Terms and Conditions

General Terms and Conditions of Embion B.V.

Article 1. Definitions

1.1 In these general terms and conditions and concluded agreements, the following terms are used with the meanings given below, unless explicitly stated otherwise:

Seller: Refers to Embion B.V., located at Kalundborg 10 (5026 SE), Tilburg, registered in the trade register under number 82594201, and can be contacted via info@embion.nl and phone 085 0435861.
Licensor: Refers to Embion B.V., located at Kalundborg 10 (5026 SE), Tilburg, registered in the trade register under number 82594201, and can be contacted via info@embion.nl and phone 085 0435861.
Embion: An alternative name for Seller and/or Licensor.
End Customers: The customers of an installer.
Installer: A professional party responsible for the installation of the Product and the activation of the License for an End Customer. An Installer may also be the Other Party.
Other Party: The Buyer of the Product and/or recipient of the License.
Order: Written confirmation of the delivery of Products by the Seller.
Product: Refers to the Embion EMS.
License: The permission to use the Seller's Software without acquiring the ownership rights to it.
License Fee: The fee agreed upon by the Licensor and the Other Party for the use of the License.
License Voucher: A voucher worth a certain amount that can only be redeemed for (partial) payment of the License Fee.
Written: On paper, by email, or another similar medium.
Software: All software developed by or for the Licensor intended for use with the Product, such as the software the Product runs on, the digital environment that allows an end-user to interact with the Product, and applications used during the installation of the Product and License. This includes both backend and frontend software.

1.2 Depending on the nature and content of an agreement, Embion B.V. may act as both Seller and Licensor. Therefore, the use of these terms within these terms and conditions is not exclusively intended.

Article 2. Applicability

Article 3. Price and Payment

3.1 The prices applied by the Seller/Licensor are in EURO and, unless otherwise stated, are exclusive of VAT.

3.2 Payment must be made within the period stated on the relevant invoice and in the manner specified by the Seller/Licensor. The Seller/Licensor has the right to require an advance payment of the invoice amount.

3.3 Changes in purchase prices, labour and material costs, social and government charges, freight costs, insurance premiums, and other costs related to the agreed performance give the Seller/Licensor the right to change the price.

3.4 The applicable rates for the License may be adjusted annually on 1 January. The Licensor will do this based on the CPI index plus a 3% surcharge. Such an indexation does not provide grounds for the termination of the agreement.

3.5 The Seller/Licensor reserves the right not to perform Orders or agreements, or to stop performing them, if the Other Party has not paid for previous deliveries or services (on time), or if the Other Party has otherwise failed to meet its obligations or there is a risk of non-performance. The Other Party is liable for any damages incurred by the Seller/Licensor as a result of this. The Seller/Licensor is not liable for any damages to the Other Party due to the non-performance of orders or services.

3.6 If the Other Party fails to meet its obligations (timely or otherwise), all reasonable costs for obtaining satisfaction outside of court will be at the expense of the Other Party. In case of late payment by the Other Party, the Seller/Licensor is entitled to claim statutory commercial interest and collection costs. The collection costs are determined at 15% of the payment obligation of the Other Party, with a minimum of €250.00.

3.7 In the event of cancellation of an order by the Other Party before delivery has occurred, a cancellation fee of 25% of the gross sales value of the Product to be delivered and/or the contract value of the License to be delivered is immediately due. Regarding the contract value of the License, a term of five years is assumed, and the most appropriate license fee for that agreement will be used.

3.8 The Other Party is not authorised to deduct any amount from the purchase price and/or License fee due to a counterclaim they assert. The Other Party is also not authorised to suspend its payment obligation in the event of a complaint submitted to the Seller/Licensor regarding the delivered Product or License, unless the Seller/Licensor expressly agrees to the suspension in exchange for a 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 upon, it will start from the date on which the Seller confirms it. The License will be delivered as soon as the Other Party has activated the Product online.

4.2 The agreed delivery time is never considered a fatal deadline, unless explicitly agreed otherwise. In the event of late delivery, the Other Party must notify the Seller/Licensor of the delay and allow a reasonable period for the Seller/Licensor to fulfill its 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, take place digitally.

Article 5. Warranties and Guarantees

5.1. Regarding the Product

a. The Seller offers a limited warranty for the Product to the original Other Party for a period of two (2) years from the date of delivery.
b. The 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, the Seller will, at its discretion and at its own cost, either repair or replace the defective Product or refund the purchase price.
c. The Seller may, at its discretion, modify the Product by adding or removing functionalities if the Seller believes there is sufficient reason to do so.
d. This warranty does not cover damage caused by misuse, incorrect use (not in accordance with product information, manuals, and instructions), accidents, neglect, or unauthorized modifications to the Product. The warranty also does not cover damage caused by natural disasters or other forms of force majeure.
e. For the safe operation of the Product, proper commissioning, operation by authorized personnel, and systematic maintenance and regular inspection according to the application conditions are essential, in accordance with the technical data provided in the manuals and specifications. It is not the responsibility of the Seller to check the electrical diagrams, connections, or technical parameters of the Other Party, nor to monitor the operation of their installation.
f. It is the responsibility of the Other Party to ensure that the electrical systems are equipped with the necessary safety measures to protect against potential hazards. If the Other Party is uncertain about the safety requirements of their electrical system, they must consult a qualified third party. The Seller provides no warranty and is not liable for any damage or injury caused by the use of the Product.
g. The Seller offers no guarantee regarding the performance to be achieved by installed Products. Actual results may vary and depend on factors beyond the control of the Seller.
h. If the Other Party observes during the warranty period that the Product does not meet the conditions specified under point (a), the Other Party must notify the Seller in writing (see below, Article 10), and in urgent cases, by phone. During the warranty period, the Other Party is entitled to warranty rights, provided they can demonstrate that the Product does not contain the guaranteed property(ies) or does not function properly.
i. To claim the warranty, the Other Party must provide proof of purchase and evidence of installation by an authorized Installer and contact the Seller. The Seller will then provide instructions on how to return the defective Product and how to obtain a replacement or refund.
j. The Seller commits to taking measures to remedy the defects within a reasonable and as short as possible period after written or telephone notification of the defects, which may or will lead to the repair of the defects at the earliest opportunity.
k. If the Seller believes that the Other Party cannot rely on the warranty provisions because a defect does not pertain to the guaranteed properties or can be attributed to other causes not attributable to the Seller, or to Products not supplied by the Seller, the burden of proof lies with the Seller. If a reported defect is not caused by a fault in the Product and/or the Software, the Seller is free to charge the Other Party for the costs incurred on their side as a result.

5.2. Regarding the License

a. With regard to the Software obtained under the License, the Licensor cannot guarantee that it will always function without errors. The Other Party 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. The Other Party uses the Software at their own risk and responsibility.
b. The Licensor will make efforts to ensure that the Software is accessible and operational.
c. The Licensor accepts no liability for claims arising from (but not limited to): disruptions in internet connections, IT infrastructure, malfunctioning devices from other manufacturers, installation errors, incorrect settings, power supply issues, or incorrect or delayed actions by third-party APIs, and the failure to update the Products supplied by the Seller in a timely manner. It is not the responsibility of the Licensor to review the electrical diagrams, connections, or technical parameters of the Other Party, nor to monitor the operation of their installation.
d. The Licensor accepts no liability for claims arising from or related to data obtained via the Product and the Software, such as the failure or incorrect interpretation of data, the failure to collect data properly, reduced accuracy of data, and/or data loss.
e. The Licensor may, at its discretion, add or remove functionalities for the Software obtained under the License if the Licensor believes there is sufficient reason to do so.

5.3 The Seller/Licensor executes agreements on the basis of an obligation of effort, not an obligation of result.

Article 6. Liability

6.1 If either party fails to fulfill one or more of their obligations under this agreement and/or any subsequent agreements, the other party shall notify them of this failure, unless fulfilling the relevant obligation is permanently impossible, in which case the negligent party shall be immediately in default. The notice of default will be made in writing, giving the negligent party a reasonable period to fulfill their obligations. This period shall be regarded as a final term.

6.2 In the event of a culpable breach, the Seller/Licensor is obliged to still fulfill their contractual obligations. Any liability is limited to what is provided for in the following provisions, 6.3 to 6.10.

6.3 The potential liability of the Seller/Licensor, based on any legal ground, cannot result in them having to pay an amount to the Other Party that exceeds the amount paid out under an insurance policy held by the Seller/Licensor in the relevant case. This includes the payout from a potential cybersecurity insurance policy, to the extent that the liability of the Seller/Licensor arises from a defect in cybersecurity.

6.4 If the Seller/Licensor, for any reason, cannot invoke the liability limitations mentioned hereafter and/or if the insurance, as mentioned in 6.3, does not pay out, the obligation to pay any amount, from any source, is limited to a maximum of the amounts invoiced to the Other Party in the year of the damage-causing event, in relation to the specific Product and/or License in question (excluding VAT), plus 15%. To clarify, for an Other Party with multiple Licenses, only the invoice value of the License that is being complained about will be used here.

6.5 The Seller/Licensor can only be liable for direct damage to the Other Party. Liability for indirect damage, damage suffered by parties other than the Other Party, damage caused by force majeure, and damage not consisting of financial loss, is explicitly excluded.

6.6 Direct damage is understood to mean solely the reasonable costs for determining the cause and extent of the damage, to the extent that the determination relates to damage in the sense of these terms, any reasonable costs incurred to bring the Product supplied by the Seller into conformity with the agreement, to the extent these can be attributed to the Seller, and reasonable costs incurred to prevent or limit direct damage as mentioned in these terms.

6.7 Indirect damage includes, but is not limited to, the following: interruption damage, (production) losses, energy costs, return delivery costs, network costs or fees, missed balancing, missed savings, lost profit, penalties, taxes, levies, missed tax benefits, and missed subsidies.

6.8 The Other Party indemnifies the Seller/Licensor against claims from third parties, from any source, who suffer damage in connection with the performance of the agreement between the Seller/Licensor and the Other Party, where the cause of the damage can be attributed to someone other than the Seller/Licensor.

6.9 The limitations of liability of the Seller/Licensor mentioned above will only lapse in the event of intent or gross negligence on the part of the Seller/Licensor and/or their personnel.

6.10 Any potential claims for compensation or other contractual remedies based on (a violation of) these general terms and conditions or any other agreements between the parties will expire once one year has passed since the Other Party made a complaint to the Seller/Licensor. This is a contractual limitation period.

Article 7. Transfer of Ownership and Risk

7.1 Except as provided in sections 2 and 4 of this article, the ownership of and risk for the Product will transfer to the Other Party upon delivery.

7.2 Until the Other Party has paid the full purchase price, including any additional costs, or has provided security for payment, the Seller retains ownership of its property. In such a case, ownership will transfer to the Other Party once all payment obligations for the Product to the Seller have been fulfilled.

7.3 As long as the ownership of the Product has not yet transferred to the Other Party, the Other Party may not pledge the Product or grant any other rights to third parties, except within the normal course of their business. The Other Party agrees to cooperate, upon first request from the Seller, in establishing a pledge on any claims the Other Party obtains or will obtain from onward sales to their customers.

7.4 The Other Party is obliged to handle the Products delivered under retention of title with due care and to keep them clearly identifiable as the Seller’s property. The Seller has the right to repossess the Products delivered under retention of title and still in the possession of the Other Party, if the Other Party is in default of their payment obligations or is in or threatens to fall into payment difficulties. The Other Party will provide the Seller with free access to their premises and/or buildings at all times to inspect the Products and/or exercise the Seller’s rights.

7.5 If the Seller has reasonable doubt about the Other Party's ability to pay, the Seller is entitled to postpone the delivery of Products in accordance with Article 4 until the Other Party has provided security for payment. The Other Party will be liable for the damage the Seller incurs due to this delayed delivery.

7.6 If the Seller postpones the delivery at the Other Party's request, in accordance with section 3, the Products will remain the property of the Seller and remain at the Seller’s risk until the Products are delivered to the Other Party.

Article 8. Unforeseeable circumstances

8.1 Unforeseeable circumstances refer to any situation beyond the direct control of the Seller/Licensor that makes it unreasonable to demand fulfillment of the agreement. These include, but are not limited to, strikes, fire, extreme weather conditions, government measures, diseases, and plagues, as well as defects in materials supplied to the Seller.

8.2 The Seller/Licensor is not obliged to fulfill any obligations to the Buyer if hindered by circumstances beyond its control that are not attributable to fault and that, under the law, a legal act, or generally accepted practices, are not for the Seller's account.

8.3 The Seller/Licensor may invoke unforeseeable circumstances if such circumstances arise after the Seller/Licensor was required to fulfill the obligation.

8.4 The Seller/Licensor may suspend its obligations under the agreement(s) for the duration of the unforeseeable circumstances. If this period exceeds two months, either party may consider the agreement(s) terminated. In this case, neither party shall owe a termination fee or compensation for damages.

Article 9. Unexpected events

9.1. In the event of unexpected events affecting one of the parties, which are so severe that, considering the principles of reasonableness and fairness, the other party may not reasonably expect the agreement to remain unchanged, the party affected by the unexpected event will notify the other party in writing and both parties will discuss possible amendments to the agreement or its partial or full termination.

9.2. If the parties are unable to agree on an amendment or termination within 10 business days after the written notice of the unexpected events, either party may refer the matter to the competent court under this agreement and request an amendment to the agreement between the parties.

Article 10. Communication

10.2 Notifications related to Article 5 (Warranties and Guarantees), as well as other service-related inquiries, should be directed to the service desk via the online ticketing system, reachable via email at support@embion.nl.

10.3 The Seller/Licensor is available on working days between 09:00 and 17:00 hours. Every effort will be made to respond within two working days of receiving a message, complaint, or service request. This is not a guaranteed resolution time but an initial response period.

Article 11. Personal Data

Article 12. Disputes and Applicable Law

12.1. Any disputes that may arise between the parties will be governed by Dutch law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded from application.

12.2. Any dispute between the parties will be exclusively submitted to the court in Breda. Small claims will be exclusively submitted to the magistrate's court in Tilburg.

12.3. A dispute will be considered present when one of the parties declares it and the other party has been informed in writing with a substantiated explanation.

Article 13. Final Provision