General Terms and Conditions of NBD Biblion Technology Group B.V.

1 June 2023

 

Article 1. Definitions

These General Terms and Conditions use the following definitions (in alphabetical order):

A.          Customer (or “you” and “your”): any natural person who acts in the course of their business or profession and any legal entity who is our counterparty in quotations, offers and communications made by us and/or who is the counterparty in (an) Agreement(s) with us.

B.          General Terms and Conditions: these general terms and conditions of sale and delivery.

C.          Service: a service to be provided by us to you under the Agreement.

D.          Direct Damage: all damage that arises directly from a damagecausing event, including material damage to property, reasonable costs incurred to prevent or limit damage that may be expected as a result of the damagecausing event, reasonable costs incurred to determine damage and liability, and reasonable costs incurred to obtain payment out of court.

E.          Indirect Damage: all damage that arises indirectly from a damagecausing event, including (but not limited to) consequential damage, loss of revenue, loss of data, damage due to business interruption, lost savings or reduced goodwill in business or profession.

F.           NBD Biblion Technology Group (or “we” and “us/our”): NBD Biblion Technology Group B.V. (with Chamber of Commerce number 75730669), part of the NBD Biblion Group.

G.          Quotation: the Quotation that we have drawn up, which (among other things) indicates the scope of the Assignment to be performed and what remuneration the Customer owes for this.

H.          Agreement: the contractual legal relationship whereby we sell Products to the Customer for payment or make them available to the Customer in another way or whereby we provide Services to the Customer for payment.

I.           Party: you or us.

J.           Parties: you and us together.

K.          Product: an item to be delivered by us to you under the Agreement.

In these General Terms and Conditions, the term “written/in writing” also includes emails and other electronic messages.

Article 2. Applicability of the General Terms and Conditions

2.1.       These General Terms and Conditions apply to all Quotations and offers that we issue and also to the conclusion, contents and fulfilment of all Agreements concluded between the Parties. If the Agreement deviates from these General Terms and Conditions, the provisions of the Agreement take precedence over the provisions of these General Terms and Conditions.

2.2.       Your general (purchase) terms and conditions will only apply if the Parties have agreed in writing that these will apply to the Agreement to the exclusion of these General Terms and Conditions.

2.3.       We may unilaterally make changes to these General Terms and Conditions. These changes will be effective thirty (30) days after we notify you of the changes. If you do not accept the changes and notify us in writing within those thirty (30) days, this will be considered a cancellation of the Agreement by you. The Agreement will then be terminated immediately.

2.4.       The Agreement and these General Terms and Conditions may only be deviated from in writing.

2.5.       These General Terms and Conditions contain general provisions that apply to each Agreement, regardless of the nature of the Agreement. In the event that the Parties enter into an Agreement for the purchase, rental, loan, assignment or contracting of work (or another designated agreement as referred to in Book 7 of the Dutch Civil Code), special conditions may also be declared applicable to the Agreement. In that case, these will apply alongside or in addition to these General Terms and Conditions. In the event of any conflict between the special terms and conditions and these General Terms and Conditions, the special terms and conditions will prevail over these General Terms and Conditions. 

Article 3. Offer and acceptance

3.1.       All our Quotations, communications or offers issued are non-binding, even if they state a term for acceptance or period of validity, and we can always revoke them. All of our Quotations, communications and offers are valid for a maximum of thirty (30) days, unless we agree or state otherwise.

3.2.       The Agreement is concluded by our written (order) confirmation or at the time that we start the performance of the Quotation.

3.3.       You can only confirm a Quotation in the manner that we indicate, for example by email or by completing our (online) form.

3.4.       Verbal agreements and/or commitments made by our staff or made on our behalf by our representatives or our other intermediaries will only bind us if we subsequently confirm them in writing.

3.5.       You cannot derive any rights from the examples shown or provided.

Article 4. Term

4.1.       If there is a continuing performance contract and we have not included a contract term in the Agreement, the Agreement will be deemed to have been entered into for a period of one (1) year.

4.2.       Unless we expressly agree otherwise, the Agreement will then be tacitly renewed under the same conditions, also for a period of one (1) year. After the Agreement has been renewed, both you and we may unilaterally terminate the Agreement in writing, duly observing a notice period of two (2) months, whereby the provisions of Article 14 of these General Terms and Conditions also continue to apply.

Article 5. Modification and Cancellation

5.1.       The modification of an Agreement is possible with our consent and is always done in consultation. If the information you have given us does not correspond to reality and leads to additional or reduced work, that will also constitute a modification.

5.2.       Any additional work is calculated on the basis of the value of the pricedetermining factors that apply at the time the additional work is performed. Any reduced work is calculated on the basis of the value of the pricedetermining factors that apply at the time the Agreement is concluded.

Article 6. Prices and rates

6.1.       Our prices are in euros and are exclusive of VAT and other taxes.

6.2.       Our prices are included in the quotation and are based on the material and labour costs applicable at the time for the sale or provision of our Products and the provision of our Services.

6.3.       We may unilaterally change our prices. If there is a price and/or rate increase, we will inform you in advance if this is reasonably possible. If you do not agree with this price and/or rate increase, you may terminate the Agreement by giving us written notice. If you do not terminate the Agreement in writing within thirty (30) days of notice of the price increase, you will be deemed to have accepted the price increase. 

6.4.       We may unilaterally increase the agreed price if you make changes to the originally agreed specifications after entering into the Agreement. We will cooperate with these changes insofar as this can reasonably be expected of us, provided that the content of the performance to be provided by us does not differ materially from the originally agreed performance.

Article 7. Payment

7.1.       Unless agreed otherwise, invoices will be paid within thirty (30) days of the invoice date in the manner prescribed by us, without any discount, setoff or suspension.

7.2.       Complaints about invoices must be submitted to us in writing, fully and clearly described, no later than two (2) weeks after the invoice date. If you do not complain about the invoice within this period, the invoice will be deemed to be correct and your right to invoke the inaccuracy of the invoice will lapse.

7.3.       If you do not pay the invoices on time, we may charge the statutory interest on this amount with effect from the invoice date.

7.4.       You owe us all judicial and extrajudicial costs that we reasonably incur, including costs of legal assistance, as a result of your lack of, late or improper performance of your obligations under the Agreement. The extrajudicial costs are set at at least 15% of the invoice value with a minimum of EUR 150 (in words: one hundred and fifty euros).

Article 8. Retention of title

8.1.       The Products we have delivered to you will remain our property until you have fulfilled all your obligations to us under the Agreement. The Products delivered are at your expense and risk at the time you receive them and you must protect and insure them against damage, loss and theft.

8.2.       The delivered Products, which are subject to retention of title, may only be used or resold in the context of normal business operations. In the event of your bankruptcy/liquidation or suspension of payment, resale or use in the context of normal business operations will also not/no longer be permitted. The Products delivered under retention of title may not be pledged and no rights may be established on them.

8.3.       Third parties are not permitted to establish or assert any right to the Products delivered under retention of title.

Article 9. Delivery

9.1.       We strive to meet the delivery times that we specify. If there is a risk of exceeding a delivery time, we will inform you as soon as possible.

9.2.       Our specified delivery times are always indicative. If a delivery time is exceeded, this does not entitle you to compensation or the right to cancel your order or dissolve the Agreement, unless the delivery time is exceeded to such an extent that you cannot reasonably be expected to maintain the Agreement.

9.3.       Products are delivered according to the conditions as agreed in the Quotation, Agreement or price list.

9.4.       When a machine is installed and delivered, you will ensure that we can carry out our work unhindered at the agreed time and that we have access to the necessary facilities and/or those prescribed on the basis of the Working Conditions Act and regulations. If these terms are not met, this may lead to delays in planning and you will bear any resulting additional costs.

9.5.       We are not responsible for work on materials, machines and/or other products not supplied by us.

9.6.       If we gain access to your business premises to provide Products or Services to you, you are in principle responsible for properly protecting our materials and tools against damage, loss or theft on your business premises. If our materials and tools are nevertheless damaged, lost or stolen on your premises, you will be liable for the Direct Damage and Indirect Damage that we suffer as a result.

9.7.       Paragraph 6 of this article does not apply if the materials and tools on your business premises are damaged, lost or stolen due to gross negligence, intent or deliberate recklessness on our, our directors' or our de facto managers' part.

9.8.       The machine is delivered and accepted when you have put it into use.

Article 10. Intellectual property

10.1.     All intellectual property rights, including but not limited to copyrights, industrial rights, design rights, trademark rights, patents, related rights, database rights and/or other performance protection rights, on and in connection with the Products and/or Services (including our metadata), are solely owned by us and/or our licensors. Any intellectual property rights yet to be filed, registered, applied for and/or otherwise established by us also belong exclusively to us.

10.2.     Except in the case of our prior written consent, you are not permitted to reproduce (parts of) our Products and/or Services, publish them or make (the use of) them available to third parties in any other way (including, but not limited to, lending, renting out, leasing, selling or loaning). This prohibition also includes the express or implied authorisation of these acts.

10.3.     Please contact us directly if there is a direct or indirect infringement of rights as referred to in paragraph 1 of this article, or if a claim or procedure has been initiated in this regard. You may not take any action in any way, in or out of court, against such infringement, without our written consent. If we decide to take action, in or out of court, against infringing third parties, you will render all cooperation that we request.

10.4.     If applicable, we grant the non-exclusive and non-transferable right to use the software used in the operation of our digital Services and Products for the duration of the Agreement.

Article 11. Liability

11.1.     Without prejudice to the provisions of the other paragraphs of this article, we are only liable for your Direct Damage resulting from an attributable shortcoming in the fulfilment of the Agreement on our part or on any legal basis, expressly including any shortcoming in the fulfilment of a warranty obligation agreed with you.

11.2.     With the exception of the provisions of paragraph 4 of this article, we are not liable for Indirect Damage.

11.3.     Our liability for Direct Damage as referred to in paragraph 1 of this article is limited to:

a)          no more than the invoice value for the Product or Service; or

b)          if the Agreement is a continuing performance agreement, the invoice value for the three (3) months immediately prior to the damagecausing event.

Under no circumstances will our total liability for Direct Damage, irrespective of the basis of the claim, exceed EUR 250,000 (in words: two hundred and fifty thousand euros).

11.4.     We cannot invoke the limitations of liability in this article if your damage is the result of gross negligence, wilful recklessness and intent on our, our di-rectors' or our de facto managers' part.

11.5.     Claims for damages must be reported to us in writing, substantiated, fully and clearly described no later than thirty (30) days after the occurrence of such damage, or thirty (30) days after the moment when you could reason-ably have become aware of such damage. Failure to report this damage in a timely and correct manner will result in you losing all your rights in connec-tion with the damage.

11.6.     Unless expressly agreed otherwise in writing, you indemnify us against claims from third parties in connection with the Products delivered by us and Services provided by us.

11.7.     This article is without prejudice to our legal liability under mandatory provi-sions of law.

Article 12. Complaints

12.1.     We produce our products with the utmost care. The Products delivered and, insofar as possible, the Services provided must be examined no later than one (1) month after supply/delivery to determine whether they comply with the Agreement. All complaints about the performance of the Agreement, in-cluding (but not limited to) complaints about the non-conformity of Products delivered and Services provided, must be submitted to us in writing, ful-ly and clearly described, no later than one (1) month after delivery. Failure to submit a complaint in a timely manner will result in you losing all your rights in connection with that complaint.

12.2.     We aim to respond to your complaint within one (1) week.

12.3.     If the delivered Products do not comply with the Agreement, we are only obliged to deliver the missing part, repair the delivered Product or replace the delivered Product. We may choose which of these options is most ap-propriate for us in the specific case.

Article 13. Warranty

13.1.     We take great care when putting together the Products and Services, but we cannot and therefore do not guarantee the accuracy and completeness of the Products and Services.

13.2.     For the purpose of the performance of the Agreement, you will provide us with all information and other materials necessary for the delivery of the Products and/or performance of the Services in a timely manner. You are re-sponsible for the correctness and completeness of this information and these materials.

13.3.     For machines and/or equipment developed, delivered and/or installed by us, we apply a warranty period of six (6) months after the delivery of the relevant Product. The warranty expressly does not cover defects resulting from:

a.          Normal wear and tear;

b.          Use contrary to technical regulations;

c.           Maintenance not performed or incorrectly performed on the Product;

d.          Installation, assembly, modification or repair of the Product not performed by us;

e.          The Product being installed in a different location after delivery from that at the time of delivery.

f.           Errors that are not our fault.

13.4.     For the warranty on Products as described in paragraph 3 of this article, if it turns out that the delivered construction or the materials or parts used for the Product are not sound, we will repair or replace them within the warran-ty period. The parts we repair or replace must be sent to us carriage paid. In all cases, you must give us the opportunity to repair any defect or to perform any rework. 

13.5.     This warranty applies only to labour hours and material costs. Any travel and accommodation costs are excluded from the warranty.

13.6.     You can only invoke the warranty described in this article if you have fulfilled all your obligations towards us under the Agreement.

Article 14. Force majeure

14.1.     The Parties are not obliged to fulfil an obligation under the Agreement if they are unable or no longer able to implement the Agreement, if this is a result of circumstances beyond the control or risk sphere of that Party. Cir-cumstances beyond the control of that Party include in any case (but not exclusively): war or a similar situation, mobilisation, riot, strike, excessive absen-teeism of that Party’s management or personnel, occupation, blockade, boycott, outbreak of pandemics or infectious diseases and their conse-quences, natural phenomena, weather conditions, fire or failure of the supply of electricity, gas or water, lack of timely performance by suppliers or auxilia-ry persons, government measures and shortages of raw materials.

14.2.     When a situation referred to in paragraph 1 of this article arises, the Party concerned will notify the other Party as soon as possible. The Parties will discuss a possible amendment to the Agreement.

14.3.     In the event of temporary force majeure, including the situation whereby Products and/or Services you order are temporarily out of stock, we may extend the delivery period we specify by the amount of time that the tempo-rary force majeure continues. If we do so, we will let you know in writing.

14.4.     In the event that the (temporary) force majeure lasts longer than three (3) months or there is a reasonably justified expectation that the (temporary) force majeure will last longer than three (3) months, you may unilaterally dissolve the Agreement.

Article 15. Dissolution

15.1.     If you fail to fulfil one (1) or more of your obligations under the Agreement, or fail to do so on time or in full, we can dissolve the Agreement with immediate effect, without judicial intervention and without being obliged to pay compensation, if – as long as fulfilment is not already permanently impossi-ble – you still fail to fulfil your obligations after a written notice of default has been given granting a reasonable period of time, without prejudice to all other rights to which we are entitled.

15.2.     If you are unable to meet due and payable debts, become insolvent, your bankruptcy/liquidation is filed for, if (provisional) suspension of payment is applied for, you cease your business, there is a total or partial shutdown or winding-up of your company, your business is transferred or merged, or an attachment is levied against you (and not lifted within thirty (30) days), or if there is a force majeure situation as referred to in this article that lasts longer than three (3) months (or may reasonably be expected to last longer than three (3) months), we may always dissolve the Agreement immediately without judicial intervention, without notice of default being required and without being obliged to pay compensation.

15.3.     If we discontinue the issue of the Product or the provision of the Service to which the Agreement relates, we may dissolve the Agreement with imme-diate effect without judicial intervention and without being obliged to pay compensation.

Article 16. Consequences of termination

16.1.     Except in the event that ownership of the Products has been transferred from us to you, the use of the Products and/or Services must be immediately discontinued upon termination of the Agreement and they (including any copies, transcripts and back-ups) must be returned to us without delay and at your own expense and risk. You are always obliged to ensure that, if appli-cable, the Products are returned in the same condition as at the start of the Agreement. You must cooperate fully with any checks to be carried out by or on behalf of us that all obligations as described in this article have been met.

16.2.     Upon termination of the Agreement, all claims against you will become immediately due and payable. All claims must be paid no later than seven (7) days after the end of the Agreement.

16.3.     We are never obliged to pay you compensation or payment due to the termination of the Agreement, without prejudice to our right to full compensa-tion for your breach of your obligations under the Agreement and without prejudice to the other rights to which we are entitled in that case.

16.4.     Obligations which by their nature are intended to continue after the end of the Agreement will continue to apply in full even after the expiry, dissolution or termination of an Agreement or of a subsequent agreement resulting therefrom and will apply to you and your legal successors.

Article 17. Personal data

17.1.     We declare that we will comply with all relevant laws and regulations in the field of personal data protection in the performance of the Agreement. We process personal data in accordance with our privacy statement (see https://www.nbdtechnology.com/en/privacy-statement). If and insofar as personal data is processed for and/or together with you in the context of the performance of the Agreement, the Parties will conclude such further agreement(s) as are required by the laws and regulations applicable at the time in the field of privacy and personal data protection.

Article 18. Confidentiality

18.1.     All business information, including (but not limited to) work practices, pric-ing models, procedures, information about systems, plans, financial figures, customer documents, software and knowhow that is received or becomes available to you under the Agreement must be kept confidential and secret and must not be disclosed or reproduced in any way. You must pass this obligation on to your employees and any third parties who come into contact with this company information.

18.2.     In the event of a violation of the obligation, as described in paragraph 1 of this article, you will owe an immediately due and payable penalty of EUR 10,000 (in words: ten thousand euros) for the violation, without prejudice to our right to claim full compensation for damage suffered and to be suffered by us, while you will also immediately notify us of the violation in writing and render us all cooperation necessary to protect our interests in the given cir-cumstances. 

Article 19. Transferability of the Agreement

19.1.     We may transfer our rights and obligations under the Agreement to any legal successors. You are obliged to render all cooperation necessary for said transfer at our first request.

19.2.     You may only transfer your rights and obligations under the Agreement to a third party with our prior written consent.

Article 20. Choice of law and dispute resolution, non-binding nature

20.1.     The Agreement between the Parties is governed by Dutch law. The applicability of the Vienna Sales Convention (CISG) is excluded.

20.2.     All disputes arising as a result of the Agreement between the Parties or of further agreements concluded between you and us if you are established within the European Union, will be decided at first instance by the Court of The Hague. All disputes arising as a result of the Agreement between the Parties or of further agreements concluded between you and us if you are established outside the European Union, will be settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute. The place of arbitration will be The Hague. The proceedings will be conducted in English.

20.3.     If one (1) or more of the provisions of these General Terms and Conditions prove to be invalid, the other provisions will remain in full force. In that case, the Parties will act as far as possible in accordance with the Parties' intention, while preserving the purport of this Agreement and the invalid provisions as far as possible.