GENERAL TERMS AND CONDITIONS FOR THE SALE OF E-TRAILER PRODUCTS
Article 1: Definitions
“Agreement” means the agreement between E-Trailer and Client, including these General Terms and Conditions.
“Client” means the customer identified in the Agreement.
“Confidential Information” means all information disclosed by or on behalf of a Party (in whatever medium including in written, oral, visual or electronic form and whether before or after the date of the Agreement), including all business, financial, commercial, technical, operational, organisational, legal, management and marketing information which is either marked as being confidential or which would reasonably be deemed to be confidential in the ordinary course of business.
“Effective Date” means the effective date set out in the Agreement.
“E-Trailer” means E-Trailer B.V..
“General Terms and Conditions” means these general terms and conditions for the sale of E-Trailer Products.
“Initial Term” means the initial term of the Agreement, as specified in the Agreement.
“Part(y)/(ies)” means E-Trailer and/or Client.
“Products” means the products specified in the Agreement.
“Purchase Price” means the purchase price for the Products, as specified in the Agreement.
“Warranty” means the warranty as set out in article 6.1.
“Warranty Period” means the warranty period as set out in article 6.2.
Article 2: Applicability
2.1 These General Terms and Conditions shall apply to and are expressly incorporated into quotations, offers, orders, order confirmations, the Agreement and all subsequent agreements entered into between E-Trailer and Client in connection with the sale of Products.
2.2 A quotation for the Products given by E-Trailer shall not constitute an offer and shall only be valid for a period of (twenty) 20 business days from its date of issue.
2.3 An order for the Products by Client shall only be deemed to be accepted by E-Trailer if accepted by E-Trailer (i) in writing, (ii) by sending an invoice in connection with such order or (iii) by executing the order, at which point the Agreement shall come into existence.
2.4 The applicability of Client’s general terms and conditions is hereby expressly excluded.
Article 3: Products
3.1 The Products shall conform in all material respects to the specifications set out in the Agreement.
3.2 Any samples, drawings, descriptive matter, or advertising issued by E-Trailer and any descriptions or illustrations contained in the catalogues or brochures of E-Trailer are issued or published for the sole purpose of giving an approximate idea of the Products but they shall not form part of the Agreement or have any contractual force.
3.3 If the Products contain embedded software, E-Trailer hereby grants a limited, perpetual, non-exclusive, royalty free license to use the embedded software for the intended use of the Products only.
3.4 Client shall not modify, adapt, alter, translate, or create derivative works from the software in the Products, merge the software in the Products with any other software or distribute, sublicense, lease, rent, loan, or otherwise transfer the software in the Products to any third party.
3.5 Client shall not reverse-engineer, decompile, disassemble, or otherwise attempt to derive the source code for the software in the Products, except if and to the extent that the laws applicable in the jurisdiction of Client, regardless of a contractual prohibition to the contrary, give Client the right to do so in order to obtain information necessary to render the software interoperable with other software. In such case, however, Client must first request such information from E-Trailer and E-Trailer may, in its discretion, either provide such information to Client or allow Client access to the source code for the sole purpose of obtaining such information, subject to reasonable conditions, including a reasonable fee, on such use of the source code to ensure that E-Trailer’s and its suppliers’ proprietary rights therein are protected.
3.6 E-Trailer shall have no obligation to install, assemble, maintain or support the Products, unless the Parties agree otherwise in a separate agreement.
Article 4: Delivery, Risk and Title
4.1 E-Trailer shall use commercially reasonable efforts to meet the agreed delivery or performance date. If E-Trailer is, or is likely to be, unable to meet the delivery or performance date, E-Trailer will promptly give Client written notice of the relevant circumstances together with a date upon which E-Trailer reasonably expects to be able to deliver the Products. E-Trailer shall not be liable in any way for any loss or damage sustained by Client as a result of E-Trailer’s failure to make delivery of the Products on or before the agreed delivery date, nor will such failure constitute a breach of the Agreement.
4.2 Delivery of the Products is subject to the Incoterms of the International Chamber of Commerce which are in force at the relevant delivery date. Unless a specific other Incoterm and destination is agreed, E-Trailer will deliver the Products EX WORKS (EXW) at the Molengraaffsingel 12, 2629 JD, Delft, The Netherlands.
4.3 Title to the Products shall pass to Client only after full payment of all amounts which E-Trailer is entitled to claim from Client for the Products delivered to Client pursuant to the Agreement as well as all amounts that Client is due to E-Trailer for being in default of observing any payment term or any other term in the Agreement.
4.4 Client is obliged to ensure that the Products remain or are rendered identifiable. Should Client be in default or should there be good reason to suspect that Client may default on any of its obligations, E-Trailer will be entitled to remove the Products belonging to it from Client’s possession or from the possession of a third party holding the Products on behalf of Client, at Client’s expense.
4.5 Client undertakes to insure and keep insured against loss, damage and theft all of the Products delivered under retention of title and to make the insurance policy available for inspection by E-Trailer on request.
Article 5: Price and payment
5.1 Client shall pay E-Trailer the Purchase Price, or if no Purchase Price is specified in the Agreement, E-Trailer’s list prices valid at the time of shipment of the Products.
5.2 Purchase Prices are stated in Euros and are exclusive of VAT, other sales taxes and incidental costs and expenses.
5.3 Unless other payment terms are specified in the Agreement, Client will pay all invoiced amounts within thirty (30) days after the date of invoice. If Client fails to make a timely payment under the Agreement:
(i) the Client shall be in breach of the Agreement, without any notice of default being required and all of E-Trailer’ claims against Client shall become immediately due and payable;
(ii) Client shall be obliged to pay the statutory interest rate for commercial debts on the outstanding amount and all judicial and extra-judicial costs incurred by E-Trailer relating to the recovery and collection of any overdue amount;
(iii) E-Trailer reserves the right to suspend the delivery of the Products until all outstanding amounts (including interest and costs) are settled; and
(iv) the costs of suspending and reactivating delivery shall be borne by Client.
5.4 All payments to be made by Client must be effected without set-off, withholding or suspension.
Article 6: Warranty
6.1 E-Trailer warrants that during the Warranty Period the Products are free from substantive defects in workmanship and materials.
6.2 The Warranty Period for the Products is twenty-four (24) months from the date of shipment, unless set out otherwise in the Agreement. Shorter Warranty Periods apply to Products and components that are subject to wear and tear or those having a limited service life. The Warranty Period of such Products and components are as indicated by E-Trailer on its price list. In any event, the Warranty Period of such Products or components shall never be longer than the expected service life.
6.3 During the Warranty Period, E-Trailer shall, at its option, either credit (in whole or in part) the Purchase Price of the defective Products, or repair or replace the defective (components of the) Products.
6.4 The Warranties are in lieu of all other warranties, express or implied, including, but not limited to any statutory warranties, any implied warranties or warranties pertaining to merchantability or fitness for a particular purpose of the Products, which are hereby specifically disclaimed. The remedies set out in article 3 shall be Client’s sole and exclusive remedy, and E-Trailer’s sole liability, for claims based on breach of warranty or otherwise in relation to the nonconformity of the Products.
6.5 Client shall inspect the Products upon receipt for visual and fairly apparent defects and, within ten (10) business days after delivery, give written notice to E-Trailer of any remedy claim under the Warranty based on such defects. Such notice shall include a specification of the basis of the claim in detail, failing which Client shall be deemed to have lost its right to claim any remedy under the Warranty based on such visual and fairly apparent defects. Furthermore, pertaining to other defects, Client can no longer claim any remedy under the Warranty if Client has not notified E-Trailer of such claim within ten (10) business days after it discovered the defect or reasonably should have discovered it, including a specification of the basis of such claim in detail.
6.6 If E-Trailer replaces (components of) the Products in order to fulfil its Warranty obligations, the replaced (components of) such Products will become the property of E-Trailer. Client shall, promptly upon request by E-Trailer, return the replaced (components of) such Products to E-Trailer in their original packaging.
6.7 The Warranty obligation will lapse if the defects are completely or partly the result of:
(i) improper, negligent or injudicious use, external causes such as fire or water damage, or
(ii) if Client makes modifications or allows modifications to be made to the Products without E-Trailer’s prior consent.
Article 7: Liability
7.1 Without prejudice to article 3, in no event, whether in contract, tort (including in either case negligence), misrepresentation (other than fraudulent misrepresentation), breach of statutory duty or otherwise, shall E-Trailer be liable for any loss of profits, anticipated savings, revenue, business, loss or corruption of data, loss of use, loss of goodwill, loss due to delay or any indirect or consequential loss or damage whatsoever.
7.2 Without prejudice to articles 1 and 7.3, E-Trailer’s aggregate liability (including in relation to ‘ongedaanmakingsverbintenissen‘), whether in contract, tort (including in either case negligence), misrepresentation (other than fraudulent misrepresentation), breach of statutory duty or otherwise, shall be limited to: (i) the amount paid by Client to E-Trailer (excluding VAT) for the Products in respect of which such liability arises; or (ii) in relation to continuing performance contracts, the net price paid by Client in the three (3) months preceding the date first giving rise to liability.
7.3 Nothing in the Agreement shall be deemed to exclude or limit E-Trailer’s liability:
(i) in respect of loss or damage caused by wilful intent (‘opzet‘) or intentional recklessness (‘bewuste roekeloosheid‘) of E-Trailer or E-Trailer’s senior management;
(ii) in respect of injuries to or death of any person, caused by E-Trailer or E-Trailer’s officers, employees, agents or contractors; or
(iii) in a manner that would be unenforceable or void as against mandatory applicable law.
7.4 Any claim for loss or damages must be notified to E-Trailer within three (3) months as from the date on which the damage was caused, failing which such claim is deemed to be waived.
Article 8: Term and Termination
8.1 The Agreement shall commence on the Effective Date and, if the Parties have agreed to an Initial Term, shall expire after the Initial Term. Following the Initial Term, the Agreement shall automatically renew for consecutive additional periods of one (1) year each (or such a period as Parties agree in writing), unless either Party gives the other Party written notice of its intention not to renew at least three (3) months prior to the date on which the Agreement would otherwise renew.
8.2 Each Party may, without prejudice to any of its other rights arising hereunder, upon giving written notice to the other Party, terminate (‘ontbinden‘) the Agreement with immediate effect, if:
(i) the other Party commits a material breach of the Agreement, which breach, if capable of being remedied, is not cured within thirty (30) calendar days after written notice of the breach;
(ii) the other Party has been granted provisional suspension of payment or is declared bankrupt or a resolution is passed or a petition is presented for the winding-up of the other party, such Party has called a meeting of or has entered into or has proposed to enter into an arrangement, scheme of composition with creditors; or
(iii) a situation of force majeure has lasted for more than ninety (90) calendar days.
8.3 On termination of the Agreement for any reason, the Client shall immediately pay to E-Trailer all of E-Trailer’s outstanding unpaid invoices and interest.
8.4 Termination of the Agreement for any reason shall not affect any of the Parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Agreement that existed at or before the date of termination.
8.5 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination for any reason shall remain in full force and effect.
Article 9: Intellectual Property
9.1 Subject to the limited rights expressly granted in article 3, E-Trailer and or its licensors reserve all rights, title and interest in and to the intellectual property rights vested in the Products. No rights are granted to Client hereunder, other than as expressly set forth herein.
9.2 All changes, modifications or improvements made or developed with regard to the Products, whether or not made or developed at Client’s request, will be and remain the property of E-Trailer.
9.3 E-Trailer will exclusively own any and all rights, title, and interest (including intellectual property rights) in and to any materials, documentation, software, websites or information developed for or made available to Client under or in relation to the Agreement.
9.4 E-Trailer will defend Client from any third-party claim, suit, or proceeding alleging that any Product, unmodified and as originally delivered by E-Trailer, when used as permitted under the Agreement infringes any intellectual property rights (a “Claim”), and will pay all settlement amounts agreed to by the litigants or damages finally awarded by a court of competent jurisdiction. If E-Trailer reasonably believes that any element of the Products is about to become the subject of a Claim, E-Trailer may, at its option, (a) obtain a license to permit Client to use such Product in accordance with the Agreement; (b) modify such Product in a manner such that it is no longer infringing; or, if neither of the foregoing options is commercially feasible, (c) recover the Product in exchange for a refund of the Purchase Price (less a prorated deduction to reflect past beneficial use).
9.5 In order for E-Trailer to indemnify Client under article 4, Client must promptly notify E-Trailer in writing of any Claim, tender control of the defence and settlement of such Claim to E-Trailer and reasonably cooperate with E-Trailer in such defence.
Article 10: Confidentiality
10.1 The receiving Party of Confidential Information shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and agrees:
(i) not to use any Confidential Information of the disclosing Party for any purpose outside the scope of the Agreement, and
(ii) except as otherwise authorized by the disclosing Party in writing, to limit access to Confidential Information of the disclosing Party to those of its employees, affiliates, contractors and agents who need such access for purposes consistent with the Agreement and who have signed confidentiality agreements with the receiving Party containing protections no less stringent than those herein.
10.2 The receiving Party may disclose Confidential Information of the disclosing Party if it is required by law or regulations to do so, provided the receiving Party gives the disclosing Party prior notice of such disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing Party’s cost, if the disclosing Party wishes to contest the disclosure.
10.3 If the Agreement expires or is terminated, the receiving Party shall promptly return or destroy all Confidential Information of the disclosing Party, provided however, that receiving Party shall only be required to use commercially reasonable efforts to return or destroy any Confidential Information stored electronically, and neither receiving Party nor its representatives shall be required to return or destroy any electronic copy of Confidential Information created pursuant to its or its representatives’ standard electronic backup and archival procedures. If a Party believes that the return or destruction of all Confidential Information is not feasible, or if a Party is required by applicable law or accounting rules to retain a record copy of any Confidential Information for some period of time, such Party may retain a copy of the Confidential Information, which is to be maintained subject to the protections of the Agreement.
10.4 The terms and conditions of the Agreement are confidential and may not be disclosed by either Party without the prior consent of the other Party.
Article 11: Miscellaneous
11.1 The Agreement constitutes the entire agreement between the Parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter hereof.
11.2 Neither Party may assign, transfer or dispose of any of its rights under the Agreement, either in whole or in part, without the prior written consent of the other Party. However, E-Trailer may assign the Agreement in its entirety to a successor in interest upon its merger, consolidation, acquisition, or sale or other transfer of all or substantially all of its business or assets without the prior written consent of Client.
11.3 The invalidity or unenforceability of any provision of the Agreement shall not affect the validity or enforceability of the remainder of the Agreement and the Parties shall use all reasonable endeavours to agree within a reasonable time upon any lawful and reasonable variations to the Agreement which may be necessary in order to achieve, to the greatest extent possible, the same effect as would have been achieved by the invalid or unenforceable provision.
11.4 No amendment to the Agreement is valid or binding, unless made in writing. However, E-Trailer is entitled to amend these General Terms and Conditions, which amendment shall apply to the Agreement with effect of the date that such amendment is published on the website of E-Trailer.
11.5 A person who is not a party to the Agreement shall not have any rights under or in connection with it.
11.6 Client shall not be an agent or a distributor of E-Trailer, unless it is appointed pursuant to a separate agreement.
11.7 The Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, Dutch law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of The Hague (the Netherlands). The Vienna Sales Convention (CISG) does not apply.