referred to as “BERMAD HOLLAND”.
2. The purchaser or the client shall hereinafter be referred to as “the Other Party”.
3. “In writing” for the purposes of these General Terms and Conditions shall mean: by letter, e-mail, fax or any other mode of communication that is regarded as equivalent to writing in view of advances in technology and conventional practices.
4. “Assignment” for the purposes of these General Terms and Conditions shall mean: an assignment granted or agreed between parties for the supply of custom-designed products, the provision of services or the carrying out of work by BERMAD HOLLAND.
5. “Items” for the purposes of these General Terms and Conditions shall mean: products to be delivered from stock by BERMAD HOLLAND as well as products produced on order, unless it is explicitly stated in a provision that this provision only covers the last-named products.
6. The drawings, designs, reports, calculations, recommendations and suchlike to be produced by BERMAD HOLLAND or provided by the Other Party shall hereinafter be referred to as “the documents”. These documents can be recorded both in writing and on other data carriers, such as on CD ROMs, DVD, USB sticks, etc.
7. The possible invalidity of (any part of) a provision contained in these General Terms and Conditions shall not affect the validity of the remaining provisions.
8. These General Terms and Conditions also apply to the additional or partial orders or partial agreements or follow-up instructions following the agreement.
9. A lasting business relationship shall only be deemed to exist if BERMAD HOLLAND has already handed these General Terms and Conditions several times to the Other Party. BERMAD HOLLAND shall not be obliged to produce these General Terms and Conditions in order for them to apply to each new agreement.
Article 2: Assignments, formation of agreements
1. The agreement shall be established after the Other Party has accepted the offer from BERMAD HOLLAND even if this acceptance differs in subordinate points from the offer. If however the acceptance by the Other Party differs essentially from the offer, the agreement shall not be deemed established until BERMAD HOLLAND has expressly agreed to these differences in writing.
2. If the Other Party assigns or places an order with BERMAD HOLLAND without first making an offer, BERMAD HOLLAND shall only be bound by this assignment or order after it has confirmed this to the Other Party in writing.
3. Changes to an assignment or order already given must be submitted in writing and be accompanied by a clear description of the changes. The aforesaid changes as well as the additions or amendments to the General Terms and Conditions or the agreement shall only bind BERMAD HOLLAND after they have been confirmed in writing to the Other Party.
4. BERMAD HOLLAND shall only be bound by verbal agreements after it has confirmed these to the Other Party in writing or as soon as BERMAD HOLLAND has started to carry out these agreements without objection from the Other Party.
Article 3: Offers, quotations
1. All offers and quotations from BERMAD HOLLAND shall be non-binding, unless they specify a date for acceptance. If an offer or quotation contains a non-binding proposal and the Other Party accepts such proposal, BERMAD HOLLAND shall be entitled to withdraw the proposal within two working days of receiving acceptance.
2. A draft estimate shall not oblige BERMAD HOLLAND to deliver part of the proposal stated in this estimate for a corresponding part of the price.
3. If the proposal is based on the details supplied by the Other Party and these details are incorrect or incomplete or are subsequently amended, BERMAD HOLLAND shall be entitled to adjust the prices, rates and/or delivery deadlines stated in the proposal.
4. Offers, proposals, prices and rates do not automatically apply to additional or new orders.
5. The samples and models shown and/or provided, specified dimensions, weights, functionalities, capacities, and other descriptions in brochures, promotion material and/or on the website of BERMAD HOLLAND are as accurate as possible, but given as indication only. The Other Party may not derive any rights from this.
6. The samples and models stated in the previous paragraph shall remain BERMAD HOLLAND’s property and shall be returned to BERMAD HOLLAND on first demand at the Other Party’s expense.
7. BERMAD HOLLAND is entitled to charge the costs related to the offer and/or proposal to the Other Party, provided that it has notified the Other Party beforehand in writing of those costs.
8. If the Other Party does not accept an offer or proposal, it shall be obliged to return all documents supplied with the offer or proposal to BERMAD HOLLAND on BERMAD HOLLAND’s demand.
Article 4: Prices, rates
1. Unless Parties have explicitly agreed otherwise in writing, BERMAD HOLLAND will carry out an agreed assignment for a fixed price.
2. BERMAD HOLLAND is entitled to increase an agreed fixed price if it appears during the execution of the agreement that the parties have not correctly estimated the agreed or expected amount of work when concluding the agreement, this incorrect estimate is not due to an attributable failure of BERMAD HOLLAND and it cannot reasonably be expected from it to carry out the work for the agreed price.
3. The prices or rates stated in the offers, proposals, price and rate lists and suchlike are exclusive of Dutch VAT and any possible costs, such as shipping, transport costs, packing costs, administrative costs and expense claims of third parties engaged, unless explicitly stated otherwise.
4. If (cost)price increasing circumstances occur at the expense of BERMAD HOLLAND between the date of concluding the agreement and the execution thereof due to legislation and regulations, currency fluctuations or price changes of the third parties or other suppliers engaged by BERMAD HOLLAND, or if there are any changes in the prices of the required materials, raw materials and suchlike, BERMAD HOLLAND shall be entitled to increase the agreed price or rate accordingly and charge it to the Other Party.
Article 5: Engaging third parties
If required for the proper execution of the agreement, BERMAD HOLLAND shall be entitled to have specific deliveries made or work carried out by third parties. All this at the discretion of BERMAD HOLLAND.
Article 6: Obligations of the Other Party
1. The Other Party must ensure that:
a. it shall make all information (such as technical specifications) and documents required for the execution of the agreement available to BERMAD HOLLAND in time and in the manner required by BERMAD HOLLAND;
b. any data carriers, electronic files and suchlike provided to BERMAD HOLLAND by the Other Party shall be free from viruses and/or defects;
c. it shall make available to BERMAD HOLLAND all components, materials, semifinished products, raw materials and suchlike, which parties have agreed to be supplied by the Other Party, in time and in good condition.
d. if (part of) the assignment has to be carried out at the Other Party’s location or at a location designated by the Other Party, BERMAD HOLLAND will be given access to this location and the items on which work needs to be carried out on the agreed dates and times. The location must meet current legal (safety) requirements and the items must not be used by third parties during the carrying out of the work.
e. any third parties present at this location shall not hinder BERMAD HOLLAND in the carrying out of the assignment.
f. BERMAD HOLLAND has connection facilities for electricity, gas and water at its disposal at the work location. The costs for this shall be at the expense of the Other Party. Lost working hours due to water, gas or power failure shall also be charged to the Other Party;
g. the other facilities reasonably required by BERMAD HOLLAND are present at this location, without any additional costs being involved.
h. it always uses and maintains the items supplied in accordance with the instructions (for use), manuals, recommendations, and suchlike provided or given by or on behalf of BERMAD HOLLAND for this purpose.
2. The Other Party shall ensure that the information and documents it has provided are correct and complete and shall indemnify BERMAD HOLLAND against any claims from third parties arising from the incorrectness and/or incompleteness of the information.
3. BERMAD HOLLAND shall treat the information or documents provided by the Other Party in confidence and only provide it to third parties insofar as necessary for the execution of the agreement, and to carefully store and keep the information or documents during the term of the agreement. However, BERMAD HOLLAND shall never accept any liability for the loss or destruction of the information or documents, unless this is due to intentional act and/or wilful recklessness of BERMAD HOLLAND or its management staff at board level. The Other Party must ensure at all times that it keeps the original or a copy of the information or documents provided to BERMAD HOLLAND.
4. If the obligations referred to in this Article are not fulfilled in time, BERMAD HOLLAND shall be entitled to suspend the execution of the agreement until the moment that the Other Party has fulfilled its obligations. The costs related to the delay incurred and/or the costs to perform additional work or any other consequences arising from this shall be at the expense and risk of the Other Party.
5. If the Other Party fails to comply with its obligations and BERMAD HOLLAND fails to require performance by the Other Party, it shall not affect BERMAD HOLLAND’s right to require performance at a later date.
Article 7: Delivery/completion deadlines
1. Agreed delivery dates can never be considered as binding deadlines. If BERMAD HOLLAND fails to comply or comply on time with its obligations, it shall be placed in default in writing by the Other Party whereby it shall be granted a reasonable period in which to still fulfil its obligations.
2. BERMAD HOLLAND shall be entitled to deliver in parts whereby BERMAD HOLLAND may invoice separately for each partial delivery.
3. The risk relating to the items supplied shall pass to the Other Party at the time of delivery. The term “time of delivery” for the purposes of these General Terms and Conditions shall mean the point at which the items to be delivered leave BERMAD HOLLAND’s premises or warehouse or the point at which BERMAD HOLLAND has informed the Other Party that it can collect these items. If parties have agreed that delivery will occur directly from BERMAD HOLLAND’s supplier or from the manufacturer, the risk regarding the items delivered shall pass to the Other Party at the moment on which the items to be delivered will leave the warehouse of this supplier or manufacturer.
4. Despatch or transport of the items ordered shall take place in a manner to be determined by BERMAD HOLLAND but at the expense and risk of the Other Party. BERMAD HOLLAND shall not be responsible for any damage of any nature whether or not occasioned to the items themselves and which is linked to the despatch or transport.
5. If it appears impossible, due to a cause within the control of the Other Party, to carry out the work and/or to deliver the items ordered to the Other Party, or if the items are not collected, BERMAD HOLLAND shall be entitled to store the items or materials and/or the materials that have been purchased for the execution of the agreement at the expense and risk of the Other Party. Unless BERMAD HOLLAND has explicitly set out a different term in writing, the Other Party must give BERMAD HOLLAND the opportunity within 1 month after notification of the storage to carry out the work at a later date and/or to deliver the items at a later date, or the Other Party must collect the items within this term at a later date.
6. If the Other Party still fails to meet its obligations after expiry of the term referred to in paragraph 5 of this Article, it shall be immediately in default. BERMAD HOLLAND shall then be entitled to dissolve the agreement fully or partially with immediate effect and without judicial intervention, by means of a written statement, and to sell the items and/or materials to third parties as well as to destroy the already produced documents. All this without any obligation arising for BERMAD HOLLAND to compensate damage, expenses and interest.
7. The aforesaid shall not affect the obligation of the Other Party to compensate any (storage)costs, loss due to delay, lost profits or any other damage.
Article 8: Progress, execution of agreement
1. If the start, progress or execution of an assignment or the agreed delivery of items is delayed due to the fact that:
a. BERMAD HOLLAND has not received all essential information or documents from the Other Party in time:
b. BERMAD HOLLAND has not received any agreed (advance) payment from the Other Party in time;
c. there are other circumstances that shall be at the expense and risk of the Other Party; BERMAD HOLLAND shall be entitled to extend the delivery/completion term reasonably following from those circumstances and it shall be entitled to charge the costs and damage involved to the Other Party.
2. BERMAD HOLLAND is obliged to point out to the Other Party any imperfections, errors, failures and suchlike in the documents, materials, semifinished products and suchlike provided or to be supplied by or on behalf of the Other Party for the carrying out of an assignment. All this insofar as the aforesaid imperfections, errors, failures and suchlike are relevant for the performance of BERMAD HOLLAND and it is or could be familiar with them.
3. If during the carrying out of an assignment it appears that the assignment cannot be carried out in the agreed manner as a result of unforeseen circumstances, BERMAD HOLLAND shall consult with the Other Party about changing the agreement. BERMAD HOLLAND shall at the same time inform the Other Party which consequences the change has on the agreed price and the agreed delivery terms. If the carrying out of the assignment has become impossible as a result, BERMAD HOLLAND shall in any case be entitled to full reimbursement for the work it has already carried out or deliveries it has already made.
4. Additional work must be agreed in writing between BERMAD HOLLAND and the Other Party. “Additional work” for the purposes of these General Terms and Conditions shall mean: all additional work and deliveries at the request of the Other Party or necessarily arising from the assignment. BERMAD HOLLAND is entitled to charge the costs incurred in respect of this separately to the Other Party.
5. The Other Party shall always carefully check each draft version of a document to be produced by BERMAD HOLLAND and shall make its response known to BERMAD HOLLAND as soon as possible. If necessary, the draft shall be changed by BERMAD HOLLAND and again submitted for approval to the Other Party. BERMAD HOLLAND is entitled to require that the definitive version of the documents to be produced shall be initialled for approval on each page by the Other Party or that the Other Party shall sign a statement of approval of the definitive version. The Other Party may not use the documents produced until BERMAD HOLLAND has received the initialled definitive version or the written statement of approval.
6. If BERMAD HOLLAND has to make changes to documents already approved by the Other Party, it may be considered as additional work and BERMAD HOLLAND shall be entitled to charge the additional costs arising from this to the Other Party.
Article 9: Packing
Unless parties have explicitly agreed otherwise in writing, the packing in which the items will be delivered are intended for once-only use and will not be taken back by BERMAD HOLLAND.
Article 10: Complaints and returns
1. The Other Party is obliged to check the delivered items immediately after receipt and to state any visible failures, defects, damage and/or deviations in numbers on the consignment note or on the accompanying note. In the absence of a consignment note or accompanying note the aforesaid failures etc. must be reported to BERMAD HOLLAND in writing within 2 working days after receipt.
2. Other complaints in view of the items delivered as well as complaints in view of the services provided or work carried out by BERMAD HOLLAND must be reported to BERMAD HOLLAND in writing immediately after discovery – yet ultimately within the applicable guarantee period. All consequences of not immediately reporting these are at the risk of the Other Party.
3. If a complaint has not been reported to BERMAD HOLLAND within the periods previously referred to, the items are deemed to have been received in good condition and to comply with the agreement, or the services are deemed to have been delivered in accordance with the agreement or the work is deemed to have been carried out in accordance with the agreement. In that case, it is no longer possible to appeal to the agreed guarantee.
4. BERMAD HOLLAND will do all that may be requested from a company in its industry to guarantee the quality and the optimal functioning of the items it has supplied and manufactured. Despite the aforesaid and also to prevent possible damage, the Other Party shall, however, be bound in the event that items are resold to end-users, to oblige these end-users (demonstrably) to properly check the operation of the items supplied and to test these before they take them into use. Failing that, it is no longer possible to appeal to the agreed guarantee.
5. Complaints shall not suspend the Other Party’s payment obligations.
6. The Other Party must give BERMAD HOLLAND the opportunity to investigate the complaint and provide all information to BERMAD HOLLAND that is relevant for the complaint. If the item needs to be returned for investigating the complaint or if BERMAD HOLLAND needs to investigate the complaint on site, the costs involved in this shall be at the expense and risk of the Other Party, unless the complaint appears well-founded.
7. All returns shall take place in a manner stipulated by BERMAD HOLLAND and in the original packaging and wrapping.
8. No complaints shall be possible regarding incompleteness or properties of items manufactured from natural materials if this incompleteness or properties are inherent to the nature of these materials.
9. It is not possible to lodge complaints in respect of items that have been adapted or treated partially or fully.
Article 11: Guarantees
1. BERMAD HOLLAND shall ensure that the agreed deliveries or assignments will be carried out appropriately and in accordance with the current standards in its industry, but shall never issue further guarantee in respect of the items delivered, the work or provision of services than explicitly agreed between parties.
2. BERMAD HOLLAND shall be responsible during the guarantee period for the usual quality and reliability of the items delivered.
3. BERMAD HOLLAND shall guarantee that the items delivered meet the legislation applicable for these items within the EU, but shall not guarantee that the items delivered also meet the legislation applicable outside the EU, unless it has explicitly confirmed this to the Other Party in writing.
4. BERMAD HOLLAND shall not guarantee and shall never be deemed to have guaranteed that the items delivered are suitable for the purpose for which the Other Party wishes to adapt, treat or use them, unless it has explicitly confirmed this in writing to the Other Party or it has been explicitly provided in the accompanying instructions for use, manuals and suchlike.
5. BERMAD HOLLAND shall endeavour to ensure that the supplied catalogues, manuals and suchlike are faultless and up-to-date, but cannot guarantee that they will never contain any errors or that they are always fully up-to-date.
6. If the Other Party rightly invokes the agreed guarantee, BERMAD HOLLAND shall take care of the repair or replacement of the items delivered free of charge or it shall refund or reduce the price agreed for these items. All this at the discretion of BERMAD HOLLAND. If there is any additional damage, the provisions set out in the Liability Article of these General Terms and Conditions shall apply.
7. Unless parties have explicitly agreed otherwise in writing, the guarantee does not include the performance of any required (technical) research at no cost by an employee of BERMAD HOLLAND or a third party engaged by BERMAD HOLLAND into the cause of a possible defect (whether or not to assess if the reported defect falls under the guarantee). Furthermore, such research shall in principle only be performed at the Other Party’s location and not with any possible end-users or other third parties to which the Other Party has resold the items.
Article 12: Liability
1. BERMAD HOLLAND shall not accept any liability beyond the explicitly agreed guarantees, guaranteed results, or quality requirements given by BERMAD HOLLAND.
2. Without prejudice to that stated in paragraph 1 of this article, BERMAD HOLLAND shall only be liable for direct damage. Any liability of BERMAD HOLLAND for consequential damage such as trading losses, loss of earnings and/or losses sustained, damage caused by delay and/or personal or bodily injury shall be expressly excluded.
3. The Other Party shall be obliged to take all measures necessary to prevent or limit any damage.
4. If BERMAD HOLLAND is liable for the damage suffered by the Other Party, BERMAD HOLLAND’s liability for compensation shall always be limited to the invoice amount of the items delivered or the work carried out and/or services provided at most.
5. The Other Party shall commence proceedings against BERMAD HOLLAND no later than six months after the point where it gained knowledge or should have gained knowledge of the damage it has sustained.
6. If BERMAD HOLLAND is to carry out the assignment or deliveries on the basis of documents provided by or on behalf of the Other Party, BERMAD HOLLAND shall only be liable for the correct carrying out of the assignment or the reliability of the items delivered.
7. BERMAD HOLLAND accepts no liability for damage arising from advice given by it, unless the advice is directly related to the items delivered by BERMAD HOLLAND.
8. If the Other Party makes materials, raw materials and semifinished products available to be processed for the carrying out of the assignment, BERMAD HOLLAND shall be responsible for the correct processing, however, not for the reliability of these materials, raw materials or semifinished products and the effect that those materials, raw materials or semifinished products have on the end result.
9. If BERMAD HOLLAND shall act as an intermediary in the formation of an agreement between the Other Party and third parties (whether or not including the corresponding provision of services by BERMAD HOLLAND on behalf of these third parties) or upon deliveries of third parties to the Other Party, BERMAD HOLLAND shall never accept any liability for damage that the Other Party suffers due to any non-compliance by these third parties
10. The Other Party cannot invoke the applicable guarantee, nor hold BERMAD HOLLAND liable on any other grounds if the damage has arisen due to:
a. incompetent use or maintenance or use or maintenance contrary to the use of the items delivered or contrary to the instructions, recommendations, instructions for use, manuals and suchlike provided by or on behalf of BERMAD HOLLAND.
b. incompetent safekeeping (storage) or inexpert or incorrect installation/assembly of the items delivered;
c. errors, incompleteness, failures and suchlike in the information, documents, materials, raw materials or semifinished products provided or prescribed to BERMAD HOLLAND by or on behalf of the Other Party.
d. directions or instructions of or on behalf of the Other Party;
e. damage to properties of the Other Party and/or of third parties which were situated in the vicinity of the location where this work is carried out during the installation/assembly of the items delivered;
f. the performance of repairs or other work or treatments to the items delivered and performed by or on behalf of the Other Party, without the explicit prior permission of BERMAD HOLLAND.
11. The Other Party shall, in the cases stated in paragraph 10 of this article be fully liable for all damage flowing from this and shall expressly indemnify BERMAD HOLLAND from all third party claims to compensate for this damage.
12. The limitations of the liability stated in this article shall not apply if the damage is due to intent and/or recklessness by BERMAD HOLLAND or its supervisory staff on a management level or if mandatory legal provisions oppose this. Only in these cases shall BERMAD HOLLAND indemnify the Other Party against any third party claims.
Article 13: Payment
1. BERMAD HOLLAND shall all times be entitled to demand (partial) advance payment or any other security for payment from the Other Party.
2. Payment should be made within 30 days after the date of the invoice unless the parties expressly agree otherwise in writing. The invoice shall be considered correct if the Other Party has not contested it within this payment deadline.
3. If an invoice has not been paid in full following expiry of the deadline stated in paragraph 2, the Other Party shall be liable to BERMAD HOLLAND for late payment interest of two per cent per month calculated cumulatively over the principal sum. Parts of a month shall be counted as full months.
4. BERMAD HOLLAND shall also be entitled to charge the Other Party for out-of-court collection costs if payment is still outstanding following dunning by BERMAD HOLLAND.
5. The out-of-court collection costs stated in paragraph 4 in case of demands with a principal sum of up to € 25,000.00 shall amount to:
- fifteen per cent of the amount of the principal sum for the first € 2,500.00 of the demand (with a minimum of € 40.00);
- ten per cent of the amount of the principal sum over the next € 2,500.00 of the demand;
- five per cent of the amount of the principal sum over the next € 5,000.00 of the demand;
- one per cent of the amount of the principal sum over the next € 15,000.00 of the demand;
6. If the principal sum exceeds € 25,000.00, BERMAD HOLLAND shall be entitled to charge the Other Party out-of-court collection costs over the first € 25,000.00 in accordance with paragraph 5 of this article and out-of-court collection costs of 10 per cent on the remainder.
7. For calculating the out-of-court collection costs, BERMAD HOLLAND shall after one year be entitled to increase the principal sum of the demand by the cumulatively built up late payment interest in that year according to paragraph 3 of that article.
8. If full payment by the Other Party is not forthcoming, the Other Party shall be entitled to dissolve the agreement by giving notice in writing without any further notice of default or judicial intervention or to suspend its obligations under the agreement until payment has been received or the Other Party has provided proper security for this. BERMAD HOLLAND shall also have the aforementioned right of suspension if it has legitimate grounds to doubt the Other Party’s creditworthiness even before the Other Party enters into default regarding payment.
9. BERMAD HOLLAND shall first apply the payments made by the Other Party to settle all the outstanding interest and costs and then against the longest outstanding payable invoices unless the Other Party expressly states at the time of payment that the payment relates to a later invoice.
10. The Other Party shall not be entitled to offset claims from BERMAD HOLLAND against any counterclaims that it may have against BERMAD HOLLAND. This shall also apply if the Other Party applies for (temporary) suspension of payment or is declared bankrupt.
Article 14: Reservation of ownership
1. BERMAD HOLLAND shall reserve ownership of all items delivered and to be delivered up until the point at which the other party has completely fulfilled all payment obligations towards BERMAD HOLLAND.
2. The payment obligations referred to in paragraph 1 consist of payment of the purchase price of or the reimbursement for the items delivered and to be delivered, multiplied by claims relating to work performed in connection with that delivery, as well as claims relating to any damage due to the Other Party’s attributable failure to meet its obligations, including payment of damages, extrajudicial collection costs, interest and possible penalties.
3. If this refers to the delivery of identical, non-individualized items, the consignment of items relating to the oldest invoice shall be considered to have been sold first. Reservation of ownership shall therefore rest in any case on all items delivered, which at the time of claiming reservation of ownership were still in the Other Party’s stocks, shop and/or property.
4. The Other Party may sell on items subject to reservation of ownership in the context of normal business provided it has also stipulated reservation of ownership on the items delivered with respect to its customers.
5. As long as the items delivered are subject to reservation of ownership, the Other Party shall not be entitled to pledge these items in any way or to put them at the disposal of a financier.
6. The Other Party shall be obliged to inform BERMAD HOLLAND immediately in writing if any third parties assert reservation of ownership or other rights on the items subject to reservation of ownership.
7. The Other Party shall be obliged to carefully preserve the items subject to reservation of ownership and to ensure that they are identifiable as BERMAD HOLLAND’s property until it has fulfilled all its payment obligations towards BERMAD HOLLAND.
8. The Other Party shall arrange for consequential loss insurance or fire and theft insurance, that the items delivered subject to reservation of ownership are covered at all times and to make the insurance policy and the respective premium payment receipts available for inspection by BERMAD HOLLAND on first demand.
9. If the Other Party contravenes the conditions of this article or if BERMAD HOLLAND claims reservation of ownership, BERMAD HOLLAND and its employees shall have the irrevocable right to enter the Other Party’s premises and take back the items subject to reservation of ownership without prejudice to BERMAD HOLLAND’s right to compensation due to damage, loss of earnings and interest and the right to dissolve the agreement giving written notice without further notice of default.
Article 15: Intellectual property rights
1. BERMAD HOLLAND is and shall remain the party entitled to all intellectual property rights which are vested in, arise from, are connected with and/or belong to the items, documents and suchlike delivered or produced by BERMAD HOLLAND in the context of the agreement. All this, unless parties have explicitly agreed otherwise in writing.
2. The exercise of the rights referred to in paragraph 1 of this Article are, both during and at the end of the execution of the agreement, explicitly and exclusively reserved to BERMAD HOLLAND.
3. The Other Party is not entitled to use the documents delivered or produced by BERMAD HOLLAND outside the context of the agreement. The Other Party is not permitted to provide these documents to any third parties, to make them available for inspection or to multiply these documents without the prior written permission of BERMAD HOLLAND.
4. Without the prior written permission of BERMAD HOLLAND, the Other Party is not entitled to:
a. change or treat the items delivered by BERMAD HOLLAND;
b. remove the serial or type numbers, brands and/or pictures applied to the items delivered;
c. copy or reproduce the items delivered in any other way.
5. The Other Party is not entitled to resell or market the items delivered by BERMAD HOLLAND other than to the end-users, or to inflict damage in any other way to the good reputation of and/or the trade name or brands used by BERMAD HOLLAND. The Other Party is liable for any damage that BERMAD HOLLAND suffers as a result and shall indemnify BERMAD HOLLAND against any claims from these third parties.
6. The Other Party guarantees that all information or documents that it will provide or already has provided to BERMAD HOLLAND shall not infringe the copyright or any other intellectual property right of any third party. The Other Party is liable for any damage that BERMAD HOLLAND suffers as a result of these infringements and shall indemnify BERMAD HOLLAND against any claims from these third parties.
7. Unless otherwise agreed, the Other Party shall forfeit a penalty of € 25,000.00 immediately due and payable for each infringement to BERMAD HOLLAND for the infringement of the provisions referred to in this Article. All this subject to BERMAD HOLLAND‘s right to claim full compensation.
Article 16: No-assignment clause
Subject to the prior written permission of BERMAD HOLLAND, the Other Party is prohibited to transfer its claims on BERMAD HOLLAND to any third party.
Article 17: Bankruptcy and loss of power to dispose of property, etc.
1. Without prejudice to that stated in the other articles of these General Terms and Conditions, BERMAD HOLLAND shall be entitled to dissolve the agreement by giving written notice without any further notice of default or judicial intervention at the point where the Other Party;
- is declared bankrupt or files for bankruptcy;
- applies for (temporary) suspension of payment;
- is affected by enforceable seizure;
- is placed under guardianship or judicial supervision;
- otherwise loses the power to dispose of its property or loses legal capacity regarding all or part of its assets.
2. That stated in paragraph 1 of this article shall apply if the guardian or administrator recognizes the obligations flowing from the agreement as liabilities of the estate.
3. The Other Party shall be obliged at all times to inform the guardian or the administrator of the (content of the) agreement and these General Terms and Conditions.
Article 18: Force majeure
1. In the event of force majeure with respect to the Other Party or BERMAD HOLLAND, BERMAD HOLLAND shall be entitled to dissolve the agreement by giving written notice to the Other Party without judicial intervention or to suspend its obligations towards BERMAD HOLLAND for a reasonable period without being liable for any compensation.
2. Force majeure with respect to BERMAD HOLLAND in the context of these General Terms and Conditions shall include: a non-culpable shortcoming by BERMAD HOLLAND, third parties or suppliers engaged by it or other serious grounds on the part of BERMAD HOLLAND.
3. Circumstances which are considered force majeure include: war, riot, mobilisation, (nuclear) explosions, riots at home and abroad, government measures – including measures by foreign governments – such as an import, export, delivery or production prohibition, strikes within the organisation of BERMAD HOLLAND and/of the Other Party or a threat of these and similar circumstances, disruption of existing exchange rates at the time the agreement was concluded, operational failures due to fire, burglary, sabotage, natural phenomena and suchlike, as well as by weather conditions, roadblocks, accidents, shortage of raw materials, materials and semifinished products and suchlike, transport problems arisen, and delivery problems.
4. If the force majeure occurs after part of the agreement has already been carried out, the Other Party shall be obliged to fulfil its obligations towards BERMAD HOLLAND up to that point.
Article 19: Cancellation and suspension
1. If the Other Party wishes to terminate the agreement prior to or during the execution thereof, it shall be due compensation to BERMAD HOLLAND to be further determined by BERMAD HOLLAND. This compensation shall comprise all costs already incurred by BERMAD HOLLAND and its damage suffered due to the termination, including lost profits. BERMAD HOLLAND is entitled to fix the aforesaid compensation and – at its discretion and dependent on the work already carried out or the deliveries already made – charge 20 to 100% of the agreed price to the Other Party.
2. The Other Party shall be liable towards third parties for the consequences of the cancellation and shall indemnify BERMAD HOLLAND for claims from these third parties arising from this.
3. BERMAD HOLLAND shall be entitled to offset all amounts already paid by the Other Party against the amounts of compensation owed by the Other Party.
4. Should the execution of the agreement be suspended at the request of the Other Party, the compensation for all the work already carried out at that moment or costs incurred shall be immediately due and payable and BERMAD HOLLAND will be entitled to charge these to the Other Party. Furthermore, BERMAD HOLLAND shall be entitled to charge to the Other Party all costs incurred or to be incurred during the suspension period.
5. If it is not possible to resume the carrying out of the agreement after the agreed suspension period, BERMAD HOLLAND shall be entitled to dissolve the agreement without judicial intervention by giving written notice to the Other Party. If the carrying out of the agreement is resumed following the agreed suspension period, the Other Party shall be obliged to reimburse BERMAD HOLLAND for any costs due to the resumption.
Article 20: Applicable law/jurisdiction
1. The agreement entered into between BERMAD HOLLAND and the Other Party shall be governed exclusively by Dutch law.
2. Any disputes shall be adjudicated by the competent court in the district where BERMAD HOLLAND has its registered office although BERMAD HOLLAND shall always be entitled to bring the dispute before the competent court in the district where the Other Party has its registered office.
3. If the Other Party has its registered office outside the Netherlands, BERMAD HOLLAND shall be entitled to act according to that stated in paragraph 2 of this article or at its discretion, to submit the dispute for adjudication by the competent court in the country or the State where the Other Party has its registered office.
Date: 9 March 2011