General Terms and Conditions

Dataflex International BV

General

  1. These General Terms and Conditions are applicable to all offers and agreements between Dataflex International BV, as well as to all its affiliated companies that declare these General Terms and Conditions applicable (‘Dataflex’), on the one hand, and the Client, on the other hand, regardless of the nature of the transaction, as well as to all liabilities and obligations resulting there from. Any deviations must be agreed upon with Dataflex unequivocally and in writing.
  2. If Dataflex and the Client have made separate arrangements in a master agreement, said master agreement will prevail over these General Terms and Conditions, in the event of contradictions between the two. In these General Terms and Conditions Under, the term ‘Client’ means any party that has entered into or wishes to enter into an agreement with Dataflex, or for which Dataflex has made an offer for, or has delivered, a Product, as well as any legal successors and assigns.
  3. The term ‘Product’ under these General Terms and Conditions means all goods or services, delivered or offered by Dataflex.
  4. If Dataflex does not always request strict observance of these General Terms and Conditions, it will not imply that these General Terms and Conditions are no longer applicable, or that Dataflex would no longer be entitled to request strict observance thereof, in future, whether in comparable cases or not.
  5. If any stipulation within these General Terms and Conditions appears to be invalid or inapplicable, in any situation and for any reason, the remaining stipulations will remain in full force.
  6. Dataflex will not be bound by any General Terms and Conditions of Purchase or any other General Terms and Conditions declared applicable by the Client, unless Dataflex has accepted such conditions in writing. Furthermore, such acceptance may not be inferred from the fact that Dataflex fails to dispute a declaration by the Client, in which the Client states that he or she does not accept the General Terms and Conditions of Dataflex, and in which he or she declares his or her own conditions applicable.

Offers

  1. All offers made by Dataflex, regardless of the manner in which they are made, are free from obligation unless specifically otherwise agreed.
  2. All price lists, brochures and other information issued with an offer, are included as accurately as possible. Dataflex will only be bound by these if this is specifically confirmed in writing. Dataflex is not obligated to issue further details, unless this is otherwise agreed in writing.
  3. The forwarding of offers and / or other documentation does not make it mandatory for Dataflex to deliver or accept an order.
  4. Dataflex reserves the right to refuse orders without the need for an explanation, or to request Cash-on-Delivery.

Agreement

  1. An agreement has come into force once Dataflex has confirmed an order in writing or after Dataflex has started implementing the order. The order confirmation is deemed to be an accurate and complete representation of the order, unless the Client disputes the order confirmation within 5 working days.
  2. In the case of agreements for which, in connection with the nature and / or scope of the order, an order confirmation is not sent, the invoice will also apply as an order confirmation, which is deemed to represent the agreement accurately and completely, unless the Client protests within 5 working days.
  3. Dataflex will only be bound by addendums and amendments to an agreement only if and insofar as confirmed by Dataflex in writing.

Intellectual property rights

  1. All intellectual property rights associated with or relevant to the Product will expressly remain with Dataflex. Dataflex will grant Client a non-transferrable licence for the purpose of use or selling of the product to consumers. The aforementioned licence may only be transferred along with the Product if the Client sells the Product to another business who on-sells to consumers.
  2. Intellectual property rights that arise during use of the Product and/or through use such new intellectual property rights, also belong to Dataflex. Where necessary, the Client will provide reasonable assistance in obtaining the intellectual property rights or in registering the new intellectual property rights, upon the first request from Dataflex.

Prices

  1. Unless indicated otherwise, all quotations will be issued subject to price changes.
  2. Unless indicated otherwise, Dataflex prices are:
    1. based on the cost prices that are applicable at the time of the offer;
    2. based on delivery from the company (Dataflex),the warehouse or another storage location;
    3. exclusive of costs for installation, commissioning or demonstration;
    4. exclusive of VAT, import duties and other possible taxes, levies and rights;
    5. indicated in the Dutch currency; possible exchange rate fluctuations are to be borne by the Client.
  3. In the event of an increase in one or more of the cost price factors, Dataflex will be entitled to increase the order price, taking possible existing legal requirements into consideration, on the understanding that future price increases that are already known at the time of the order must be announced along with the order confirmation.

Complaints

  1. The Client is obliged to check the packaging immediately upon delivery, in any event on the next working day, and to check for possible damage and / or defects as thoroughly as possible. Possible damage and / or defects to the packaging, for as far as can be established upon delivery, must be indicated on the waybill, the delivery note, and / or any other transportation document, and should be reported to Dataflex immediately in writing.
  2. Without prejudice to the provisions in Article 6.1, the Client is obliged to check the Product as soon as possible after delivery and as thoroughly as possible for possible damage and / or defects. Possible damage and / or defects to the Product, for as far as can be established upon delivery, must be indicated on the waybill, the delivery note, and / or any other transport document, and in the event that said damage / defect is not established upon delivery, said damage must be reported to Dataflex immediately and in writing, no later than 8 days after delivery.
  3. Complaints concerning possible damage and / or defects should always be accompanied by the original packaging.
  4. Faults and defects which could not reasonably have been ascertained within the periods of time indicated in 6.2 should be reported to Dataflex in writing immediately after having been discovered, but no later than 3 months after delivery of the Products.
  5. After expiry of the periods of time indicated in 6.1, 6.2 and 6.4 respectively, the Client will be deemed to have approved and accepted the Product as is.
  6. If and insofar as Dataflex deems the complaint substantiated, Dataflex’s only obligation and liability will be to repair the defect(s) or to replace the faulty Products at the sole discretion of Dataflex. The Client shall not be entitled to any compensation for any loss or claim resulting from such defect.
  7. The complaint will never release the Client from his or her payment obligations towards Dataflex.
  8. The Product can only be returned after prior approval from Dataflex and under the terms and conditions set out by Dataflex. The Client is obliged to return the Products, at his or her own costs, in the original packaging, and with the least amount of damage possible, to an address to be indicated by Dataflex.

Payment / Default

  1. Payment should be received within 30 days after the date of invoice, on the bank or giro account number provided by Dataflex.
  2. Unless explicitly agreed otherwise, in writing, payment will take place without set-off or deferment, regardless of the basis on which.
  3. The Client is deemed to be in default and the remaining amounts outstanding will be claimable immediately if:
    1. the Client fails to observe any material obligation stemming from the agreement, or fails to observe it on time; this pertains to payment obligations in particular;
    2. Dataflex has good reason to assume that the Client will fail to observe his or her material obligations, and if the Client fails to declare willingness to observe his or her obligations, as set out in a written notice for payment, within the period indicated in the notice for payment;
    3. bankruptcy has been filed for on behalf of the Client, if the Client is declared bankrupt, if the Client proceeds with division of his or her assets or submits a request for suspension of payment;
    4. the Client proceeds with or decides to discontinue or transfer his or her company, or a substantial part thereof;
    5. the Client is deceased or a debt relief process is started, if the Client is a natural person.
  4. Dataflex will, in the cases mentioned under 7.3, be entitled to the following, without any liability and without prejudice to its rights, such as its rights concerning costs that have already fallen due or interest, and without the need for any further notice of default or legal intervention;
    1. declare the agreement fully or partially dissolved, by way of a written notification to that end to the Client and / or;
    2. claim the amounts owed to Dataflex by the Client, immediately and in full, and / or;
    3. retain title and ownership of all Products.

Retention of title and ownership

  1. The Products supplied to the Client will remain the property of Dataflex, and possible rights to be granted or transferred will remain reserved by Dataflex, until such time as the Client has carried out all its obligations arising out of the agreement entered into with Dataflex for the supply of Products.
  2. Nevertheless, the Client will be allowed to sell such items forward, yet exclusively in the sense that such sale is involved in the scope of the Client’s normal business operations. In the event that Dataflex invokes its right of retention of ownership, the Client will still owe Dataflex the aforementioned performance in the form of compensation for damages, without prejudice to Dataflex’s right to claim full compensation for damages.

Delivery time

  1. The fact that the delivery (or completion) period has been exceeded will never lead to the Client being entitled to any form of compensation, nor to dissolution of the agreement, or any agreement in connection with it, provided that the period has not been exceeded by more than 3 months.
  2. Notwithstanding the foregoing, after termination Dataflex is still entitled to payment of the reasonable costs incurred and works carried out by it.
  3. In the event of delivery in stages, it is stipulated that Dataflex may postpone delivery of the next stage for as long as the Client has not paid for completion of the previous stage, has not approved it and / or has not yet collected it. The following delivery periods are extended accordingly.

Delivery

  1. All Products are supplied Ex Works (Incoterms 2010).
  2. Dataflex is entitled to deliver in parts (partial deliveries), which can be invoiced individually.
  3. When Products are not collected by the Client after expiration of the delivery time, they are stored on behalf of the Client, at the Client’s risk and expense.

Transport / Risk

  1. If Dataflex does arrange for possible transport, shipment, packaging, etc. on Client’s behalf, and Client does not provide Dataflex with specific instructions, Dataflex will do so in a professional manner.
  2. If the Products are delivered free of charge, the transport costs will not be charged separately, risk will still pass to Client Ex Works. However, possible specific Client demands with regard to transport / shipment will only be carried out if the Client has stated that they will pay for these extra costs.

Force majeure

The relevant obligations will be suspended on both sides when circumstances come into play that hinder observance of the obligations by the parties, to such a degree that said obligations cannot be observed, compared to what can be expected with the normal completion of the relevant transaction, to such an extent that the parties would have accepted the obligation, even if the current circumstance was present. If a situation as outlined in the previous full sentence has lasted for longer than 3 months, the parties will be entitled to termination of the agreement, by way of written cancellation within 90 days. That which was already carried out in accordance with the agreement will, in that case, be charged in a prorated fashion, without anything else being owed by the parties to one another. Force majeure shall specifically include shortcomings on the part of Dataflex’s suppliers.

Dissolution / Termination

Should the agreement be terminated or dissolved in any way, the stipulations regarding payment, title and ownership, intellectual property rights, confidentiality, applicable law and disputes, will remain in full force.

Confidentiality

  1. Each party acknowledges the fact that all announcements, documents, drawings, specifications, patterns, intellectual property rights and other technical information (‘Confidential Information’) will remain the property of the owner, and that said information is shared on a confidential basis and (a) is subject to the agreement that all Confidential Information will be returned to the owner upon the first request, (b) the recipient of Confidential Information will not use the information, either entirely or in part, for purposes other than for implementation of the agreement, and that (c) the recipient of the Confidential Information will not disclose said information or share it entirely or in part with an external party.
  2. Not included under Confidential Information is any information which (i) will belong to the public domain, in a way other than due to non-performance on the part of the recipient, (ii) which is used or made public with prior written approval of the owner, or (iii) which is disclosed to a court by order of the court with jurisdiction.
  3. The Client is obliged to take measures to ensure that said confidentiality is upheld by his or her employees.

Warranty

  1. Dataflex will guarantee the Product’s quality for a period of 24 months after delivery / completion of the Product. If it appears that the Product was of insufficient quality, the item must be returned to Dataflex post-free, upon which Dataflex will solely decide whether the item should be repaired or replaced, or whether the amount should be credited to the Client, for an equal share of the invoice amount.
  2. After replacement, the Product or the replaced component will become the property of Dataflex.
  3. The Client must, in all cases, allow Dataflex the opportunity to repair the defect and / or to reimplement the work.
  4. The Client will only be able to call on the warranty after all payment obligations towards Dataflex have been observed.
  5. The defect will not be included under warranty if it is the result of normal wear and tear; misuse; failure to carry out (or incorrectly carried out) maintenance; installation, assembly, modification or repair on the part of the Client or an external party; an external cause, such as damage caused by fire, for example.
  6. A warranty will not be provided on Products that were not new at the time of delivery or on items that were prescribed by the Client or that were provided at the Client’s request;
  7. Observance of its warranty obligations, on the part of Dataflex, applies as full and final settlement of any claim, liability or further obligations resulting from such defective Product(s). Dataflex is not bound by further obligations, nor will the Client be entitled to any claim for dissolution of the agreement.
  8. If Dataflex receives the Products from a supplier, the warranty will be limited to the warranty provided by the supplier. Dataflex will inform the Client of the applicable stipulations, upon the Client’s request.
  9. Dataflex will charge for any repairs that fall outside of the scope of the applicable warranty.

Liability

  1. Dataflex shall in no event be liable for any indirect or consequential loss or damages arising from claims associated with any agreement or order or the use of any Product. For the avoidance of doubt; indirect or consequential loss or damage includes but is not limited to damages to property other than the Product, loss of profit, loss of income, damages from delay and business opportunity.
  2. Liability on the part of Dataflex will, howsoever arising, be limited to the total amount of the relevant order/agreement, regardless of the legal basis / nature of the claim.
  3. Dataflex will, in any event, not be liable for damage which resulted from use of the supplied Products or through inappropriateness thereof for the purpose for which the Client acquired it.

Applicable law and choice of forum

The express terms and conditions of these Terms and Conditions and the offer/agreement to which they apply shall apply in place of all warranties, conditions, terms representations, statements, undertakings and obligations whether expressed or implied by statute, common law, custom, usage or otherwise, all of which are excluded to the fullest extent permitted by law. Dutch law is applicable to the agreement(s). The Courts of Rotterdam are the courts with jurisdiction for the settlement of disputes.

Version 2014