Conditions Emss B.V.
Conditions: European Marketing And Sales Systems B.V., established in Silvolde, Berkenlaan 98, 7064 HT, Netherlands.
Article 1. General
1. The present conditions apply for all tenders, requests, communications and agreements from European Marketing And Sales Systems B.V., hereinafter referred to as "Emss", implementation thereof; all agreements whereby Emss acts as service provider, as well as all the agreed upon concluded agreements of sale and purchase as well as all joint agreements. Each of the parties may refer to the provisions of this agreement.
2. The applicability of any purchase- or other conditions invoked by the other party is explicitly declined.
3. To the extent any provision or part of any provision of these terms and conditions or the agreement to which these conditions apply is void or voidable, the remaining provisions of these terms and conditions or the agreement to which these general conditions apply remain in place.
4. Emss has the right to have certain activities performed by third parties. The applicability of Article 7: 404, 7: 407 paragraph 2 and 7: 409 of the Dutch Civil Code is expressly excluded.
Article 2. Offers
1. The offers, in whatever form, and the information contained in publications from Emss are entirely without obligation and are revocable. After acceptance, Emss still has the right to revoke the offer after acceptance from the other party after three business days.
2. Data from printed materials and websites provided by Emss are subject to change without holding Emss responsible for having to provide notification of said changes.
3. The prices quoted by Emss do not include VAT. and do not include insurance- freight- and delivery costs. Additional costs for express shipments will be borne by the other party. Emss reserves the right, without offering reasons, to send ordered goods with cash on delivery.
4. All time provisions included in the offer are only included for estimation purposes and should therefore be considered an estimate. All timings mentioned in the offer are made only for the purpose of Emss and therefore indicative. The installments for the other party should be regarded as firm deadlines. An offer is always revocable before acceptance, even if it contains a time nomination. All dates provided by Emss shall only be considered target dates.
5. Any installation costs, assembly costs and other costs associated with the delivery and commissioning of the delivered will only be considered an included part of the offered price if this is stated in the offer or contract in writing.
6. Emss cannot be held to its quotations or offers if the other party can reasonably understand/assume that the bids or offers, or any part thereof, contain an obvious mistake or error.
7. If the acceptance deviates from the offer, whether the deviation is on secondary items or not, Emss is not bound to these differences. The agreement will not be concluded in accordance with this deviating acceptance.
8. An estimate does not oblige Emss to conclude (part of) the assignment against a corresponding part of the price.
9. Offers or quotations do not automatically apply to future orders.
Article 3. Prices
1. Agreed prices are based on exchange rates and the cost of materials, transportation, wages, taxes and fees, import duties and other price determinants applicable on the day of conclusion of the agreement.
2. Emss is at all times entitled, even after order confirmation or in so far as this refers in respect to the price to the sale, if any increase in price-determining factors such as described the first paragraph of this article occur before delivery, even if such occurred under at the conclusion of the contract foreseeable or unforeseeable circumstances, prices without prior notification after the offer. If the agreed price increases within three months following the conclusion of the contract and the other party is a private individual not acting in the course of business or profession, the other party is entitled in this case to terminate the contract.
2. Emss is entitled at any time, even after order confirmation or where such respect to the price refers to the offer after offer, if before delivery any increase of price determining factors as mentioned in the first paragraph of this article occurs even if this is done under at the conclusion of the contract foreseeable or unforeseeable circumstances, increase its prices without adjusting notice. If the agreed price increases within three months after the conclusion of the contract and the other party is a private individual not acting in the course of business or profession, the other party is entitled in this case to terminate the contract.
3. Emss will notify the other party of the price increase as quickly as possible. Emss will also provide a specific price increase. The payment of additional costs based on this section will be identical with those of the principal or the last installment thereof.
4. The provisions determined in paragraph 2 apply equally if the aforementioned price changes occur with a subcontractor, causing them to adjust its price with respect to Emss.
Article 4. Realization and contents of the agreement
1. An agreement is established through written confirmation by Emss and/or its duly authorized proxy-holders according to the commercial register. Any subsequent supplementary agreements or amendments are only enforceable if confirmed in writing by Emss.
2. The date of the conclusion of the agreement will be the date will be the day that confirmation is sent. A packing slip, delivery note or invoice issued or sent by Emss shall also be considered as a confirmation in relation to the purchase agreement that includes the items listed on the bill of lading or invoice.
3. Agreements with or communications from subordinate employees of Emss do not bind the latter insofar as these are not confirmed in writing by Emss. All employees and workers who have no procuration according to the Trade Register will be considered as subordinate staff in this context.
4. The other party is bound to the agreement and will be responsible for potential losses by Emss - costs already incurred, lost profits, loss of interest and the like in the event of changes and/or cancellation. They will be obligated to compensate Emss for whatever reason - including force majeure - for changes and/or cancellation, regardless of acceptance from Emss. A loss of profit will be considered to be at least 40% of the purchase price or contract price. Emss reserves the right to prove higher damages and claim said damages.
5. If during the execution of the agreement it is determined that it is necessary for the proper implementation thereof to amend or supplement the agreement, then parties will proceed swiftly and in mutual agreement to amend the agreement. If the nature, scope, or content of the agreement is changed, whether upon request or instruction of the other party, and the agreement would be qualitatively and/or quantitatively altered, this may affect what was previously agreed upon. This may also increase or decrease the amount originally agreed. By amending the agreement, it may also change the initial period of implementation. The other party accepts the possibility of amending the agreement, including a possible change in price and time of execution.
6. If the agreement is amended, including an addition to the agreement, Emss is entitled to first implementation after agreement has been given by an Emss authorized individual and the client agreed with the price and other conditions specified for continuing the agreement, including the determination when it will be implemented. Failure to not immediately implement the amended agreement does not constitute breach from Emss and does not offer the client any reason to terminate or cancel the agreement.
7. Without being in default by doing so, Emss can refuse a request to amend the agreement if it has a qualitatively and/or quantitatively influence. For example, if it affects the proceedings or the good to be delivered in that context.
8. All hours of travel incurred by Emss within the context will be considered as working hours and will be charged thusly.
Article 5. Delivery of products and services
1. Delivery of products and services from Emss is done from the Emss warehouse/office.
2. At all times Emss has a best efforts obligation and never an obligation of result.
3. When one of the "Incoterms" is agreed upon in the delivery terms, the Incoterms will, as published by the International Chamber of Commerce of Paris, apply at the time of conclusion of the contract. If terms are used which are also included in the list of Incoterms, it will mean these terms have the meanings given under the Incoterms.
4. The other party is obligated to accept the purchased goods at the time these are made available to them under the contract or at the time that these are delivered to him/her or at his/her given address. If the other party refuses to take delivery or fails to provide the necessary information or instructions to make a possible delivery, the goods will be stored at the expense and risk of the other party.
5. If the goods should be delivered to an address indicated by the other party, the costs and risks of transport - from the delivery address to the storage location – will come at the expense of the other party, as well as the costs and risks for the transport from the warehouse to the final place of delivery. Any reasonably incurred costs shall be borne by the other party.
6. An agreed delivery period is only approximate. Emss is not responsible for deviation of delivery times, regardless of the cause, and the other party is consequently obliged to accept the purchased goods even with a deviation of the delivery times. Exceeding the delivery period never entitles the other party to compensation, termination, or conversion of the contract or the right not to fulfil any of the obligations under this agreement
7. A contractual penalty due to a delay in delivery terms will not be owed if the exceedance of delivery term is due to force majeure.
8. The delivery date is fixed in the expectation that work is possible at the time of the offer and the assumption that all issues, information, and work will be supplied by third parties and other party in a timely manner.
9. A delivery period, notwithstanding paragraph 1 of this article, will commence after the specified job has been accepted by Emss in writing, all information and details necessary for implementation are in possession of Emss, complete, accurate and in writing, and when partial or full agreed upon prepayment is in possession of Emss.
10. Any agreement is entered into by Emss under the condition that the other party is sufficiently creditworthy. Emss is entitled to require the other party to provide adequate assurance to cover its obligations to Emss. Emss is entitled to suspend the execution of the agreement and delivery until the required security has been provided.
11. Delivery is deemed to take place when the goods designated for shipment leave the Emss warehouse or its suppliers for the address (including e-mail address) provided by the other party.
12. In the event of a purchase and supply agreement Emss is, if part of the delivery order is ready, free at their discretion to deliver this part, or to wait until the entire order is ready. In case of partial delivery, the other party is expected to pay relevant invoices and to comply with the provisions of these terms and conditions.
13. Unless not expressly agreed that delivery will be made from stock, Emss has the right to deliver from third party stock.
14. In case the delivered goods are to be used outside of the Netherlands and these goods have to adhere to the technical requirements or standards prescribed by the government in that particular country, Emss is solely responsible for the delivery of goods that adhere to technical requirements and/or meet standards if the client has presented the specific applicable legal requirements and technical standards in writing and made them part of the agreement.
15. All other technical requirements set by the other party in relates to the goods to be delivered that deviate from the standard specifications provided by Emss, will have to be expressly accepted in writing by Emss.
Article 6. Transfer of Risk
The goods to be delivered after leaving the Emss or its supplier’s warehouse/office are at risk for the other party. The other party is liable for all damage caused by/to those items during the transport of the goods, which include, but not exclusively limited to, fire and water damage, theft and embezzlement. The other party must ensure proper insurance against said risks. Emss is authorized to reserve the right to require the other party to provide proof of insurance referred to in the previous sentence before the delivery of goods.
Article 7. Warranty
1. Emss guarantees the proper functioning of goods/services delivered to the other party, in accordance with the specifications, features, and functions provided to the other party in writing, for the period of three months from the date of delivery.
2. For software and websites licensed by Emss to other parties, Emss does not offer any guarantee that the software and site will function without interruption or defects. Emss is never liable in these instances.
3. In the event of shortcomings attributable to service and/or maintenance by Emss, Emss guarantees replacement services up to three months after delivery.
4. Under warranty, Emss, at its own cost, will repair or rectify all defects, while replacement parts will still be owned by Emss.
5. In carrying out warranty work for the other party, the other party will reimburse travel and accommodation expenses and travel time accrued by Emss.
6. Where there is mention regarding lifetime service/membership, it refers to 36 months or for as long as Emss is willing and able to offer these services made in the agreement. If Emss ceases to provide said service/membership, it will never be liable or owe any compensation.
7. The warranty does not apply to careless, improper or incorrect use, accidents or contingencies such as fire and water damage, lightning, power failure, loss of Internet connection or if Emss can prove that the defects are attributable to causes other than material construction and design defects or if the products supplied were modified or serviced by someone other than Emss. The warranty also does not apply if the other party or third parties have made changes or additions, or attempted to make changes or additions, without the express written consent of Emss.
8. In the event that Emss evokes business- or user charges through a subcontractor, the warranty conditions of said subcontractor will apply. Emss will inform the other party upon first request.
9. The other party should provide Emss with ample opportunity to repair/fix any shortcomings at all times.
10. The guarantee only applies if the other party has met any and all obligations to Emss promptly and fully.
Article 8. Liability
1. Emss is only liable for damages of the other party resulting from a breach by Emss in the fulfillment of its contractual obligations to the other party, on the understanding that this liability is limited as indicated in paragraph 3.
2. The legal liability to other parties is limited as indicated in paragraph 3.
3. The liabilities referred to in paragraphs 1 and 2 shall be limited as follows:
a. Damages will only be reimbursed up to an amount of € 5.000.00 per event or series of related events;
b. Emss is not liable for any indirect or consequential losses such as business interruption, loss of savings, profits or turnover, rate losses, costs of technical expertise, legal advice, and assistance, loss of data, or the loss or reduction of the integrity of data.
c. Insofar as suppliers or subcontractors are able to rely on exoneration clauses against Emss that limit or exclude liability in relation to Emss or provisions that provide an enactment of legal facts, such as the amount of damages, Emss is able to invoke the same provisions.
d. Claims for damages must immediately, but at least within two months after the warranty period, be submitted, or, if the contract also provides for maintenance, after the maintenance obligations are complete, be delivered to Emss in a registered letter fully and in detail. Emss is not liable for damages for untimely, incomplete, undetailed, information not sent through registered letter.
e. Any provisions agreed between the parties to this agreement to limit liability, are also stipulated on behalf of the employees of Emss and any auxiliary persons hired for the completion of the agreement.
f. Regardless any additional clauses, Emss is never more or differently liable than determined in the preceding paragraphs.
g. Emss is not liable for damages of any kind, caused by Emss using incorrect and/or incomplete data provided on behalf of the Other Party, or data not submitted in a timely manner.
h. Emss is not liable for the suspension of its services in accordance with Article 18.5.
i. Emss is not responsible for maintaining the website. Moreover, Emss is not liable when the anti-virus software supplied by the other party, or third parties from Emss, is not deemed adequate, partly because of new developments.
4. Emss has a best efforts obligation and never an obligation of result at all times. This means that Emss does its best to achieve stated targets, but Emss is not liable if these targets are not achieved.
5. In the event that Emss, notwithstanding the foregoing paragraphs, is to be held liable, they are only liable to reimburse the damages to be paid that are paid by the insurance taken out for this specific case, or in the event that Emss is not insured, they will be liable for the damages that can be recovered from third parties.
6. The other party indemnifies Emss for any eventual claims by third parties in connection with the execution of the Agreement, including claims regarding intellectual property rights.
Article 9. Payments
1. Payments must be made without discount or reimbursement within fourteen days after the invoice date at the offices of Emss or by transfer to a bank account designated by Emss. However, Emss reserves the right to make certain purchasers subject to a shorter payment period. Emss is entitled, if it deems it necessary, to require the other party to provide additional assurance for payment of the agreed price.
2. By exceeding the payment, the other party is legally in default and therefore owes Emss interest at a rate of 1.5% per month from the due date or part of the entire invoice amount, without further notice. All judicial and extrajudicial costs associated with recovery shall be borne by the other party. The extrajudicial costs are set to at least 15% of the amount to be recovered and VAT with a minimum of € 125.00 and are owed at the time that a claim for collection is started. Additionally, Emss retains all rights in accordance with the law at all times.
3. Discount for cash or advance payment will not be provided. Outside the principal in relation to services and deliveries, additional costs and interest referred to in this article as defined in the terms, Emss is entitled to recover all costs, caused by a shortcoming in the performance of the obligation from the other party.
4. In case of non-payment of an amount due, suspension of payment, request for suspension of payments, bankruptcy or liquidation of the other party, or when the other party’s movable or immovable properties are seized, or if other party fails in the fulfillment of the agreement in any way, including the provisions of these terms, Emss shall be entitled to dissolve the contract or the part of that had to be implemented by that date, without judicial intervention and without any damages. If the compensation required is dissolve and consequently not performed work not to be done, to refrain from recovering the supply not yet delivered, the goods have not yet been paid, respectively, subject to the right of Emss to damages for failure to perform the commitment and the right of Emss to default on the agreement to set up an agreement for alternative compensation. In the above cases all claims, including those for which the payment has yet occurred, costs borne by Emss becomes immediately due and payable by the other party.
Article 10. Complaints
1. The other party is expected to inspect (or have inspected) the purchased goods, delivered software, delivered information, provided Internet services, as soon as possible but no later than eight days after delivery. The other party has to ascertain whether the deliver goods meet the agreement concluded, namely:
a. whether the correct goods, software, information or Internet services were delivered;
b. whether the goods coincide with the agreed upon quality;
c. and/or whether the goods supplied and/or delivered software, information and/or Internet services delivered meet the expressly agreed upon quality or functionality requirements or, in their absence, the requirements that can be expected according to commercial usage in the Netherlands
2. If visible defects or deficiencies are detected, the other party needs to report these to Emss in writing and in full detail through registered letter or writ.
3. Non-visible defects should be reported by the other party in writing and in full detail within 3 days after discovery, but no later than 30 days after delivery.
4. Failure to meet of the above research and/or notification deadlines means that the other party in the agreement has no rights to invoke with Emss without prejudice to the obligation of the other party to fulfill its commitments under the agreement with Emss.
5. If the other party files a complaint in a timely manner, this does not suspend the payment obligation. The other party will remain obliged to accept and pay for what they commissioned from Emss.
6. If it is established that an item is defective and notification of this is provided in a timely manner, and provided the item is returned or when a return is not reasonably possible, Emss will, at the discretion of Emss, replace or repair the item or offer alternative compensation. In case of replacement, the other party is obliged to return the replaced good to Emss and to transfer ownership of said item to Emss.
7. If it is established that a complaint is unfounded, then the costs incurred, including research costs for Emss, will be at the expense of the other party.
Article 11. Joint and several liability
1. Anything - payment or otherwise – that Emss is entitled to through obligations arising from the purchase agreement or commitments resulting in these provisions, without exception, is jointly owed by the owner or administrator of the other party or by anyone else who has decision-making power regarding this case, regardless of whether they gave the order to Emss to supply goods or services in their own name and/or for its own account or for the account of third parties, with the note that performance of these obligations releases the liability for the other parties involved.
Article 12. Force majeure.
1. Without prejudice to its further rights Emss has, when unable to perform or perform the contract in a timely manner through force majeure, the right to suspend the execution of the agreement or the agreement entirely or in part through written notice, at the discretion of Emss without Emss being liable for any damages or otherwise held accountable in any way. This does not affect the other party's obligation to pay for goods that have already been delivered and costs already incurred.
2. Force majeure is understood to mean any circumstance independent of the will of Emss - even if this could have been foreseen at the time of conclusion of the agreement - as a consequence that performance and/or timely execution of the agreement cannot be demanded reasonably and fairly, including at least war, revolution, threat of war, civil war, insurrection, strikes, lockouts, transport difficulties, fire and/or disruption at the Emss facility or one or more of its suppliers, delayed delivery of timely ordered materials, raw and auxiliary materials or components, flood, storm, tornado, hail, rain, fog, frost, snowfall, sleet, traffic jams, the effects of computer viruses, disruption of the energy supply, Internet connection or drinking water and government measures.
3. Emss is also entitled to invoke force majeure if the circumstance prevent (further) fulfillment of the contract after Emss is expected to fulfill its commitment.
Article 13. Retention of ownership and transfer of ownership.
1. All goods delivered remain the property of Emss until the other party has fulfilled all obligations relative the agreement, including obligations under these terms and conditions or associated undertakings. Until that time, the other party is deemed to have the goods on loan from. The third party may therefore not mix, process, sell, pledge, or deliver these goods. The third party is expected to treat the goods as though they will not remain, meaning Emss remains both owner and possessor of the goods.
2. Emss is irrevocably authorized by the other party to take possession of the goods delivered by Emss without notice of default in the event of non-performance or defective performance and can enter the premises of the other party to do so.
3. The other party is not allowed to, during the period including the reservation of ownership for Emss, change, damage, or remove serial numbers, markings, and unit designations applied to goods, under penalty payable to Emss of 100 % of the invoice amount with a minimum of €500. -
Article 14. Intellectual property rights.
1. Emss expressly retains the copyright and all other intellectual property rights in respect to provided computer programs, software, information, drawings, calculations, models, designed websites, logos, audio and video recordings, guides, study materials, etc. These rights remain with Emss, even if a fee has been charged. A transfer of Emss’ intellectual rights can only occur through a document explicitly stating this fact.
2. Featured works will not be copied without written permission from Emss, nor translated nor be made available to third parties for inspection, and may not be disclosed to anyone else. All documents must be provided to Emss upon first notice.
3. In the event of noncompliance with the provisions of this article, the other party will pay a fine of € 50,000.00 (fifty thousand euros) per day per violation, payable without notice, claimable without default being necessary.
4. The other party is responsible for the accuracy, completeness, and copyrights of all supplied data and information used by the other party. The other party indemnifies Emss for any claims for damages by third parties that may result in the execution of the agreement. If Emss is addressed by a third party for this reason, the other party is held to assist Emss both in intrajudicial and extrajudicial matters without delay to what may be expected in that case. If the other party were to fail to take adequate measures, Emss, without notice of default, is entitled to do so themselves. All associated costs and damages for Emss and third parties will be on account and risk of the other party
Article 15. Confidentiality
1. The other party is prohibited from using any information that is obtained from Emss and having been informed that this information is confidential, or at least where the other party could reasonably suspect this to be so, including in any case computer programs, software and websites including confidential information and information relating to prices, discounts, and comparable terms and conditions from Emss, audio and video recordings, guides, study materials and keep this information confidential and not share it with a third party, such on penalty of an immediately payable fine of € 50.000.00 per violation.
2. Emss will be entitled to use prepared newsletters, informational products, training materials, and Emss services for promotional and educational purposes both for Emss or Tom Sexton, as well as refer to and make public concluded agreements, and activities performed for the other party including logos, websites, corporate identities, text/copy marketing campaigns, scenarios, audios, videos, podcasts, etc. on the website of Emss and Tom Koster.
Article 16. Hiring one other's employees
1. It is not permitted for other parties to employ an employee of Emss or from third parties engaged by Emss involved in carrying out the agreement or employ on a legal basis in any way within one year after the end of that agreement unless Emss provides written permission to do so. Upon violation of this provision, the other party owes an immediately payable penalty that corresponds to one full year's salary of that employee. In case of violation of this provision, the other party owes an immediately payable penalty without further notice, calculated by taking the last year before the employee was employed by the other party with a minimum of € 5000, -, without it affecting Emss’ rights to full compensation
Article 17. Installation
1. Only when agreed in writing shall Emss install equipment, computer software and web software in the agreed upon processing unit or have them installed.
2. If because of the other party, installation cannot take place on time, the other party will make payments as if installation took place in a timely manner, without prejudice to Emss’ obligation to re-install at a later to be determined date.
3. Insofar as the discretion of Emss deems it necessary for the proper execution of this Agreement the other party shall make available at the request of Emss the following:
a. specification, documentation, access codes and instruction manuals of the equipment, software and web sites, where the system to be delivered can be connected;
b. User facilities on computer systems, websites and telecommunication facilities with sufficient capacity;
c. a safe workspace that meets the requirements on which they are commonly made for the proper execution of the work;
d. safety instructions, training and resources, if circumstances so require;
e. Raw materials and consumables that are required to test that which is provided by Emss.
f. support by appropriately informed and knowledgeable staff;
g. all necessary information;
4. The other party shall ensure that the environment where the completed product will be installed and tested is suitable for this work in a timely manner. Necessary work in this respect shall be borne by the other party.
Article 18. Early termination/cancellation /suspension
1. Each party is entitled to cancel or partially cancel an existing agreement (such as a maintenance contract) through registered letter or claim cancellation in court if:
a. the other party requests a suspension of payments or declares bankruptcy;
b. the other party is declared bankrupt;
c. the company of the other party is liquidated;
2. The other party has the right to cancel or move an appointment with Emss. However, if the cancellation or postponement occurs within three business days before the meeting is to take place, Emss is entitled to charge the associated costs with the meeting to the other party.
3. Upon cancelling or postponing consultancy work, advisory work, workshops, training sessions, events, etc., the following cancellation rules apply:
a. Emss has the right to cancel or postpone a consulting session, advice sessions, courses, training, workshops, events, etc. without providing any reason and it has the right to refuse the participation of a client or a person designated by the client.
b. The client of a consulting contract, contract advice, training, training, workshop, event etc. must cancel in writing or postpone in writing.
c. Cancellation or postponing events free of charge is possible by the client up to 4 weeks before the start of a consulting session, counseling session, course, training, workshop, event etc. Emss however, is entitled to charge administrative fees at any time.
d. Upon cancellation or postponement within 4 weeks and upwards of 2 weeks before the start of a consulting session, counseling session, course, training, workshop, event etc. Emss is entitled to charge 50% of the amount due, upon cancellation or postponement within 2 weeks and upwards of 1 week before the start of a consulting session, counseling session, course, training, workshop, event etc. Emss is entitled to charge 75% of the amount due, and upon cancellation or postponement within one week, it is entitled to charge the entire amount due. All this without prejudice without Emss’ right to full compensation.
e. In case the client or person designated by the principal after starting a consulting session, counseling session, course, training session, workshop, event etc. terminates participation prematurely or otherwise does not participate, the client has no right to any refund.
4. Only Emss is entitled to transfer the agreement without the consent of the client to third parties at all times.
5. Emss is entitled to take the site offline and suspend service at any time if the other party does not fulfil any of its obligations, including payment obligation, to Emss. Emss is also entitled to take the other party’s website offline if criminal and/or immoral things are displayed on this website or if criminal offenses are committed through use of the website.
Article 19. Applicable law and disputes.
1. All Emss concluded agreements, as well as the obligations deriving therefrom, fall under Dutch law, with the exclusion of the Vienna Sales Convention.
2. All disputes arising out of or related to these conditions and the legal relations arising between the parties shall, subject to statutory limitations, initially only be remedied through mediation. If this does not resolve the issue, it will be settled by the competent court in Zutphen/Arnhem, unless Emss prefers to turn to a competent court at the domicile or place of residence of the other party or seeks out another competent court.