E-Tuk Factory B.V.
Verrijn Stuartweg 22 P
1112 AX DIEMEN
T: 0031 20 613 8421
Trade Company licence no.: 34310829
Version: December 2015
1.1 In these general terms and conditions, the following words have the following meanings:
Agreement: every written agreement between E-Tuk Factory B.V. and the Other Party (as defined below), to which these general conditions apply.
Products: Goods or Services.
Goods: all goods, parts or their results, including drawings, designs, materials,
documentation, hardware and software in whatever form, as referred to in the Agreement, used or made available by E-Tuk Factory B.V. in the execution of the Agreement.
Services: all that which does not come within the definition of Goods, including the provision of advice, installation and assembly, inspection, testing, transport or other services or their results, as referred to in the Agreement.
Work: the Goods or Services to be delivered, in whatever form, or a combination of them, or their results.
The Other Party: every party – in whatever legal form – that purchases one or more Products or Services from, places orders or concludes or has concluded one or more Agreements with E-Tuk Factory B.V. The Other Party is also understood to mean a representative or representatives, an authorised person or persons and a successor or successors by universal or particular title.
1.2 The application of any other general conditions whatsoever of the Other Party are explicitly rejected.
1.3 If any of these general terms and conditions is null and void or annulled, the other provisions of these general conditions shall remain in full force.
2 Offer and Agreement
2.1 These general terms and conditions shall apply to all offers, legal relationships and Agreements under which E-Tuk Factory B.V. provides Goods and or Services of whatever nature to the Other Party. Deviations from and additions to these general terms and conditions shall only be valid if they have been expressly agreed in writing.
2.2 All offers and other statements by E-Tuk Factory B.V. shall be without obligation, unless the Other Party expressly indicates otherwise in writing. The Other Party warrants the accuracy and completeness of the measurements, requirements, performance specifications and other data on which E-Tuk Factory B.V. bases its offer and which have been stated by or on behalf of the Other Party to E-Tuk Factory B.V.
General Conditions E-Tuk Factory B.V.
2.3 If E-Tuk Factory B.V. delivers or has delivered any performance at the Other Party’s request before complete agreement has been reached on the conditions, including price and payment terms, the Other Party will effect payment for this to E-Tuk Factory B.V. in accordance with the conditions, including prices, applied by E-Tuk Factory B.V. at that time.
3 Prices and payment
3.1 All prices shall be exclusive of turnover tax (VAT) and other levies imposed by the government.
3.2 In so far as the delivery of Goods is concerned, the prices are based on delivery Ex Works ("EXW") as referred to in the latest applicable version of the INCOTERMS of the International Chamber of Commerce in Paris, which apply from time to time.
3.3 Any objections to invoices, specifications, descriptions and prices must be communicated to E-Tuk Factory B.V. in writing within no more than 14 days of receipt, after which period no objections can no longer be raised by the Other Party, and all invoices, specifications, descriptions and prices are deemed to be approved and confirmed by the Other Party. Receipt of invoices, specifications, descriptions and prices is deemed to have taken place before or at least upon the day of dispatch by E-Tuk Factory B.V.
3.4 E-Tuk Factory B.V. shall not be responisble for late delivery in case downpayments by the Other Party have been delayed.
3.5 E-Tuk Factory B.V. will at all times be entitled to require that the Other Party pays the price or balance of the Products in advance or that the Other Party provides sufficient security.
3.6 In case the Other Party cancels an order the following costs apply: 20% of the total order amount in case the order is cancelled within 3 months before delivery. 50% of the total order amount in case the order is cancelled within 2 months before delivery. 80% of the total order amount in case the order is cancelled later than the above mentioned periods.
3.7 If the Other Party does not pay the amounts owed in a timely manner, the Other Party shall owe legal interest on the outstanding amount, without any written demand or notice of default being necessary. If the Other Party still fails to pay the claim after a written demand or notice of default, E-Tuk Factory B.V. is entitled pass on the claim for collection, in which case the Other Party shall, in addition to the total amount owed then, be obliged to pay for all in-court and out-of-court expenses, including expenses charged by external experts in addition to the costs determined at law. The Other Party shall also owe the expenses incurred by E-Tuk Factory B.V. with respect to unsuccessful mediation if the Other Party is ordered by a judgment to pay the outstanding amount in full or in part.
3.8 Every amount received from the Other Party, irrespective of its description, will serve first to pay the interest due, all legal and other costs and contractual penalties due and then the amounts that have been outstanding the longest.
4 Agency and distribution Agreements
The Other Party will not be an agent, commercial agent or distributor of E-Tuk Factory B.V. unless such has been explicitly agreed between the Parties in a written agency or distribution agreement. The discount or commission received by the Other Party as distributor or agent will always include the consideration for bringing in new clients or increasing E-Tuk Factory B.V. goodwill. Compensation, a goodwill payment, customer fee or other fee will solely be payable by E-Tuk Factory B.V. on termination of the agency or distribution Agreement in so far as E-Tuk Factory B.V. is obliged to do so under mandatory rules of law.
5 Execution of the Agreement (incl. Agreement variations)
5.1 E-Tuk Factory B.V. will carry out the Work as agreed and is authorised to engage third parties in the execution of the Work.
5.2 The terms specified in the Agreement within which the Work or a part or parts of the Work must be delivered are approximate dates only and are not strict deadlines. They are based on the circumstances applicable to E-Tuk Factory B.V. at the time the Agreement was concluded and, in so far as dependent on the performance of third parties, on the information provided to E-Tuk Factory B.V. by those third parties. The relevant term will in any case be extended by the period in which the execution of the Work was impeded due to the actions or omissions of the Other Party.
5.3 All statements of numbers, dimensions, weights or other specifications of the Products are provided by E-Tuk Factory B.V. with due care. E-Tuk Factory B.V. cannot guarantee, however, that variations will not occur. Any samples, drawings, formats or other examples shown or provided are only indications of the relevant Products.
5.4 E-Tuk Factory B.V. will charge any additional work separately. ‘Additional work’ is deemed to be all that which, either in consultation with the Other Party or otherwise, is delivered or performed by E-Tuk Factory B.V. during the execution of the Agreement in addition to that which is laid down in the Agreement.
6 Retention of title
6.1 All objects delivered to the Other Party shall remain E-Tuk Factory B.V.’ property until all amounts owed by the Other Party for the objects delivered or to be delivered or work performed or to be performed under the Agreement, as well as all other amounts which the Other Party owes due to a breach of its payment
obligation, have been paid fully to E-Tuk Factory B.V. If the Other Party is acting as a reseller it may sell and re-deliver all items subject to E-Tuk Factory B.V.’ retention of title insofar as that is common in connection with its normal business operations. If the Other Party creates a new object wholly or partly from the objects delivered by E-Tuk Factory B.V., the Other Party shall create that object solely for E-Tuk Factory B.V. and the Other Party shall hold the newly created object for E-Tuk Factory B.V. until the Other Party has paid all amounts owed under the Agreement; in that event, E-Tuk Factory B.V. shall possess all rights as the owner of the newly created object until the time the Other Party makes full payment.
6.2 As the occasion arises, rights shall always be granted or transferred to the Other Party on the condition that the Other Party has paid the agreed fees fully and in a timely manner.
7 Non Compete
7.1 For the term of the Agreement and for a period following the termination of the Agreement equal to 6 months per 12 months that the Agreement was in force, the Other Party agrees and undertakes that it shall not, directly or indirectly, unless prior written consent has been obtained by E-Tuk Factory B.V.:
(i) solicit, induce attempt to hire, hire or entice away any employee, consultant or director, of E-Tuk Factory B.V. or assist in any such solicitation, inducement or attempt to hire or hiring by any other person or encourage any such employee director or consultant to terminate its professional relationship with E-Tuk Factory B.V. or to work for any other individual or entity;
(ii) divert or attempt to divert from E-Tuk Factory B.V. the business of any of the clients, customers or accounts or of prospective clients, customers or accounts of E-Tuk Factory B.V.;
(iii) compete with E-Tuk Factory B.V., business or participate or be involved, as owner, stockholder, director, officer, manager, agent, consultant, representative or otherwise, in any business, firm or corporation that competes with E-Tuk Factory B.V.’ business; or
(iv) engage, participate or be involved, as owner, stockholder, director, officer, manager, agent, consultant, representative or otherwise, in any business, firm or corporation that relates in any way to the services performed under the Agreement.
7.2 To compete means to undertake what to be interested in any identical assemble business or business that is in general to be considered as being in competition with E-Tuk Factory B.V. (or any of its subsidiaries if any) whether directly or indirectly, alone or jointly with others whether as owner, stockholder, director, officer, manager, agent, consultant, representative or otherwise and whether for its own benefit or for that others.
7.3 If the Other Party commits a breach of this clause 7 and fails to remedy that breach within 14 days of a written notice by registered mail giving reasonable particulars of the breach and requiring it to be remedied, the Other Party shall be obliged to pay liquidated damages equal to EUR 50,000 to E-Tuk Factory B.V. per trespassing event and EUR5,000 for each day the trespassing event continues, notwithstanding E-Tuk Factory B.V.’ right to claim full damages for the harm actually sustained by it.
8 Intellectual property (intellectual property rights)
8.1 All intellectual and industrial property rights developed or provided under the Agreement shall be held solely by E-Tuk Factory B.V., its licensors or its suppliers. The Other Party shall only acquire the rights of use expressly granted in these Terms and Conditions and by law.
8.2 If, in deviation from clause 8.1, E-Tuk Factory B.V. is prepared to undertake to transfer an intellectual or industrial property right, such an obligation may only be entered into expressly in writing. If the Parties expressly agree in writing that intellectual or industrial property rights or other materials specifically developed for the Other Party shall be transferred to the Other Party, this shall not affect E-Tuk Factory B.V.’ right to apply and to use, either for itself or for third parties, the parts, general principles, ideas, designs, documentation, works, programming languages and the like underlying that development, without any limitation on other purposes. Nor shall a transfer of intellectual or industrial property rights affect E-Tuk Factory B.V.’ right to undertake developments for itself or third parties which are similar to those done for the Other Party.
8.3 The Other Party shall not be allowed to remove or modify any designation concerning the confidential nature or concerning copyrights, trademarks, business names or other intellectual or industrial property rights from the software, websites, databases, equipment or materials.
8.4 The Other Party shall indemnify E-Tuk Factory B.V. against any third-party cause of action based on the claim that the products developed by the Other Party itself infringe an intellectual or industrial property right applicable in The Netherlands, on the condition that the Other Party immediately informs E-Tuk Factory B.V. in writing about the existence and substance of the cause of action and let E-Tuk Factory B.V. handle the matter completely, including with respect to agreeing to any settlements. To that end, the Other Party shall provide the necessary powers of attorney, information and cooperation to E-Tuk Factory B.V. to defend - if necessary, in the Other Party's name - against these causes of action.
8.5 The Other Party warrants that there are no third-party rights which are inconsistent with providing E-Tuk Factory B.V. with materials intended for websites (visual material, text, music, domain names, logos etc.), databases, or other materials, including draft material, intended for use, adaptation, installation or incorporation.
The Other Party shall indemnify E-Tuk Factory B.V. against any action based on the claim that such provision, use, adaptation, installation or incorporation infringes a third-party right.
E-Tuk Factory B.V. and the Other Party shall keep confidential during the term of the Agreement and for a period of two years following its termination all information (i) provided in relation to the Agreement, that is not in the public domain and of which they become aware in connection with the Agreement, regardless of whether such information is of a commercial or non-commercial nature unless a legal obligation mandates disclosure of such information. This obligation will expire as soon as the relevant information becomes generally available through no fault of the party obliged to maintain confidentiality. Such information is solely to be used for the purpose for which it has been made available and shall at all times be kept inaccessible to third parties.
If E-Tuk Factory B.V. is unable to fulfil its obligations towards the Other Party on account of a non-attributable failure, i.e. force majeure, the performance of those obligations will be suspended until such time as E-Tuk Factory B.V. is able to fulfil them, without E-Tuk Factory B.V. being in default as regards the fulfilment of those obligations. E-Tuk Factory B.V. can furthermore not be held liable to pay any compensation in this respect.
If the situation of force majeure has continued for a period of four months after the agreed date of delivery/performance, both parties will have the right to terminate all or part of the Agreement, in writing, without being liable towards the other party for the consequences of this termination.
‘Force majeure’ on the part of E-Tuk Factory B.V. will in any case include any circumstances beyond E-Tuk Factory B.V.’ control, such as war, civil war, threat of war, riot, strike, exclusion of workers, transport problems, power cuts, severe weather such as storms and thunderstorms, fire and other severe interruptions, which prevent or delay the fulfilment of all or the relevant part of its obligations towards the Other Party, render this inefficient or as a result of which the fulfilment of these obligations cannot in all reasonableness be required of E-Tuk Factory B.V.
Liability and indemnification
E-Tuk Factory B.V.’ total liability for imputably failing to perform the Agreement shall be limited to compensating direct damage, up to at most the amount of the price (exclusive of VAT) stipulated for that Agreement.
11.2 If the Agreement is primarily a continuing performance agreement with a term exceeding one year, the price stipulated for the Agreement shall be set at the total of the fees (exclusive of VAT) stipulated for one year. The total compensation for direct damage shall not, however, in any case exceed EUR 100,000. "Direct damage" shall solely mean:
(i) reasonable expenses which the Other Party would have to incur to make the E-Tuk Factory B.V.’ performance conform to the Agreement; this alternative damage shall not be compensated, however, if the Agreement is rescinded by or at the suit of the Other Party;
(ii) reasonable expenses incurred to determine the cause and scope of the damage, insofar as the determination relates to direct damage within the meaning of these Terms and Conditions; and
(iii) reasonable expenses incurred to prevent or mitigate damage, insofar as the Other Party demonstrates that these expenses resulted in mitigation of direct damage within the meaning of these Terms and Conditions.
11.3 E-Tuk Factory B.V.’ liability for consequential damage, consequential loss, lost profits, lost savings, loss of goodwill, damage through business interruptions, damage ensuing from claims by the Other Party’s customers, damage relating to engagement of suppliers prescribed by the Other Party for E-Tuk Factory B.V. and all other forms of damage or injury besides those mentioned in clause 11.1 on any account whatsoever, shall be excluded.
11.4 The limitations mentioned in the preceding paragraphs of this clause 11 shall not apply if and insofar as the damage or injury is the result of intentional acts or omissions or gross negligence by E-Tuk Factory B.V. or its managers.
11.5 E-Tuk Factory B.V.’ liability because of an imputable failure to perform an Agreement shall in all cases only arise if the Other Party immediately and properly provides a written notice of default to E-Tuk Factory B.V., with a reasonable time period for remedying the failure being given and E-Tuk Factory B.V. still imputably failing to perform its obligations after that period as well. The notice of default must contain a description of the breach which is as complete and specific as possible, so that E-Tuk Factory B.V. can respond adequately.
11.6 For any right to damages to exist, the Other Party must always report the damage or injury to E-Tuk Factory B.V. in writing as soon as possible after it occurs. Any claim to damages against E-Tuk Factory B.V. shall be extinguished by the mere lapse of 24 months after the claim arises.
11.7 The provisions in this Article shall also apply for the benefit of all legal and natural persons utilised by E-Tuk Factory B.V. in executing the Agreement.
12.1 Each of the Parties shall only be entitled to rescind the Agreement if the Other Party imputably fails to perform material obligations under the Agreement - in all cases, after having received a proper written notice of default which is as detailed as possible and in which it has been given a reasonable time period to remedy the breach.
12.2 If an Agreement which, by its nature and substance, will not end when certain conditions, acts or the like are fulfilled, has been entered into for an indefinite period of time, each of the Parties may terminate the Agreement by written notice after proper consultation and with a statement of reasons or for no reason at all. If the Parties have not agreed on an express notice period, a reasonable notice period must be observed in terminating the Agreement. The Parties shall never be liable for damages for terminating the Agreement.
12.3 Each of the Parties may partly or completely terminate the Agreement in writing with immediate effect and without a notice of default if the other party is granted a provisional or non-provisional suspension of payments, if a petition for liquidation is filed with regard to the other party or if the other party's business is wound up or terminated for other reasons besides a business reconstruction or merger. E-Tuk Factory B.V. shall never be obliged on account of this termination to refund funds already received or to pay damages.
12.4 If, at the time of the rescission referred to in clause 12.1 the Other Party has already received performance in connection with execution of the Agreement, this performance and the related payment obligation shall not be cancelled, unless the Other Party proves that E-Tuk Factory B.V. is in default with regard to that performance. Amounts which E-Tuk Factory B.V. has invoiced before the rescission in connection with respect to already properly performed or delivered Work shall, subject to the provisions in the preceding sentence, continue to be owed in full and shall be immediately payable at the time of rescission.
13 Transfer of rights
13.1 E-Tuk Factory B.V. is permitted to transfer the rights and obligations described in any Agreement to third parties. E-Tuk Factory B.V. must notify the Other Party of any such transfer. E-Tuk Factory B.V. will not be obliged to pay any compensation whatsoever in this respect.
13.2 Transfer of obligations pursuant to clause 13.1 shall take effect upon receipt of notice from the transferee to the Other Party whereby the transferee agrees to be bound by the terms of the Agreement, whereupon the transferee shall be liable to the Other Party in place of E-Tuk Factory B.V.
14.1 All legal relationships between E-Tuk Factory B.V. and the Other Party will be governed and construed exclusively in accordance with the laws of the Netherlands and will be subject to the exclusive jurisdiction of the court of Amsterdam, the Netherlands.