Terms and Conditions
General Terms and Conditions Embion B.V.
Article 1. Definitions
1.1 In these general terms and conditions and concluded agreements, the following terms are used in the following meaning, unless expressly stated otherwise:
Seller: Embion B.V., located in Tilburg at Kalundborg 10 (5026 SE), registered in the trade register under number 82594201 and reachable via info@embion.nl and phone 085 0435861
Licensor: Embion B.V., located in Tilburg at Kalundborg 10 (5026 SE), registered in the trade register under number 82594201 and reachable via info@embion.nl and phone 085 0435861
Embion: alternative name for Seller and/or Licensor;
End Customers: the installer’s own customers;
Installer: a professional party responsible for the installation of the Product and activation of the License with an End Customer. An Installer can also be the Counterparty;
Counterparty: Buyer of the Product and/or acquirer of the License;
Order: written confirmation of the delivery of Products by the Seller;
Product: refers to the Embion EMS and products that Seller has received from suppliers;
License: the permission to use the Software of Seller and/or its suppliers without acquiring ownership rights;
License Fee: the fee agreed between Licensor and Counterparty for the use of the License;
License Voucher: a voucher with a certain value that can only be redeemed for (partial) payment of the License Fee;
Written: on paper or by e-mail or a comparable medium;
Software: all software developed by or for Licensor intended for use with the Product, such as the software the Product runs on, the digital environment through which an end user can consult the Product, and applications used when installing the Product and the License. This involves both backend and frontend software;
1.2 Depending on the nature and content of an agreement, Embion B.V. may be both Seller and Licensor. This means that the use of terms within these terms and conditions is not intended to be exclusive.
Article 2. Applicability
2.1 These general terms and conditions apply to all offers and Orders made by the Seller/Licensor, sales, deliveries, and concluded agreements relating to goods and services as described in article 1 paragraph 1 of these general terms and conditions.
2.2 Deviating provisions must be expressly agreed in Writing. They are deemed to supplement these conditions, insofar as they do not replace the provisions of these general terms and conditions.
2.3 All offers remain valid for 30 days, unless the offer states otherwise.
2.4 The agreement is concluded as soon as the Written acceptance of an offer from Seller/Licensor has reached them; from this acceptance it appears that Counterparty agrees with the applicability of these general terms and conditions and, if necessary, waives the declaration of its own purchasing conditions as applicable. The agreement is also concluded if Seller/Licensor accepts an offer from Counterparty, such as an order, in Writing and this is not protested by the Counterparty within two working days. Unless otherwise determined in Writing, these general terms and conditions will apply exclusively upon acceptance by Seller/Licensor.
2.5 If acceptance contains reservations or changes compared to the offer or Order, contrary to the previous paragraph, the agreement is only established if the Seller/Licensor informs the Counterparty that they agree with these deviations.
2.6 Without permission from Seller/Licensor, agreements, offers, Orders and invoices may not be shared with a third party.
2.7 A copy of these general terms and conditions will be made available to the Counterparty. This can be digitally. The terms and conditions are also published at www.embion.nl.
2.8 These general terms and conditions also apply to directors, employees, agents and shareholders of Seller/Licensor. Art. 6:253 BW applies.
Article 3. Price and payment
3.1 The prices used by Seller/Licensor are in EURO and unless otherwise specified, exclusive of VAT.
3.2 Payment must be made within the period mentioned on the relevant invoice and in a manner to be indicated by Seller/Licensor. Seller/Licensor has the right to require an advance payment on the invoice amount.
3.3 Changes in purchase prices, wage and material costs, social and government charges, freight charges, insurance premiums, and other costs related to the agreed performance entitle Seller/Licensor to change the price.
3.4 Changes in the applicable rates for the License may occur annually as of January 1. Licensor sets this based on the CPI index plus a 3% surcharge. Such indexation does not provide a basis for dissolution of the agreement.
3.5 Seller/Licensor reserves the right not to execute Orders or agreements, or to discontinue them, if previous deliveries or services have not (timely) been paid for by Counterparty, or if Counterparty has not fulfilled other obligations or is at risk of non-fulfillment. Counterparty is obliged to pay Seller/Licensor for any damages suffered as a result. Seller/Licensor is not liable for any damages suffered by Counterparty due to non-execution of orders or services.
3.6 If Counterparty fails or is in default in the (timely) fulfillment of its obligations, all reasonable costs to obtain fulfillment out of court will be borne by it. In case of non-(timely) fulfillment by Counterparty, Seller/Licensor is entitled to statutory commercial interest and extrajudicial collection costs. The collection costs are set at 15% of the payment obligation of Counterparty with a minimum of € 250.00.
3.7 If an order is canceled by Counterparty before delivery has taken place, Counterparty owes immediately 25% of the gross sales value of the Product to be delivered and/or the contract value of the License to be delivered as a cancellation fee. The contract value of the License is calculated using a five-year term and the most appropriate license fee for that agreement.
3.8 Counterparty is not authorized to deduct any amount from the purchase price and/or License Fee due to a counterclaim. Counterparty is also not authorized to suspend compliance with their payment obligation in case of a complaint about the delivered Product or License, unless this is expressly agreed with suspension in exchange for security.
Article 4. Delivery time
4.1 The Seller/Licensor will deliver the Product at an agreed time or immediately after the end of the delivery period, as specified in the order. If a delivery period has been agreed, it will commence on the date Seller has confirmed. The License is delivered as soon as the Counterparty has activated the Product online.
4.2 The agreed delivery time is never a fatal period, unless expressly agreed otherwise. In case of late delivery, Counterparty must give Seller/Licensor notice of default and grant them a reasonable period to fulfill their obligations.
4.3 The Method and Place of delivery of the Product will be determined in further consultation. Delivery of the License will in principle be digital.
Article 5. Warranties and guarantees
5.1 With regard to the Product
a. Seller offers a limited warranty for the Product to the original Counterparty for a period of two (2) years from the date of delivery.
b. Seller guarantees that the Product will be free from material and manufacturing defects under normal use and maintenance. If defects occur in the Product during the warranty period, Seller will, at their own discretion and expense, repair or replace the defective Product, or refund the purchase price.
c. Seller may, if deemed necessary, modify the Product by adding or removing functionalities.
d. This warranty does not cover damage caused by misuse, improper use (not in accordance with product information, manuals and instructions), accident, neglect or unauthorized modification of the Product. The warranty also does not cover damage caused by natural disasters and other acts of God.
e. For the safe operation of the Product, it’s important: proper commissioning, operation by authorized personnel, as well as systematic maintenance and regular checks according to their conditions of use and in accordance with the technical data provided in the manuals and regulations. It is not Seller's responsibility to check the electrical diagrams, connections, or technical parameters of Counterparty nor to monitor or verify the workings of its installation.
f. The responsibility lies with the Counterparty to ensure that the electrical systems are equipped with the necessary safety measures to protect against possible hazards. If Counterparty is unsure of the safety requirements for its electrical system, it must consult a qualified third party. Seller provides no warranty and is not liable for any damages or injuries resulting from the use of the Product.
g. Seller provides no warranty regarding the intended or actual performance of installed Products. Actual results may vary and depend on factors outside Seller's control.
h. If during the warranty period Counterparty finds at any time that the Product does not meet the requirements under a, Counterparty shall notify Seller in writing (see below art. 10), and in urgent cases by telephone. During the warranty period Counterparty is entitled to warranty rights by simply proving that the Product does not have the guaranteed property or does not function as it should.
i. To claim warranty, Counterparty must provide proof of purchase and proof of installation by a certified Installer and contact Seller. Seller will then give instructions on how the defective Product can be returned and how a replacement or refund can be obtained.
j. Seller undertakes, within a reasonable and as short a period as possible after written or telephone notice of defects, to take measures that will or may lead to repair of the defects as soon as possible.
k. If Seller is of the opinion that Counterparty cannot rely on the warranty provisions, because a defect does not belong to the guaranteed properties or is due to other causes not attributable to Seller or to Products not supplied by Seller, the burden of proof lies with Seller. If a reported defect is not caused by a defect in the Product and/or the Software, Seller is free to invoice the costs incurred on its side to the Counterparty.
5.2 With regard to the License
a. With regard to the Software acquired under the License, Licensor cannot guarantee that it will always operate flawlessly. Counterparty acknowledges that errors may occur when using the Software, for example caused by local environmental errors and/or incomplete data and/or incorrect configuration and/or incorrect interpretation. Counterparty uses the Software at its own risk.
b. Licensor will make efforts to ensure the Software is accessible and operational.
c. Licensor accepts no liability for claims arising from (not limited to): failures in internet connections, IT infrastructure, malfunctioning devices from other manufacturers, installation errors, incorrect settings, power supply, or incorrect or delayed actions by APIs of third parties and failure to update Products delivered by Seller in a timely manner. It is not Licensor’s responsibility to check electrical diagrams, connections or technical parameters of Counterparty nor to monitor their installation.
d. Licensor accepts no liability for claims that result from or are related to the data obtained through the Product and the Software, such as inability to interpret data correctly, the inability process data, reduced data accuracy and/or loss of data.
e. Licensor may add or remove functionalities for the Licensed Software at its discretion whenever deemed necessary.
5.3 Seller/Licensor always performs agreements on a best-efforts basis and not as a result obligation.
Article 6. Liability
6.1 If one of the parties fails to fulfill one or more of its obligations under this agreement and/or further agreement, the other party shall give written notice of default, unless fulfillment of the obligations concerned has become permanently impossible, in which case the defaulting party is immediately in default. The notice of default will be in Writing, whereby the defaulting party will be given a reasonable period to still comply. This period shall be a final deadline.
6.2 In the event of an attributable shortcoming, Seller/Licensor is obliged to still fulfill its contractual obligations. Any liability is limited to what is set out in sections 6.3 through 6.10.
6.3 Any liability of Seller/Licensor, on whatever legal ground, cannot result in Seller/Licensor having to pay Counterparty an amount greater than what is paid under an insurance policy taken out by Seller/Licensor in that case.
6.4 If for any reason Seller/Licensor cannot invoke the below limitations of liability, and/or if the insurance as mentioned in 6.3 does not pay out, the obligation to pay any amount whatever shall be limited to a maximum of the invoiced amounts in the year of the damaging event to Counterparty for the specific Product and/or the License to which the complaint relates (excluding VAT), increased by 15%. Note that in case Counterparty holds multiple Licenses, only the invoice value of the License being claimed applies.
6.5 Seller/Licensor can moreover only be liable for direct damage suffered by Counterparty itself. Liability for indirect damage, damage suffered by parties other than Counterparty, damage due to force majeure, and for any non-pecuniary loss is expressly excluded.
6.6 Direct damage means solely the reasonable costs for determining the cause and extent of the damage, insofar as the determination relates to damage under these conditions, reasonable costs incurred to have the Product delivered by Seller comply with the agreement, to the extent they can be attributed to Seller, as well as reasonable costs to prevent or limit direct damages as intended in these general terms and conditions.
6.7 Indirect damage includes, but is not limited to: stagnation damage, (production) loss, energy costs, feed-in costs, network charges or compensation, missed offsetting, missed savings, lost profits, fines, taxes, levies, missed tax advantages, and missed subsidies.
6.8 Counterparty indemnifies Seller/Licensor against claims from third parties, on any grounds, who in connection with the execution of the agreement between Seller/Licensor and Counterparty suffer damage whose cause cannot be attributed to Seller/Licensor.
6.9 The above limitations of liability of Seller/Licensor shall only lapse in the case of intent or gross negligence on the part of Seller/Licensor and/or its Personnel.
6.10 Any claim for compensation or other contractual remedies due to (a breach of) these general terms and conditions and/or other agreements between parties expires if and as soon as one year has passed since Counterparty complained to Seller/Licensor about it. This is a contractual expiration period.
Article 7. Transfer of ownership and risk
7.1 Subject to paragraphs 2 and 4 of this article, title and risk for the Product passes to Counterparty on delivery.
7.2 As long as Counterparty has not paid the full amount of the purchase price, plus any additional costs, or has provided security for this, Seller retains ownership of its property. In that case, title passes to Counterparty as soon as it has fulfilled all payment obligations for the Product towards Seller.
7.3 As long as title to the Product has not passed to Counterparty, Counterparty may not pledge or grant a third party any right to it, except in the normal course of business. On Seller's first request, Counterparty undertakes to cooperate in the establishment of a right of pledge on the claims that Counterparty obtains or will obtain through resale to its customers.
7.4 Counterparty is obliged to store the Products delivered under retention of title with due care and as recognizably belonging to Seller. Seller is entitled to reclaim the Products which are still at Counterparty and have been delivered with retention of title, if Counterparty fails to fulfill its payment obligations or is in financial difficulty or is likely to be. Counterparty will at all times give Seller free access to its premises and/or buildings to inspect the Products and/or exercise Seller’s rights.
7.5 If Seller has justified doubts about the Counterparty’s payment capacity, Seller is entitled to postpone delivery of Products in accordance with article 4 until the Counterparty has provided security for payment. Counterparty is then liable for any damages suffered by Seller as a result of this delayed delivery.
7.6 If Seller postpones delivery at the request of Counterparty in accordance with paragraph 3, the Products will remain owned by Seller and at Seller’s risk until the Products are delivered to Counterparty.
Article 8. Force majeure
8.1 Force majeure means any circumstance outside the direct influence of Seller/Licensor: making fulfillment of the agreement reasonably no longer possible. These include, among other things, strikes, fire, extreme weather, or government action, disease and pests on the one hand, and defects in materials supplied to Seller on the other.
8.2 Seller/Licensor is not obliged to meet any obligation towards the Counterparty if hindered as a result of a circumstance not attributable to fault, nor by law, legal act or generally accepted practices on its account.
8.3 Seller/Licensor is entitled to invoke force majeure if the circumstance that prevents (further) compliance occurs after Seller/Licensor should have performed its obligation.
8.4 Seller/Licensor may suspend obligations under agreement(s) for the period that the force majeure continues. If this period exceeds two months, either party is entitled to consider the agreement(s) ended. Parties will owe no termination fees or damage compensation for this.
Article 9. Unforeseen circumstances
9.1 In the event of unforeseen circumstances at one of the parties, which are so serious that the other party, in view of the requirements of reasonableness and fairness, cannot expect the concluded agreement to remain unaltered, one party will inform the other in writing regarding the unforeseen circumstances and the parties will consult about changing the agreement or wholly or partially dissolving the agreement.
9.2 If the parties are unable to agree on amendment or dissolution within 10 working days after written notification of the circumstances in question, either party may go to the competent court under this agreement to request amendment of the agreement between the parties.
Article 10. Communication
10.1 Communications between parties should be as much as possible in Writing. This can be done by mail to Embion B.V., Kalundborg 10 (5026 SE) Tilburg or by e-mail: info@embion.nl.
10.2 Notices under art. 5 (warranties and guarantee) as well as other service-related questions must be directed to the service desk via the online ticket system, available by email: support@embion.nl.
10.3 Seller/Licensor is available on working days between 9:00 and 17:00. The target is always to respond within two working days upon receipt of a message, complaint or service request. This is not a guaranteed solution period, but an initial response period.
Article 11. Personal data
11.1 In the context of its business operations, Seller/Licensor may process personal data. This is always done in compliance with its Privacy Statement, available at www.embion.nl.
Article 12. Disputes and applicable law
12.1 All disputes that may arise between the parties are subject to Dutch law. The Vienna Sales Convention is excluded from application.
12.2 Any dispute between parties will be submitted exclusively to the court in Breda. Small claims matters will be exclusively submitted to the subdistrict court in Tilburg.
12.3 A dispute is deemed to exist as soon as one of the parties so declares and the other party has been informed in Writing and with substantive grounds.
Article 13. Final provision
If and to the extent that any part or provision in these general terms and conditions or further agreements between parties proves to be in conflict with a binding provision of national or international law, it will be regarded as not agreed and these general terms and any further agreements between parties will otherwise remain binding. The parties will then consult to draft a new provision that best matches the intentions of the parties.