JVM EUROPE BV – GENERAL TERMS & CONDITIONS
1 Definitions, applicability
The following definitions, both in the singular and in the plural, are used in these General Terms.
a) Contract: any quotation and acceptance there- of, agreement including its exhibits and addenda or other agreed course of conduct or legal act between JVM Europe and Customer, regardless whether these have been made orally, in writing, electronically or in any other form.
b) Customer: the party (a) to whom the offer of JVM Europe is addressed, (b) with whom JVM Europe has concluded the Contract or (c) for the benefit of whom the legal act is performed.
c) Ex Works (EXW): Incoterm® defining that the Products will be produced, packed, marked if applicable, and made available. Loading and clearing of the Products and shipping thereof is at risk and costs of Customer.
d) Force Majeure: with the exception of any events on the part of Customer’s client or Customer’s project, any event that incurs failure to perform beyond control and not caused by the negligence of the performing party, such as – without limitation – rulings (e.g. embargo’s), governmental measures, strikes, disruption in electricity supply, non-availability of telecommunication services, non-delivery of Products.
e) General Terms: the present version of general terms & conditions of JVM Europe, regardless of the form in which they are published (hard copy or electronically).
f) Products: all products, affairs, materials, parts (including – but not limited to – spare parts, documentation, merchandising goods, etc.) and services that are subject of Contract.
g) Invoice: commercial document issued by JVM Europe to Customer requesting payment of Products, indicating total amount, applicable taxes, bank transfer specifications and – if applicable – Purchase Order’s reference.
h) Intellectual Property (Rights): assignment of property rights through patents, copyrights, trade names and trademarks.
i) JVM Europe: JVM Europe BV with its statutory address at Niels Bohrweg 6218MD Lelystad, the Netherlands and registered at the Dutch Cham- ber of Commerce # KVK 32137355, and its subsidiaries.
j) More Work: all requested or necessary extra Products that are not included in the Quotation, proposition or task.
k) Purchase Order (PO): commercial document issued by Customer to JVM Europe authorizing a purchase transaction and indicating part number(s), trademarks, type(s) and/or description(s), and quantities of Products and/or prices.
l) Quotation: response to Customer’s request for quotation in which JVM Europe quotes its prices for the Products, payment condition and other terms and conditions.
The applicability of any terms of Customer is herewith explicitly excluded.
If there is any conflict, contradiction or inconsistency between these General Terms and a written Contract, the written Contract shall prevail.
2.1 A Quotation is valid for the period stated in that Quotation. A Quotation without an indicated validity period may ultimately be revoked within 2 (two) working days after acceptance thereof.
2.2 A composed Quotation does not oblige JVM Europe to deliver a part of the Products to the according part of the total price.
2.3 If Customer’s information seems to be incorrect or incomplete or is changed at a later stage, JVM Europe may adjust the quoted prices and/or contract terms.
2.4 The Quotation does not automatically apply to reorders or future PO’s.
2.5 Models, part number(s), type(s) and/or description(s), indications of capacities and quantities of Products and other details mentioned on the website(s) or brochure(s) of JVM Europe serve only as an indication. No rights can be derived from these.
3 Concluding Contract
3.1 Apart from an agreement signed by both parties, a contract is also concluded at the moment that JVM receives a PO, even if the part number(s), trademarks, type(s) and/or description(s) in the PO slightly differ from the Quotation. However, if the difference between Quotation and PO is substantial, the Contract will only be concluded after JVM Europe’s written approval.
3.2 In the event of a PO without a prior Quota- tion or an oral agreement, the Contract will only be concluded after JVM Europe’s writ- ten approval (e.g. by Invoice) or by means of executing the Contract.
4 Obligations of JVM Europe
4.1 JVM Europe will execute the Contract in manner according to the Contract and the standards of industry. JVM Europe may engage one or more third parties to execute the Contract.
4.2 JVM Europe will check specifications, quantities, measures and/or weights before delivery.
4.3 JVM Europe will deliver the Products Ex Works (EXW). JVM Europe will place the Products, suitably labeled and packed in standard shipping cartons, at the disposal of Customer at its warehouse and send Customer a delivery notice.
4.4 Pending shipment JVM Europe will appropriately store the Products at Customer’s cost and risk.
4.5 Products will be delivered in minimal amounts that are available at JVM Europe. Minor deviations that are deemed acceptable within the appropriate industry with regard to quantities, weights and part number(s) of Products, and trademarks, type(s) and/or description(s) are not considered a shortcoming nor a Fundamental Breach.
5 Obligations of Customer
5.1 Customer assures that his information is accurate and releases JVM Europe from any claims that are or could be a result of his inaccurate information.
5.2 Upon delivery EXW Customer will arrange for shipment within five (5) working days of the delivery notice. The Customer will pay any additional costs incurred by failing to take delivery in due time.
5.3 Customer is allowed to a pre-shipment inspection. Unless otherwise agreed, Customer will bear all costs for pre-shipment inspection. Immediately after completion of the inspection, Customer shall report missing Products, externally visible defects, defects and/or damage to the Product to JVM Europe.
5.4 If no missing Products etc. are reported pre-shipment, the Products are deemed to be delivered properly according to the Contract.
5.5 Customer shall obtain at his own risk and expense any clearance or other official authorization required for the export and import of the Products and, if applicable, for transit through another country.
5.6 The Customer will not settle any Invoices with alleged claims against JVM Europe, nor can he suspend his obligations.
6.1 If Customer does not fulfil his obligations, JVM Europe may postpone its execution of Contract as long as Customer does not fully meet its obligations.
6.2 JVM Europe may postpone its obligations, if its Invoice is due or if it has reason to doubt the creditworthiness of Customer, even before Customer is in default. The expenses caused by postponement, such as loss of working hours, the costs for the carrying out of extra services, may be charged to Customer.
6.3 The Customer may delay delivery of Products without penalty, provided that JVM Europe receives a written notice of delay before thirty (30) days prior to the originally scheduled delivery date.
6.4 If Customer delays delivery of Products within thirty (30) days prior to the originally scheduled delivery date, JVM Europe may charge either its actual damages and losses suffered during the postponement period, or a flat rate compensation equal to 25% (twenty five percent) of the invoiced amount.
6.5 If the Contract cannot be reasonably executed after the postponement is lifted, JVM Europe may terminate the Contract without being liable for any damages incurred by Customer.
7 More Work
7.1 More Work has to be approved or confirmed by JVM Europe and Customer in writing.
7.2 More Work will be charged if costs increase unforeseeable and/or if the Products come only in higher quantities or qualities.
7.3 Offsetting More Work takes place when drawing the final balance, unless both parties have agreed in writing to do otherwise.
8.1 Customer shall select the carrier and method of shipment and obtain at its own risk and expense any clearance or other official authorization required for the export and import of the Products and, if applicable, for transit through another country. All freight, insurance, and other shipping costs, as well as any special packing expense, shall be met by Customer.
8.2 Whether or not facilitated by JVM Europe upon Customer’s request, at all times loading, clearing and shipment of Products is and remains only at Customer’s cost and risk. JVM Europe is not responsible for any damage be it on the Products itself or anything else from the delivery date on.
8.3 The Customer will pay all costs relating to the Products from the time they have been placed at his disposal in accordance with article 4.3.
8.4 Upon shipment and/or export outside the EU, the Customer will provide JVM Europe with appropriate evidence of shipment and customs export formalities.
8.5 JVM Europe puts effort to deliver the Products within a reasonable period. However, agreed delivery dates are no fatal terms. The Customer may request to expedite delivery, provided that expenses for overtime and other costs may be (pre-)charged.
8.6 If, for whatever reason, (some of) the Products can no longer be delivered (e.g. because they are no longer manufactured or in stock), JVM Europe will – if possible – propose alternative Products, adjusted prices and a new delivery date.
9 Force Majeure
9.1 No party shall be considered in breach of Contract to the extent that performance of their respective obligations (excluding payment obligations) is prevented by an event of Force Majeure that arises after the date of concluding Contract.
9.2 The Party prevented from carrying out its obligations due to Force Majeure (the “Affected Party”) shall immediately inform the other Party and keep it informed as reasonably possible.
9.3 The Affected Party shall be relieved of its obligations to execute the Contract but shall endeavour to continue to perform its obliga- tions under the Contract as far as reasonably practicable, provided that if and to the extent that the Affected Party incurs additional cost in so doing, the Affected Party shall be entitled to the amount of such cost.
9.4 If the effect of Force Majeure continues or is expected to continue for a period of ninety (90)days, either party may give notice of termination, which shall take effect after five (5) working days. If, at the end of this term the effect of the Force Majeure continues, the Contract shall terminate without obligation to pay damages.
9.5 If Force Majeure occurs while the Contract is already partially executed, each party will in any case meet its obligations towards the other party until that time.
10 Complaints and Returns
10.1 The Customer will report all defects of the Products to JVM Europe immediately after discovery. No complaints will be taken into consideration after 1 (one) year in which the defects could have been addressed.
10.2 In case the Products must be returned for examination or JVM Europe has to examine the Products on-site, the costs are to be borne upfront by Customer, and will be refunded if the claim is predominantly awarded. Products prepared for return to JVM Europe must be well-sealed packed if possible in the original packaging, shipment paid upfront by Customer.
10.3 If the conditions in articles 10.1 and 10.2 are met, JVM Europe will either repair or replace the defective Product at no additional charge or will refund the total amount paid for the Product.
10.4 Complaints concerning the following matters are not taken into consideration:
a) deficiencies or features of Products that are made from natural products if these deficiencies or features are inherent to those products;
b) Products whose nature and/or composition has been partly or completely changed by Customer;
c) Properties, characteristics or qualities of the Products, if those properties, characteristics or qualities have no or just barely influence on the Products functioning and
11 Prices & Payment
11.1 All Products delivered to Customer shall remain the property of JVM Europe until Customer has paid in full all amounts that are owed to JVM Europe.
11.2 If JVM Europe and Customer have explicitly agreed in writing that certain rights will be granted or assigned, these will always be granted or assigned subject to the condition that Customer shall pay any fees associated therewith in full and on time.
11.3 If a fixed price period has been agreed, JVM EUROPE may adjust prices and rates at the end of this period.
If no fixed price period has been agreed, price changes announced by JVM Europe will take effect two (2) months after their announcement. If Customer does not agree with such an adjustment, Customer may terminate the Contract in writing within fifteen (15) working days after the announced adjustment, with effect from the date on which the adjustment becomes effective.
11.4 If the Contract is deviated from at the request of Customer, any costs of additional work resulting from such a deviation shall be charged to Customer at the prices and rates applicable at the time the deviation is executed.
11.5 Customer shall pay the Invoices from JVM Europe within the payment period stated on the Invoice concerned. If no payment period has been specified on an Invoice, then a payment period of thirty (30) days shall apply after the date of the Invoice. No invocation by Customer of suspension, settlement or deduction is allowed.
11.6 All Invoices shall be deemed correct and accepted unless Customer provides JVM Europe written notice specifying the Invoice and PO number, and the exact nature of any discrepancy within five (5) days after the Invoice date. JVM Europe shall then issue an explanation of the charges or a credit to Customer’s account within thirty (30) days.
11.7 Once the payment period of the Invoice has expired, an interest of 2% (two percent) per month is calculated cumulatively over the total Invoice amount plus eventual extralegal collection costs of 15% (fifteen per cent) over the total Invoice amount, with a minimum of € 150,00 (one hundred and fifty Euro).
12 Intellectual Property
12.1 The hardware only is sold to Customer and not any underlying intellectual property rights. All Software is licensed, not sold, to Customer. Customer shall not use any intellectual property rights, other than JVM Europe trademarks in connection with the Products. The Contract and these General Terms do not grant Customer any right, title, interest or license in or to any intellectual property rights of JVM Europe or it licensors. JVM Europe and its licensors retain all right, title and interest in the Products and the Intellectual Property Rights. Any modifications to, or translations of the Products, shall be the sole and exclusive proper- ty of JVM Europe.
12.2 The sale of Products conveys no right to (re)manufacture, duplicate, create derivative works of, reproduce or copy the Products.
12.3 Except as expressly permitted in the Contract, Customer agrees that it shall not, and shall not permit any third party, to:
• modify, adapt, alter, translate, or create derivative works of or from any Product;
• merge a Product with other products;
• sub license, distribute, sell, make available, lease, rent, loan, or otherwise transfer any Product to any third party unless JVM Europe has explicitly granted Customer the right to do so in writing;
• reverse engineer, decompile or disassemble, or otherwise attempt to derive the source code for or other intellectual information or trade secrets from, any Product, with the exception of where this is expressly permitted in law despite this limitation;
• distribute any version of any Product other than the latest version provided by JVM Europe for distribution; or
• otherwise use or copy any Product.
12.4 Customer must use the appropriate proprietary rights descriptors. Customer may not remove, alter, or obscure in any way any proprietary rights descriptors of JVM Europe and its licensors and suppliers on or within the copies of any Products.
12.5 Customer may use JVM EUROPE trademarks, trade names and service marks to accurately identify and refer to JVM Europe and the Products, provided that such use is not likely to cause confusion about the source of Customer’s business and the relationship with JVM Europe and such use is in accordance with JVM Europe’s policies.
12.6 If any of JVM Europe ’s Trademarks are to be used in conjunction with another trademark then JVM Europe ’s mark shall be presented equally legibly, equally prominently, but nevertheless separated from the other so that each mark appears to be a mark in its own right, distinct from the other mark.
12.7 Customer may not use JVM Europe marks in connection with the transmission or distribution of unsolicited commercial email or in any manner which would violate laws and regulations or customs, or conflict with JVM Europe policies.
12.8 At no time during or after the term of Contract shall Customer challenge or assist others to challenge the intellectual property rights of JVM Europe or its licensors, or the registration thereof, or attempt to register any trademarks, or trade names confusingly similar to those of JVM Europe. All representations of JVM EUROPE’s trademarks which Customer intends to use during the term of Contract shall first be submitted to JVM Euope in writing for approval or shall be exact copies of those currently used by JVM Europe.
13.1 Unless otherwise agreed in Contract, JVM Europe warrants to Customer that the Products shall be free from defects in materials and workmanship for a period of 1 (one) year from the date of delivery, providing that Customer’s information is correct and the Products are stored and used in accordance with the applicable manual(s), safety prescriptions and industry practices and conditions.
13.2 Any product which repairs or replaces the Product(s) is warranted for the remainder of the warranty period stated in article 13.1 or thirty (30) days, whichever shall be longer.
13.3 The aforementioned express warranty is limited to JVM Europe and not transferable, and is in lieu of any other warranty by JVM Europe with respect to Products furnished under the Contract. JVM Europe GRANTS NO OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. JVM Europe disclaims any express or implied warranty of fitness for high risk activities. JVM Europe disclaims any guarantee as long as Customer has not fully met his obligations.
14 Limitation of Liability
14.1 JVM EUROPE SHALL IN NO EVENT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THESE GENERAL TERMS OR CONTRACT, OR TO THE SALE OR USE OR MODIFICATIONS OF PRODUCTS, IRRESPECTIVE OF WHETHER OR NOT JVM EUROPE HAD ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
14.2 IN THE EVENT OF NON-PERFORMANCE OR MALPERFORMANCE BY JVM EUROPE, ITS SOLE AND EXCLUSIVE MAXIMUM LIABILITY, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, SHALL NOT IN ANY EVENT EXCEED THE INVOICED AMOUNT. In this regard a series of incidents relating to each other shall count as one incident only.
14.3 JVM Europe accepts no liability whatsoever for a Product that is manufactured mainly on information and documentation issued by Customer. JVM Europe is not responsible for the content, correctness and completeness of this information and documentation.
14.4 If Customer provides materials for further processing or assimilation, JVM Europe is responsible for processing and assimilating these materials in a proper manner, but not for the soundness of the final Products.
14.5 JVM Europe accepts no liability for any damage whatsoever caused by the Products or Customer’s incorrect storage or use of the Products including – but not limited to – mismanagement, wrong packaging, processing, assimilation and adjustments.
14.6 Furthermore, JVM Europe accepts no liability if the damage was inflicted:
a) in consequence of instructions of Customer;
b) by deviating from JVM Europe’s advice, the Contract and/or the industry practices and conditions;
c) by usual wear, erosion or corrosion, by ageing and/or damage of the Products by external factors, other than the factors
against which the Products should be resistant under normal circumstances;
d) by Customer’s choice for packaging, loading and/or shipment.
15.1 Customer shall indemnify and defend JVM Europe from and against any and all liabilities and damages arising as a result of all claims, brought by any third party to the extent that any such claim relates to any act by Customer, its employees, subcontractors, agents or resellers, including – but not limited to – negligence, misrepresentation, error or omissions as well as warrants and representations.
As a condition of the aforementioned indemnification obligations, JVM Europe shall promptly notify Customer of any such indemnifiable claim, give Customer sole control over the defense and settlement of such claims, and provide reasonable cooperation and assistance to Customer in conducting its defense, at Customer’s expense.
15.2 Furthermore, Customer shall indemnify and defend JVM Europe from and against all fines, liabilities, damages, costs and expenses incurred by JVM Europe as a result of any violation of export (control) laws or regulations by Customer or any of its resellers, agents or employees.
16.1 Each Party agrees that at all times during and after the term of Contract, it will not use in any way for its own account or the account of any third party, nor disclose to any third party, any confidential information such as – but not limited to – Parties’ product sales, marketing, demonstration, training and pricing information, designs, object and source code, customer lists and service manuals revealed to it by the other Party and shall take every reasonable precaution to protect the confidentiality of such information.
16.2 Article 16.1 will not apply to information which is
• already known to the other party,
• publicly known through no wrongful act of the receiving party,
• is independently developed by the receiving party without benefit of the disclosing party’s confidential Information or
• received from a third party without similar restriction and without breach of Contract.
16.3 If Customer should act in conflict with this confidentiality clause, it shall forfeit to JVM Europe without any notice of default or judicial intervention in this matter being required, an immediately payable penalty, which is not subject to set-off, to the amount of € 50,000 (fifty thousand euros) per event and € 50,000 (fifty thousand euros) for each day or each part of each day this conflict continues, without prejudice to JVM Europe’s right to claim full compensation for damages, in addition to this penalty.
17.1 Notwithstanding termination on the basis of law or Contract, JVM Europe shall be entitled to terminate Contract with immediate effect, without any further notice of default being required and without JVM Europe becoming liable to pay compensation to Customer, if (a) Customer is granted temporary or final suspension of payments; (b) a petition for Customer’s bankruptcy is filed; (c) all or part of Customer’s goods are seized or
(d) Customer’s business is wound up or terminated.
17.2 If Customer violates any provisions of Contract or these General Terms, upon receiving written notice of such violation by JVM Europe Customer will have 30 (thirty) days to remedy such violation. If the violation is not remedied within said 30 (thirty) day period, JVM Europe may terminate the Contract with immediate effect.
17.3 In the event of termination by either party in accordance with any of the provisions in law or under Contract, JVM Europe will not, as a result of such termination, be liable to Customer, for compensation, reimburse- ment or damages. Termination will not, however, relieve either party of obligations incurred prior to the termination.
17.4 Immediately after termination of Contract, for any reason, Customer’s rights granted by Contract shall cease, and Customer shall cease to use the Products. Customer shall return at his/her own expense all copies of software, documentation, confidential information and other materials which have been made available to Customer within the framework of Contract. The aforementioned return will be confirmed by Customer to JVM Europe in writing as soon as possible.
18.1 Each party shall bear its respective expenses incurred in completing its responsibilities under the Contract, including the preparation of the Contract.
18.2 The Contract does not designate any party as employee, agent, partner or joint venture of the other.
18.3 Customer may not assign, delegate or transfer, by operation of law, in connection with a change of control, sale of assets, transfer of shares and/or property or otherwise, any of its rights under Contract (including any licenses with respect to the Products), or delegate any of his/her duties or obligations under Contract, to any third party without JVM Europe’s prior written consent, whereby such consent will be at JVM Europe’s sole and unfettered discretion. Any attempted assignment or transfer in violation of the aforementioned will be null and void and without force or effect.
18.4 Customer must comply with all domestic and international (export) laws and regulations applicable to Products as well as end user, end-use and destination restrictions issued by governments. Customer must at its own expense obtain and arrange for the maintenance of any government approvals and comply with all applicable laws and regulations necessary for its performance of the Contract.
18.5 The failure of either Party to enforce at any time any of the provisions of these General Terms and Contract, or the failure to require at any time performance by the other Party of any of the provisions of these General Terms and Contract, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right to enforce each and every such provision thereafter.
18.6 JVM EUROPE has the right to amend these General Terms and exhibits to the Contract from time to time as circumstances reasonably require.
18.7 JVM Europe shall notify Customer in writing in advance of such amendments, and the amendments will come into effect 30 (thirty) days after such notification or on the date specified in the notification.
18.8 With respect to the application of a new version of the General Terms, should Customer fail to give written notice to JVM Europe that it does not accept the new version prior to the day on which it comes into effect, Customer shall be deemed to accept the new version of the General Terms. If Customer gives written notice to JVM Eu- rope that it objects to the new version prior to the day on which it comes into effect, the Contract shall terminate 6 (six) months after this written notice of objection, unless both parties reach an agreement on this topic.
18.9 Dutch law applies to the General Terms, and every Quotation, PO and Contract, with the Court of Midden-Nederland, location Lelystad as the competent authority.
18.10 The Vienna Convention (CISG) is explicitly excluded.