Terms and Conditions
Terms and Conditions ARVOO GROUP
The following definitions are used in these terms and conditions:
ARVOO: The private company with limited liability ARVOO Imaging Products B.V. and/or ARVOO Engineering B.V. and/or any company affiliated with it.
Client: Any (natural or legal) person who receives an Offer and/or enters into an Agreement.
Quotation: An offer made by ARVOO.
Agreement: The agreement between ARVOO and the customer.
Terms and Conditions: These Terms and Conditions
2. Applicability Conditions.
2.1 The Terms and Conditions shall apply to all Offers and Agreements of ARVOO, regardless of whether they have been agreed orally or in writing or confirmed by ARVOO.
2.2 Conditions to the contrary shall not apply.
2.3 Nullity or nullification of one or more provisions of the Conditions and/or the Agreement shall not affect the applicability of the remaining provisions.
2.4 Should any provision of the Conditions prove to be invalid, the parties shall be deemed to have agreed on a valid provision that approximates the invalid provision in content and scope as closely as possible.
2.5 Deviations from the Contract and/or the Conditions shall only be valid if agreed in writing. A deviation accepted by ARVOO applies only to the specific Agreement in respect of which the deviation has been agreed.
2.6 If the Agreement and the Conditions contain conflicting provisions, the provisions contained in the Agreement shall prevail.
2.7 ARVOO is entitled to amend these Conditions. Amendments shall be announced in writing and shall take effect 30 (thirty) days after such announcement. Such amendments shall also apply with respect to agreements already concluded with the Customer, unless the Customer indicates in writing within 30 (thirty) days after publication of the amendment that he does not agree with the amendment.
3.1 All Quotations are non-binding also with regard to price, delivery times and possibility of delivery, unless expressly agreed otherwise in writing.
3.2 The contents of all offer documents, such as drawings, descriptions or specifications, are as accurate as possible, but not binding. Obvious mistakes or errors in an offer shall not bind ARVOO.
3.3 An Offer is revocable, even after acceptance by the Customer.
3.4 The basis for an Offer is the information provided by the Customer.
3.5 The Customer must treat the information contained in the Offer Documents confidentially and may not use it for its own use or use by third parties or disclose it to third parties.
4.1 An Agreement shall only be established by ARVOO’s written confirmation or by ARVOO commencing performance.
4.2 In the event of a discrepancy between the Customer’s order or assignment and ARVOO’s written confirmation, only ARVOO’s confirmation shall be binding.
4.3 The Customer shall not be entitled to cancel, rescind, annul and/or otherwise terminate the Agreement. Cancellation is only possible with the express consent of ARVOO which can only be evidenced by written confirmation. ARVOO is entitled to refuse consent, or to attach conditions to consent, including conditions relating to financial settlement.
4.4 ARVOO is entitled to suspend the execution of the concluded Agreement in whole or in part during the time that, in ARVOO’s reasonable opinion, the Customer’s financial situation gives reason to do so.
4.5 Amendments and additions to the Agreement shall only be binding if agreed in writing.
4.6 Minor deviations of minor importance are permissible, while in case of interim model changes by the manufacturer, ARVOO will be entitled to supply the modified model.
5. Delivery time
5.1 ARVOO cannot be held to deliver its products, systems or services until it has received payment of amounts agreed to be paid in advance.
5.2 ARVOO is entitled to deliver its products, systems and/or services earlier than agreed.
5.3 Delivery deadlines have been set to the best of ARVOO’s knowledge and will be respected as much as possible. The mere exceeding of the stated delivery time shall not put ARVOO in default.
5.4 In case of force majeure or circumstances attributable to the Customer, or if an unforeseen circumstance arises of such a nature that ARVOO cannot be required by standards of reasonableness and fairness to fulfill an Agreement within the agreed term, an extension of the term in question shall be permitted. If an extension is imminent, ARVOO and the Customer shall consult as soon as possible in order to agree on a further period of performance. If exceeded, the Customer may not claim any compensation from ARVOO, nor claim termination of the Agreement.
5.5 Minor defects which can be remedied within 30 days of delivery shall not prevent delivery.
6. Acceptance, transport
6.1 ARVOO shall have the choice of the mode of transport of the goods to be delivered, unless the Customer collects the goods / has them collected from ARVOO.
6.2 If, regardless of the agreed mode of transport, the goods to be delivered to the customer are ready for acceptance at ARVOO and ARVOO has notified the customer of this, the customer will be obliged to accept within the shortest possible time following this notification.
6.3 If the transport of the goods to be delivered is provided by or on behalf of ARVOO, the customer will be obliged to ensure the unloading of the means of transport as soon as reasonably possible after it arrives at the agreed destination.
6.4 Non-compliance by the customer with an obligation mentioned in one of the previous two paragraphs entitles ARVOO to charge the delay costs to the customer and/or to store or keep goods stored at the customer’s expense and risk and to charge the costs thereof to the customer without the customer being entitled to suspend payment of the agreed price.
6.5 With regard to the delivery of products, whether or not in combination with services, the delivery of products is deemed to have taken place at the moment that the products in question have been delivered to the Customer’s premises. All risks relating to products shall pass to the Customer at that time.
6.6 With regard to the provision of services, delivery shall be deemed to have taken place at the moment the relevant work (e.g. installation work) in the context of the services has been carried out.
6.7 ARVOO shall be entitled to divide the delivery into a number of partial deliveries.
7. Software and right of use
7.1 Rights of use to software are only transferred to the Customer by means of the grant of a right of use by ARVOO. The source code of the software and the technical documentation produced in developing the software will never be made available to the Customer.
7.2 Right of use only entitles the customer to use a single version of the software and does not provide an automatic right to updates and/or upgrades.
7.3 ARVOO shall not be obliged to make available software other than the agreed software, even if necessary for the use and/or maintenance of the software. ARVOO’s performance obligations do not include maintaining the software and/or providing support to users of the software.
7.4 The Customer shall not be permitted to copy the software, in whole or in part, or have it copied.
7.5 The Customer will not de-compile or reverse engineer the software. Nor will the Customer analyze or otherwise examine the software with the aim of exposing the underlying structure.
7.6 The Customer will never (have) remove or (have) circumvent technical provisions intended to protect the software.
7.7 The Customer shall not be entitled to modify the software in whole or in part without ARVOO’s prior consent. ARVOO is entitled to refuse permission, or to attach conditions to the permission, including conditions concerning the manner and quality of the execution of the modifications desired by the Customer. The Customer shall bear the full risk of all modifications made by or on behalf of the Customer by third parties – with or without ARVOO’s consent.
7.8 The Customer may not sell, lease, alienate or grant limited rights to the software, the carriers on which the software is recorded and/or the certificates of authenticity provided by ARVOO or make them available to a third party in any way or for any purpose whatsoever. Nor shall the Customer give a third party access to the software – whether remotely or not – or place the software with a third party for hosting, even if the third party in question uses the software exclusively for the benefit of the Customer.
7.9 When requested, the Customer shall immediately provide his full cooperation to an investigation to be carried out by or on behalf of ARVOO regarding the Customer’s compliance with the agreed restrictions on use. The Customer shall grant ARVOO access to its premises and systems at ARVOO’s first request. ARVOO shall keep confidential all business information which ARVOO obtains from or at the Customer in the context of such an investigation, insofar as such information does not concern the use of the software itself.
7.10 The Customer shall at all times strictly comply with the restrictions in the right to use the software agreed between the parties. The Customer is aware that violation of an agreed use provision constitutes both an attributable failure to perform the Agreement with ARVOO and an infringement of the intellectual property rights of the software. In the event of violation of these restrictions, the Customer shall forfeit to ARVOO an immediately payable penalty of €100,000 for each violation and an immediately payable penalty of €10,000 for each day or part thereof that such violation continues, without prejudice to ARVOO’s right to claim full damages.
8.1 Any defects in the performance must be submitted in writing within 5 days of delivery, accurately stating the nature and grounds for the complaints. In the event of complaints about the quality of the goods delivered, these must be retained for inspection and not returned until written permission has been obtained.
8.2 Any complaints shall not suspend the Customer’s payment obligations.
8.3 If a complaint is justified, ARVOO will be entitled either to provide compensation in cash or to proceed to new delivery with maintenance of the existing Contract, in that case with return of the wrongly delivered goods to ARVOO.
8.4 After the expiry of the period mentioned under 1, the Customer shall be deemed to have approved the delivered goods.
9.1 Unless otherwise agreed, the price is in Euros excluding VAT on the basis of delivery ‘ex works’.
9.2 The price is based on exchange rates, supplier prices, costs of materials, transport, wages, taxes, levies, import duties and other price-determining factors. ARVOO is entitled to unilaterally change prices if and as soon as price determining factors change.
9.3 If ARVOO grants a discount to the Customer on a particular order, the discount or bonus will lapse if the Customer fails to meet his payment obligation on time.
10.1 Unless otherwise agreed, the Customer shall pay the agreed invoiced amount to ARVOO within the period indicated on the invoice without the Customer being entitled to any discount not expressly agreed upon or to apply set-off or compensation. If the payment term is not indicated on the invoice, the Customer shall pay within 14 days of the invoice date.
10.2 ARVOO is entitled to postpone delivery and/or commissioning until ARVOO has received payment.
10.3 If the customer has not paid the agreed invoiced amount in full after expiry of the payment term, the customer will be in default without any further summons or notice of default being required.
10.4 A payment shall first be applied to reduce all costs and interest due and finally to reduce the longest outstanding payable invoices, even if the Customer states that the payment relates to later invoices.
10.5 The fact that the Customer has not received (timely) payment of any fee from his customer or another third party does not entitle the Customer to suspend his payment obligations to ARVOO.
10.6 ARVOO may transfer (assign) or pledge all or part of its right to payment to a third party.
10.7 Complaints regarding incorrect, inaccurate and/or incomplete invoices must be submitted in writing to ARVOO within 5 working days after the invoice date. Complaints should state the date and number of the relevant invoice. Complaints do not affect the invoice date and do not give the right to defer payment.
11. Default of the Customer
11.1 If ARVOO suspects that the Customer is not or will not fulfill his obligations, ARVOO is entitled to require adequate security from the Customer at his expense and risk, such as a bank guarantee.
11.2 If the Customer fails to cooperate in an acceptance of delivery on time or fails to make a payment due on time, the Customer shall be in default by operation of law and shall owe default interest of 5% per month or part thereof as of that day. In addition, the Customer shall be liable for all extrajudicial costs. The extrajudicial costs are set at a minimum of 15% of the amount to be collected, with a minimum of €1,000.
11.3 In the event the Customer fails to make a payment due and in the event the Customer fails to provide the requested security, ARVOO shall also be entitled to suspend or dissolve its obligations under the Agreement.
11.4 If the Customer fails to pay the amounts due and ARVOO initiates judicial collection proceedings as a result, the litigation costs and the actual costs incurred for legal assistance, including the costs of any indemnification, will also be borne by the Customer.
12.1 In the following cases ARVOO and the Customer shall be entitled to terminate the Contract in writing with immediate effect, without prior notice of default or judicial intervention being required:
a) if the other party has imputably failed to comply with a material obligation of the Contract;
b) if the other party has been granted suspension of payment, or the other party has applied for suspension of payment;
c) if the other party is declared bankrupt or has filed for bankruptcy;
d) if the other party ceases the activities of its business, or is dissolved;
e) if an attachment is levied on a substantial part of the assets of the other party;
f) if the other party must otherwise be deemed no longer able to fulfill its obligations under the Agreement.
12.2 In the event of dissolution by ARVOO, the Customer shall continue to owe ARVOO both the amounts already due and the remainder of the amounts agreed in the Agreement. This shall also apply in the event that ARVOO has invoked its retention of title pursuant to Article 13 of these Conditions.
13. Retention of title
13.1 Without prejudice to the Customer’s obligation to pay in full what he owes to ARVOO in a timely manner, and without prejudice to what is provided in these Conditions regarding the transfer of risk to the Customer, all goods delivered and/or replaced by or on behalf of ARVOO shall remain the property of ARVOO until full payment of all outstanding claims, including those for failure to perform the Contract, interest and costs incurred, has been obtained, this by way of additional security for payment of all that is due to ARVOO, nothing excepted. Until that moment, with respect to these items, the Customer shall only have the right to use them for his own use. The Customer will never encumber these items with any right, sell them or make them available to third parties in any other way.
13.2 With regard to items not purchased by the customer, but given on (loan) loan by ARVOO, or leased to the customer, the customer can never become the owner of these items. ARVOO always remains the legal and economic owner of the items made available and is entitled to take back the items concerned at the end of the Agreement, or during the term of the Agreement in the event that the Customer fails to meet his obligations under the Agreement and these Conditions.
13.3 ARVOO shall be entitled to take back the goods supplied which have remained its property pursuant to the previous paragraphs, without prejudice to ARVOO’s right to recover from the Customer all damage suffered and still to be suffered as a result of the non-payment, whereby the Customer shall in no case be entitled to repayment of what he has already paid to ARVOO.
13.4 The Customer shall be liable to ARVOO for all damage to delivered items subject to retention of title.
13.5 ARVOO shall at all times be entitled to inspect the items delivered/made available. In case of negligence on the part of the Customer or in other circumstances mentioned in these Conditions, ARVOO and/or the persons appointed by it will be entitled to retrieve the items delivered/made available. The costs of this will be charged to the Customer. The Customer will ensure that ARVOO is authorized to enter the place where the items delivered/made available are located.
13.6 If third parties wish to assert rights or take measures with respect to the goods delivered/made available, the customer will immediately inform them of ARVOO’s property rights. If there is a possibility that the goods delivered/made available may be removed from the control of the customer due to measures taken by third parties, the customer will inform ARVOO within 24 hours and take all possible measures to prevent loss of possession of the goods. If the Customer fails to take the aforementioned measures, ARVOO shall have the right, at the Customer’s expense, to take all measures it deems necessary itself.
14. Quality and warranty
14.1 ARVOO guarantees reasonable current quality requirements under normal use of the goods supplied by ARVOO. ARVOO only guarantees specific quality requirements or specific quality standards of delivered goods insofar these requirements or standards have been explicitly agreed upon. ARVOO never guarantees, even if a sample of the delivered goods has been provided to the Customer in advance, that the delivered goods are suitable for realization of the purpose for which the Customer wishes to use, consume or process the delivered goods.
14.2 ARVOO does not guarantee that the software provided to the Customer will work without interruption, errors and defects or that all errors and defects will always be corrected.
14.3 Insofar as a complaint by the Customer regarding the quality requirements or quality standards with respect to the delivered goods is well-founded, ARVOO shall, if within the guarantee period, at its own discretion, repair or replace the delivered good with another similar good. ARVOO’s liability for any damage suffered by the Customer, including consequential damage, trading loss, loss of production, loss of turnover or profit, decrease in value, loss of products, intervening reserves or claims of third parties against the Customer, is excluded.
14.4 Warranty on the equipment supplied is 12 months after delivery by ARVOO to the Customer. A condition for warranty is that the equipment has been properly maintained and stored conditioned and protected. A material warranty of 3 months applies to repairs and/or replacement of components carried out. Costs from work and transportation are not included and will be charged accordingly based on the applicable service rates. Replacement components are and shall remain the property of ARVOO.
14.5 Not covered by the aforementioned warranty are external causes such as lightning strike, fire, burglary, accidents, moisture, acts of war, and/or all faults which cannot be traced back to deliveries by and/or maintenance activities by ARVOO.
14.6 The warranty will lapse if the equipment has been modified and/or adapted by others than ARVOO.
14.7 ARVOO will make every effort to repair errors in the software within a reasonable period of time if these have been reported in writing to ARVOO within one month after delivery. The repair will be carried out free of charge. However, in case of user errors, incompetent use by the customer or other causes not attributable to ARVOO, ARVOO may charge the costs of repair according to the usual rates. The obligation to repair lapses if the Customer makes or has changes made to that software.
15.1 ARVOO shall not be liable for any damage suffered by the Customer as a result of or pursuant to the Contract, unless the damage is the result of intent or deliberate recklessness on the part of ARVOO. The Customer shall indemnify ARVOO against any third party claims.
15.2 Any liability for damages, costs or compensation of any kind and for any reason whatsoever shall be limited to the amount paid by ARVOO’s liability insurer in the relevant case. If no payment is made, any liability shall be limited to the amount charged to the Customer by ARVOO for the Contract related to the (alleged) liability.
15.3 Any liability of ARVOO shall lapse after the lapse of one year following the relevant delivery by ARVOO.
15.4 ARVOO accepts no liability for advice, data, calculations or other statements provided by or on behalf of ARVOO with respect to the delivered goods.
15.5 Any liability for consequential damage, loss of profit, loss and/or missed opportunities is excluded.
15.6 If the contract extends to the delivery of goods which ARVOO procures or has procured from third parties, ARVOO’s liability shall be limited to that for which that third party is or appears to be liable vis-à-vis ARVOO, in the form and to the extent in which that third party expressly acknowledges its liability. This provision shall only apply insofar as such application is more favorable to the Customer than application of the provisions of the preceding paragraphs.
16. Third party operation
16.1 Third parties cannot derive any rights from the Agreement.
17. Intellectual property
17.1 The intellectual and industrial property rights to all products and services, data and (technical) information supplied to the Customer shall remain vested in ARVOO. Only ARVOO has the right to publish, realize and reproduce this data and (technical) information and the Customer has the exclusive right of use thereof.
17.2 The Customer’s right of use with respect to the software developed and/or supplied by ARVOO is non-exclusive.
17.3 ARVOO shall be entitled to apply for patents in its name and at its expense on inventions created during and through execution of the Agreement, whether or not in cooperation with the Customer.
17.4 In case the Customer is held liable by a third party on the basis of an infringement of the intellectual property rights of this third party, while this liability claim could also have consequences for ARVOO, the Customer has the duty to notify ARVOO of this immediately and in writing. In doing so, ARVOO shall be timely informed by the Customer of any legal proceedings, in such a way as to enable ARVOO to possibly join the Customer’s side in the relevant proceedings(s).
18.1 Both during and after the end of the Agreement, the Customer shall observe complete confidentiality with respect to all information which has come to his knowledge concerning ARVOO and ARVOO’s activities, insofar as this information is of a confidential nature.
18.2 Both during and after termination of the Agreement, the Customer shall be obliged to maintain confidentiality with respect to information processing-related principles, practical knowledge, methods and/or techniques related to the products and services originating from or developed by ARVOO, whether or not in collaboration with the Customer or a third party.
18.3 The Customer will ensure that its own employees and third parties contracted by it, who take cognizance or have taken cognizance of (part of) the information mentioned in the preceding paragraphs, undertake to maintain confidentiality.
18.4 If ARVOO so requires, the Customer shall at ARVOO’s first request instruct the employees deployed by the Customer to assume in writing the confidentiality obligation towards ARVOO.
19. Prohibition on taking over staff
19.1 During the term of the Agreement, as well as for a period of 1 year counting from the day on which the Agreement is terminated, the Customer shall be prohibited, without the prior written consent of suppliers, from having employees of suppliers provide services, perform work or engage in activities for the Customer in any way and in any form other than on the basis of the Agreement in force between ARVOO and the Customer, directly or indirectly, either in the own name of ARVOO’s employees or through and/or in cooperation with, or in employment with, the Customer.
20. Prohibition of contracting suppliers of ARVOO
20.1 During the term of the Agreement, as well as for a period of 1 year counting from the day the Agreement is terminated, the Customer is prohibited from entering into Contracts with ARVOO’s suppliers in any way and in any form whatsoever, either directly or indirectly, either in his own name or through and/or in cooperation with a third (legal) person, without ARVOO’s prior written consent.
21. Penalty clause
21.1 In the event of violation of the provisions of Articles 17, 18, 19 and 20, the Customer shall forfeit to ARVOO an immediately due and payable penalty of €25,000 per violation and an amount of €500 for each day that the violation continues, without prejudice to ARVOO’s right to claim damages, as well as performance, instead of the penalty. Payment of the fine(s) does not relieve the Customer from the obligations described in the aforementioned articles. With this article, the parties explicitly deviate from Article 6:92 of the Dutch Civil Code.
22. Terms of Service
22.1 ARVOO shall provide to the Customer the services specified in the Agreement between the parties in terms of performing maintenance on the equipment mentioned in the Agreement as well as any other services agreed between the parties. The services by ARVOO are without prejudice to the Customer’s responsibility for management, including control of settings, use of the equipment and the manner in which the equipment is used. The Customer is also responsible for instruction to and use by users, regardless of whether these users are in a relationship of authority to the Customer.
22.2 During the time ARVOO holds the equipment to be maintained, the Customer shall not be entitled to temporary replacement equipment, unless otherwise agreed.
22.3 Maintenance and any other agreed services shall be performed with effect from the day on which the Agreement is entered into.
22.4 ARVOO shall make every effort to perform the services with care to the best of its ability, where appropriate in accordance with the agreements and procedures laid down in writing with the Customer. All of ARVOO’s services will be performed on the basis of an obligation of effort, unless and insofar as ARVOO has expressly promised a result in the written Agreement and the result concerned has also been described with sufficient certainty.
22.5 The Customer shall provide all cooperation required by ARVOO for maintenance, including the temporary cessation of use of the equipment if this is necessary in ARVOO’s opinion. The Customer shall be obliged to provide ARVOO’s personnel or third parties designated by ARVOO with access to the site of the equipment, to provide all other necessary cooperation and to make the equipment available to ARVOO for maintenance purposes. In the absence of the requested cooperation, ARVOO may suspend or limit the maintenance.
22.6 The Customer shall provide a sound infrastructure and telecommunication facilities for the provision of remote services. ARVOO reserves the right to provide its services remotely and to access the system remotely at any time in connection with monitoring and/or failure purposes.
22.7 All amounts relating to maintenance and any other services stipulated in the Agreement shall be due from the commencement of the Agreement. The fee for maintenance and any other services stipulated in the Agreement is due regardless of whether the Customer has (taken) the equipment into use. Invoicing takes place in advance at the start of the calendar year. No refund shall be made in the event of early termination of the Agreement.
22.8 Unless otherwise agreed, the maintenance price does not include:
– the costs of (the replacement of) consumables;
– the costs of replacement parts as well as services to repair malfunctions;
– relocation, removal, reinstallation of equipment or work as a result thereof.
22.9 Work due to the investigation or repair of malfunctions of equipment and/or systems resulting from or related to user errors, injudicious use of the equipment are not part of ARVOO’s obligations under the maintenance agreement. If ARVOO performs maintenance or performs other work in connection therewith, ARVOO may charge the costs of such maintenance or work according to its usual rates.
23. Disputes and applicable law
23.1 All agreements between ARVOO and the Customer shall be governed exclusively by Dutch law.
23.2 The United Nations Convention on Contracts for the International Sale of Goods concluded in Vienna on 11 April 1980 (the Vienna Sales Convention) shall not apply.
23.3 All disputes arising from or related to an Agreement or its conclusion shall be settled by the competent court of ARVOO’s place of business.
24. Other provisions
24.1 If there is a difference between different language versions of these Conditions, the Dutch version will prevail. Furthermore, provisions will be interpreted on the basis of the Dutch version.