General Terms and Conditions of UNFOLDR B.V.
1.1. In these terms and conditions the following terms shall be understood to have the following meanings: General Terms and Conditions: these general terms and conditions. These are available for inspection at the offices of UNFOLDR B.V. at Johan Huizingalaan 763 A in (1066 VH) Amsterdam and may be found at www.unfoldr.nl.
1.2. UNFOLDR B.V. is a private limited liability company. UNFOLDR B.V., registered at the Chamber of Commerce in Amsterdam under number 73552534.
1.3. Customer is understood to mean: the (potential) buyer that uses or wishes to use UNFOLDR’s services and/or products.
Applicability of the General Terms and Conditions
2.1. These General Terms and Conditions apply to:
– all offers of and agreements concluded with or to be concluded with UNFOLDR B.V., including those concluded electronically, regardless of the town or city of residence or registration of the contracting parties and regardless of where the agreement is concluded or executed.
– all companies with which UNFOLDR B.V. has or has had a management agreement including their managers and shareholders;
-all staff, former staff and others who are working for or who have worked for UNFOLDR B.V. in whatsoever way, or who are or have had connections with or who are or have been in the service of UNFOLDR B.V. and their heirs.
2.2. Deviations from and additions to these general terms and conditions shall only be valid if they have been agreed to by parties in writing.
2.3. The applicability of customer’s terms and conditions is excluded. Customer’s terms and conditions shall only apply if and insofar as these have been explicitly accepted in writing by UNFOLDR.
2.4. If one or more provisions in these general terms and conditions is invalid or is nullified, the remaining provisions shall continue to apply in full. In that case UNFOLDR and customer shall consult as soon as possible in order to agree one or more new provisions to replace the provision or provisions that are invalid or nullified, wherever possible taking due account of the object and scope of the invalid or nullified provisions.
Offers and agreements
3.1. Offers and orders shall only be binding for UNFOLDR if and insofar as these have been confirmed by it in writing or electronically (online, by e-mail) or by fax. All offers are without engagement, even if these stipulate a term for acceptance. If an offer without engagement is accepted by customer UNFOLDR nevertheless retains the right to revoke its offer within 7 (seven) workdays after the acceptance of the offer has been received.
3.2. The prices stated in a quotation or in an offer are exclusive VAT and other levies, including government levies, within the context of expenses within the scope of the agreement including travel and accommodation expenses, shipping and administrative charges.
3.3. UNFOLDR is not bound by its quotations or offers if customer may reasonably understand that these contain an obvious error or slip.
3.4. Unless agreed otherwise offers and quotations made by UNFOLDR are valid for 30 (thirty) days, after which they shall expire.
3.5. Any changes desired by the customer to orders that have been placed and confirmed must be submitted to UNFOLDR in writing only. They may lead to changes to delivery dates and payment obligations.
3.6. UNFOLDR may dissolve the agreement with customer forthwith if customer enters into liquidation, applies for suspension of payments, is filed for bankruptcy or if its company is fully or partly transferred, dissolved or closed.
3.7. UNFOLDR may dissolve the agreement with customer forthwith if customer acts contrary to one or more of the contract terms.
3.8. If the agreement is dissolved under Article 3.6 or 3.7 there is no right to a refund of amounts already paid nor to discharge in relation to amounts still payable under the agreement. UNFOLDR reserves the right to demand the full compliance of customer with its contractual payment obligations or the payment of compensatory damages.
Contract term, execution, price changes
4.1. If a term has been agreed for the execution of the work or the delivery of products, this term shall never be understood to be a deadline. If a term is exceeded customer must send UNFOLDR a written notice of default. This notice should grant UNFOLDR a reasonable term within which it may still comply.
4.2. UNFOLDR has the right to have the work performed by third parties. The applicability of Articles 7:404 and 7:409 of the Dutch Civil Code is expressly excluded.
4.3. If within the scope of the order UNFOLDR performs work at a location indicated by customer, customer shall arrange, free of charge, for the availability of the facilities reasonably requested by UNFOLDR’s staff.
4.4. Delivery is made at the company. Customer is required to accept the products when these are made available to it. If customer refuses to accept the products or fails to provide the information needed for delivery to be made, UNFOLDR will be entitled to store the products for the account and risk of customer. The risk of loss, damage or value reduction transfers to customer when the products are made available to it.
4.5. UNFOLDR is entitled to execute the agreement in several phases and to invoice these separately.
4.6. If the agreement is executed in phases UNFOLDR may suspend the execution of a consecutive phase until the previous phase has been approved by customer in writing.
4.7. Customer shall make all the information needed for the execution of the agreement available to UNFOLDR in a timely fashion. If customer is in default UNFOLDR is authorized to suspend the execution of the agreement or to charge the additional costs due to the delay to customer. The execution term shall not commence until customer has made all the information available to UNFOLDR.
Retention of title and rights
5.1. All products delivered to Customer remain the property of UNFOLDR until all amounts payable under the agreement concluded between the parties have been paid in full to UNFOLDR.
5.2. A customer acting as a reseller shall be allowed to sell and deliver all products that are subject to the retention of title of UNFOLDR insofar as such is customary within the context of the usual business operations of its company. UNFOLDR continues to own the new products until customer has paid the amount due in full.
5.3. Rights, including usage rights, shall be granted or transferred to customer where appropriate subject to the condition that customer has paid all amounts due under the agreement concluded between the parties in full. If, when granting a usage right a periodic payment obligation on the part of customer has been agreed, the customer may exercise this usage right as long as customer fulfils its periodic payment obligation.
5.4. UNFOLDR may keep equipment, products, proprietary rights, information, documents, software, databases and (interim) results of UNFOLDR’s work received or generated within the scope of the agreement despite an obligation to issue or deliver, until customer has paid all amounts owing to UNFOLDR.
Intellectual property rights and usage rights
6.1. If UNFOLDR is willing to commit itself to transfer an intellectual property right, such a commitment may only be entered into in writing. If the parties agree in writing that an intellectual property right in respect of specific software, equipment, website, databases or other materials developed by customer will transfer to customer, such shall not affect the right or the ability of the supplier to use and/or to exploit the components, general principles, ideas, designs, algorithms, documentation, work, programming languages, protocols, standards and the like underlying this development, without any restrictions, for other purposes, whether for themselves or for third parties. Nor shall the transfer of an intellectual property right affect the right of UNFOLDR to produce developments for itself or for a third party that are similar to or that are derived from those developments produced for customer.
6.2. All intellectual property rights based on software, websites, databases, equipment or other materials such as analyses, designs, documentation, reports, offers, as well as preparatory material that are developed or made available to customer under the agreement belong exclusively to UNFOLDR, its licensees or its suppliers unless explicitly agreed otherwise in writing. Customer only receives the usage rights expressly granted under these general terms and conditions or by law. A usage right accruing to customer is non-exclusive, non-transferable to third parties and non-sublicensable.
6.3. The customer is not allowed to remove or change any descriptions concerning the confidential nature of or concerning copyrights, trademarks, trade names or any other intellectual property rights from or in the software, websites, databases, equipment, or materials.
6.4. Even if the agreement does not explicitly provide for such authority, UNFOLDR is permitted to protect the software, hardware, databases, websites and the like using technical measures in connection with an agreed restriction in the substance or the duration of the right to use these objects. The customer is never allowed to remove or circumvent such a technical measures or to issue instructions for this.
Privacy, data processing and security
7.1. If the customer considers such important for the execution of the agreement, the customer will upon request inform UNFOLDR forthwith in writing as to how customer fulfils its obligations under the data protection legislation.
7.2. Customer indemnifies UNFOLDR for claims filed by persons whose personal data are recorded or processed in the framework of a register of persons held by customer or for which customer is responsible under the law or otherwise, unless the customer proves that by the facts underlying the claim can only be attributed to UNFOLDR.
7.3. The responsibility for data processed using a service provided by UNFOLDR lies exclusively with the customer. Customer shall guarantee the supplier that the content, use and/or processing of the data is not illegal and does not infringe any third party rights. Customer indemnifies UNFOLDR against claims by third parties, on any grounds whatsoever, in connection with these data or the execution of the agreement.
7.4. If UNFOLDR is obliged under the agreement to provide some form of information security, the security shall meet the specifications for security as agreed in writing between the parties. UNFOLDR is certified according to ISO 27001, the standard for information security, and thus the UNFOLDR organization has taken the necessary precautions to protect sensitive information from unauthorized access and processing.
7.5. If during the execution of the agreement or otherwise use is made of computer data, or telecommunications facilities UNFOLDR is authorized to assign and/or modify customer’s access and identification codes, UNFOLDR will handle the access and identification codes confidentially and carefully and will only disclose these to authorized personnel.
7.6. If during the agreement UNFOLDR has to process personal data for the purpose of the Customer, the PROCESSING OF PERSONAL DATA agreement is required. In that case, these conditions will be integral part of these General Conditions.
Prices and payment
8.1. All prices are exclusive value added tax (VAT) and other government levies that are or will be imposed. Unless agreed otherwise all prices are in euros and customer should always pay prices in euros.
8.2. No price statement other than that agreed in writing between UNFOLDR and customer is binding.
8.3. In the event of non-timely payment, UNFOLDR may suspend or prematurely terminate its deliveries and services, without such prejudicing customer’s obligation to pay in full.
8.4. UNFOLDR has the authority to make interim adjustments to its prices and rates if during the term of the agreement there is a change in UNFOLDR’s costs, as a result of any provision in a collective agreement, law, decree or decision issued by (semi)government (including foreign governments). The foregoing also applies if such cost-increasing circumstances arise outside UNFOLDR’s sphere of influence that in all reasonableness UNFOLDR can no longer be expected to maintain the agreed price. In the event of an interim increase UNFOLDR shall notify customer at least 30 (thirty) days in advance.
8.5. If the customer fails to pay the amounts due or fails to pay these on time statutory interest is payable on the amount due by customer without any warning or notice of default being required. If after receiving a warning or notice of default customer still fails to pay, UNFOLDR may engage another party to collect the claim, in which case, in addition to the amount due all judicial and extra judicial costs shall be payable by customer including any fees charged by external experts.
8.6. Customer is not entitled to set off any pretence claim.
8.7. Objections to the amount of an invoice shall not justify customer in not paying or in suspending payment of amounts due. In the event of default by customer all costs incurred in obtaining payment out of court shall be payable by customer. All judicial and execution costs incurred, if any, shall be for customer’s account. Interest is also payable by customer on collection charges.
8.8. If customer is composed of several natural persons and/or legal entities, each of the persons/entities is jointly and severally liable in relation to payments due under the agreement.
8.9. In respect of the services provided by the customer and the amounts payable for these by customer the relevant documents and information from the administration or systems of UNFOLDR shall provide full proof, without prejudice to the right of customer to supply proof to the contrary.
Force majeure and/or exceptional circumstances
9.1. Force majeure is understood to be a failure that cannot be attributed to UNFOLDR either under law or according to the generally accepted standards. This also includes cases in which UNFOLDR is unable to comply due to a failure or carelessness on the part of third parties, whether or not such is culpable. Force majeure is understood to include: operational failure or interruption of any kind regardless of how they come about, delayed or late delivery by suppliers of UNFOLDR, including problems with transportation.
9.2. UNFOLDR may invoke force majeure if its compliance is prevented due to any of the aforementioned circumstances. UNFOLDR’s obligations shall be suspended for the duration of the force majeure. If the suspension continues in excess of 90 (ninety) calendar days each party is authorized to dissolve the agreement fully or in part, without having to pay compensation.
9.3. If, when the force majeure starts UNFOLDR has fulfilled part of its obligations it is entitled to invoice the goods delivered or work performed or the goods ready to be delivered separately. Customer shall pay this invoice as if it were a separate agreement.
Customer must report complaints no later than 5 (five) workdays after these are observed in writing or by e-mail or fax, stating reasons, to UNFOLDR. After the expiry of this term UNFOLDR shall be deemed to have complied in full. UNFOLDR shall process complaints received on time with due care and shall notify customer as soon as possible about the findings and possible solutions.
11.1. UNFOLDR accepts no liability for any damage whatsoever that arises as a result of force majeure/exceptional circumstances.
11.2. Customer indemnifies UNFOLDR against any third party claims for compensation in respect of damage that arises in any way due to unlawful or negligent use of goods and services delivered by UNFOLDR to customer.
11.3. UNFOLDR’s liability towards customer is in any case limited to the amount charged to customer that relates to the incident, services or goods causing the damage. UNFOLDR is in any case never liable for an amount higher than the insured amount paid out/covered by its professional liability insurer.
11.4. UNFOLDR is not liable for indirect damage, subsequential damage, loss of profit, lost savings, loss of goodwill, damage due to business interruption, damage due to claims of customer’s suppliers.
11.5. The above does not apply if the damage is the result of intent or deliberate recklessness on the part of the management of UNFOLDR.
11.6. Unless UNFOLDR’s compliance is permanently not possible, the liability of UNFOLDR due to a culpable failure to comply with an agreement shall only arise if customer has sent UNFOLDR a written notice of default forthwith, stating a reasonable term within which to rectify the failure and if even on the expiry of this term UNFOLDR continues to fail culpably to comply with its obligations. The notice of default must contain a description of the failure that is as complete and detailed as possible so that UNFOLDR is able to make an adequate response.
11.7. Each time the condition for the existence of any right to damages is that customer reports the damage to UNFOLDR as soon as possible after the damage occurs.
12.1. If UNFOLDR allows deviations from these terms and conditions, whether or not tacitly, for a short or longer period of time, such shall not affect its right to require strict compliance. Customer can never derive any right if UNFOLDR deviates from these conditions.
12.2. UNFOLDR has the right to modify these general terms and conditions from time to time.
All agreements concluded with UNFOLDR are governed exclusively by Dutch law, also in the pre-contract phase. Disputes between UNFOLDR and customer shall be heard exclusively by the competent court in Amsterdam.