1.1 Customer: The Counter Party that enters into an Agreement with the private limited liability company CyberTwice B.V., with its registered office at Flemingstraat 50, 1704 SL, Heerhugowaard, The Netherlands, herein referred to as CyberTwice, or which is negotiating in such a matter, as well as the Counter Party which requests an offer from CyberTwice or which has an offer sent by CyberTwice.1.2 Agreement: The binding Agreement between CyberTwice and the Customer, in whichever form, together with the amendment(s) and addition(s) to it and every (further) order which is placed on the grounds of this Agreement.
2.1 These General Terms and Conditions apply to all Offers and Tenders by CyberTwice, as also to all Agreements to be entered into by CyberTwice and the ensuing activities, including the supply of goods and services, with the exclusion of the General Terms and Conditions of the Customer.
2.2 Formation of an Agreement, as defined in Article 4 of these General Terms and Conditions, implies that these General Terms and Conditions have been accepted by the Customer.
2.3 Derogations from these General Terms and Conditions must have been expressly agreed upon in writing. Derogations will then apply only to the offers concerned and Agreements to which they apply.
2.4 Should CyberTwice not always demand strict observance of these General Terms and Conditions, this does not imply that these General Terms and Conditions do not apply and/or that CyberTwice will lose the right to demand strict observance of these General Terms and Conditions in future cases, whether similar or not.
2.5 If the Customer is a real person, not acting in the course of a profession or company, the articles of these General Terms and Conditions or parts of it which are unreasonably onerous for the Customer because they occur on the List as meant in Section 6:236 of the Dutch Civil Code, or because they are in contravention of stipulations of mandatory rules of Consumer’s Law, will not apply. In this case, the other stipulations will continue to apply.
2.6 The rescission and/or nullity of any stipulation of these General Terms and Conditions do not affect the other stipulations. The conflicting, legally invalid, stipulation will be considered to have been replaced by a stipulation in which the intentions and purpose of the original stipulation are done justice.
3.1 All Offers and Tenders made by CyberTwice are always subject to contract, unless it has been expressly stipulated differently in writing, or unless they contain a fixed term for acceptance.
3.2 Should an Offer or Tender be subject to contract and be accepted by the Customer, CyberTwice will have the right to revoke the offer within 5 days after having received the acceptance. Offers and Tenders from CyberTwice may only be accepted by the Customer without derogations.
3.3 Offers and Tenders made orally cannot be binding, unless they later have been confirmed in writing by CyberTwice , albeit by means of an invoice.
3.4 All specifications of types, sizes, measurements, numbers, weights, rates and possibilities for processing will be made known while taking the utmost care, without, however, CyberTwice guaranteeing that no discrepancies can or will occur. Should these unforeseen discrepancies occur, they will in no way bind CyberTwice.
4.1 An Agreement will solely come about by written confirmation and acceptance by CyberTwice or if CyberTwice has explicitly begun to perform in accordance with the Agreement.
4.2 Should a number of persons or legal entities form the Customer, they will all be jointly and severally liable for the fulfilling of the Agreement. Should the Agreement have been entered into by a third party on behalf of the Customer, said third party will warrant the Customer having accepted these General Terms and Conditions, failing which the third party is bound to these General Terms and Conditions as if it were the Customer itself.
4.3 CyberTwice is entitled to engage third parties in the execution of the Agreement.
Except with express permission in writing from CyberTwice, the Customer is forbidden to assign rights or duties under the Agreement to third parties.
4.4 CyberTwice is entitled to refuse the request to enter into an Agreement partially or completely or to postpone the execution of an outstanding Agreement for reasons of its own. This authority can be invoked, amongst other, because of the content(s), nature, import or form of such a request as well as because of technical objections, refusal of (advance) payment(s) or conflict of the request with the interests of CyberTwice or third parties, amongst which other customers.
4.5 The Customer cannot invoke an Agreement if, before or during the execution of the Agreement, the information provided by the Customer on sizes, measurements, weights and numbers proves to be incorrect or incomplete. In such an event CyberTwice reserves the right to not, or not further execute an Agreement. In such a case CyberTwice can never be obliged to pay any compensation for damages or loss to the Customer, without prejudice to the right and possibility of CyberTwice to be able to claim compensation for damages or loss from the Customer, or to execute the Agreement as yet, at a higher price than agreed upon, Customer then being obliged to perform said payment.
5.1 The Customer bears the risk of misunderstandings as to the contents and execution of the Agreement if these arise from CyberTwice not receiving, not receiving in a timely or in an incomplete fashion of specifications or other communications made orally or by a person appointed thereto by the Customer or if they have been covered by any technical means such as telephone, telefax and suchlike means of transmission.
5.2 The Customer cannot derive any rights from advice and information it obtained from CyberTwice if it bears no direct relation to the Agreement.
5.3 Complete or partial amendment of the Agreement by the Customer is only possible if CyberTwice agrees to it in writing. Should a complete or partial amendment of the Agreement lead to additional costs, CyberTwice will be entitled to charge the Customer for compensation, to such an extent that the additional costs will at any rate be passed on to the Customer. Besides, the Customer will be completely liable for the consequences of the amendment in the Agreement towards third parties and will indemnify CyberTwice in this respect.
5.4 Except with express permission in writing from CyberTwice, the Customer is not entitled to annul the Agreement completely or partially.
5.5 To a permission in writing, as named in paragraph 4, CyberTwice can attach the condition that it will be entitled to charge the Customer for compensation. These damages are understood to include the losses incurred and profits lost by CyberTwice and at any rate they are understood to include the expenses CyberTwice has already incurred during preparation, amongst which the costs of reserved production capacity, purchased materials, services engaged and storage. In case of complete or partial annulment by the Customer, the Customer is furthermore fully liable to third parties for the consequences of the annulment and indemnifies CyberTwice in this respect.
5.6 Should it prove necessary, in the course of the execution of the Agreement, at the discretion of CyberTwice, for a proper execution of the Agreement, to change and/or supplement the work to be performed, CyberTwice will inform the Customer of this, after which the Agreementwill be amended, whether or not partially. CyberTwice can never be held to any compensation of damages to the Customer as a consequence of such an amendment.
6.1 All prices stated by CyberTwice are exclusive of turnover tax and other government levies and increases, unless expressly stated otherwise in writing.
6.2 The price CyberTwice has stated for the performances to be executed by it, is exclusively valid for the performances in accordance with the specifications agreed upon.
6.3 CyberTwice is entitled to charge extra costs, which were not agreed upon expressly in the Agreement, separately to the Customer, if incurring these costs is necessary for the execution of the Agreement. When appropriate, the Customer will be informed of this in writing as soon as possible.
6.4 CyberTwice is furthermore entitled to raise the prices and tariffs agreed upon, amongst others in case of interim price increases and/or surcharges on prices of goods, costs of materials, semi-finished products or services necessary for the execution of the Agreement, shipping costs, wages or social contributions, decrease in value of the currencies agreed upon and all other government measures having the effect of increasing prices as a result of which the cost price increases. Should this occasion arise, the Customer will be informed of this in writing as soon as possible.
6.5 Should, after the Agreement has been entered into, prices for the realization of the Agreement undergo a raise before CyberTwice has completely met its obligations, CyberTwice will be entitled to adapt and change its prices accordingly if and insofar 3 months have elapsed since the coming about of the Agreement.
7.1 Amounts owed in the framework of the Agreement will be charged by means of an invoice. Payment must occur in euros within the term of payment named in the Agreement, being the strict deadline. If no term of payment was included in the Agreement, payment is to take place within 30 days after the invoice date, being the strict deadline.
7.2 The Customer cannot appeal to any right of discount, suspension or deduction. Compensation by the Customer is only permitted if CyberTwice has recognized the Customer's claim in writing.
7.3 If a Delivery has been agreed upon in installments and the first installment has been delivered, besides payment for this installment, CyberTwice is entitled to demand payment for the costs incurred for the whole Delivery.
7.4 At CyberTwice's first request, the Customer is obliged to provide security for the amounts to be paid to CyberTwice under the Agreement. The security provided will have to be such that the claim and all interest and costs possibly accruing to it will be properly covered and that CyberTwice will be able to recover from it without difficulty. Security which may have become insufficient at a later stage will have to be supplemented to a sufficient security at CyberTwice's first request. Furthermore, at CyberTwice's first request, the Customer is held to pay an advance for the payment of the amounts payable to CyberTwice under the Agreement, especially for costs of purchase, development, production and transport connections to the execution of the Agreement (this in the widest sense of the word). In case of non-observance the Customer will be in default without CyberTwice's having to send a notice of default in writing. CyberTwice will then, without prejudice to its rights under the law, be authorized, amongst others to postpone the execution of the Agreement until the Customer has remedied this omission.
7.5 Independently of the way they are named, payments will first be considered to meet the interest and costs incurred, and then to meet the oldest, unpaid invoice.
7.6 In case the strict deadline for payment is exceeded, the Customer will be in default by operation of law and will then owe a contractual interest rate of 1,5 % per month (cumulative) over the amount owed, each month started counting as a month, without prejudice to the other rights CyberTwice may exercise towards the Customer for non-payment or late payment.
7.7 When a matter of default occurs, as described in paragraph 6 of this Article, CyberTwice is entitled and authorized to immediately postpone and suspend the execution of the Agreement, until the Customer has fully met his outstanding financial obligations.
If CyberTwice is obliged to engage third parties to collect its claim, all further costs entailed will fall to the Customer, both judicial and extra-judicial, the latter being fixed at 15% of the amount to be claimed with a minimum of € 500 (five hundred euros), this besides its further claims to compensation for damages.
8.1 The delivery times given by CyberTwice are approximate and can never be considered to be strict deadlines.
8.2 The delivery time will only commence when parties have reached an agreement on all commercial and technical details, all necessary data are in the possession of CyberTwice, the payments (in installments) have been received and, furthermore, all other conditions for the execution of the Agreement have been met.
8.3 If other circumstances occur than those known to CyberTwice when establishing the delivery time, it is entitled and authorized to extend the delivery time by the time necessary to execute the Agreement under these circumstances. In case the necessary work does not (any longer) fit into the planning of CyberTwice, it will be executed as soon as the planning permits.
8.4 Should CyberTwice have postponed the execution of the Agreement, the delivery time given will be extended by the duration of the postponement.
8.5 The mere expiration of the period of time does not constitute a default on the part of CyberTwice, not even in case of a strict delivery date, agreed upon in writing.
8.6 In case of delivery not taking place in time, the Customer must first give Notice of Default in writing to CyberTwice, CyberTwice being given a reasonable term for compliance, said term never be shorter than 14 days. Within this term, CyberTwice can never be liable for compensation and never be in default.
9.1 CyberTwice is free in the way it will execute the Agreement, unless Parties have entered into explicit agreements in writing. All Agreements will be executed by CyberTwice in a sequence, determined by CyberTwice.
9.2 CyberTwice is not held to deliver goods in installments, however, CyberTwice does have the right to execute the Agreement in installments. In case of delivery in installments, each delivery is to be considered to be a separate transaction.
9.3 In the execution of the Agreement, the Customer is furthermore held by CyberTwice to do everything that is reasonably necessary or desirable to enable a timely delivery by CyberTwice.
9.4 Should the Customer not meet his obligations ensuing from the Agreement, CyberTwice will be authorized and entitled to immediately postpone and suspend the execution of the Agreement, or to completely or partially dissolve, annul or adapt the Agreement. CyberTwice can never be held to any compensation of damages to the Customer as a result of such a suspension, dissolution annulment or adaptation. The Customer is, however, held to compensation of any damages ensuing from the delay caused by the suspension, also in respect of third parties and the Customer completely indemnifies CyberTwice in this matter.
10.1 Unless expressly stated otherwise in writing, delivery of the goods to be delivered by CyberTwice will occur according the last issued Incoterms based on Ex Works, at which moment the risk passes to the Customer. The Customer is in any case obliged to accept the delivered goods.
10.2 CyberTwice will not be charged with storing the goods to be delivered, unless it has expressly been agreed upon otherwise in writing. If for any reason whatever storage takes place, for instance if the Customer does not or cannot take delivery of the goods to be delivered by CyberTwice, this will at all times take place at the risk and expense of the Customer. CyberTwice will then always be entitled to avail themselves of their powers as set out in section 6:90 of the Dutch Civil Code.
10.3 If part exchange is involved and the Customer continues to use the good(s) to be part exchanged, pending the delivery of the new good(s) by CyberTwice, the risk of the good(s) to be part exchanged remains attached to the Customer, until the moment at which he has placed them in the possession of CyberTwice.
11.1 CyberTwice will remain the owner of all goods delivered by them, as long as the Customer has not completely met everything it is held to meet by the Agreement, especially obligations to pay, this inclusive of interest and costs.
11.2 CyberTwice is at all times entitled to repossess the goods delivered by it or to have them repossessed. The Customer therefore authorizes CyberTwice, or third parties engaged by them, to enter the business accommodation and other premises where the delivered goods have been stored and/or have been placed, and to do or not do that which will or can promote repossession, this on penalty of the forfeiture of a fine, immediately due and claimable, of € 1,000 (one thousand euro’s) a day that it remains in default.
11.3 The goods delivered by CyberTwice may solely be processed or resold to a third party by the Customer in the framework of normal business operations.
11.4 The Customer is not permitted to exercise any rights on goods, such as pledging or encumbering with any rights, on which Retention of Title rests pursuant to this Article. The Customer is furthermore obliged to inform CyberTwice immediately if third parties wish to exercise rights on goods on which Retention of Title rests pursuant to this Article.
11.5 At CyberTwice's first Request the Customer undertakes to:
11.6 If CyberTwice cannot rely on its Retention of Title because the goods supplied by it are intermixed, deformation or accession, the Customer is obliged to pledge or to mortgage to CyberTwice the newly created goods, on the penalty of a fine, immediately due and payable penalty of € 1,000 (one thousand euro’s) per day in which it remains in default.
12.1 CyberTwice will exert itself to do everything that is reasonable necessary to ensure that the performance to be delivered by it, including in particular the delivery of goods, meet the requirements which can reasonably be set.
12.2 Immediately after execution of the Agreement, the Customer is obliged to inspect the performance and goods delivered by CyberTwice thoroughly for faults and defects, and to inform CyberTwice, either in writing or by e-mail, forthwith, but within 5 days at the very latest, if these are present.
12.3 Should the Customer not have indicated the faults and defects, which could have been noted, or could have been noted upon thorough inspection, to CyberTwice within 5 days after the time of execution and delivery, the Customer will be considered to agree with the state in which the aforementioned performance was delivered and the right of complaint will lapse.
12.4 In case of faults and defects, ascertained by the Customer it is held to enter these on the bill of carriage and furthermore specify the faults and defects it has ascertained accurately, while presenting relevant proof, including, in any case the presentation of sound photographic evidence.
12.5 CyberTwice must immediately be given the opportunity to check the faults and defects the Customer has ascertained. Should, in the opinion of CyberTwice, the faults and defects ascertained by the Customer be correct, CyberTwice will have the choice of either awarding reasonable damages, with due observance of the stipulations of Article 13, or, in consultation with the Customer, seeing to an adequate solution such as rectifying the faults and defects. In this case, the Customer will never be able to claim any reliance or additional damages.
12.6 The performance delivered by CyberTwice will in any case be judged as sound if the Customer has started using the delivered good or a part of, has started working with or using it, has delivered it to third parties, or has had third parties use it, has had it worked with or used or delivered by or to third parties, unless the Customer complied with what has been set out in this Article.
12.7 Should, according to criteria of reasonableness and fairness, the term of 2 days, meant in the second and third Paragraph of this Article, be considered as unacceptably short, even for a careful and alert Customer, this term will be extended, at the latest, to the first moment at which either the investigation or informing CyberTwice will be in reason possible for the Customer.
12.8 The Customer is not entitled to terminate the Agreement or to fail to meet with his obligations completely or partially, or to stay or postpone them if CyberTwice is in default or remiss in the correct performance of its obligations under the Agreement, unless it is a matter of gross negligence or serious fault.
13.1 CyberTwice does not accept any liability whatever, for damages suffered by the Customer, unless they are the result of an attributable failure or a wrongful act of CyberTwice. In this case, CyberTwice is only liable insofar this liability is covered by CyberTwice's insurance and up to the amount of the payment by the insurer.
13.2 Should CyberTwice's insurer not proceed to pay out for any reason, or should the damages not be covered by the insurance, liability in said case will be limited to the invoiced amount of the Agreement. CyberTwice is not obliged to a further compensation of damages or costs, under whatever name and of whatever nature, including trading loss (amongst which for instance damages through stagnation and missed profits), immaterial damages or other consequential damages for the Customer.
13.3 Furthermore, CyberTwice is not liable in case of force majeure, as described in Article 14 of these General Terms and Conditions.
13.4 The restrictions stipulated in this Article do not apply if the damage is the result of intent or gross negligence by CyberTwice.
13.5 The Customer indemnifies CyberTwice for all liability towards third parties because of product liability as a consequence of a defect in a product delivered to a third party by the Customer and which in part consisted of products and/or materials provided by CyberTwice.
14.1 Circumstances beyond the will and control of CyberTwice, whether foreseeable at the time of entering into the Agreement or not, which are of such a nature that compliance with the Agreement can no longer in reason be asked of CyberTwice, are to be considered as force majeure, whether lasting or temporary, and will free CyberTwice from the obligation of performance.
14.2 By force majeure are meant, amongst others: war, unrest, terrorism, natural disasters, storm damage, fire, earthquakes, floods, abnormal weather conditions, snow, falling snow, frost, floating ice, strikes, lockout or shortage of staff, shortcomings in equipment and means of transport, problems at sea, traffic obstructions, theft of goods, failures of electricity supply, internet connections and cable, telephone connections and other communication networks such as e-mail, breach of contract by third parties engaged by CyberTwice together with all hindrances, caused by government measures. Force majeure on the part of (overseas) suppliers and distributors, together with delivery problems in case of addresses with so-called difficult delivery are also covered by this stipulation on force majeure.
14.3 In case of force majeure, CyberTwice is entitled to terminate the Agreement wholly or partially without recourse to the courts, without the Customer being able to claim compensation.
15.1 Should the Customer be remiss in meeting his obligations pursuant to the Agreement, or should circumstances as set out in Paragraph 2 of this Article take place, CyberTwice has the right to terminate the Agreement immediately prematurely, without further Notice of Default being required. In this case the Customer will not be entitled to any compensation whatsoever, and the Customer will be obliged to pay CyberTwice all damages, interest and costs resulting from the premature rescission or termination.
15.2 Amongst others, CyberTwice is entitled to premature rescission of the Agreement if the Customer fails to pay in a timely fashion or to meet obligations under the Agreement (including these General Terms and Conditions), or if one of the following circumstances occurs or threatens to occur:
15.3 Should CyberTwice already have delivered a performance for the execution of the Agreement at the moment of dissolving, this performance and the related payment obligation will not be revoked.
16.1 The Customer recognizes that CyberTwice is the owner or licensor of all intellectual property rights, such as patents, copyrights, trademarks, models, domain names, trade names, knowhow and all proprietary and/or commercial rights and trade secrets rights, tools, documentations et cetera in relation to CyberTwice products. No transfer or other grant of rights is given to the Customer, unless otherwise explicitly stated in writing. This applies even if products have been specially designed, developed or complied for the Customer.
16.2 The Customer will not alter, remove or change the intellectual property rights, numbers or other identification symbols that are used on or in connection with CyberTwice products. Unless agreed otherwise in writing, the Customer is not allowed to use the intellectual property rights of CyberTwice. In any case, the Customer will not use the intellectual property rights of CyberTwice in a way that could in any way be damaging to their distinctiveness, reputation, validity or the goodwill of CyberTwice, or to the company or trade name of CyberTwice (in particular relating to the trademark or trade name CyberTwice). The Customer will never use or register any brand/trademark or trade name that resembles any brand/trademark or trade name of CyberTwice which could cause confusion (including indirect confusion) or mislead (in particular relating to the brand or trade name CyberTwice).
16.3 The Customer will immediately notify CyberTwice in writing of all infringements or possible infringements of the intellectual property rights of CyberTwice that come to its attention. Whether or not legal steps will be taken with regard to such infringements is at CyberTwice's discretion.
16.4 In case of breach of this Article, the Customer will forfeit (for each breach) an immediately payable fine of € 10,000 (in words: ten thousand euros), together with an immediately payable fine of € 1,000 (in words: one thousand euros), for every day or part of a day that it continues to be in breach, without prejudice to his obligation to pay CyberTwice complete compensation in this matter, should it amount to more than the amounts of the fines given.
17.1 Promotional materials which have been given by CyberTwice to the Customer, including – but not limited to – displays, stands, brochures, samples, demonstration models etc., can only be used in relation to the (re)sales and promotion of CyberTwice's products. Said promotional materials are property of CyberTwice. In the event that the Customer does not purchase CyberTwice products and will turn to a competing trademark/brand or competing (re)seller, CyberTwice is entitled to claim said promotional materials from the Customer. The Customer will thus be obliged to return all said promotional materials to CyberTwice. Additionally, CyberTwice is entitled to claim said promotional materials in the event that the Customer is declared bankrupt or granted a suspension of payment, whether or not provisional, or when the Customer has otherwise wholly or partly lost the right or power to dispose of its assets, all irrespective of whether the situation is irrevocable, or if the Act on Debt Consolidation for Natural Persons (de Wet schuldsanering natuurlijke personen) is declared applicable to the Customer. In all the aforementioned cases, the Customer is obliged to return all said promotional materials to CyberTwice.
17.2 The Customer will, in advance, cooperate with CyberTwice to repair the promotional materials.
18.1 The Customer undertakes to do everything to prevent confidential information from and about CyberTwice being brought to the attention of or delivered into the hands of third parties. All this does not apply if there is a legal obligation of disclosure and/or if the Customer shows that certain information is already in the public domain, by means other than by a breach of this confidentiality.
18.2 The Customer will see to it that an obligation of confidentiality, equal to that set out in paragraph 1, will be imposed on his employees or third parties brought in by him who have access to the information meant in paragraph 1.
18.3 In case of breach of this Article, the Customer will forfeit (for each breach) an immediately payable fine of € 10,000 (in words: ten thousand euros), together with an immediately payable fine of € 1,000 (in words: one thousand euros), for every day or part of a day that it continues to be in breach, without prejudice to his obligation to pay CyberTwice complete compensation in this matter, should it amount to more than the amounts of the fines given.
19.1 Agreement and further Agreements deriving from them, to which these General Terms and Conditions apply, are solely governed by Dutch Law.
19.2 All disputes, arising from the Agreements, to which these General Terms and Conditions apply, or from other Agreements deriving from them, including their execution, shall be settled exclusively by the component court of Noord-Holland, location Alkmaar (the Netherlands). The Dutch court Noord-Holland, location Alkmaar shall therefore have jurisdiction in all possible conflicts.
20.1 These General Terms and Conditions may be amended and adapted. Any future adaptations and amendments will also apply to Agreements that came about before the date of amendment and adaptation, unless it has been expressly agreed upon differently in writing.
20.2 The amendments and adaptations will come into effect 21 days after publication, unless it has been announced differently at publication.