Terms of purchase

Terms of purchase Embion EMS Controller

 

Consider:

  1. Customer wishes to purchase a product known as the Embion EMS controller, hereinafter referred to as the Product, from Embion.

  2. Embion has created an Order for this purpose for Customer. The Order is subject to the following terms and conditions.

 

Declare to have agreed as follows:

1. Object of the Agreement.

 

1.1 In this purchase agreement, the following terms are used in the following meanings unless expressly stated otherwise:

Embion: this shall mean Embion B.V.

Client: Purchaser of the Product and/or customer of the license;

End Customers: an Installer's own customers;

Installer: a professional party responsible for installing the Product and activating the License with an End Customer. An Installer may also be a Customer;

Order: written confirmation of the delivery of Products by the Embion

Parties: customer and Embion together

Product: shall mean the Embion EMS controller;

License: the permission to use Embion's Software without obtaining ownership rights over it;

License Fee: the fee accruing to Embion and Customer for the use of the License;

License Voucher: a voucher worth a certain amount which can be redeemed exclusively for (partial) payment of the License Fee;

Written: on paper or by e-mail or similar medium;

Software: all software developed by or for Embion intended for application for the Product, such as the software on which the Product runs, the digital environment with which an end user can consult the Product and applications used in the installation of the Product and the License. This includes both backend and front-end software.

1.2 Embion hereby sells to Client, as Client hereby purchases from Embion the Product as specified in the order created by Embion. The Software controlling the Product is not included in the present purchase agreement. A separate License Agreement is entered into for this at the time of installation of the Product which is inseparable from the present purchase agreement.

1.3 Customer is aware that the Product only functions after the Software mentioned in paragraphs 1 and 2 has been installed and a License Agreement has been entered into with Embion for this purpose. For this reason, the Product is sold together and inseparably with a License Voucher worth €250.00.

1.4 In consideration, Customer shall pay the purchase price agreed between the Parties as stated in the Order in accordance with the provisions of 4.1.

1.5 The purchase agreement is subject to Embion's general terms and conditions.

 

2. Place of delivery

 

The method of delivery and place of delivery is stated on the Order. Customer is entitled to change the method and place of delivery upon written request up to three working days before the delivery. If this change leads to demonstrable additional costs for Embion, Embion shall be entitled to claim reimbursement of these additional costs.

 

3. Acceptance and Transfer of Ownership

 

3.1 If delivery has been made to Customer, the date on which the proof of delivery or completion has been drawn up shall be deemed the date of Acceptance.

3.2 Until the moment of (final) delivery, the risk of damage or loss rests with Embion. Ownership of the Product shall pass to Customer after Acceptance and payment of the purchase price.

3.3 After acceptance, Embion shall not be obligated under the purchase agreement to repair defects to the Product except in cases where:

  1. Customer can claim rights from (the) warranty(s) as included in Embion's general terms and conditions.

  2. The defects were hidden at Acceptance of the Product and could not reasonably be discovered by Customer. In such case, Embion will be obliged to remedy these defects in accordance with the provisions of its general terms and conditions. Defects visible at Acceptance must be reported in writing within two working days and accompanied by proof in order to claim replacement or repair of the Product. For complaints after this period, the starting point between the parties shall be that the Product was not defective at Acceptance.

 

4. Prices

 

4.1 The purchase price is included in the Order and relates to all Products to be delivered by Embion under the purchase agreement. The Software will be charged separately to Customer by Embion pursuant to a separate License yet to be purchased which will be activated upon installation of the Product.

4.2 To the extent Embion is required to charge sales tax, the amounts stated in the purchase agreement will be increased by the applicable percentage of sales tax at the time of performance. All prices and rates will always be fixed in EURO.

4.3 If the Client intends to resell the Product in the course of its business or profession to a third party, including companies and enterprises affiliated to the Client, the Client is prohibited from offering the Product below the market price applied by Embion at that time. Such market price can always be consulted at www.embion.eu. under my account. Customer shall also include the obligation stipulated in this paragraph in the purchase agreement it concludes with a third party with respect to the Product.

4.4 Violation of the provisions of paragraph 3 shall result in forfeiture of a penalty of €2,500.00. This penalty can be claimed by Embion immediately and out of court. In addition, Embion may recover any additional damages from the Customer.

 

5. Payment

 

5.1 The purchase price shall be paid in the manner agreed in the Order.

5.2 Embion will send invoices to Customer stating date, order number, Product ID number, and other details made known toit in writing by Customer .

5.3 Customer shall pay to Embion the amounts owed by it under the purchase agreement upon receipt of the relevant invoice and within the specified payment period.

5.4 If, without valid reason, Customer fails to comply with his payment after the expiry of the sub. 5.3, he shall automatically owe the fees mentioned in art. 3.7 of Embion's general terms and conditions.

 

6. Transfer of rights and obligations

 

6.1 The parties shall not be entitled to assign the rights and obligations under the purchase agreement to a third party without the written consent of the other party. Such consent shall not be refused without reasonable cause; however, the consenting party shall be entitled to attach conditions to the granting of such consent.

6.2 If in the performance of the purchase agreement, Embion wishes to use the services of third parties, either in subcontracting or by temporary hiring of personnel, it shall be authorized to do so as of now. This shall not affect Embion' s responsibility and liability for the fulfillment of its obligations under the purchase agreement and its obligations under tax and social insurance laws.

 

7. IP rights

 

7.1 The intellectual property rights relating to the Product and documents provided under the purchase agreement are vested in Embion. Subject to Embion 's written consent, Customer shall not infringe these rights. This prohibition applies in a broad sense, so Customer shall notuse, process and share information in violation of Embion's IP rightsnor reproduce, disassemble or reverse engineer the Product . Nor may Customer remove or disregardany protections or restrictions on use.

7.2 Embion indemnifies Customer in legal proceedings brought against Customer by third parties for claims that use of the Product infringes the intellectual property rights belonging to such third party unless:

  1. Customer has not immediately informed Embion of the aforementioned claim;

  2. The claim arises from the fact that Customer has modified and/or had the Product modified by third parties;

  3. The claim arises from the improper use of the Product.


7.3 The indemnification mentioned in article 7.2 shall only apply if the Client involves Embion at the outset in the handling of the claim of a third party and determines the steps to be taken in consultation with Embion and gives all necessary cooperation to Embion and/or third parties engaged by it.

7.4 The customer agrees that the result of a claim of a third party may be that the Product must be changed or the purchase agreement may be terminated by Embion and the Product must be returned to Embion. The purchase price already paid will be refunded by Embion in the latter case.

 

8. Confidentiality


8.1 Embion and Client shall make every effort to prevent confidential information of the other party from coming to the knowledge or hands of third parties. This shall not apply to information which is already publicly known, other than by violation of this confidentiality obligation or if a party is forced by a competent (judicial) authority to disclose confidential information.


8.2 Customer shall not share offers, quotations, orders, invoices and other commercial communications obtained from Embion with third parties.

 

9. Termination

 

9.1 Except as provided elsewhere in this Agreement:

  1. Either party is entitled to dissolve the purchase agreement by means of a registered letter, extrajudicially, if the other party remains in default of its obligations under the purchase agreement even after a written reminder setting a reasonable term.

  2. The customer is entitled to terminate the purchase agreement extra judicially by registered letter without any warning or proof of default being required, if Embion applies for a (c.q. temporary) moratorium or applies for a (c.q. temporary) moratorium or if Embion applies for a (c.q. temporary) moratorium. Embion applies for bankruptcy or is declared bankrupt; Embion's company is liquidated; Embion ceases its current company; a substantial part of Embion's assets or the Products and/or Sofware are seized; or Embion must otherwise no longer be considered able to perform the obligations under the purchase agreement.

 

10. General

 

10.1 Embion's general terms and conditions shall apply to any sales contract and/or Order entered into with Embion with Client. In case of conflict between the provisions in the purchase agreement and/or an Order and the provisions in the general terms and conditions, the former shall prevail. The latter also applies to a situation where there is a conflict between the purchase agreement and other applicable documents, such as product and software documentation, safety instructions and quotations.


10.2 This purchase agreement is inseparable from the License Agreement to be concluded regarding the Software required for the Product. This means that the use of the Product and Software installed on it requires a License Agreement and vice versa.