Transsmart BV – Terms and conditions

Deposited at the Chamber of Commerce with reference 62193856

1. General
   1. These general terms of conditions of sale, delivery and payment (‘the terms and conditions’) apply to and form an essential element of all quotations issued by Transsmart (also referred to hereinafter as us/we), as well as any offers made by Transsmart and all agreements Transsmart enters into with its clients. The term ‘client’ is understood to mean any natural person or legal person who enters into or is in a contractual relationship of any kind whatsoever with Transsmart, with the exception of its suppliers and partners.
   2. In addition to these terms and conditions, additional conditions may apply to certain services and/or products of Transsmart if expressly indicated in writing. In the event of discrepancies between the additional conditions and these terms and conditions, the provisions of the additional conditions will prevail over these terms and conditions, unless otherwise provided in writing.
   3. If these terms and conditions are once applied to a quotation, offer and/or agreement, then they shall also be applied without further explanation of applicability to all new or subsequent quotations, offers and/or agreements between the parties, unless expressly agreed otherwise in writing.
   4. If any provision of these terms and conditions is void, declared void or declared inapplicable in any other way, the remaining provisions of these terms and conditions shall remain in full force and effect and, to replace the provision that is void, declared void or declared inapplicable, the parties shall agree on an alternative provision that as far as possible complies with the object and purpose of the provision that is void, declared void or declared inapplicable.
   5. The general terms and conditions of the client of Transsmart shall not be applicable unless this is expressly agreed in writing by Transsmart.
   6. Transsmart reserves the right to modify or supplement the terms and conditions.
   7. Transsmart is authorised to make use of third parties during the performance of agreements with the client. In such a situation, these terms and conditions apply.
   8. All communication between the client and Transsmart may be conducted electronically, except to the extent that these terms and conditions and/or the agreement and/or the law determine otherwise. The version of the relevant communication stored by Transsmart applies as evidence thereof, unless the client can prove otherwise.
      
      
2. Quotation, Offer and Agreement
   1. All quotations and offers Transsmart are without obligation, unless otherwise agreed in writing, and are based on information supplied by or on behalf of the client. The client shall ensure that all information deemed necessary by Transsmart, or which the client should in all reasonableness understand to be necessary for drawing up the quotation, are submitted to Transsmart in good time. The client is also responsible for the accuracy and completeness of the information submitted.
   2. Quotations and offers are valid for four weeks, unless a different period is stated in the quotation or offer.
   3. The client is obliged, if the performance of the work and/or delivery is to take place outside the Netherlands, to inform Transsmart in writing of the rules of a mandatory nature in the country where the contract is to be performed, and to supply this information in any case before Transsmart issues its quotation, failing which, and in the event of non-compliance with the mandatory rules referred to, Transsmart does not and will not accept any liability whatsoever, regardless of the regulations of the country concerned.
   4. An agreement enters into effect after Transsmart receives by return the agreement signed by the client. This signed agreement supplements the quotation and constitutes an inseparable part of it. To the extent that there are discrepancies between the text of the agreement and the text of the quotation, the text of the agreement shall prevail.
   5. The prices quoted by us are always in Euros, unless otherwise expressly agreed, and always exclude sales tax (VAT) and other similar duties.
   6. Obvious errors and misprints in our quotations, offers and agreements are not binding on us; we are always entitled to revise these issues.
      
      
3. Changes to the quotation or order
   1. If the client wishes to change the original contract or agreement, the client must make Transsmart aware of these changes promptly and in writing using clear language and/or descriptions. After written consent is provided by Transsmart, these changes shall constitute part of the contract.
   2. If, after the quotation has been sent by Transsmart, additional essential information is obtained by Transsmart from the client, or unforeseen circumstances arise before the performance of the order, the original offer shall expire and Transsmart shall send a new quotation to the client.
   3. If, after the quotation has been sent by Transsmart, or after the agreement has been concluded, additional essential information is obtained by Transsmart from the client, or unforeseen circumstances arise before the performance of the order, then Transsmart shall be entitled to charge any extra costs that must be made as a result of this to the client.
   4. Implementation of oral changes to an issued order is entirely at the risk and expense of the client.
   5. Changes to an order already issued may lead to a service or product becoming available to the client at a date other than that which was originally agreed.
      
      
4. Performance of the agreement
   1. Transsmart shall execute the contract with the due care that can reasonably be expected of a good contractor. The content of the agreement, as well as the arrangements for performing the agreement, are further specified in the quotation and the agreement.
   2. The client shall ensure that all information deemed necessary by Transsmart, or which the client should in all reasonableness understand to be necessary or relevant for the performance of the agreement, are submitted to Transsmart in good time. The client is responsible for the accuracy and completeness of the information submitted. Transsmart is under no circumstances liable for damages resulting from incorrect or incomplete information provided by the client.
   3. If a date is stated or agreed upon for the performance of work for the implementation of the delivery of services and/or items, this shall under no circumstances be considered to be a definitive deadline. If a term is exceeded, the client must offer Transsmart a reasonable term within which Transsmart can complete performance of the agreement.
      
      
5. Duration of the agreement
   1. The agreement is concluded for an undetermined period, unless the parties agree otherwise explicitly and in writing, or the nature of the agreement dictates otherwise. If the agreement is concluded for an indefinite period, either party may terminate it at any time by notice, taking into consideration a notice period of 3 (three) months.
   2. If the parties agree that the agreement is for a definite period, and the client decides to terminate the agreement before the end of this term in any way whatsoever, then Transsmart reserves the right to compensation for any damages suffered by Transsmart as a result of the termination, unless the client terminates the contract on the basis of serious reasons.
      
      
6. Suspension and rescission
   1. If the client fails to comply, comply properly or comply in time with any obligation that is the result of any agreement made with us, of which these terms and conditions are an integral part, or if Transsmart has any reason to believe that the client shall not comply, comply properly or comply in time with any obligation that is the responsibility of the client and arises from an agreement concluded between Transsmart and the client, such reasons being, but not limited to, the granting of suspension of payment, the filing of a bankruptcy petition against the principal, or the client's company is shut down or liquidated, then the client shall be deemed to be legally in default without further notice of default, and we shall be entitled, without judicial intervention, to fully or partially suspend the performance of any agreement with the client, or to fully or partially rescind any agreement with a statement worded for the purpose, where we cannot be held liable for any compensation for damages or guarantee whatsoever in this respect, all the aforementioned without prejudice to any other rights to which we are entitled, as well as the right to full compensation for damages.
   2. If we suspend the performance of the agreement, or partially or wholly rescind the agreement, then we shall send the client an invoice for the work and/or services delivered up to that moment in time.
   3. In all the cases mentioned in the first paragraph of this article, our claims against the client and/or the claims that we shall obtain against the client shall become immediately payable.
      
      
7. Payments
   1. Unless other payment terms have been expressly agreed in writing, the client must settle an invoice in full within 14 days of the invoice date. Any objections against the amount of the invoices do not suspend the payment obligation of the client.
   2. The client is expressly not allowed to set outstanding invoices off against any claim whatsoever vis-à-vis us, nor is the client entitled to impose an attachment against itself to our detriment.
   3. If the client has not paid the invoice within the specified period, the client shall be deemed to be in legal default, and we shall be entitled, without any summons or notice of default being required, to charge the client interest of 1.5% per month from the date on which the invoice was due, which shall continue until the invoice is settled in full, whereby a part of a month shall be calculated as a whole month, and without prejudice to any other rights to which we are entitled.
   4. Payments made by the client shall be processed in accordance with Article 6:44 of the Dutch Civil Code, therefore payments will firstly be used to settle any costs, secondly to settle any forfeited interest and finally to reduce the principal amount owed.
   5. The client owes Transsmart all judicial and extrajudicial costs and collection costs made by us or that we have to make in connection with seeking compliance, rescission or compensation for damages in respect of the agreement, whether in a court of law or otherwise, or to defend ourselves if called to account by the client.
      
      
8. Guarantees and advances
   1. We are, before proceeding to perform the confirmed order or continuing the already partially started performance, entitled at all times to require that the client, as a result of the payment obligations of the client under the terms of the agreement, pays an advance of the amount payable by the client under the terms of the agreement, or, at our discretion, a security deemed suitable by customary banking practices and to our satisfaction.
   2. If the client refuses to pay an advance as referred to in the preceding sentence or to provide a security at our request, we are entitled to rescind the agreement with immediate effect by a statement worded for the purpose, without prejudice to any other grounds for rescission set out in these terms and conditions and without prejudice to our right to damages as a result of the rescission carried out by us.
      
      
9. Complaints
   1. Complaints from the client about implementation performed by Transsmart must be reported in writing to Transsmart within 14 (fourteen) days of completion of the implementation. Other complaints must be reported in writing to Transsmart within 14 (fourteen) days of arising. If a complaint is not reported timely or correctly, then the complaint will not be taken into consideration by Transsmart and there will be no entitlement to redress or compensation for the damages.
   2. Complaints that arise as a result of improper use of the service and/or product supplied can under no circumstances lead to a claim by the client against Transsmart.
   3. Under no circumstances does a complaint give the client the right to suspend complying with the client’s obligations under all agreements entered into with us, in particular the client has no right to suspend payment of the invoice relating to the delivery of the products to which the complaints refer or any other invoices.
   4. The right to redress or compensation for damages shall in any case lapse in respect of all agreements governed by these terms and conditions twelve months after the date of the invoice which relates to the service or product which caused the damages.
      
      
10. Liability
    1. Under no circumstances can Transsmart be obliged to pay compensation for damages to the client, unless the damages are caused by intent or gross negligence on our part.
    2. Transsmart does not recognise, under any circumstances, any liability whatsoever for consequential damages, operational losses, indirect damages, lost savings, lost profits, loss of business or otherwise caused by Transsmart.
    3. Transsmart is not liable for damages of the client and/or third parties that are a consequence of a defect or malfunction of the software, applications, connections, services and/or products delivered by Transsmart, nor is Transsmart liable to the client for any damages resulting from improper implementation, unless the damages are caused by intent or gross negligence on the part of Transsmart.
    4. Under no circumstances is Transsmart liable for any damages relating to or arising from any third party software, applications, connections, services and/or products.
    5. Under no circumstances is Transsmart liable for damages caused by, or as a consequence of, the client and/or third parties personally making changes to the applications, software and/or connectivity, or improper use by the client and/or third parties.
    6. Transsmart accepts no liability for any loss of data belonging to the client.
    7. If Transsmart, for any reason whatsoever, is liable for direct damages, then this liability shall at all times be limited to the amount of the sum to be paid by the insurer to Transsmart for such an event.
    8. If Transsmart, for whatever reason, is obliged to compensate any damages, and liability insurance does not provide cover, the compensation shall never be higher than an amount equal to the invoice value that relates to the service or product that caused the damages.
    9. The client will indemnify Transsmart for all claims of third parties in respect of other damages that result from a defect in a product supplied by Transsmart product and/or a service incorrectly carried out by Transsmart.
       
       
11. Force Majeure
    1. Transsmart is not obliged to fulfil any obligation if it is prevented from doing so due to a circumstance which cannot be attributed to gross negligence and which is also not for its account pursuant to the law, a judicial act or generally prevailing opinion.
    2. In the event of force majeure, Transsmart is entitled to suspend the performance of the agreement, without the client being entitled to compensation for damages.
    3. If the force majeure is assessed as being of a permanent nature, we are entitled to partially or completely rescind an agreement by a written statement worded for the purpose, without the client being entitled to compensation for damages.
       
       
12. Intellectual Property Rights
    1. We retain ownership of all industrial and/or intellectual property rights of all of our products, services etc., whether or not specifically developed for the client.
    2. By entering into the agreement, the Client unconditionally declares that the client agrees with the fact that all intellectual property rights to products to be delivered by Transsmart and services to be provided by Transsmart belong or will belong to Transsmart. The client is forbidden to remove or modify any indication regarding intellectual property rights on or in the products supplied by Transsmart.
    3. Regarding the copyright, model rights or any other intellectual property right that was already in the hands of the client before the start of the agreement, Transsmart shall be given the right to use the property right during the term of the agreement, to the extent that it is necessary for the performance of the agreement.
    4. The client shall obtain no intellectual property right relating to software and models. The client is not allowed to change, remove or copy any brand marks or identification marks in the software or models thereof, subject to being charged an immediately payable penalty not open to judicial moderation of € 25,000 and a penalty of € 500 for each day that the breach continues. The client is also not allowed to use any brand marks or identification marks without the prior permission of Transsmart.
    5. Any products and/or services, information generated and data provided by Transsmart on behalf of the client are and will continue to be the property of Transsmart. Transsmart is free to use this information and data anonymously for purposes beyond products delivered to and/or services performed for the client.
       
       
13. Disputes and applicable law
    1. All the quotations, offers and agreements governed by these terms and regulations are subject to Dutch law.
    2. All disputes relating to or arising from the quotations, offers and/or agreements concluded with us will be brought before the competent Dutch court in the district of our registered address.