1. Price and payment
1.1 All prices shall be exclusive of value added tax (VAT) and other levies imposed by the government.
1.2 Gridler shall be entitled to adjust the applicable prices and rates by providing written notice at least [three months] in advance. The Customer shall be entitled to terminate the Agreement within [thirty days] after the notice.
1.3 The Customer shall pay invoices in accordance with the payment conditions stated on the invoice. In the absence of a specific provision, the Customer shall pay within thirty days after the invoice date. The Customer shall not be entitled to set off or to suspend any payment.
1.4 The Customer shall further owe all costs of extrajudicial and legal assistance.
2. Retention of title and rights, specification and possessory lien
2.1 All objects delivered to the Customer shall remain Gridler’s property until all amounts owed by the Customer for the objects delivered or to be delivered or work performed or to be performed, as well as all other amounts, have been paid fully to Gridler.
2.2 As the occasion arises, rights shall always be granted or transferred to the Customer on the condition precedent that the Customer pay the agreed fees fully and in a timely manner.
3.1 The risk of loss or theft of or damage to objects, products, software or data which are the subject of the Agreement shall pass to the Customer at the time they have been placed at the actual disposal of the Customer or an agent used by the Customer.
4. Intellectual or industrial property rights
4.1 All intellectual and industrial property rights to software, databases, equipment or other materials developed or provided under the Agreement, such as analyses, designs, documentation, reports, offers, as well as preparatory materials in that regard, shall be held solely by Gridler, its licensors or its suppliers. The Customer shall only acquire the rights of use expressly granted in these Terms and Conditions and by law. Any other or more extensive right of the Customer to reproduce software, databases or other materials shall be excluded. A right of use to which the Customer is entitled shall be non-exclusive and non-transferable to third parties.
4.2 The Customer 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, databases, equipment or materials.
4.3 Gridler shall be allowed to take technical measures to protect the software or with a view to agreed restrictions in the duration of the right to use the software. The Customer shall not be allowed to remove or evade such a technical measure.
5. Delivery periods
5.1 All delivery and other periods stated or agreed by Gridler have, to the best of its knowledge, been determined based on data known to Gridler when it entered into the Agreement. The delivery periods are indicative estimates and are not strict deadlines. The mere fact that a stated or agreed delivery or other period has been exceeded shall not cause Gridler to be in default. In all cases, hence, even if the Parties have expressly agreed on a firm date in writing, Gridler shall not be in default because of a time period being exceeded until the Customer has provided it with a written clear notice of default.
6. Termination of the Agreement
6.1 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.
6.2 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. Gridler shall never be obliged on account of this termination to refund funds already received or to pay damages. In the event of the Customer’s liquidation, the right to use software provided to the Customer shall be extinguished by law.
7. The Supplier’s liability; indemnity
7.1 Gridler’s 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. The total compensation for direct damage shall not, however, in any case exceed EUR 5.000,00. “Direct damage” shall solely mean:
reasonable expenses which the Customer would have to incur to make Gridler’s 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 Customer;
reasonable expenses which the Customer has incurred out of necessity to keep its old system or systems and related faculties operating longer because Gridler did not provide delivery on a firm delivery date which was binding for it, minus any savings resulting from the delay in delivery;
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;
reasonable expenses incurred to prevent or mitigate damage, insofar as the Customer demonstrates that these expenses resulted in mitigation of direct damage within the meaning of these Terms and Conditions.
7.2 Gridler’s liability for consequential damage, consequential loss, lost profits, lost savings, loss of goodwill, damage through business interruptions, damage ensuing from claims by the Customer’s customers, mutilation or loss of data, damage relating to the use of objects, materials or software of third parties prescribed by the Customer for Gridler, damage relating to engagement of suppliers prescribed by the Customer for Gridler and all other forms of damage or injury besides those mentioned in Article 7.1, on any account whatsoever, shall be excluded.
7.3 The limitations mentioned in the preceding paragraphs of this Article 7 shall be increased up to EUR 5.000,00 if and insofar as the damage or injury is the result of intentional acts or omissions or gross negligence by Gridler or its managers.
7.4 The Supplier’s liability because of an imputable failure to perform an Agreement shall in all cases only arise if the Customer immediately and properly provides a written notice of default to Gridler, with a reasonable time period for remedying the failure being given and Gridler still imputably failing to perform its obligations after that period as well.
7.5 For any right to damages to exist, the Customer must always report the damage or injury to Gridler in writing as soon as possible after it occurs. Any claim to damages against Gridler shall be extinguished by the mere lapse of 24 months after the claim arises.
7.6 The Customer shall indemnify Gridler against all third-party claims because of product liability ensuing from a defect in a product or system which has been delivered by the Customer to a third party and which partly consisted of equipment, software or other materials delivered by Gridler, except if and insofar as the Customer proves that the damage or injury was caused by that equipment, software or other materials.
7.7 The provisions in this Article shall also apply for the benefit of all legal and natural persons utilised by Gridler in executing the Agreement.
8. Force Majeure
8.1 A Party shall not be obliged to perform any obligation if it is prevented from doing so by a situation of force majeure. “Force majeure” shall also include a situation of force majeure for Gridler’s suppliers, improper performance of obligations by suppliers prescribed by the Customer for Gridler, as well as defects in objects, materials or software of third parties which the Customer has required Gridler to use.
8.2 If a situation of force majeure lasts for more than 90 days, the Parties shall be entitled to terminate the Agreement by rescinding it in writing. What has already been performed pursuant to the Agreement shall in that case be settled proportionately, without the Parties otherwise owing each other anything.
9. Applicable law and disputes
9.1 Dutch law shall govern the Agreements between Gridler and the Customer. The Vienna Convention on International Sale of Goods of 1980 shall not apply.
9.2 Disputes arising between Gridler and the Customer in connection with an Agreement concluded between Gridler and the Customer or in connection with further agreements which arise under this shall be settled in the District Court (Rechtbank) of Utrecht.
9.3 The Dutch version of the general terms and conditions will prevail over the English translation of the general terms and conditions of Gridler.