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General Terms and Conditions ZetaDisplay B.V.

Article 01 Definitions

Additional Terms and Conditions:

General Terms and Conditions of Delivery:
Service description:
Services:

Supplier:
Client:


Agreement:

Party or Parties:

conditions that apply to the delivery of specific products and/or services and that apply in addition to the General Terms and Conditions.
these terms and conditions.
annex to the Agreement in which the Service is described.
electronic communications, ICT or other related services to be provided by or on behalf of the Supplier to the Clients.
ZetaDisplay BV and all its subsidiaries.
the party acting in the exercise of a profession on behalf of a company with whom the Supplier has entered into an Agreement for the delivery of goods and services, to which these General Terms and Conditions apply.
the agreements recorded in a form, document, or in any other way, on the basis of which the Supplier delivers the goods and/or Services mentioned therein to the Client.
the Client or Supplier individually (“Party”) or collectively (“Parties”).

Article 02 General provisions
2.1 These General Terms and Conditions apply to all offers and Agreements whereby the Supplier delivers goods and/or Services of any kind to the Client.
2.2 In the event of a conflict between provisions of the Agreement, Service Description, the General Terms and Conditions, and the Additional Terms and Conditions, the following order applies:

  1. the Agreement
  2. the Service Description
  3. the Additional Terms and Conditions
  4. the General Terms and Conditions

2.3 The applicability of any purchase or other conditions of the Client and/or third parties is explicitly rejected. Signature or (tacit) acceptance by the Supplier of documents of the Client and/or third parties to which such general terms and conditions have been declared applicable shall never be deemed acceptance thereof.
2.4 Agreements and amendments thereto shall be concluded:
a) by and on the date of signing by both parties of an offer from Supplier or any other document;
b) on the date of receipt of the written confirmation from the Supplier that the Client’s request has been accepted;
c) when the Client actually enables the Supplier to commence the execution of the operations or to provide the Service.

Article 03 Price and Payment
3.1 All prices and rates are in euros and exclusive of turnover tax (VAT) and other levies imposed by the government. Travel hours, travel and accommodation costs, additional hours, and other special costs associated with the work are not included in the prices and rates and can be charged separately by the Supplier.
3.2 All agreed prices and rates will be increased annually as of 1 January according to the latest price index of collective wages for business services published by the Central Bureau of Statistics. If the price index is negative in any year, no price adjustment will take place.
3.3 The Supplier reserves the right to increase the agreed prices and rates once a year in addition to the annual price indexation, after having informed the Client at least four weeks in advance. In the event of a price increase based on Article 3.3, the Client only has the right to terminate the Agreement free of charge in the event that the price increase exceeds 5%.
3.4 The Supplier will charge the amounts owed by the Client as follows:
a) one-off amounts shall be invoiced on the completion/delivery date;
b) amounts due periodically are invoiced in advance and are payable from the date of delivery or actual use of the Service;
c) usage costs and time- and material-based amounts are invoiced monthly in arrears.
3.5 Invoices must be paid by the Client within the payment period stated on the invoice. If no payment term is stated on the invoice, a payment term of 21 (twenty-one) days applies after the invoice date.
3.6 Objections to invoiced amounts must be notified to the Supplier in writing before the expiry of the payment period, in the absence of which the accuracy of the invoiced amounts is established between the parties after the expiry of the payment period. For the determination of the amounts owed by the Client, the Supplier’s data are decisive, unless the Client proves that these data are incorrect.
3.7 If the Client does not pay the amounts due within the payment period applicable to it, the Client will be in default without notice of default being required. In that case, the Supplier is entitled to the statutory interest as referred to in Articles 6:119a and 6:120 of the Dutch Civil Code (statutory commercial interest) and to reasonable compensation of (extrajudicial) costs and collection costs.
3.8 The Client’s right to settlement is excluded.
3.9 The Client is only entitled to suspend the disputed part of the claim. If the Client invokes suspension, the Client will inform the Supplier within five working days of the reasons for this.

Article 04 Collateral, deposit, bank guarantee
4.1 The Supplier has the right to claim collateral from the Client in the form of a guarantee, bank guarantee, security deposit, or another form of security if there are reasonable doubts as to whether the Client will be able to fulfil the payment obligation.
4.2 The amount for which security must be provided will not exceed the amount that the Client will owe the Supplier over a period of six months with regard to the agreed goods and/or Services.
4.3 As soon as the need for security is no longer present, the Supplier will notify that the guarantee or the bank guarantee or any other form of security may lapse or the deposit will be repaid.
4.4 There shall be no interest paid on the security deposit.

Article 05 Confidentiality
5.1 The parties will maintain confidentiality with regard to all information and data that they receive from each other and that are classified as confidential or whose confidential nature results from the nature of that information and data unless a legal obligation requires disclosure of that information and/or data. The duty of confidentiality ends one year after the termination of the Agreement.

Article 06 Risk, ownership, and duty of care
6.1 The risk of the destruction, loss, theft, or deterioration of an item passes to the Client at the time of delivery.
6.2 The Supplier retains ownership of the items until the Client has paid all amounts due. The Client will not dispose of, lend, or pledge the items received, nor rent, lend or make them available to third parties in any way, under any title, as long as the Client has not yet acquired ownership.

Article 07 Warranty
7.1 The Supplier will deliver the goods and Services in accordance with the technical and/or functional specifications agreed in the Agreement. The Supplier does not guarantee the uninterrupted or fault-free provision of Services.
7.2
a) The warranty period for items is one year, starting on the date of delivery.
b) The warranty on items includes free repair or replacement of (parts of) the items in the event of material and/or manufacturing errors. The warranty does not include the supply and/or replacement of consumables. The replaced parts will automatically become the property of the Supplier.
c) No warranty is provided on items that the Client cannot show that it has received from the Supplier within the warranty period.
7.3
a) The warranty period for system software is three months, commencing on the day after delivery of the system software.
b) The warranty on system software includes the free detection and correction of errors in the event that the software does not function in accordance with the technical and functional specifications agreed between the parties.
c) The Supplier does not guarantee that the system software will function without interruption or completely error-free nor that all errors will be corrected.
7.4 The operations covered by the warranty will be done at an address to be specified by the Supplier.
7.5 The warranty shall lapse if:
a) repairs, changes, or extensions to the items have been implemented by persons other than the Supplier without the prior written permission of the Supplier;
b) in the opinion of the Supplier, the items have been neglected or have been imprudently and/or incorrectly used, handled and/or maintained;
c) type numbers, serial numbers and/or warranty stickers have been damaged, removed and/or changed;
d) changes to the warranty certificate and/or purchase receipt have been made;
e) defects have arisen as a result of incorrect insertion and/or leakage of replaceable batteries; defects have arisen as a result of not connecting and/or installing (approved) items in accordance with the requirements;
f) defects have arisen as a result of deviating environmental conditions, insofar as such conditions are indicated;
g) defects are caused by other external causes; the sealing of the items, if present, is broken.
7.6 If the Supplier has delivered items under the manufacturer’s warranty, then only the manufacturer’s warranty conditions and warranty period apply.
7.7 The warranty period is not extended or renewed by the execution of the warranty operations, on the understanding that the warranty on the executed warranty operations, including on the replaced parts, is 3 months.
7.8 Any shipping or drop-off costs may be charged to the Client.

Article 08 Intellectual property rights
8.1 Subject to the restrictions and conditions set out in the Agreement, the Supplier grants the Client a non-exclusive, non-transferable right to use the software in the form in which it was delivered or made available, exclusively for internal purposes and to the extent necessary to be able to use the Services provided under the Agreement.
8.2 The intellectual or industrial property rights of all software made available to the Client by the Supplier pursuant to or in connection with the Agreement are vested in the Supplier or its suppliers and/or in the third party that has authorised the Supplier to make the software, equipment or other items available to the Client. The Client acquires rights only insofar as they are expressly granted to the Client in the Agreement.
8.3 The Supplier makes every effort to ensure that the use of the software by the Client does not infringe the intellectual or other property rights of third parties.
8.4 The Supplier shall indemnify and defend the Client against claims from third parties related to alleged infringement of intellectual or industrial property rights of third parties by software, on conditions that: the Client: (i) informs the Supplier without delay of such claims; (ii) does not recognise the claims; and (iii) cooperates with the defence against such claims. The indemnity obligation lapses if and insofar as the alleged infringement can reasonably be attributed to misuse of or modifications to the relevant software, equipment, or other items by the Client, its customers, affiliates, agents, or subcontractors, if the (alleged) infringement concerns an indirect infringement, or if the (alleged) infringement originates in the combination of the relevant software, equipment, or other items delivered in connection with the Agreement with other products, software, or elements that have not been delivered by the Supplier.
8.5 If a court has irrevocably ruled that the Client infringes the intellectual or industrial property rights of third parties as a result of an act or omission on the part of the Supplier, the Supplier will, at its discretion:
a) take measures to terminate the breach, such as replacing the infringing Service for a functionally equivalent other service or changing the Service so that it no longer infringes but remains functionally equivalent, or terminate the Services and reimburse the Client for any amounts already received for services not yet provided.

Article 09 Cooperation by the Client
9.1 The Client will always provide in a timely manner all information that may be useful and necessary for the implementation of the Agreement and guarantees that the information provided is correct and complete.
9.2 If the Client does not provide the Supplier with the information and (auxiliary) resources necessary for the execution of the Agreement, does not make them available to the Supplier in a timely manner or in accordance with the agreements, or if the Client otherwise fails in its obligations, the Supplier has the right to suspend the execution of the Agreement.
9.3 The Client will always give employees of the Supplier access to the locations where the work must be conducted or where the Services must be delivered.

Article 10 Delivery periods and default
10.1 All (delivery) periods stated by the Supplier are indicative and can never be considered deadlines. The mere exceeding of a (delivery) period does not put the Supplier in default.
10.2 If there is a risk of any (delivery) period being exceeded, the Supplier and the Client will consult as soon as possible.
10.3 Default on the part of the Supplier shall only occur after the Client has notified the Supplier in writing and has thereby set a reasonable period for compliance and the Supplier fails to comply within that reasonable period.

Article 11 Duration of the Agreement and termination
11.1 An Agreement entered into for a definite period is tacitly extended after the end of the initial contract period by a period of one (1) year, unless the Client or Supplier terminates the Agreement in writing with due observance of a cancellation period of three (3) months before the end of the initial contract period or the extension period.
11.2 An Agreement entered into for an indefinite period may be terminated in writing by either party after proper business consultation and stating reasons. If a minimum duration has been agreed upon, termination can only take place after the expiry of the minimum duration. If the parties have not agreed on a notice period, a notice period of three months applies.
11.3 If the Client terminates a Service before the expiry of the (minimum) contract period, the Supplier is entitled to the remaining fees that would be due if the Agreement had not been terminated prematurely.
11.4 In addition to the provisions of the preceding paragraphs, the Supplier is entitled to terminate the provision of the Service(s), with due observance of a notice period of at least three months, if technical or (business) economic reasons so require. In that case, the Supplier offers a replacement service if possible. If the Client does not wish to accept the service, or if no replacement service is available, the Agreement will be terminated on the date that the Supplier ceases to provide the service.
11.5 The provisions of Article 11.4 shall also apply if the Supplier can no longer deliver specific products and/or services provided by third parties, due to causes beyond the control of the Supplier.

Article 12 Suspension
12.1 In addition to the legal grounds for suspension, the Supplier is entitled to suspend the provision of services wholly or partially with immediate effect if:
a) this is necessary for compliance (or enforcement) with (amended) laws or regulations;
b) the Supplier thereby implements a court order or a judgement;
c) there are situations in which immediate action must be taken, for example in order to protect the safety of persons or the integrity of the network;
d) there are reasonable grounds for believing that the provision or use of information or services offered through the Service is not legally permitted or unlawful vis-à-vis third parties.
12.2 The Client shall continue to owe payment during the period of suspension referred to in Article 12 (1).
12.3 Insofar as the Supplier has suspended the service because the Client does not comply with an obligation, the Supplier is entitled to charge for any reconnection costs upon resumption of the service after suspension.

Article 13 Dissolution of the Agreement
13.1 In addition to the legal grounds for dissolution, the Supplier is entitled to dissolve the Agreement in whole or in part with immediate effect without judicial intervention and without notice of default, if the Client:
a) has requested a suspension of payment or this has been granted to the Client;
b) is declared bankrupt or a bankruptcy application has been filed.

Article 14 Liability of Supplier; indemnification
14.1 The Supplier’s total liability, for whatever reason, is limited to compensation for the following damage and up to the maximum amounts stated:
a) death and injury damage up to a maximum of EUR 1,000,000 per event, whereby a series of related events counts as one event;
b) property damage, consisting of the reasonable costs of repair or replacement up to a maximum of EUR 500,000 per event;
c) damage that the Client demonstrably suffers as a result of the unavailability of a Service, insofar as this Service concerns an electronic communication service, as a result of an attributable failure of the Supplier or as a result of an administrative error by the Supplier up to a maximum of EUR 2,500 per aggrieved party with a maximum of EUR 250,000 per event;
d) demonstrable reasonable costs incurred to prevent or limit damage with a maximum of EUR 250,000 per event, whereby a series of related events counts as one event.

An absolute maximum of EUR 1,000,000 applies to the damage mentioned under b through d during the term of the Agreement.

14.2 The limitations of liability referred to in Article 14 (1) shall lapse if the damage was caused by intent or deliberate recklessness on the part of the Supplier’s management.
14.3 Liability of the Supplier for damage not included in Article 14.1, including loss of profit, missed savings, loss of data, damage due to company stagnation, and turnover of personnel, fines and fees due to third parties and reduced goodwill is always excluded.
14.4 A condition for the existence of any right to compensation is always that the Client reports the damage in writing to the Supplier within three months of its occurrence.
14.5 The limitations of liability referred to in this article shall apply mutatis mutandis to indemnities.
14.6 If the Parties have agreed on a penalty in addition to the right to compensation, any contractual penalties forfeited and the amount paid and/or to be paid will be deducted from any compensation for the same event on the basis of indemnities.
14.7 The Client indemnifies the Supplier and employees of the Supplier against all claims from third parties, in particular for claims from third parties for product liability as a result of a defect in a product or system delivered by the Client to a third party and which also consisted of equipment, software, websites, data files, or other materials delivered by the Supplier, except if and insofar as the Client proves that the damage was caused by that equipment, software, websites, data files, or other materials.

Article 15 Force majeure
15.1 Neither of the Parties is obliged to fulfil any obligation if they are unable to do so as a result of force majeure.
15.2 Insofar as this is not already included, force majeure also means:
strike, sit-ins, blockades, embargo, government measures, war, revolution and/or any similar condition, power failures, faults in electronic communication lines, cable breakage, fire, explosion, water damage, lightning strike, natural disasters, flooding and/or earthquake, lack of and/or illness of Personnel as well as a shortcoming vis-à-vis the Supplier of Supplier’s suppliers or force majeure on the part of Supplier’s suppliers.
15.3 If the force majeure situation lasts longer than ninety (90) days, the parties have the right to terminate the Agreement by means of a registered written notification unless it is foreseeable that the force majeure situation will be resolved within a reasonable period. In that case, what has already been performed pursuant to the Agreement will be settled proportionately, without the parties otherwise owing each other anything.

Article 16 Modification and extension of work, performance and/or deliveries
16.1 If the Supplier has conducted work, other performance, or deliveries at the request or with the consent of the Client that fall outside the content or scope of what has been agreed, this work, performance, or deliveries will be reimbursed by the Client to the Supplier according to the usual rates of the Supplier or, if a fixed price has been agreed, the additional costs will be charged. However, the Supplier is not obliged to comply with such a request and may require that a separate written Agreement be concluded for this.
16.2 The Client accepts that the agreed or expected time of completion of the obligations, the mutual responsibilities of the Client and the Supplier and the agreed rates of the Supplier may be influenced by change or extension of the work, performance, or deliveries as referred to in this article.

Article 17 Obligations under the General Data Protection Regulation
17.1 The Parties are obliged to cooperate fully with each other in order to enable the other Party to comply with its obligations under the General Data Protection Regulation.
17.2 The Client indemnifies the Supplier against all claims from third parties that may be made against the Supplier on the basis of the General Data Protection Regulation.

Article 18 Final provisions
18.1 Dutch law applies to this Contract. Application of the Vienna Sales Convention 1980 is excluded.
18.2 Disputes between the Parties arising from or related to the Agreement will be submitted to the authorised court in ‘s-Hertogenbosch.
18.3 The Supplier is entitled to change these General Terms and Conditions. The changes come into effect four weeks after the announcement or on a later date mentioned in the announcement.
18.4 The Supplier is always entitled to change a Service or to replace certain parts of the Service with other parts in which the essential nature of the Service will be maintained.
18.5 Rights of use to the Services granted by the Supplier to the Client are strictly personal. The Client is not permitted to sell or resell rights or otherwise make them available to third parties, unless explicitly agreed otherwise.
18.6 During the term of the Agreement and until one year after its termination, each of the Parties will not hire employees of the other Party who have been involved in the execution of the Agreement or otherwise have them work directly or indirectly for it, without the prior written permission of the other Party. The other party is entitled to attach conditions to the aforementioned consent.
18.7 The Supplier is entitled to subcontract all or part of its obligations under the Agreement to third parties. However, this in no way relieves the Supplier of the Supplier’s obligations.
18.8 The Supplier has the right to transfer the Agreement(s) with the Client to other companies that are part of the group of which the Supplier is part and/or to third parties. The Client will not withhold or delay its cooperation with this on unreasonable grounds. If the Supplier proceeds to do so, the Supplier will inform the Client about this.
18.9 The Client must send all notifications and notifications in the context of an agreement to the address of the designated person or department.
18.10 If provisions or parts of provisions from these General Terms and Conditions or appendices thereto are or become illegal, invalid, or unenforceable in any way, the remaining provisions or the valid part of the invalid provision will remain in full force and enforceable, without any effect on the other obligations of the Parties. Furthermore, the illegal, invalid, or unenforceable provision will be deemed to have been replaced by a provision with the same legal and commercial scope as much as possible.