SOLDEFENCE's General Terms and Conditions consist of two modules:
Module A: general provisions applicable to all services;
Module B: specific provisions relating specifically to the nature of SOLDEFENCE's services.
If Module B is applicable, it shall prevail over Module A in case the relevant provisions do not correspond to each other. To the extent that the provisions in Module A do not conflict with the applicable provisions in Module B, then the general provisions in Module A always apply as well. The definitions of capitalised terms apply to all modules.
The "headings" above the modules and articles are only intended to simplify the reading of these General Terms and Conditions. These headings therefore have no independent meaning.
Article 1. Definitions
In these General Terms and Conditions, the following terms, both in singular and plural, shall mean: General terms and conditions: the provisions of the present document.
SOLDEFENCE: Soldefence B.V., registered with the Chamber of Commerce under KvK number 90159209, established in Veendam.
Services: all services to be performed by SOLDEFENCE for Customer in the context of the Agreement, including but not limited to :
installation of security equipment;
Performing breakdown and maintenance work;
monitoring camera images;
Providing and supporting software applications;
support and coordination of excavation work (whether by third parties or not);
access to and handling by an alarm centre and follow-up services;
other forms of support, advice and services related to the use and operation of the security solutions provided by SOLDEFENCE.
Products: All products to be provided by SOLDEFENCE for Customer under the Agreement, including but not limited to:
security cameras and related hardware (such as recorders, network equipment and monitoring systems);
software components for managing, viewing and analysing imagery;
other goods provided by SOLDEFENCE for the purpose of Customer's security solutions.
Customer: any natural or legal person with whom SOLDEFENCE enters into an agreement.
Quote: SOLDEFENCE's offer to Customer in the form of an offer, quotation or otherwise.
Agreement: Any agreement concerning (a combination of) Services, however named or designated, between SOLDEFENCE and Customer.
Article 2. Applicability of these General Terms and Conditions
All Offers and all Contracts between SOLDEFENCE and its Customer are exclusively subject to these General Conditions. Customer with whom once contracted on the basis of the General Terms and Conditions, agrees to their applicability to future and/or subsequent Contracts, Products and Services with/from SOLDEFENCE.
General (purchase) terms and conditions used by Customer and other (deviating from the General Terms and Conditions) clauses are expressly rejected by SOLDEFENCE, even if they are referred to in offers, invoices and/or on stationery, unless expressly accepted by SOLDEFENCE in writing.
If any provision or any part of a provision of the General Terms and Conditions is for any reason wholly or partly non-binding, this shall not affect the binding nature of the remaining provisions of the General Terms and Conditions or of the remaining part of the relevant provision.
SOLDEFENCE has the right to modify these General Conditions unilaterally. Changes shall also apply in respect of Agreements already concluded. Changes shall be announced in writing (by e-mail) to Customer and shall enter into force thirty (30) days after the announcement, unless another date is communicated with the announcement.
The General Conditions also extend to third parties engaged by SOLDEFENCE for (the execution of) its Services.
Article 3. Conclusion of the Agreement
All SOLDEFENCE Quotations are without obligation, unless expressly stated otherwise. SOLDEFENCE's Quotations may not be reproduced or made available to third parties for inspection without SOLDEFENCE's consent. SOLDEFENCE is at all times entitled to charge Customer for the costs of preparing its Quotation.
The Offers shall be dated and valid as of that day for thirty (30) days. SOLDEFENCE is not bound by the period of validity of Offers so that it can revoke its Offers at any time. Once SOLDEFENCE's Offers have been accepted, whether or not within the thirty (30) day period, SOLDEFENCE can only revoke the offer without delay.
Agreements (as well as changes to them) are established by written or electronic confirmation from SOLDEFENCE and/or by acceptance of the Offers by Customer, unless SOLDEFENCE revokes its Offers without delay after their acceptance by Customer. Furthermore, an Agreement is established
by SOLDEFENCE executing, in whole or in part, an order given by Customer without prior confirmation. In that case, Customer always bears the risk for the execution of the (possibly multi-interpretable) Agreement and as a result of that, incorrect execution of the Services.
For Agreements for which, according to their nature and scope, no Offer or order confirmation is sent, the invoice is deemed to reflect the Agreement correctly and completely, subject to written complaints within eight (8) days of the invoice date.
Notwithstanding the provisions of Article 6:225 paragraph 2 of the Civil Code, SOLDEFENCE shall not be bound by any deviations from the Offer or order confirmation in the acceptance by the potential client.
Customer guarantees the accuracy and completeness of the data provided by or on behalf of it to SOLDEFENCE on which SOLDEFENCE has based its Offer.
If the Contract is concluded with two or more Customers, they are jointly and severally liable and SOLDEFENCE is entitled to performance against each of them for the whole.
In case of conflict of provisions in the following documents (including annexes), the following order of precedence shall apply:
the Agreement;
the processing agreement;
these General Terms and Conditions.
Article 4. Prices
Prices are exclusive of sales tax (VAT) and other government levies.
If a price in an Offer is based on data provided by Customer and this data turns out to be incorrect, SOLDEFENCE has the right to adjust prices accordingly, even after the Agreement has already been concluded.
SOLDEFENCE is not bound by prices or other information mentioned in Offers, catalogues, mailings, or on the website in case of typing, calculation, printing, typesetting or programming errors.
With compound prices, SOLDEFENCE is not obliged to deliver a part at a proportionate part of the price, nor do offers automatically apply to repeat orders.
If no price has been agreed between the parties, SOLDEFENCE's rates applicable at the time the Services are performed shall apply.
In the case of a periodic payment obligation of Customer, SOLDEFENCE is always entitled to adjust the applicable prices and/or rates in writing and subject to at least three (3) months' notice. If Customer does not agree with the adjustments proposed by SOLDEFENCE, Customer is entitled to terminate the Agreement in writing within thirty (30) days after notification of the adjustment and with effect from the date on which the new prices and/or rates would take effect. If Customer does not agree with the proposed adjustment, SOLDEFENCE may choose to continue the Agreement under the original prices and/or rates, in which case Customer shall not be entitled to terminate the Agreement.
Without prejudice to the provisions of the previous paragraph, prices and/or rates may be adjusted annually by SOLDEFENCE as of 1 January of the year in question in accordance with the service price index figures as published by Statistics Netherlands. The base year for the service price index is the year 2015 (2015=100).
Article 5. Payment
Payments shall be made within the payment term indicated on the invoice and in any event within fourteen (14) days of the invoice date, unless otherwise agreed in writing, failing which Customer shall be in default by operation of law, without any summons or prior notice of default being required.
If the Customer fails to pay any amount owed by him on time, interest of 5% per month shall be payable on the (invoice) amount from the due date of the invoice until the moment of full payment.
All judicial and extrajudicial costs related to the collection of any claim against Customer shall be borne by it, without the need to be notified by SOLDEFENCE. The extrajudicial costs shall amount to at least 15% of the invoice amount(s), with a minimum of
€ 750,-.
If payment in instalments has been agreed, SOLDEFENCE shall send Customer the relevant instalment invoice each time on or after the appearance of a payment term. The sales tax owed by Customer to SOLDEFENCE shall be stated separately.
SOLDEFENCE is always entitled to require an advance payment and/or security from Customer prior to (the execution of) the Services. SOLDEFENCE also has this right during the term of the Agreement and with regard to follow-up agreements. If Customer does not comply with the request for down payment and/or security, SOLDEFENCE is entitled to terminate the Agreement, in which case SOLDEFENCE is entitled to compensation. Customer cannot assert any rights regarding the fulfilment of the Agreement before the requested down payment and/or security has been made.
SOLDEFENCE is at all times entitled to charge Customer for work already carried out and/or partial deliveries realised on an interim basis. This interim billing shall be based on the actual work carried out and costs incurred up to the time of billing, regardless of the status of full completion of the assignment. This shall not affect SOLDEFENCE's right to demand an advance payment.
Customer has the duty to immediately report inaccuracies in payment details provided or mentioned to SOLDEFENCE.
Payments made by or on behalf of Customer shall serve successively to pay the extrajudicial collection costs due, the judicial costs, the interest due and then in order of age the outstanding principal sums, irrespective of Customer's instructions to the contrary.
Without express permission from SOLDEFENCE, Customer is not allowed to suspend, set off and/or offset its payment obligation(s) towards SOLDEFENCE against any claim Customer has against SOLDEFENCE on any account whatsoever. Customer cannot invoke a right of retention against SOLDEFENCE.
Claims concerning SOLDEFENCE invoices must be submitted in writing within eight (8) days after the invoice date, failing which the invoice shall be deemed correct and complete and any claim against SOLDEFENCE in respect thereof shall lapse.
If Customer fails to fulfil any obligation from the Agreement and/or General Conditions, all claims SOLDEFENCE has on Customer shall be immediately due and payable, without further notice of default being required, as well as SOLDEFENCE shall be entitled to suspend (further) fulfilment by it of all its obligations from legal relations with Customer.
Article 6. Changes and additional work
If SOLDEFENCE needs to perform work that can reasonably be considered as a modification or addition to that stated in the Quotation or Agreement (which also includes a delay or run-out with respect to the Services that can be attributed to Customer), this shall be considered additional work. Additional work shall be compensated by Customer according to the agreed rates and in the absence thereof according to SOLDEFENCE's usual rates.
Article 7. Performance of Services
SOLDEFENCE shall use its best efforts to perform the Services with care. All of SOLDEFENCE's Services are performed on the basis of an obligation of effort, unless SOLDEFENCE has explicitly promised a result in the Agreement and the result in question is described with sufficient certainty in the Agreement.
Customer is obliged to enable a timely and correct execution of the Services. In particular, Customer shall ensure that all data, which SOLDEFENCE indicates are necessary or which Customer should reasonably understand are necessary for the performance of the Services, are provided to SOLDEFENCE in a timely manner. Customer shall provide the required cooperation with due diligence and within the agreed deadlines. Customer guarantees the accuracy and completeness of the data provided by or on behalf of him to SOLDEFENCE.
If Customer fails to comply with the second paragraph, SOLDEFENCE is entitled to charge the additional costs directly related to Customer's negligence and may be subject to delays in the performance of the Services. Any delay in the performance of the Services caused by Customer shall not constitute a default by SOLDEFENCE.
SOLDEFENCE shall not be obliged to follow Customer's instructions in the execution of its Services, in particular if these instructions change or supplement the content or scope of the agreed Services. However, if such instructions are followed, the related work shall be remunerated in accordance with SOLDEFENCE's usual rates.
SOLDEFENCE is entitled to engage third parties, auxiliary persons and/or subcontractors without having to ask Customer's consent when it deems it necessary for the execution of the Services.
Article 8. Deadlines
Deadlines specified by SOLDEFENCE for the performance of Services and/or the delivery of Products shall always be target deadlines and shall not be binding on SOLDEFENCE, unless expressly agreed otherwise in writing.
Customer realises that changes, additional work or additional wishes (may) lead to the shifting of previously mentioned deadlines. New deadlines specified by SOLDEFENCE shall replace previous deadlines.
SOLDEFENCE, even when a deadline has been agreed in writing, shall only be in default after Customer has given it written notice of default, granting it a reasonable period of at least twenty-one (21) days to still meet its obligations.
If SOLDEFENCE cannot perform the Services and/or deliver the Products because Customer does not provide sufficient opportunity to do so and/or does not provide sufficient necessary information or instructions, Customer shall be in default by operation of law and all consequences thereof shall be for its account. SOLDEFENCE shall then be entitled to recover all resulting damages from Customer.
In the event of force majeure, as well as if delays have arisen due to the actions or omissions - culpable or not - of Customer or a third party, the deadlines for performance of Services and/or delivery of Products shall in any case be extended by the duration of the delay.
Article 9, Duration of the agreement, termination and dissolution
The Agreement related to the delivery of Products, the execution of installation works and - if applicable - excavation works by third parties coordinated by or on behalf of SOLDEFENCE, is entered into for the duration of the execution of the Agreement. The Agreement ends by operation of law as soon as the agreed Products have been delivered and the work has been completed and - if applicable - delivered, unless otherwise agreed in writing.
The Agreement with regard to the provision of software, the performance of maintenance and breakdown work, the provision of access to the alarm centre and follow-up services, and other ongoing services, is entered into for an initial term of one (1) year, unless otherwise agreed. After expiry of the initial term, the Agreement shall be tacitly renewed each time for periods of one (1) year, unless one of the parties cancels the Agreement in writing with due observance of a notice period of three (3) months before the end of the current contract period. The parties may make different arrangements in this regard in writing.
If Customer terminates the Agreement prematurely, SOLDEFENCE shall be entitled to pay the full compensation that would be due until the end of the term of the Agreement, including reasonable compensation for costs already incurred and lost income.
SOLDEFENCE is at all times entitled to terminate the Agreement prematurely, subject to a reasonable notice period. No (weighty) reason is required for this, unless the nature of the Agreement dictates otherwise.
If Customer is of the opinion that SOLDEFENCE is imputably failing to fulfil the Agreement, Customer shall only be entitled to rescind the Agreement after it has given SOLDEFENCE written notice of default, specifying as complete and detailed a description of the failure as possible, and has given SOLDEFENCE a reasonable period of at least twenty-one (21) days to comply.
If Customer fails to fulfil any obligation under the Agreement, SOLDEFENCE shall be entitled to suspend its obligations without notice of default or judicial intervention being required, without prejudice to its right to compensation for damages, lost profits and interest, unless the failure is of minor importance.
SOLDEFENCE is entitled to dissolve or suspend all or part of the Agreement with immediate effect, without judicial intervention, by letter or e-mail, without being liable for damages, if:
Customer fails to fulfil its obligations under the Agreement, in full or in a timely manner;
after the conclusion of the Agreement, circumstances become known that give good reason to fear that Customer will not fulfil its obligations;
requested collateral is not provided in a timely or sufficient manner;
due to delay on the part of Customer, SOLDEFENCE cannot reasonably be expected to still fulfil the Agreement under original conditions;
Customer applies for suspension of payments or becomes bankrupt;
Customer's business is discontinued or liquidated;
a substantial asset of Customer is seized;
h. other circumstances arise which are of such a nature that SOLDEFENCE cannot reasonably be required to maintain the Agreement unchanged.
8. In case of termination or dissolution, all claims of SOLDEFENCE on Customer shall become immediately due and payable. Suspension of obligations shall not affect SOLDEFENCE's right to performance and compensation.
Article 10. Confidentiality
Customer undertakes to keep confidential all confidential information received from SOLDEFENCE within the framework of the Agreement. Information is considered confidential if this has been communicated to Customer by SOLDEFENCE or if it arises from the nature of the information. Offers and the Agreement (as well as prices and rates mentioned therein) are always confidential in nature.
In case of breach of confidentiality as mentioned in the first paragraph, Customer forfeits an immediately payable fine of €10,000 per event, without prejudice to SOLDEFENCE's other rights under the Agreement and the General Conditions including the right to claim (additional) damages.
Article 11. Data protection
Customer warrants that it will act in accordance with the General Data Protection Regulation ("AVG") and all other applicable laws and regulations regarding privacy and the protection of personal data. Upon SOLDEFENCE's request, Customer shall inform SOLDEFENCE on how Customer complies with the obligations under the AVG.
Customer is responsible for personal data processed by Customer when using SOLDEFENCE Services and Products. Customer guarantees that this data processing is lawful - in accordance with the AVG - and does not infringe any right of a third party. Customer indemnifies SOLDEFENCE against any legal claim by a third party, on any grounds whatsoever, in connection with this data processing.
Customer shall indemnify SOLDEFENCE for claims by persons whose personal data are processed ("data subjects") for which Customer is responsible under the AVG, unless Customer can prove that the facts underlying the claim are attributable to SOLDEFENCE.
Customer shall indemnify SOLDEFENCE for damages and/or fines and/or periodic penalty payments from or on behalf of a regulator and/or other authorities imposed on SOLDEFENCE which are attributable to violations of the AVG and/or other applicable laws by Customer.
If SOLDEFENCE carries out work in relation to personal data processed under the Agreement pursuant to a request or authorised order from a public authority, a regulator or in connection with a legal obligation, the costs may be charged to Customer.
Customer is solely responsible for the processing, storage and use of camera images obtained using the systems provided or managed by SOLDEFENCE. In doing so, Customer guarantees that it acts in accordance with applicable data protection laws and regulations, including the AVG, as well as any applicable guidelines from competent authorities such as the Personal Data Authority or the police. SOLDEFENCE is not responsible and liable for how Customer processes or stores the images.
Article 12. Security
If SOLDEFENCE is obliged under the Agreement to provide information security, such security shall comply with the written agreements that the parties have made in this respect in the Agreement. SOLDEFENCE does not guarantee that the information security is effective under all circumstances. If no written agreements have been made on information security, then the security must meet a level that is reasonable, taking into account the state of the art, the implementation costs, as well as the nature, scope, context and purposes of the services and the probability and severity of the foreseeable risks.
If SOLDEFENCE provides access codes or other data regarding security devices to Customer, Customer must treat them confidentially and only disclose them to authorised personnel. Customer is responsible for managing the authorisations and the timely revocation of access codes.
SOLDEFENCE is not responsible for information security related to software, devices and infrastructure not provided to Customer by SOLDEFENCE.
SOLDEFENCE has the right to adjust the security means if this is necessary due to changing circumstances.
Customer shall ensure that its systems and infrastructure are adequately secured.
SOLDEFENCE may give Customer instructions regarding the implementation of security measures aimed at preventing or reducing security incidents or consequences of security incidents. If Customer does not follow these instructions, SOLDEFENCE shall not be liable and Customer shall indemnify SOLDEFENCE for any damage that may arise from this.
SOLDEFENCE has at all times the right to make technical and organisational provisions to protect software, devices and infrastructure, even if restrictions have been agreed on their use. Customer shall not remove or circumvent these provisions.
SOLDEFENCE shall not be liable for damages resulting from the use or misuse that is made of access or identification codes, certificates or other security means, unless the misuse is the direct result of intent or deliberate recklessness on the part of SOLDEFENCE's management.
Article 13. Intellectual property
All intellectual property rights to the Products, software, (web)applications, software, websites, data files, databases, equipment or other materials such as analyses, designs, documentation, reports and Quotations, developed or made available to Customer under the Agreement, belong to SOLDEFENCE, its licensors or its suppliers. Customer shall only obtain the rights of use expressly granted by these General Terms and Conditions, the Agreement and by mandatory law. Any right of use granted to Customer is non-exclusive, non-transferable, non-pledgeable and non-sublicensable.
If SOLDEFENCE decides to transfer an intellectual property right, this commitment shall only be made in writing and explicitly. If the parties agree in writing that an intellectual property right relating to Products, software, (web) applications, software, websites, data files, databases, equipment, know-how or other works or materials developed specifically for Customer shall be transferred to Customer, SOLDEFENCE shall remain entitled to use and/or exploit the underlying components, designs, data files, algorithms, documentation, works, protocols, standards and the like without any restriction, both for itself and for third parties. SOLDEFENCE also retains the right to use the general principles, ideas and programming languages used for the creation or development of a work without any limitation for
other purposes and/or exploit it, both for itself and for third parties. Nor does the transfer of an intellectual property right restrict SOLDEFENCE from making similar or derived developments for itself or for third parties.
Customer is not allowed to remove or change any indication regarding copyright, brands, trade names or other intellectual property rights from Products, software, (web) applications, websites, software, data files, databases, equipment or other materials belonging to SOLDEFENCE or third parties from whom SOLDEFENCE obtained the right of use.
SOLDEFENCE is allowed to take technical measures to protect the Products, software, the (web) applications, software, websites, data files, databases, equipment or other materials. Customer is not allowed to remove or circumvent this protection.
Any use, reproduction or disclosure of Products, software, (web) applications, software, websites, data files, databases, equipment or other materials beyond the scope of the Agreement or granted rights of use shall constitute an infringement of SOLDEFENCE's intellectual property.
Customer guarantees that no rights of third parties oppose the provision to SOLDEFENCE of software, (web)applications, software, websites, data files, databases, equipment and/or other materials and/or designs, for the purpose of use, maintenance, adaptation, installation or integration. Customer shall indemnify SOLDEFENCE against any claim by a third party based on the allegation that such provision, use, maintenance, adaptation, installation or integration infringes any right of that third party.
Article 14. Transfer of risk
The risk of loss, theft, misappropriation or damage of Products, materials, data, user names, passwords, codes, documents, software, (web) applications, software and/or data files produced for, delivered to and/or made available to Customer as part of the Agreement, shall pass to Customer as soon as they are actually put at the disposal of Customer or an assistant of Customer. Customer shall indemnify SOLDEFENCE for all third party claims related to loss, theft, embezzlement or damage of these Products, materials and data, from the moment they are put into the actual disposal of Customer or its auxiliary persons.
Article 15. Retention of title
All Products delivered by SOLDEFENCE shall remain SOLDEFENCE's property until the moment of full payment of all that SOLDEFENCE is due under the Agreement concluded with the Customer. This includes interest and costs and claims due to Customer's failure to fulfil such Agreement. Furthermore, ownership shall not pass to Customer until Customer has paid all of SOLDEFENCE's claims in full, including those for other deliveries. Customer shall not be entitled to invoke a right of retention with respect to the safekeeping costs or to offset these costs against its due performance.
The Customer undertakes to keep the Products delivered and/or made available separately and clearly mark them as the property of SOLDEFENCE, and in case the Customer does not fulfil this obligation, it shall be presumed that the Products present at the Customer's premises, of the kind as made available or delivered by SOLDEFENCE, belong to SOLDEFENCE.
The Customer shall not be entitled to alienate, rent out, give in use, pledge or otherwise encumber for the benefit of third parties, in whole or in part, the Products falling under the retention of title, other than in the normal course of its business. If this is violated, the price due, regardless of the payment conditions, shall be immediately due and payable in full. In case of permissible resale, the Customer already cedes to SOLDEFENCE at the conclusion of the Agreement all rights arising from the resale to collect the purchase price. In case of incorporation into other Products, Customer shall be obliged, upon SOLDEFENCE's first request, to establish a lien on those other Products in favour of SOLDEFENCE.
Without prejudice to its other rights, SOLDEFENCE is irrevocably authorised by Customer, if Customer does not fulfil its obligations towards SOLDEFENCE, to enter its premises without any notice of default or judicial intervention and to repossess the Products delivered by it and belonging to it.
In case of seizure, (provisional) suspension of payment or bankruptcy, the Customer is obliged to immediately inform the seizing bailiff, administrator or receiver of SOLDEFENCE's (ownership) rights.
Article 16. Liability
SOLDEFENCE's liability shall in all cases be limited to compensation of only the direct damage related to an attributable failure in the fulfilment of the Agreement and to a maximum of the amount paid out by its insurer minus the excess. If the insurer does not pay out for whatever reason, SOLDEFENCE's liability shall be limited to the invoice amount owed by the Customer under the Agreement over the last three (3) months, at least that part of the Agreement to which the liability relates, but in all cases to a maximum of EUR 10,000.
SOLDEFENCE's total liability for damages due to death or bodily injury or for material damage to property shall in no case exceed EUR 25,000.00 per damaging event, where a series of related events shall count as one event.
SOLDEFENCE shall not be liable for any form of indirect damage, including but not limited to consequential damage, consisting for example of lost profits, missed savings, mutilation or loss of (business) data and damage due to business interruption.
Outside the cases mentioned in the first and second paragraphs of this article, SOLDEFENCE shall not be liable for any damages, regardless of the ground on which an action for damages would be based. The exclusions and limitations referred to in paragraphs 1 and 2 shall cease to apply if and insofar as the damage is the result of intentional or deliberate recklessness on the part of SOLDEFENCE's management.
SOLDEFENCE's liability due to an attributable shortcoming in the fulfilment of the Agreement shall only arise if Customer immediately and properly gives SOLDEFENCE notice of default in writing, setting a reasonable deadline of at least twenty-one (21) days to remedy the shortcoming, and SOLDEFENCE continues to fail imputably in the fulfilment of its obligations even after that deadline. The notice of default must contain as detailed a description of the shortcoming as possible, to enable SOLDEFENCE to respond adequately.
The condition for the creation of any right to compensation is always that Customer reports the damage to SOLDEFENCE in writing within fourteen (14) days after its occurrence. Any claim for compensation against SOLDEFENCE shall expire twelve (12) months after the claim arises unless Customer has filed a legal claim for compensation for the damage before that time.
Customer shall indemnify SOLDEFENCE against all claims by third parties, including customers of Customer, which are in any way related to or arising from the Products or Services under the Agreement, unless there is intent or gross negligence on the part of SOLDEFENCE's management.
SOLDEFENCE's liability for shortcomings in products and services of third parties, auxiliary persons and/or subcontractors, including software (extensions), (web) applications and software, is excluded.
Article 17. Force majeure
Neither party can be held to fulfil any obligation if a circumstance beyond the control of the parties, which could not or should not already have been foreseen at the conclusion of the Agreement, nullifies any reasonable possibility of fulfilment. Force majeure on the part of SOLDEFENCE includes, but is not limited to: (a) shortcomings by parties on whom SOLDEFENCE depends in the provision of the Services, (b) the unavailability of one or more personnel (due to illness or otherwise), (c) defectiveness of goods, equipment, software or materials which Customer has prescribed SOLDEFENCE to use, (d) government measures, (e) breakdowns of the Internet or other telecommunication facilities, (f) weather conditions; (g) electricity failures, (h) cyber(crime), (i) (cyber)vandalism, war or terrorism; (j) pandemics and (k) transport problems.
If a force majeure situation lasts longer than two (2) months, each party has the right to terminate the Agreement in writing. In that case, SOLDEFENCE retains the right to full compensation for the Services performed, Products delivered and costs incurred until then, regardless of the degree of completion of the performance.
Article 18. Transfer of rights and obligations
Customer is not allowed to pledge, sell, transfer, and/or encumber its rights and obligations under the Agreement to a third party, except with SOLDEFENCE's prior written consent.
SOLDEFENCE shall at all times be permitted to pledge its rights under the Agreement
Article 19. Applicable law and disputes
All legal relations between SOLDEFENCE and Customer shall be governed by Dutch law. The applicability of the Vienna Sales Convention and foreign laws is expressly excluded.
All disputes arising from or in connection with the Agreement(s) and/or these General Terms and Conditions shall be subject to the decision of the competent court in the District Court of Noord-Nederland, location Groningen.
Article 20. Delivery Products
The provisions of this article and the following articles 21 and 22 apply only to the supply of physical Products, such as cameras and other hardware, and not to the supply of software or Services. Article 24 applies to software.
Delivery of Products shall take place at the delivery address provided by Customer, unless otherwise agreed in writing.
Delivery times are indicative and do not constitute deadlines, unless expressly agreed otherwise in writing.
SOLDEFENCE is entitled to execute the delivery of Products in parts. In this case, each partial delivery shall be invoiced separately.
The risk of loss, damage or depreciation of the Products shall pass to Customer at the moment of delivery, being the moment when the Products leave the warehouse or workshop of SOLDEFENCE or its suppliers or are handed over to the carrier.
Customer is obliged to take delivery of Products at SOLDEFENCE's first request. If Customer does not take delivery of the Products or does not provide instructions for delivery, SOLDEFENCE is entitled to store the Products at Customer's expense and risk.
Article 21. Defects in Products
Customer is obliged to inspect the delivered Products (or have them inspected) immediately upon delivery for visible defects, shortcomings or transport damage.
Complaints about defects observable upon delivery must be reported in writing to SOLDEFENCE within five (5) working days after delivery.
Complaints about non-visible defects must be reported in writing to SOLDEFENCE within five (5) working days after discovery, but at the latest within three (3) months after delivery.
If Customer does not complain within the said time limits, any right to repair, replacement or compensation lapses.
Complaints do not entitle Customer to suspend payment obligations.
The provisions of this article shall not affect Customer's right to warranty as referred to in Article 22, provided the defect is reported to SOLDEFENCE in writing within the applicable warranty period.
Article 22. Warranty Products
Products delivered by SOLDEFENCE are covered by a warranty period of twenty-four (24) months from delivery, unless otherwise agreed in writing or the manufacturer of the relevant Product has a longer warranty period.
The guarantee implies that SOLDEFENCE will repair defects in the Product (or have it repaired) free of charge or, at its option, replace the Product, if the defect is due to a material or manufacturing defect.
The warranty does not cover damage or defects caused by:
Normal wear and tear;
improper or incorrect use;
external influences or external damage;
unauthorised repairs or modifications;
neglect of the Products;
failure to follow the instructions and operating instructions provided by SOLDEFENCE or the manufacturer.
Replacement or repair of a Product does not extend the original warranty period.
If repair or replacement is impossible or economically unreasonable, SOLDEFENCE is entitled to refund the purchase price (in whole or in part) to Customer instead of providing warranty.
No guarantee applies if Customer has not timely or fully fulfilled its (payment) obligations towards SOLDEFENCE.
After the warranty period expires or if no warranty applies, Customer shall be fully responsible for all costs related to inspection, repair or replacement of the Products.
Article 23. Installation work
Insofar as the Agreement provides for installation work by SOLDEFENCE, SOLDEFENCE shall endeavour to carry out this work to the best of its knowledge and ability.
Customer shall ensure that SOLDEFENCE obtains timely access, free of charge, to the location where the installation work is to be carried out, and that the location is suitable for carrying out the work. Customer is responsible for obtaining any necessary permits, consents or notifications in a timely manner.
Customer vouches for the accuracy of data provided by him regarding the installation location, such as technical facilities, cabling, network infrastructure and connection points.
If the installation work is delayed due to force majeure or circumstances attributable to Customer, SOLDEFENCE shall be entitled to charge Customer for the additional costs resulting therefrom.
The risk of damage to or loss of already delivered Products at the installation site shall be borne by Customer from the time of actual delivery at the site, even if the installation has not yet been completed.
Installation work is considered delivered when SOLDEFENCE has notified Customer that the installation has been completed, or as soon as Customer puts the system into use, or at least actually uses it.
Customer must notify SOLDEFENCE in writing of any complaints about the execution of the installation work no later than five (5) working days after completion. After the expiry of this period, it is assumed that the work has been carried out properly.
Article 24. Excavation by third parties
If excavation work is necessary as part of the execution of the Agreement, it may be carried out by or on behalf of SOLDEFENCE by a third party.
Customer is responsible for the timely provision of correct and complete information about the excavation site, including the presence and location of underground cables, pipes and other facilities. Customer shall ensure correct and up-to-date KLIC reporting, unless otherwise agreed in writing.
SOLDEFENCE is not liable for damages incurred as a result of excavation work, including - but not limited to - damages to cables, pipes or other underground infrastructure, unless there is intent or conscious recklessness on the part of SOLDEFENCE. Damages also include consequential damages, trading losses and interruption of services.
Customer shall indemnify SOLDEFENCE for all third-party claims for damages referred to in paragraph 3, unless there is intent or deliberate recklessness on the part of SOLDEFENCE.
Any delays in the execution of excavation work, for whatever reason, shall not entitle Customer to suspension, set-off, rescission or damages, unless otherwise agreed in writing.
Complaints about the execution of excavation work must be reported in writing to SOLDEFENCE no later than five (5) working days after completion of the work. After the expiry of this period, it is assumed that the work has been carried out properly.
Article 25. Maintenance work
If, in the context of the Agreement, SOLDEFENCE carries out maintenance work on the Products it supplies or manages, it shall endeavour to carry out this work to the best of its knowledge and ability.
Maintenance work may be both preventive and corrective in nature and shall be carried out within normal working hours, unless otherwise agreed in writing.
Customer is obliged to provide all cooperation reasonably necessary for the proper performance of the maintenance work, including granting access to the site and making available necessary facilities, such as electricity, internet connection and configuration data.
SOLDEFENCE shall not be liable for not being able to carry out maintenance or not being able to carry out maintenance in full if this is due to circumstances on the part of Customer, such as the inaccessibility of the site, missing or faulty information, or unsuitable environmental factors.
Unless otherwise agreed in writing, maintenance work does not include replacement of parts, updates to Software or repair of damage resulting from improper use, external influences or modifications by Customer or third parties.
Parts replaced by or during maintenance shall become the property of SOLDEFENCE, unless otherwise agreed in writing.
Complaints about the performance of maintenance work must be reported in writing to SOLDEFENCE no later than five (5) working days after completion of the work. After the expiry of this period, it is assumed that the work has been carried out properly.
Article 26. Breakdown work
If a malfunction occurs in the Products provided or managed by SOLDEFENCE, Customer may request SOLDEFENCE to perform malfunction work. SOLDEFENCE shall endeavour to investigate and - if possible - remedy the malfunction within a reasonable period of time.
Unless otherwise agreed in writing, breakdown work shall be performed within normal working hours and on a post-calculation basis at SOLDEFENCE's then current hourly rate.
Customer is obliged to provide SOLDEFENCE with all relevant information about the nature of the malfunction and to provide all cooperation necessary to investigate and remedy it. If SOLDEFENCE is unable to access the site or systems, or if necessary information is missing, it is entitled to suspend the work.
SOLDEFENCE is not liable for delays in remedying faults if they are due to circumstances beyond its control, such as shortcomings in Customer's network, defects in third-party equipment or software, or force majeure.
If a malfunction is found to have been caused by a circumstance beyond regular use - such as improper use, unauthorised modifications, external influences or damage by third parties - SOLDEFENCE is entitled to pass on the costs incurred to Customer, regardless of whether the malfunction has been fully remedied.
Complaints on the execution of fault work shall be reported in writing to SOLDEFENCE no later than five (5) working days after completion. If no complaint is submitted in time, it shall be assumed that the work has been carried out properly.
Article 27, Software
With the conclusion of the Agreement, Customer acquires a non-exclusive, non-transferable, non-pledgeable, temporary and revocable right of use to Software for viewing camera images and monitoring, if and insofar as it is made available to Customer within the scope of the Agreement. This right of use applies exclusively for the duration of the Agreement and for the agreed purpose. All intellectual property rights to the Software shall remain with SOLDEFENCE or its licensors.
Customer accepts the Software in the condition it is in at the moment of delivery ('as is'), including all visible and invisible errors and defects. Any errors or defects must be reported to SOLDEFENCE in writing without delay, but at the latest within five (5) working days after discovery. After delivery, requests for repair of errors or implementation of changes shall be considered additional work, unless otherwise agreed in writing.
SOLDEFENCE makes every effort after delivery to ensure optimal availability of the Software, to secure it appropriately and to fix any minor errors ("bugs"). However, SOLDEFENCE does not give any guarantee that the Software will be available, error-free or fully secured at all times.
Errors or defects in components of the Software that have not been developed by SOLDEFENCE or its suppliers themselves are beyond SOLDEFENCE's responsibility. SOLDEFENCE will make efforts to solve such problems, but cannot guarantee that they will be fixed.
SOLDEFENCE is entitled to modify or temporarily decommission the Software or parts thereof for the purpose of maintenance, adaptation or improvement. SOLDEFENCE shall make an effort to take downtime outside office hours as much as possible and inform Customer in a timely manner. However, SOLDEFENCE shall never be liable for damages related to such decommissioning.
If, in SOLDEFENCE's opinion, there is a danger to the operation or security of the Software - for example due to overloading, unsafe systems or malicious software - SOLDEFENCE is entitled to take all measures it reasonably considers necessary. SOLDEFENCE is not liable for the consequences of these measures, unless there is intent or deliberate recklessness on the part of SOLDEFENCE's management.
The Software may only be used by the users designated and authorised in the Agreement. Customer is not allowed to grant access to unauthorised users or expand the number of users beyond the agreed number without SOLDEFENCE's prior written consent.
Customer is responsible for the management and configuration of the Software, as well as its use by its users. Customer ensures proper instruction to users and monitors correct use.
Customer is responsible for the necessary equipment, infrastructure and supporting software. Customer shall ensure that these are up-to-date, correctly configured and suitable for use in combination with the Software. Any desired system integrations or links are at the expense and risk of Customer.
Article 28. Alarm centre and follow-up service
If an alarm centre and/or follow-up service is used as part of the Agreement, this service shall be carried out by a third party on behalf of SOLDEFENCE.
SOLDEFENCE will endeavour to process alarm notifications correctly and, where applicable, forward them to the follow-up service. However, SOLDEFENCE does not guarantee the timely, complete or error-free processing or follow-up of reports in all cases.
SOLDEFENCE is not liable for damages resulting from the failure to process reports, to process them on time or incorrectly, or the failure to follow them up, unless there is intent or deliberate recklessness on the part of SOLDEFENCE.
Customer is responsible for setting up notifications correctly, providing current and correct contact details and making clear agreements on the desired follow-up. Any costs resulting from notifications, false alarms or deployment of follow-up services shall be borne entirely by Customer.
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