| 1 GENERAL |
1.1 |
The present general conditions are applicable to all proposals,
offers etc. of ZyLAB and form part of any agreement for the
supply of goods and/or services by ZyLAB. |
1.2 |
ZyLAB will categorically renounce general conditions imposed
by the receiving party ("Client"). |
| 2 OFFERS |
2.1 |
All offers, in whatever form, are without engagement. Acceptance
will only become formal after an explicit written confirmation
by ZyLAB. |
2.2 |
Agreements confirmed by our representatives will only become
formal after our written confirmation or, if this confirmation
is omitted, after a period of fourteen days provided the representative's
actions imply that the agreement has been accepted. |
| 3 PRICES |
3.1 |
Prices that have been agreed upon in writing are definitive.
However, ZyLAB reserve the right to pass on to the Client any
price changes that occur during the execution of the order which
are caused by external circumstances like changes in the rate
of exchange, import duties, freight charges, wages, rights and
commissions. |
| 3.2 |
All prices and tariffs are exclusive of VAT, sales taxes or
any other taxes as levied by the local tax authorities. |
3.3 |
For transactions in the United States of America, Canada and
Mexico only: The price quoted is exclusive of sales tax. To
the extent that the sale is subject to sales and use tax, the
Customer is responsible for any and all such tax. Customer indemnifies
ZyLAB for any tax charges and will immediately pay ZyLAB such
taxes should ZyLAB be held responsible by the tax authorities
for the collection of such taxes. |
| 4 DELIVERY |
4.1 |
Times of delivery, indicated by ZyLAB, can never be construed
as rigid terms unless otherwise specified in writing. In case
the delivery time is exceeded, ZyLAB will be answerable only
after a written statement to that effect has been received. |
4.2 |
The Client will not be entitled to claim any damages when
ZyLAB are answerable as meant in the previous article. |
| 5 SHIPMENT |
5 .1 |
Shipments will be for the account and risk of the Client unless
explicitly specified otherwise in writing. In such case the
responsibility of ZyLAB for the shipment is limited to a period
of 10 days after the date of invoice unless ZyLAB have notified
the forwarder in writing about the missing goods. |
5.2 |
Return shipments will only be accepted after preceding
approval in writing. |
| 6 CANCELLATION |
6.1 |
Contracts with ZyLAB can only be cancelled after
written permission from ZyLAB and only under conditions specified
by ZyLAB. |
| 6.2 |
Disputing the terms of delivery or the terms of payment after
the contract has been closed can never be accepted as a ground
for cancellation. |
6.3 |
In case of cancellation ZyLAB is entitled to a cancellation
fee covering the time spent on the project by ZyLAB. This cancellation
fee may never exceed the agreed sales price for the entire order. |
| 7 WARRANTY |
7.1 |
Goods supplied by ZyLAB are guaranteed for a period of three
months. As far as the software is concerned, we refer to the
license agreement supplied with the software. |
7.2 |
The warranty from ZyLAB will be null and void in case the
Client modifies or repairs the goods or contracts a third party
to do so. This also applies when the Client uses the goods for
other purposes than the normal business use or treats or maintains
the goods, in the opinion of ZyLAB, inappropriately or fails
to follow the written directions and instructions as given by
ZyLAB. |
| 8 COMPLAINTS |
8.1 |
Complaints regarding visible defects can only
be dealt with if reported to us, in writing, within a period
of eight (8) days after delivery. |
8.2 |
Complaints regarding other (non visible) defects, covered
by the guarantee as specified in article 7.1, have to be reported
to ZyLAB, in writing, by the Client within a period of eight
(8) days after the possible defects have become apparent or
could have been apparent. |
| 8.3 |
Defects not covered by the guarantee or discovered after the
guarantee has elapsed will be corrected by ZyLAB on request
from the Client and against the normal rate charged by ZyLAB
in those cases. |
| 8.4 |
Complaints can never be used as a reason to defer payments. |
| 9 PAYMENT |
9.1 |
Payments have to be made by bank transfer and
as an unconditional prepayment unless otherwise specified in
writing. |
9.2 |
In case terms of payment have been agreed upon and these terms
are exceeded by a period of 14 days without explicit written
agreement, interest of 1 percent (1%) per month will be due
for the period from the date of invoice till the day the payment
has been made. ZyLAB reserve the right to take collection measures. |
| 9.3 |
In case the terms of payment are exceeded, ZyLAB are entitled
to defer further deliveries or to revoke the contract. In addition
ZyLAB have the right to claim damages from the Client. |
| 9.4 |
Client is not allowed to balance the payment with outstanding
discounts or credits. |
| 9.5 |
In case payment is not made or is made too late, ZyLAB reserve
the right, without previous notice, to start collection, either
via the legal system or otherwise. Costs of this collection
are for the account of the Client with a minimum of 20% of the
amount to be paid, said sum amounting to a maximum of US$ 2,500
(Two thousand and five hundred US dollars) and a minimum of
US$ 50 (Fifty US dollars) for transactions in the United States
of America, Canada and Mexico and a sum amounting to a maximum
of € 2,500 (Two thousand and five hundred Euros) and a
minimum of € 50 (Fifty Euros) for transactions outside
of the United States of America, Canada and Mexico. In the case
that ZyLAB decide to file a petition for bankruptcy of the Client,
the Client will be liable to pay the cost of this petition in
excess of the sum due for the invoice, interests and collection
costs to ZyLAB. |
| 10 PROPERTY RIGHTS |
10.1 |
The property rights of the goods supplied by ZyLAB
will be transferred to the Client only after payment of the
invoice and all additional costs. |
10.2 |
ZyLAB reserves the right to retrieve (or have retrieved) all
unpaid goods without advance notice. |
| 10.3 |
If similar goods, supplied by ZyLAB, have not been paid for
yet, all goods present at the Client will be considered as being
not paid for unless the Client can prove otherwise. |
| 10.4 |
In case the Client has demonstrated that part of the goods
supplied by ZyLAB has indeed been paid for, Client will transfer
the property of said goods to ZyLAB as a security against his
payment obligations to ZyLAB. Client agrees already now to eventually
cede his proceeds from the transfer of the goods or otherwise
generated to ZyLAB as a security against his payment obligations
to ZyLAB subject to a penalty of US$ 500 (Five hundred US dollars)
per day for transactions inside the United States of America,
Canada and Mexico and a sum amounting to a maximum of €
2,500 (Two thousand and five hundred Euros) and a minimum of
€ 50 (Fifty Euros) for transactions outside of the United
States of America, Canada and Mexico. |
| 11 FORCE MAJEURE & ACTS OF
GOD |
11.1 |
ZyLAB cannot be held responsible for cases of force majeure
as specified in article 11.3. Under such circumstances Client
will not be allowed to cancel the agreement. ZyLAB will inform
Client immediately when such a situation occurs. |
11.2 |
When a situation of force majeure is imminent and ZyLAB have
already partly fulfilled their obligations or are only able
to fulfil part of their obligations afterwards, ZyLAB are allowed
to invoice the part that has already been delivered or will
be delivered with a separate invoice payable by Client as if
it concerned a separate contract. |
| 11.3 |
Force majeure, as meant in this article, comprises situations
that cannot be attributed to ZyLAB and which may prevent, partly
or in full, the fulfilment of the contract of ZyLAB. Amongst
others this includes strikes, fire and other calamities at ZyLAB
or their suppliers, acts of the local government and inadequate
performance of their suppliers. |
| 12 RESPONSIBILITY |
12.1 |
ZyLAB will only be responsible for material damage, direct
or indirect; to the goods belonging to Client or to third parties
if this damage is caused either by a malfunction of the goods
supplied or can be attributed to shortcomings of the personnel
or tools that are used by ZyLAB in fulfilling their obligations
under the current contract. |
12.2 |
The responsibility of ZyLAB as mentioned above is limited
to an amount of maximum US$ 500,000 (Five hundred thousand US
dollars) per incident or a related group of incidents day for
transactions inside the United States of America, Canada and
Mexico and a sum amounting to a maximum of €500,000 (Five
hundred thousand Euros) for transactions outside of the United
States of America, Canada and Mexico. |
| 12.3 |
ZyLAB will not be responsible for any consequential damage
like overdue or deficient deliveries or damage to, and loss
of information. Client will protect ZyLAB against all claims
from third parties in this matter. |
| 12.4 |
ZyLAB are also not responsible if the goods delivered are
not fit for the function the Client wishes to use them for when
the Client has not informed ZyLAB beforehand of his intentions. |
| 12.5 |
The stipulations in this article do not affect the possible
responsibilities of ZyLAB with respect to the legal regulations
concerning product responsibility. |
| 13 INTELLECTUAL PROPERTY |
13.1 |
ZyLAB reserve the rights to all intellectual property
concerning all goods and software supplied, including all inventions
contained therein. |
13.2 |
13.2 Client is not allowed to alter or copy the software
supplied by ZyLAB. ZyLAB reserve the right to supply Client
with certain software only under additional limiting conditions.
|
| 14 PUBLIC RELATIONS AND MARKETING |
14.1 |
ZyLAB reserve the rights to use, without additional permission,
Client's name for public relations and marketing purposes such
as, but not restricted to: mentioning of Client's name on the
ZyLAB Website, in the ZyLAB brochures, in ZyLAB case studies,
in ZyLAB white papers, in ZyLAB's reference lists and in press
releases. This all in relation to the applications released
or ordered by Client from ZyLAB. |
| 15 DEVIATION FROM THE PRESENT
CONDITIONS |
15.1 |
If both parties agree to deviate from certain
articles in the present Conditions the other articles will remain
in force, even if this has not been stipulated explicitly. |
15.2 |
The agreement to partially deviate from these Conditions has
to be confirmed in writing by ZyLAB. Under no circumstances
will verbal agreements be binding. |
| 15.3 |
If one or more conditions of our agreement with Client prove
to be legally incorrect, then the other conditions will remain
in force unconditionally. In the place of the incorrect stipulations
an appropriate wording will be used that expresses as close
as possible and legally correct the intentions of both parties
and the economic result they aim for. |
| 16 JURISDICTION |
16.1 |
For transactions outside of the United States of America,
Canada and Mexico, this agreement will be subject to Dutch law.
All disputes originating from or applying to the agreement and/or
these conditions shall only be submitted to the court of the
city of Amsterdam, the Netherlands, in the Dutch or English
language. |
16.2 |
For transactions in the United States of America, Canada
and Mexico, this agreement will be subject to Virginia law.
All disputes originating from or applying to the agreement and/or
these conditions shall only be submitted to the competent Judge
in the Commonwealth of Virginia, U.S.A., in the English language. |