Terms & Conditions
GENERAL TERMS AND CONDITIONS
ARTICLE 1 – APPLICABILITY
- These General Conditions of Intermodal Telematics B.V., registered at the Chamber of Commerce under number 59281553, apply to all its offers, quotations, and proposals, as well as to agreements, juristic acts on the part of Intermodal Telematics B.V. and all other agreements to which Intermodal Telematics B.V. is a party, to the extent the Parties do not deviate from these General Conditions in writing.
- These General Terms and Conditions also apply for the benefit of those who are active on behalf of Intermodal Telematics B.V.
- Verbal offers and commitments will not be binding on Intermodal Telematics B.V until after, and only to the extent that, it confirms these in writing.
- If the provisions of these General Conditions conflict with, or deviate from, one or more provisions of the agreement, the provisions of the agreement will prevail only if and to the extent that the agreement explicitly and expressly deviates from these General Conditions.
- The general terms and conditions of purchase used by our client will not apply to Intermodal Telematics B.V.’s offers, quotations, or proposals, or to the agreement or any other agreement to which Intermodal Telematics B.V is a party, unless, and only to the extent that, Intermodal Telematics B.V has accepted these expressly and in writing. If both the General Conditions and our client’s general terms and conditions apply, these General Conditions of Intermodal Telematics B.V will prevail.
- The Parties will always make it clear that they are acting as independent, unaffiliated Parties in their own name and at their own risk. The Parties will not be entitled to enter into agreements on one another’s behalf or to undertake obligations or accept liabilities to third parties on one another’s behalf. The agreement therefore does not intend to create any legal relationship whatsoever that exceeds the scope of the rights and obligations the Parties have in respect of one another pursuant to the agreement. The agreement does not intend, in particular but not exclusively, to create a joint venture, agency relationship, or employment relationship.
ARTICLE 2 – OFFER AND ACCEPTANCE
- All offers and quotations furnished by Intermodal Telematics B.V are without obligation unless Intermodal Telematics B.V explicitly provides otherwise in writing. Intermodal Telematics B.V will be entitled at any time to revoke, withdraw or change any offer and/or quotation provided to the client up until the client legally accepts such offer and/or quotation. Offers and quotations will be valid for the period stated on the offers and quotations. If no validity period is stated, offers and quotations will be valid until the end of the following month.
- The information accompanying the offers and/or quotations (such as drawings, images, software tools, technical descriptions, and samples) have been prepared as accurately as possible, but are not binding on Intermodal Telematics B.V.
- The client guarantees the accuracy and completeness of the information provided by or on behalf of the client that Intermodal Telematics B.V used as a basis for the offer and/or quotation. If this proves not to have been the case, the quotation will expire with retroactive effect. Should the agreement have already been formed, Intermodal Telematics B.V will be entitled to rescind it immediately on the grounds of error.
- An agreement will be formed by a written (including by email), unconditional confirmation by the client of Intermodal Telematics B.V.’s entire quotation, including confirmation of the applicability of these General Conditions.
- Electronic communication will be considered to have been received at the moment of dispatch, unless the contrary is proven by the client. If the communication was not received as a consequence of delivery and/or accessibility problems with respect to the client’s electronic mailbox and/ or peripheral equipment, the client will bear the associated risk even if the electronic mailbox is located at a third party.
ARTICLE 3 – DELIVERIES
- The delivery of goods always occurs at the cost of the client. The client accepts separate deliveries.
- In case of sale, the transfer of ownership occurs only after full payment of the total price.
- In case the client does not make his complaint known via email or post within fourteen (14) days after the delivery, he is deemed to have accepted the delivered hardware, software or the service provided without any limitation or reservation.
- All delivery deadlines and terms stated or agreed by Intermodal Telematics B.V. will always be considered as target dates that are merely indicative and not binding on Intermodal Telematics B.V. Intermodal Telematics B.V. will make reasonable efforts to comply with the latest delivery deadline or date. The Parties acknowledge that a change or addition to the work stipulated in the agreement could result in the agreed deadlines being missed. Intermodal Telematics B.V.’s mere failure to meet the latest delivery or other deadline or date stated by Intermodal Telematics B.V. or agreed between the Parties will not put Intermodal Telematics B.V. in breach by operation of law.
ARTICLE 4 – PAYMENT TERMS
- All prices indicated in the quotation or order form are in Euro and are exclusive of VAT and other fees, charges and levies imposed by the government.
- All invoices are payable within 8 calendar days unless specifically agreed otherwise by Intermodal Telematics and the client.
- Invoices can only be disputed via post or email and this within a period of 8 calendar days at the latest after the invoice date.
- If the client has not paid the invoices on or before the due date for payment, the client will be in default without any notice of default or demand letter being required. From that moment forward until the date of full payment, the client will also owe interest at the statutory commercial rate of interest on the outstanding amount.
- If the client has not paid the invoices on or before the due date for payment, Intermodal Telematics B.V. will also be entitled to:
- increase the invoice amount by the administration costs, demand letter costs, and other costs incurred as a result of the client exceeding the due date for payment;
- turn the matter over to a collection agency. In that case, the client will expressly owe – in addition to the principal sum, interest at the statutory commercial rate, and administrative and demand letter costs – all extrajudicial and possible judicial costs, in addition to the costs established at law. The amount of extrajudicial costs will be set at a minimum of 15% of the principal sum;
- suspend work pursuant to the agreement; or
- rescind the agreement immediately and extrajudicially without prejudice to Intermodal Telematics B.V.’s other rights.
- The relevant documents and information from Intermodal Telematics B.V.’s records or systems will constitute complete proof of the services performed by Intermodal Telematics B.V. and the amounts the client owes Intermodal Telematics B.V. for those services, without prejudice to the client’s right to present proof of rebuttal.
- The payments made by the client will be used, first, to pay any interest and expenses owed and, second, to pay the oldest unpaid invoice, regardless of what the client states upon paying the invoice, unless Intermodal Telematics B.V. chooses to apply a different order.
- In case of incomplete, deficient, or late payment, Intermodal Telematics B.V. is authorised to suspend all its obligations, and this without paying any compensation fee, until the moment the amounts owed have been paid. Intermodal Telematics B.V. can deactivate SIM cards and cut off web services, among other things. All costs pertaining to the deactivation and reactivation of SIM cards shall be borne by the client.
- In case of incomplete, deficient, or late payment, the client is obligated, upon a simple request by Intermodal Telematics B.V., to return undamaged all delivered hardware and this at the cost of the client.
ARTICLE 5 – INTELLECTUAL PROPERTY RIGHTS
- All industrial, intellectual or other property rights on products created by Intermodal Telematics B.V., its employees, consultants, or subcontractors in the context of the implementation of the contract, remain the exclusive property of Intermodal Telematics B.V. The delivery of hardware, software, and services by Intermodal Telematics B.V. to the client does not in any way constitute a transfer of any of these rights.
- The client is not permitted, directly or indirectly, to transfer, pledge, lend, lease, rent, or allow a third party to make use of, purchased, rented, or leased goods without the prior and explicit permission of Intermodal Telematics B.V.
- No agreement shall transfer any of Intermodal Telematics B.V.’s intellectual property rights to the client.
- Intermodal Telematics B.V. is entitled to implement technical measures in the services to protect its intellectual property rights, including – but expressly not limited to – the deletion of hardware or software upon termination of the agreement. The client is not permitted to evade and/or delete these technical measures, or to cause such evasion and/or deletion, unless it has obtained Intermodal Telematics B.V.’s written consent.
- In case the delivery of hardware or services requires the use of software, which is the property of Intermodal Telematics B.V. or when a license is obtained, Intermodal Telematics B.V. grants to the client a non-exclusive, non-transferable license to make use of this software. Intermodal Telematics B.V. can at any moment apply improvements to the software. The client may use the software solely for the purpose for which it was made available.
- The client may not copy, sell, lend, lease or in any other manner make the software available for use by a third party. He may not reproduce or in any other manner duplicate the software, except as a back up of his own data to be kept in the client’s possession.
- The client may not use the services for commercial purposes or for any purpose other than those laid down in these General Conditions. The client’s right to use the services is non-transferable.
ARTICLE 6 – GUARANTEE
- Intermodal Telematics B.V. guarantees that the delivered goods and services conform, for a duration of 1 calendar year, to the description in the quotation or in the contract. The guarantee only applies to normal use. During this guarantee period the client has the right to either a free repair or free replacement, at the discretion of Intermodal Telematics B.V. The client shall inform Intermodal Telematics B.V. of any defect via post or email and this within a period of 8 calendar days after the defect was identified.
- In case of a defect in hardware or software, Intermodal Telematics B.V. is exclusively liable for the costs of the repair or replacement of the hardware or software. If the client’s model has become outdated, Intermodal Telematics B.V. may deliver a newer model as a replacement. The client shall bear all the costs for transportation and installation in case of repair or replacement.
- All contractual obligations of Intermodal Telematics B.V. are on a best efforts basis.
ARTICLE 7 – CONFIDENTIALITY
- If and to the extent that the performance of the agreement results in one Party receiving knowledge about the other Party that the receiving Party should reasonably be expected to know is confidential in nature, the receiving Party will use this information exclusively to perform the agreement and will restrict access to that information to persons who must have the information in order for the agreement to be performed. The Parties guarantee that these persons will be obliged to treat such information as confidential either pursuant to a non-disclosure clause in their employment contracts or pursuant to a separate non-disclosure agreement.
- ‘Confidential information’ will not be understood to include information that had already been disclosed to the public by the time the receiving Party became aware of it or that became part of the public domain afterwards, or information that the receiving Party received from a third party without a duty of confidentiality having been imposed or without the third party having been subject to such duty.
ARTICLE 8 – RESPONSIBILITY / LIABILITY
- Intermodal Telematics B.V. cannot be held responsible for direct or indirect consequential damage, and this in the broadest sense of the word.
- Intermodal Telematics B.V. cannot be held responsible for the misuse or transformation of information by use of the internet.
- The client will indemnify Intermodal Telematics B.V. against all third-party claims.
- Intermodal Telematics B.V.’s liability pursuant to an attributable failure to perform the agreement or for any other cause, expressly including any failure to perform the agreed guarantee obligations, will be limited to compensation for any direct damage/ loss up to a maximum of 25% of the contract (exclusive of VAT). Intermodal Telematics B.V.’s total, cumulative liability for direct damage/loss, regardless of the cause, will never exceed EUR 50,000 (fifty thousand euros). Direct damage/loss will be exclusively defined as:
- material damage to property (property damage);
- the reasonable costs the client would have to incur for Intermodal Telematics B.V. to perform the agreement. However, no compensation will be paid for this damage or loss if the client has rescinded the agreement;
- reasonable costs incurred in determining the cause and extent of the damage/loss, in so far as the determination relates to direct damage/ loss;
- reasonable costs incurred to prevent or mitigate damage/loss, to the extent that the client demonstrates that such costs have resulted in the mitigation of the direct damage/loss.
- Intermodal Telematics B.V.’s liability for damage/loss – including but not limited to indirect damage/loss, consequential damage/loss, lost profit, missed savings, reduced goodwill, losses due to commercial stagnation, losses resulting from claims filed by the client’s customers, third-party materials, hardware or software, and damage/loss resulting from engaging third-party suppliers – is excluded.
- Any claim for damages will expire by the mere lapse of twenty-four (24) months from the date the claim arose.
- Intermodal Telematics B.V. is not liable for any damage and/or loss relating to the guarantee on the client Hardware which arises from work that was explicitly performed on the client’s instructions.
ARTICLE 9 – FORCE MAJEURE
- Intermodal Telematics B.V. cannot be held responsible for non-fulfilment of its obligations in case of force majeure. Force majeure will be considered to include the following:
- an attributable breach on the part of Intermodal Telematics B.V.’s suppliers;
- government measures;
- power failures and/or outages;
- failures and/or unavailability of the internet, computer networks or telecommunication facilities;
- staffing complement;
- general transport problems;
- the unavailability of one or more staff members;
- flooding and natural disasters;
- Intermodal Telematics B.V. will be entitled, without giving any advance notification, to implement procedural and or technical changes and/or improvements relating to the Services, which may result in the Services (or access thereto) being temporarily disrupted or limited.
ARTICLE 10 – CONTRACT PERIOD AND TERMINATION
- The contract can in no circumstance be terminated by the client earlier than the period agreed upon or which is indicated in the quotation or the contract.
- Intermodal Telematics B.V. can dissolve the contract without being liable to pay any compensation fee in case of the non-fulfilment of the contractual obligations by the client or in case of the liquidation or bankruptcy of the client.
- In case the client terminated the contract in an irregular manner, it is liable to pay the invoices for the remainder of the contractual period.
ARTICLE 11 – NOTIFICATIONS
- All notifications and other communication between the Parties regarding the agreement and its performance must be effected in writing, including correspondence by email. Email messages will be considered to have been received by the other Party, and the other Party will be considered to have known the contents of those messages, if the message has demonstrably been sent to the contact person and email address stated in the agreement.
- The Parties will notify one another immediately of any change of the details stated in the agreement.
ARTICLE 12 – APPLICABLE LAW AND JURISDICTION
- The offers, quotations, these General Conditions, the agreement, and other agreements between Intermodal Telematics B.V. and the client are all governed by the laws of the Netherlands. The applicability of the U.N. Convention on Contracts for the International Sale of Goods, Vienna, 11 April 1980, OJ 1981, 184 and 1986, 61) to this agreement is expressly excluded.
- Any disputes that may arise in connection with the offers, quotations, these General Conditions, the Contract, and other agreements between Intermodal Telematics B.V. and the client must be submitted for adjudication in the first instance exclusively to the competent court in Breda, the Netherlands.