GENERAL TERMS OF SALE AND DELIVERYArticle 1. Applicability of General Conditions:
Article 1.1. These General Conditions are the general currently applicable conditions governing all agreements entered into, irrespective of any other conditions in the General Conditions, if any, of the other party. To the extent that parties did not reach mutual agreement in writing to deviate from these conditions, the conditions below apply to any proposal, commission or agreement of or with BenVista.
Article 1.2. Proposals and agreements will be signed by a managing director of BenVista.
Article 2. Proposal and acceptance:
A proposal or a quotation shall be valid for a period of 14 days after date of proposal or quotation, unless otherwise agreed on in writing. All proposals and quotations made by or on behalf of BenVista are without prejudice and subject to contract, unless BenVista has stipulated otherwise in writing.
Article 3. Start of the agreement:
An agreement to the delivery of goods and / or the rendering of services is deemed to have been concluded when the commission of the client has been confirmed in writing by BenVista, or when BenVista has commenced the delivery. Parties are free to prove the conclusion of the contract with other means. Addition to and adjustment of the agreement can only be effected in writing.
Article 4. Period of delivery:
All terms meant by BenVista in the agreement have been determined to the best of our knowledge. If the delivery period is exceed by only a limited amount of time, the client is not entitled to claim compensation or dissolution of the contract.
Article 5. Force majeure:
Article 5.1. A failure cannot be attributed to a party to this agreement, if it is not attributable to his / her fault or is not for his / her account and risk under the law, pursuant to a legal act or according to generally accepted standards.
Article 5.2. Force majeure shall suspend the execution of the agreement with the duration of the force majeure. However, each of the parties is entitled to terminate the agreement by means of a written announcement to the other party if the force majeure extends a period of twelve weeks, or if it is an established fact that the force majeure shall extend a period of twelve weeks. Whatever has already been performed under the contract shall be paid in proportion, but without parties remaining due to each other.
Article 5.3. Among others, parties shall consider force majeure to include the supplier of BenVista to not, or not in time, or not in good working condition, deliver goods to BenVista or BenVista to not have sufficient capable staff available.
Article 6. Transport and risk:
Transport within the Netherlands and the delivery to client of articles governed by an agreement shall take place for the account and risk of BenVista. After delivery to the business address of the client, the risk of among others loss or damage of the delivered article shall pass to the client. If the client refuses to receive any articles governed by contract, these articles shall be stored by BenVista at the expense and risk of the client, which will not release the client from his / her obligation to timely and full payment.
Article 7. Prices:
All prices are excluding turnover tax and other government levies. In the case of an agreement with periodic payments by the client, the supplier is entitled to adjust the prices by means of a written notice at a three month term.
Article 8. Terms of payment:
Unless agreed otherwise in writing, payment of the agreed amounts under € 7,500 shall be made within 14 days after date of invoice and payment of amounts exceeding € 7,500 shall be made within 30 days after date of invoice. In the case of no or late payment, the client shall automatically be in default. Over the period from the date when the term of payment is overdue until the date of payment to BenVista, the client owes immediately due and payable interest over the outstanding amount which is equal to one percent a month from the date of invoice to the date of full payment. All collection costs, both judicial and extrajudicial, incurred by BenVista to receive the outstanding amounts, shall be for the account of the client, unless determined otherwise in a judicial decision. The extrajudicial collection costs are deemed to amount to 15% of the amount claimed. The above shall also apply in the case of bankruptcy or suspension of payment.
Article 9. Copyright and confidentiality:
The advice provided by BenVista shall be for the application and use of the client only. Prior consent by BenVista is required if the client wishes to divulge this advice or make it available outside his / her circle. The copyright as well as all other rights of intellectual or industrial property of the delivered article shall remain with BenVista or a third party to be appointed by BenVista. The client acquires only the rights of use, unless otherwise agreed in writing. Each party is obliged to observe the strictest confidentiality with respect to information received from and about the other party as well as ideas and techniques used.
The client is not allowed to alter or remove any notice of copyrights, brands, trademarks or other rights of intellectual or industrial property, including any notice regarding the confidential character and secrecy of the products or the packaging of it, or to alter or copy the products or any part of it. BenVista declares that to the best of their knowledge the products do not infringe on the intellectual property rights of third parties prevailing in the Netherlands. In the case of claims from third parties regarding an infringement of such rights, BenVista can replace or alter the product concerned if necessary. Client shall inform BenVista of any claims from third parties regarding an infringement of the intellectual property right with respect to the products. In the case of such a claim, BenVista only is entitled, also on behalf of the client, to resist the claim or to take measures against the third party or to effect an amicable settlement with the third party. Client shall refrain from taking such measures, apart from statements which have to be made in court. Client shall at all times render full assistance to BenVista.
Article 10. Retention of title and of rights:
Article 10.1. All articles delivered to the client shall remain the property of BenVista, until all amounts owed by the client to BenVista for articles delivered to the client by virtue of an agreement, including the accompanying rights of use of software and services rendered to the client or to be rendered, are paid to BenVista in full. If the client, after notice of default, does not fulfil his payment obligations to BenVista, BenVista is entitled to repossess the articles concerned from the client.
Article 10.2. Rights are granted to the client only on condition that the client pays the fees agreed on in time and in full.
Article 11. Liability:
Article 11.1. BenVista's liability for compensation of damage caused by failures attributable to BenVista in the fulfilment of an agreement, shall be expressly limited to liability for alternative compensation, while the compensation shall never exceed half of the amounts invoiced and to be invoiced by BenVista on the basis of the agreement, exclusive of turnover tax and limited to six months prior to the default.
Article 11.2. However, the maximum amount referred to above does not apply in the case of death or bodily injury caused by wrongful acts by BenVista or by persons for whom BenVista is liable.
Article 11.3. BenVista's total liability, however, shall never exceed 1 million Euros per incident, where a series of related incidents shall be regarded as one incident.
Article 11.4. BenVista is not liable at all for compensation of any other damage, such as caused by loss of profit, indirect loss, consequential loss, loss due to delays, loss caused by destruction or loss of computer files or by the insufficient supply of information, co-operation or materials by the client.
Article 11.5. The client shall indemnify BenVista against claims from third parties submitted against BenVista, including employees from the client, for damages caused by the actions or negligence of the client and of persons employed by the client.
Article 12. Warranty:
Article 12.1. For a period of three months after delivery or, if parties have agreed on an acceptance test, three months after acceptance, BenVista will repair any defects in the software to the best of their ability, where defects shall be taken to mean not complying with the functional specifications either agreed on or stated by or by means of BenVista. In the event that the software has been damaged through the agency of BenVista, BenVista shall replace the disks on which the software concerned has been stored. BenVista does not guarantee that the software will function without interruption or faults or that all defects shall be repaired. The repairs or the replacement shall be free of charge, unless they originate in user errors or injudicious use, or in other causes which cannot be attributed to BenVista, in which case BenVista shall charge the normal rates. BenVista's obligations under the guarantee shall lapse if the client alters the software or has the software altered without the written consent by BenVista.
Article 12.2. The activities under the warranty shall take place at a location set by BenVista.
Article 12.3. After expiration of the period of warranty, BenVista is not obliged to repair any errors, unless a maintenance agreement has been concluded between parties.
Article 13. Termination:
Article 13.1. Each of the parties is entitled to dissolve an agreement before termination by accomplishment only if, upon a proper and as detailed as possible notice of default stating a reasonable term for curing the shortcoming, the other party fails imputably in the fulfilment of the essential obligations in accordance with the agreement.
Article 13.2. Each of the parties is entitled to have an agreement fully or partly dissolved immediately by means of a notice in writing, without notice of default and without judicial intervention, if the other party is granted suspension of payment, if the other party files for bankruptcy or if their company is wound up or terminated. The party that dissolves the agreement in this manner shall never be liable to pay any compensation.
Article 13.3. If the client at the moment of dissolution has already received performances in the execution of an agreement, these performances and the accompanying payment obligation shall not be an object of undoing, unless BenVista is in default with respect to these performances. Amounts invoiced by BenVista before the dissolution in respect of whatever they have already carried out or delivered with respect to the agreement, shall remain owing with due observance of the previous sentence and become payable at the moment of dissolution.
Article 14. Non-acquisition clause:
None of the parties shall, without the consent of the other party, employ staff of the other party who were involved in the execution of the agreement or have them carry out work for them either directly or indirectly, for the duration of the agreement and a full year after its termination.
Article 15. Rules on disputes and applicable law:
Article 15.1. Agreements concluded with BenVista shall be subject to Dutch law exclusively.
Article 15.2. Disputes which cannot be solved in mutual consultation and which arise in respect of an agreement concluded by BenVista with the client, shall be exclusively settled by the competent court in Arnhem, however not unless the procedure in accordance with the Minitrial regulations of the Stichting Geschillenoplossing Automatisering (Foundation for the Resolution of Disputes in Automation) at Wassenaar (non-binding advisory procedure) has been followed, without prejudice to the right of parties to apply to the President of the District Court in Arnhem for interim injunction proceedings.
Article 16. Translation:
This translation of the general conditions is provided for the convenience of English-speaking clients. In the event of any conflict arising as to the meaning or interpretation of any part of these conditions, only the original Dutch wording will be considered valid.