These General Terms and Conditions define and govern all offers, legal relationships and agreements in which Protomation BV, hereinafter called Protomation, provides goods and/or services of any nature to client.
Article 1 Offers and agreements
1.1. Amendments and supplements to these General Terms and Conditions are only valid in case they have been specifically agreed upon in writing.
1.2 All offers and statements of Protomation are without prejudice and subject to contract unless specifically stated otherwise in writing by Protomation. Client guarantees correctness and completeness of all measurements, demands, specifications of performance and other information supplied by him and on which Protomation bases their offers.
1.3 These General Terms and Condition expressly exclude the client’s purchase conditions or other terms and conditions.
1.4 If any provision of these General Terms and Conditions become null and void or is avoided, the other provisions of these General Terms and Conditions will remain fully in effect.
Article 2 Price and payment
2.1 All prices are exclusive of BTW (Dutch VAT) and other government levies.
2.2 In case of periodic payment obligations by client, Protomation is entitled to adjust prices and fees giving at least three months notice in writing. If client should refuse such adjustments, he is entitled to announce termination of agreement within 30 days after having received notice of adjustment whereby termination takes effect on the proposed date of adjustment.
2.3 Invoices shall be paid by client according to the payment conditions stated on the invoice. Unless otherwise agreed upon, client will pay within 30 days of the invoice date. Any payment obligation does not qualify for setoff or suspension of payment.
2.4 Failure of payment in time leads to an increase of the outstanding amount with statutory interest, without requiring a warning or notice of default. Failure of payment after a warning or notice of default entitles Protomation to engage a debt-collection agency, in which case client shall pay the outstanding amount increased by interest and all judicial and extrajudicial costs, including costs incurred for external experts on top of judicially ascertained costs.
Article 3 Confidentiality
3.1 Each party guarantees the confidential treatment of information received from the disclosing party of which the receiving party knows or can be expected to know that it is confidential, unless statutory obligations require disclosure of the information. The party receiving the confidential information shall use this only for the purposes it is intended for. Information shall always be considered to be confidential if either party has indicated the information to be confidential.
3.2 For the duration of the agreement and one year after termination of the agreement, either party shall not directly or indirectly employ or take on in any way employees of the other party who were involved in the execution of the agreement, without first having obtained written consent of the other party.
Article 4 Retention of title and rights
4.1 All goods delivered to client remain property of Protomation until full payment of all goods or services delivered or to be delivered pursuant to this agreement has been made to Protomation, including any amounts resulting from client’s default of payment.
4.2 Transfer of title in a particular case only takes place on the condition that client shall pay the complete amount agreed on in time.
4.3 Protomation is entitled to retain all goods, products, ownership titles, information, documents, data files and (temporary) results of Protomation’s services that have been received or produced pursuant to this agreement, even in case of obligation to deliver, until client has paid all amounts due to Protomation.
Article 5 Risks
5.1 The risks of loss, theft or damaging of goods, products, software or data that are subject to this agreement, will pass to the client at the time when he or his representative is in actual possession of them.
Article 6 Intellectual property
6.1 All intellectual or industrial property rights to the software, data files, equipment and other materials developed or made available pursuant to this agreement remain with Protomation, its licensors or its subcontractors only. Protomation is entitled to grant sublicenses. Client is given only those rights of use that are expressly granted pursuant to these conditions of agreement or by law. Every other or further right of client to multiplication of software, data files or other materials is excluded. The right of use granted to client is nonexclusive and non-transferable.
6.2 Client is not permitted to remove or make changes to any references concerning the confidential character or copyrights, brands, trademarks or other intellectual or industrial property rights that are part of the software, data files, equipment or other materials.
6.3 Protomation is entitled to take any technical measures to protect the equipment with regard to the limitations of the right of use of the equipment agreed upon. Client is not permitted to remove or avoid such technical measures.
6.4 Unless Protomation provides client with a backup copy of the software, client is entitled to create one singular backup copy of the software, provided its use is restricted to protection against involuntary loss or damage.
6.5 With regard to the other provisions of these General Terms and Conditions, client is entitled to correct errors in the software made available to him, provided that this is necessary for the intended use of the software. The term ‘errors’ in these General Terms and Conditions refers to considerable non-compliance to the documented functional and technical specifications given by Protomation or, in case of custom-made software, the functional and technical specifications agreed between parties in writing. An error can only be identified as such when client is able to demonstrate and reproduce the error. Client shall report any errors to Protomation without delay.
6.6 Client indemnifies Protomation against any third party claims to the use of equipment, software, data files and other material made available to Protomation. Client indemnifies Protomation against any action based on the statement that such availability, use, adaptation, installation or incorporation is an infringement of any rights of third parties.
Article 7 Source code
7.1 Client is never entitled to receiving the source code of (adaptations of, supplements to or new versions of) the software.
Article 8 Client’s cooperation
8.1 In order to execute the agreement adequately, client shall give Protomation full assistance, such as the timely provision of useful and necessary data and information, and access to his premises. If client proposes to provide support for the execution of this agreement by his own personnel, these employees will have the necessary knowledge, experience, capacity and qualification.
8.2 Client acknowledges taking the risk of selection, use and implementation in his organisation of all equipment, software, data files and other products and materials, and of the services rendered by Protomation. Client is also responsible for all control and safety procedures and proper system management.
8.3 If client provides Protomation with software, materials, data files or information on a data carrier, these will meet the demands prescribed by Protomation.
8.4 If client does not provide Protomation in time or according to agreement, or fails to provide Protomation with the data, equipment, software or personnel necessary for the execution of the agreement, or if client fails to meet his obligations in any other respect, Protomation is entitled to suspend wholly or in part the execution of the agreement and is entitled to charge client with all costs arising from suspension accounted according to its regular fees, without prejudice to any other legal rights.
8.5 If employees of Protomation carry out activities on client’s premises, client will provide them free of charge with any facilities they may reasonably need, such as office space with computer and telecommunication facilities.
Article 9 Delivery date
9.1 All indicated or agreed dates and delivery dates have been set by Protomation to the best of its knowledge, based on information available to Protomation at the time of entering this agreement. Protomation will make every effort to observe the agreed dates and delivery dates.
9.2 The event of mere failure to meet an indicated or agreed deadline for delivery cannot be regarded as default on the part of Protomation. In all cases, including when parties have specifically agreed on a deadline in writing, Protomation will only be regarded to be in default after having received from client a written notice of default.
9.3 Protomation cannot be held to deadlines and delivery dates in case circumstances beyond Protomation’s control that have arisen after entering this agreement prevents such dates to be met. Nor can Protomation be held to deadlines and delivery dates in case parties have agreed on any changes in the content or scope of this agreement.
Article 10 Termination
10.1 Each party is only entitled to terminate this agreement if the other party after having received a proper and detailed written notice of default, in which a reasonable period for remedy is set, can be held accountable for failure to meet his obligations pursuant to this agreement.
10.2 In case an agreement which according to its nature and purport will not expire by completion is entered into for an indefinite period of time, each party may terminate the agreement only after consultation of the other party and by stating the reasons of termination. In the event no specific date of termination has been agreed, termination only takes place after giving notice for a reasonable period of time. In the event of termination neither party is liable to pay compensation.
10.3 Each party is entitled to inform the other party in writing of immediate termination of the agreement or part thereof without first giving notice in the event that the other party has been granted a provisional or definitive moratorium of payment; or in the event that the other party has filed for bankruptcy; or in the event of winding up of the company of the other party other than in case of a reconstruction or a merger. As a result of such termination Protomation is never liable to return any advance payments or to pay compensation. In the event of bankruptcy of client the right of use of software made available to client ends by force of law.
Article 11 Liability
11.1 The total liability of Protomation due to an attributable failure to perform this agreement will be limited to compensation of the direct damage not exceeding 5% of the sum stipulated for this agreement (exclusive of BTW). If the agreement is primarily a continuing performance agreement with a duration longer than one year, the sum stipulated for this agreement is set to a maximum of 5% of the total amount of payments for one year (exclusive of BTW). In no event shall the total amount of compensation for direct damages exceed EUR50,000.–. ‘Direct damages’ is understood to mean exclusively:
a) Any reasonable costs client has to make to have Protomation’s performance meet the agreement; such damages, however, will not be compensated if the agreement is terminated by client or on demand of client.
b) Any reasonable costs client made for prolonged upkeep of his old system or systems and related services because Protomation’s failure to deliver on the agreed and binding deadline, reduced by any savings that are the result of late delivery.
c) Any reasonable costs made to determine the cause and extent of the damage, as far as this determination is related to the direct damage as referred to in these General Terms and Conditions.
d) Any reasonable costs made to prevent or limit the damage, as far as client is able to prove that these costs have led to limiting the direct damage as referred to in these General Terms and Conditions.
11.2 The total liability of Protomation for damages resulting from death or physical injury, or material damaging of goods shall never exceed EUR50,000.–.
11.3 The liability of Protomation for direct damages, including consequential damages, loss of profit, missed savings and loss due to business interruption or loss of business information is excluded at all times.
11.4 The liability of Protomation for accountable failure to meet this agreement only exists after client has given Protomation a proper and detailed written notice of default, in which a reasonable period for remedy is set, and Protomation after that period remains accountable for failure to meet its obligations pursuant to this agreement. The notice of default shall contain a full and detailed description of the defects, so that Protomation is able to respond adequately to it.
11.5 Any right to compensation of damage only exists when client has reported the damage in writing to Protomation without delay. All claims for damages against Protomation will be barred by the mere passage of a period of 16 months after inception of the claim.
Article 12 Force majeure
12.1 Neither party is bound to fulfil his obligations in case of force majeure. Force majeure also includes force majeure on the part of suppliers of Protomation such as unsatisfactory fulfilment of obligations of suppliers to Protomation prescribed by client and deficiencies of goods, material, software by third parties of which the use has been prescribed by client.
12.2 If a force majeure event lasts longer than 90 days, either party has the right to terminate this agreement. The part of the agreement that has been fulfilled or those orders related to the agreement that have been completed, will be settled pro rata, without further obligations of parties.
Article 13 Delivery, installation and acceptance
13.1 Protomation shall deliver and install at client the software developed by Protomation as much as possible according to written specifications; installation only takes place if this has been agreed upon in writing with Protomation. If no specific agreement exist concerning installation, client will install, arrange, tune and if necessary adjust any equipment and user environment himself. Unless expressly agreed otherwise, Protomation is not obliged to carry out any data conversion.
13.2 If an acceptance test has been agreed upon, the test period is limited to 14 days after delivery or, in case that installation by Protomation has been agreed upon in writing, 14 days after completion of the installation. During the test period client is not allowed to use the software for production or operational means. Protomation may require at all times, even if this has not been expressly agreed upon, that client ensures that testing takes place by sufficiently qualified personnel and that the tests on temporary and final results of the developments will be carried out properly and with adequate depth and scope, and that the test results will be reported in writing to Protomation clear and understandable.
13.3 Software will be considered as accepted by parties when:
a) in case no acceptance test has been agreed: on delivery or, in case installation by Protomation has been agreed upon in writing, at completion of the installation, or
b) in case an acceptance test has been agreed: on the first day following the test period, or
c) if Protomation before the end of the test period a test report as indicated in article 13.5 has received: at the moment that any errors as meant in article 6.5 mentioned in the test report have been corrected, notwithstanding any imperfections that according to article 13.3 would not object to acceptance. Contrary to the above stipulations, software that has been used by client for production or operational means prior to the moment of explicit acceptance, will be considered to be delivered on the moment when is was put to use.
13.4 If during the execution of the agreed acceptance test the software proves to contain errors that obstruct the continuation of the acceptance test, client will inform Protomation in writing, giving a detailed account of problems, in which case the test period will be suspended until the software has been adjusted in such a way that the obstruction has been lifted.
13.5 If during the execution of the agreed acceptance test the software proves to contain errors as meant in article 6.5, client will inform Protomation not later than on the last day of the test period by providing a written test report containing detailed information. Protomation shall undertake measures to the best of its abilities to correct these errors within a reasonable period of time, and by doing so, Protomation has the right to apply temporary solutions, workarounds or problem preventing restrictions to the software.
13.6 Rejection of acceptance of the software shall not be done for other reasons than those that are related to the specifications parties expressly agreed upon, and furthermore not because of the existence of minor errors, being errors that within reason do not restrict the use of the software for production or operational means, notwithstanding Protomation’s obligation to correct these minor errors pursuant to the guarantee scheme as referred to in article 14, if applicable. Furthermore, rejection of acceptance of the software shall not be done regarding aspects of the software that can only be judged subjectively, such as the design of any user interfaces.
13.7 In case the software is to be delivered and tested on a phased basis, non-acceptance of any phase and/or part does not affect acceptance of earlier phases and/or other parts.
13.8 Acceptance of the software in any manner as referred to in article 13.3 has the effect that Protomation will be discharged of its obligations pursuant the development and making available of the software and, in case installation by Protomation has been agreed upon, of its obligations regarding installation of the software.
Article 14 Guarantee scheme
14.1 Protomation shall undertake measures to the best of its abilities to correct any errors as referred to in article 6.5 within a reasonable period of time in case such errors have been reported detailed and in writing to Protomation within 12 months after delivery, or, in case of an acceptance test agreed upon, within 12 months after acceptance. Protomation does not guarantee that the software will always operate without interruption, errors or other defects, nor that all errors and other defects can be corrected.
14.2 Protomation is entitled to charge its regular fees for repair works in case of user’s errors or improper use by client, or other causes Protomation cannot be held accountable for, or if such errors could have been discovered during any acceptance tests agreed upon. Remedies for repair of damaged information or lost data are excluded from this guarantee scheme. The warranty obligation lapses when client adjusts or has had adjusted the software without having obtained written permission from Protomation; this permission will not be withheld on unreasonable grounds.
14.3 Errors will be corrected on a location determined by Protomation. Protomation has the right to apply temporary solutions, workarounds or problem preventing restrictions to the software.
14.4 Protomation is not obliged to repair errors that have been reported after the guarantee period as referred to in article 14.1, unless parties have entered into a maintenance agreement that calls for such obligations.
Article 15 Maintenance
15.1 If for the software a maintenance agreement has been entered into or if the user fee of the software includes maintenance, client will report any errors in a detailed way to Protomation following customary procedures. After receiving such report Protomation shall to the best of its abilities correct mistakes as referred to in article 6.5 and/or update to new versions of the software. The results will be made available to client by Protomation in a manner and period determined by Protomation after having judged its urgency. Protomation has the right to apply any solutions, workarounds or problem preventing restrictions to the software.
15.2 Protomation does not guarantee that the software will always operate without interruption, errors or other defects, nor that all errors and other defects can be corrected.
15.3 Protomation is entitled to charge its regular fees for repair works in case of user’s errors or improper use by client, or other causes Protomation cannot be held accountable for, or if the software has been changed by others than by Protomation. Remedies for repair of damaged information or lost data are excluded from maintenance.
15.4 If a maintenance agreement is entered into, Protomation will provide client with updates of the software. After three months of updating the software, Protomation is no longer obliged to repair any errors in a previous version and support for a previous version will be discontinued. Protomation may desire the client to enter into a new agreement before client is provided with updated software that contains new features and functions. Payment shall be done before delivery of the update.
15.5 If client has not entered in a maintenance agreement with Protomation at the moment of delivery of the software, Protomation may refuse entering in such an agreement on a later date.
Article 16 Applicable law
16.1 All agreements between Protomation and client are governed by Netherlands law. The Vienna Sales Convention (CISG) 1980 does not apply.
16.2 Any disputes that should arise between Protomation and client with regard to an agreement between Protomation and client, or with regard to any subsequent agreements, will be arbitrated according to the arbitration regulations of the Stichting Geschillenoplossing Automatisering (Foundation for the Resolution of Automation Disputes) in The Hague. This is without prejudice to the right of parties to ask for a decision in summary arbitral proceedings and without prejudice to the right to take protective measures.
16.3 All claims, no matter their form, pursuant to this agreement will be barred if they have not been applied for within 16 months after inception of the claim.
Article 17 Filing
17.1 These General Terms and Conditions are filed at the Registry of the District Court in Roermond, the Netherlands.