GENERAL TERMS AND CONDITIONS TRACK TECHNOLOGIES B.V.
These general conditions apply to all offers, legal relations and agreements whereby Track Technologies B.V., hereinafter referred to as ‘Track’, offers goods and/or services of any nature to and/or with end users or resellers, hereinafter jointly and separately referred to as the ‘Customer’. This concerns in any case the User and License agreements of Track and its Customers. In the event of a continuing relationship between Track and the Customer, these General Terms and Conditions will continue to apply and do not repeatedly require to be declared applicable.
Deviations of and additions to these General Terms and Conditions are valid only if they have been explicitly agreed upon in writing.
1. APPLICATION OF GENERAL TERMS AND CONDITIONS
- Any purchase or other conditions of the Client shall not apply unless Track has explicitly accepted them in writing. Arrangements to the contrary, additional agreements or changes at a later date, as well as (oral) arrangements and/or undertakings given by employees, representatives or agents will only bind Track, if they have been confirmed in writing by Track.
- All of Track's offers and other communications are free of obligation, unless Track expressly indicates otherwise in writing. The Customer is responsible for the accuracy and completeness of the measurements, sizes, requirements, performance specifications and other data given by or on behalf of him/her/it to Track and on which Track bases its proposal.
- If any provision/provisions of these General Terms and Conditions is/are null and void, the other provisions of these General Terms and Conditions shall remain in full force. As far as the provision that is declared null and void is concerned, a provision will be used that is valid and has the same or practically the same effect.
- Track can always make (additional) requirements concerning the communication between Parties or the performance of legal acts by email.
- If Track does not require the strict compliance with these conditions, this does not mean that these conditions would not apply or that Track would lose the right to require strict compliance of these conditions in the future, whether or not in similar cases.
2. AGREEMENT, PRICE AND PAYMENT
- Purchase agreements between Track and the Customer are concluded by a written confirmation ofthe order by Track, or if Track confirms in writing that its implementation has started.
- All offers and quotations are free of obligation and based on the information supplied by the data provided in the request for an offer. The bids, tenders and quotations are valid for a period of fourteen days, unless agreed otherwise in writing. The Customer is responsible for the accuracy and completeness of the information provided by him/her. The prices are based on the rates, salaries, taxes, duties, charges, freight charges, etc. valid during theoffer, quotation or estimate. If after the confirmation of the order a change occurs in one or more of the above cost factors, Track is entitled to adapt the agreed price accordingly. If the price increase is more than 15%, the Customer is entitled to terminate the agreement.
- The Customer will pay all invoices in accordance with the payment conditions stated on the invoice. In the absence of specific conditions, the Customer will pay within thirty days after the invoice date. The Customer is never entitled to set-off and/or suspend the payment, insofar as the Customer is not a natural person, not acting in the exercise of a profession or business.
- If the Customer does not pay the amounts due in time, the Customer, without any warning or notice being required, is liable to pay an interest of 1.5% per month on the outstanding amount.
- If after having been given notice of default the Customer still fails to pay the outstanding amount, in derogation of Section 96 paragraph 5, Book 6 of the Dutch Civil Code and the Extrajudicial Collection Costs (Fees) Decree, the Customer is obliged to pay the extrajudicial collection costs, including all legal assistance costs, in full and in addition to the total outstanding amount at that time, with a minimum of 15% of the total amount due.
- If at any time Track has any reasonable doubts as to the credit worthiness of the buyer, Track is entitled to demand advance payment from the Customer before performing or continuing to perform, or to require security from the Customer for the outstanding amounts the Customer owes or will owe to Track, whether or not due and payable.
3. TRANSFER OF TITLE
- A delivery date agreed upon is never a strict deadline. All deadlines stated by Track or agreed upon are fixed to the best of Track's knowledge on the basis of the information known to Track at the time of entering into the agreement. In the event of a late delivery, the Customer must give Track written notice of default, whereby the Customer is to allow a reasonable term of 30 days for the delivery after the notice of default.
- The commercial communications by Track, such as brochures, advertisements, letters and emails, have been prepared to the best of Track's knowledge, but are only mere estimates and approximations of the reality. Only major deviations that will have an extremely adverse effect on the operation of the delivered goods will entitle the Customer toterminate the agreement, in which case neither of the Parties is entitled to damages.
- Track is entitled to refuse orders from Customer or not deliver, if (i) acceptance and/or implementation thereof is contrary to the existing or new legislation or regulations, (II) the Customer acts in breach of his obligations to Track under any agreement or these General Terms and Conditions, and/or (iii) the Customer acts unlawfully toward Track.
- All risk of loss and damage to a Product purchased the by Customer passes to him/her/it at the time of the start of the transport of the product to the Customer, unless agreed otherwise in writing.
4. ONWARD SUPPLY
- The Customer is only allowed to direct or indirect onward supply of the goods bought to non-end users after Tracks’ written permission.
- The Customer explicitly agrees not to export the purchased goods either directly or indirectly.
- If the Customer acts in breach of the first two paragraphs of this article, Track is entitled to terminate all agreements with the Customer with immediate effect and to cease all deliveries, without the Customer being entitled to damages of any kind whatsoever. Track will also be entitled to recover any damage to its trade and image from the Customer.
- In case of onward delivery to non-end-users, the Customer indemnifies Track for all claims by these non-end-users, for whatever reason, subject to the warranty obligation included in the User Agreement that Track has provided to the Customer and may have supplied with the goods/services to be delivered.
5. RETENTION OF TITLE AND LIEN
- All goods supplied by Track shall remain its property until the Customer has complied with all the obligations in each of the agreements concluded with Track (of whatever kind). This retention of title also extends to claims for the failings in the fulfilment of the agreements referred to in this Article, including those for damages and compensation for extra-judicial and judicial costs, contractual and legal interest, fines and periodic penalty payments.
- Goods subject to retention of title supplied by Track may only be resold in the framework of the Customer's normal business operations. The Customer is not entitled to pledge the goods or to establish any other real right in them.
- Regarding the rights to any claim on third parties resulting from the sale of goods subject to retention of title supplied by Track that arise or will arise, the Customer undertakes to assign these to Track on demand, or, at Track's discretion, to pledge these.
- If the Customer fails to fulfil his/her obligations, Track is entitled to remove the goods delivered subject to retention of title from the Customer or the third parties that have the goods in their possession on the Customer's behalf. The Customer is obliged to cooperate in this, on penalty of a fine of 10% of the amount due by the Customer to Track for each day or part of a day that the Customer is in default.
- If any third party wishes to create or assert any right to the goods delivered under retention of title, the buyer is obliged to inform Track immediately.
- The Customer is required to insure the goods delivered subject to retention of title and to keep them insured against fire, explosion and water damage, as well as against theft, and to submit the insurance policy for inspection.
- Payments by the Customer will first serve the satisfaction of all interest and costs owed by the Customer and then the most overdue and payable direct claims of Track.
- All software and computer software associated with the supplied goods will remain the property of Track at all times. In case of a contract of sale between Track and the Customer, the Customer only ever purchases the media or hardware, but never the software and/or computer software that might be on these media or hardware.
- If the Customer puts delivered goods in use, the Customer will be granted a license for the corresponding software and computer software. The License Agreement enclosed with the goods supplied shall apply.
7. INTELLECTUAL OR INDUSTRIAL PROPERTY RIGHTS
- All intellectual and industrial property rights attached to the software, websites, databases, equipment or other materials such as analyses, designs, documentation, reports, offers and any preparatory material thereof developed or made available under the agreement, are exclusively held by Track, its licensors or its suppliers. The Customer shall only acquire the rights of use explicitly granted by these General Terms and Conditions and as prescribed by law. Any other or more extensive right of the Customer to reproduce software, websites, databases or other materials is excluded. A right of use granted to a Customer is non-exclusive and non-transferable to third parties.
- The Customer is not allowed to modify or remove any indication concerning the confidential nature or any copyrights, brands, trade names or other intellectual or industrial property rights from the software, websites, databases, equipment or materials.
- Track is allowed to take technical measures to protect the software or regarding the agreed restrictions in the duration of the right to use the software. The Customer is not allowed to remove or evade such a technical measure. If these safety measures result in a lack of a back-up of the software for the Customer, Track will make a copy available upon the request of the Customer.
- Unless Track provides one back-up copy of the software to the Customer, the Customer is entitled to make one back-up copy of the software, which may only be used to protect against involuntary loss of possession or damage.The back-up copy will be installed only after involuntary loss of possession or damage. A back-up copy must have the same labels and indications of copyright as present on the original copy.
8. LIABILITY; INDEMNITY
- Without prejudice to the applicable mandatory legislative provisions regardingproduct liability, Track is not liable for any failure in the implementation of the Agreement or for any goods and/or services, unless this is the result of intent or gross negligence on the part of the Track and/or its executives. The Parties expressly agree to exclude Section 21 of Book 7 of the Dutch Civil Code.
- Track is never liable for indirect/consequential and/or business interruption damage (including, but not limited to, lost profits, lost savings and loss of interest), production faults, goodwill, damage to or replacement of equipment and property, cost of recovery, re-programming and reproduction of programs and data that form part of or are used in combination with thegoods provided, any immaterial damage and any infringement of the confidentiality of data stored in the relevant case. Liability for this damage is excluded.
- Track's total liability for direct damages will never exceed the amount paid by Track's liability insurer in this matter, and, if the liability insurance no longer is in force, the cost of the damaged or not delivered goods.
- Direct damage means exclusively:
a. the reasonable costs that the Customer would need to incur to have Track's performance comply with the agreement. This damage, however, is not reimbursable if the Customer has terminated the agreement;
b. the costs that the Customer has incurred in keeping the existing system/systems and related services operational longer because Track did not deliver on its binding delivery date, less any savings as a result of the delayed delivery;
c. reasonable costs made to determine the cause and extent of the damage, as long as this determination regards the direct damage within the meaning of these General Terms and Conditions;
d. reasonable costs made to prevent or limit damage, insofar as the Customer demonstrates that these costs have led to a reduction of direct damage referred to in these General Terms and Conditions.
- Track's total liability for damage caused by death or bodily harm will in no case exceed 400,000 Euros (in words:four hundred thousand Euros) per occurrence, in which a series of related events will count as one occurrence.
- The notice of Track’s liability is to be made immediately and properly in writing, within at most 5 days after the discovery of the alleged basis of the liability. The notice of default must include an as detailed as possible description of the alleged failure, to allow Track to react adequately.
- Track accepts no liability for any damage of the Customer as a consequence of or related to the misuse or improper use by the Customer or by a third party of the software and other goods and/or means of communication and/or other facilities delivered by Track, as a result of which acts (including the conclusion of agreements) are performed that Track has not ordered or has ordered otherwise.
- Track is not liable for damage as a result of the revoked and/or cancelled acts (including the conclusion of agreements) and the failure of these to be carried out by Track and/or third parties, unless this is the result of intentional acts and/or gross negligence on the part of Track.
- The Customer states to be aware that Track neither wants to nor shall promote infringements of the laws and regulations, whether implicitly or explicitly. The Customer expressly agrees that it is his/her/its responsibility, and if he/she/it acts in the capacity of reseller, of his/her/its customers, to know and to keep abreast of all applicable laws and regulations at all times, and that it is entirely and solely his/her/its responsibility, and if he/she/it acts in the capacity of reseller, of his/her/its customers, to abide by these laws and regulations. The Customer will in no case hold Track/have Track held liable or responsible for the unauthorized, unlawful and/or illegal use of the delivered goods or for any other infringement of the applicable laws and regulations by the Customer.
- In no case will Track reimburse any installation and removal costs of the supplied goods, neither to the Customer or to the person or company that bought or received the goods from the Customer, even if the installation and/or removal is the result of material damage and/or a manufacturing defect covered by the guarantee. The Customer is required to test the delivered goods/have the delivered goods tested for their proper operation before installing them or having them installed.
- After the expiry of one year after the injurious fact, all liability of Track will end to the extent that the Customer is not a natural person, not acting in the exercise of a profession or business.
9. FORCE MAJEURE
- None of the Parties is held to fulfil any obligation if prevented from doing so as a result of force majeure. Force majeure includes force majeure of suppliers of Track, suppliers not properly fulfilling the obligations prescribed by the Customer to Track, as well as the inadequacy of goods, materials and third-party software, the use of which having been prescribed by the Customer to Track.
- If a force majeure situation continues for more than ninety days, the Parties have the right to terminate the agreement in writing, without the Parties otherwise owing each other anything.
10. APPLICABLE LAW AND DISPUTES
- All agreements between Track and The Customer shall be governed by Dutch law. The application of the 1980 Vienna Sales Convention (CISG) is excluded to the extent that the Customer is not a natural person, not acting in the exercise of a profession or business.
Any disputes between Track and the Customer will be settled by a competent court of the Central Netherlands District Court, insofar as the Customer is not a natural person, not acting in the exercise of a profession or business.
ANNEXE: ELECTRONIC DATA TRANSFER - GENERAL TERMS AND CONDITIONS TRACK TECHNOLOGIES B.V.
This annexe is an integral part of the applicable General Terms and Conditions of Track Technologies B.V. (hereinafter referred to as ‘Track’) .
1. EMAIL COMMUNICATIONS
- In the framework of these General Conditions and all agreements, an email is considered to equal a written declaration.
- In the event of a dispute about whether or not an email was received or sent, Track's log file data will provide conclusive proof.
- Emails are deemed to be received if they are accessible for the other party, in any case including the moment they have reached the mailbox of the receiving party.
2. TELECOMMUNICATION FACILITIES
- The Party that makes use of the telecommunication facilities, is responsible for its selection. If Track uses telecommunication facilities, Track will be liable for the damage resulting from a mutilation of or a delay in the transport of the data, without prejudice to the other provisions of these General Conditions, if and insofar as the damage can be passed on to the relevant telecom operator.
3. MATERIALS AND DIGITAL INFORMATION
- All materials and digital information relating to the order, that should be made available to the Customer in the context thereof, will be transferred to him/her/it on the Customer's first request, but only after the Customer has fulfilled all his obligations to Track. The costs of the necessary data carriers are for the Customer's account. The same applies to the Customer in respect of materials and digital information from Track, unless otherwise agreed.
4. DATA AND FILES
- These terms and conditions apply to the websites operated by Track and to all on-line services provided by Track and/or to which Track's General Terms and Conditions apply.
- Track processes the data of the Customer in the strictest confidence. These are not made available to third parties, unless Track is required to do so by law or if this is necessary for the delivery of the services. Track meets the applicable privacy requirements. If the Customer provides data to Track, these data shall be stored in a file.If the Customer places an order through a Track website, Track will register these orders by name. The Customer's data will not be made available to a third party, unless this is necessary to ensure that the order of the Customer is executed.
- The file in which the Customer's orders are included, is also used to make personalized offers to the Customer, unless he/she has indicated his/her objection thereto via the website. The file can also be used for the statistical and personal analyses.
- Some of the Track files, in accordance with the Personal Data Protection Act, may be registered with the Dutch Data Protection Authority in The Hague. The holder of the file is Track Technologies B.V.
- Track would like to point out to the Customer that it is unavoidable that third parties may log the frequency with which the Customer visits the Track websites by name.
5. INTELLECTUAL PROPERTY RIGHTS
- If the Customer sends Track a message, for example to publish that on a Track website, in doing so, the Customer authorizes Track to publish that message (including the name specified by the Customer), to copy and/or edit it, without being obliged to pay a fee.
- Data that the Customer specifies to Track regarding bank account numbers or credit cards, are sent via a secure internet protocol. The remaining registration and orders are not sent secured.
- Periodically, Track has a virus check performed to ensure as much as possible that the Track websites are and remain virus-free. However, Track cannot guarantee the websites being free of viruses.
7. INFORMATION VIA THE TRACK WEB SITES
- The information that the Customer finds on the Track website is composed with great care. However, Track cannot guarantee that the information on the website is complete and correct at all times. As a user, the Customer himself/herself/itself is responsible for his/her/its decisions and related actions, undertaken on the basis of the information on the Track website. The information on the Track websites will be updated from time to time. That also applies to the General Terms and Conditions applicable to other services that are offered through the websites. The changed conditions apply as soon as they are published on the Track website.
- If the Customer finds errors on the Track web sites, Track would appreciate it if the Customer so informs Track.
- If the Track website contains links to third party websites, it is important to note that Track chooses the websites referred to as carefully as possible. However, Track cannot vouch for the content and operation of the third party websites.
8. FORMATION OF AGREEMENT
- The agreement between the Customer and Track becomes effective when the Customer receives Track's acknowledgement of receipt of the approval by electronic means.
ANNEXE: GUARANTEE PROVISIONS -
GENERAL TERMS AND CONDITIONS TRACK TECHNOLOGIES B.V.
- Track Technologies (hereinafter: 'Track') grants the end user of the product or service delivered by Track a two-year guarantee from the date of registration by the Customer on Track's website, or if registration is not available or the date of the initial purchase is prior to the date of registration, from the moment of the initial purchase of the product or service delivered by Track.The guarantee does not apply to installation and removal of the delivered products and for hardware of other producers and never to software, even if this is included or sold with the Track hardware. A condition for the guarantee is, that the delivered goods are used normally and that the installation and maintenance regulations are followed. Furthermore, the guarantee is only granted if the product delivered by Track was new and unused at the time of purchase.
- These Guarantee provisions are part of Track's General Terms and Conditions.
- This guarantee explicitly does not apply to:
a. economic aging as a result of normal use and normal storage;
b. damage as a result of incorrect or improper maintenance and/or installation;
c. damage caused to the product by external causes such as fire, water, vapour, liquid, ice, accident, improper use, dropping, neglect, incorrect or improper use.
d. damage for services delivered by someone other than Track;
e. damage caused by adjustments or modifications, made without written permission of Track;
f. non-registered products.
3. INVOCATION OF GUARANTEE
- In the event of an invocation of the guarantee, Track has to receive the product (or the defective part thereof), the original receipt, or at least the documents evidencing the purchase, and a written description of the problem.
- These guarantee conditions apply exclusively and replace all previous oral or written guarantees. Any other guarantee scheme is excluded, among which, without limitation, the guarantee of marketability and suitability for a particular purpose.
- Track is not liable for any direct, special, incidental or consequential damages arising from non-compliance with these guarantee conditions. Track does not guarantee that the products delivered under this guarantee can be restored, that programs or data will not be lost during the repair or replacement of the delivered goods and in the framework of this guarantee. In no case will Track's total liability under its guarantee ever exceed the costs of the damaged or not delivered goods.
6. DEROGATION AGREEMENT
- Derogation from these guarantee provisions is only possible if these derogations have been confirmed in writing by the Track's competent representative.