Terms & Conditions
Standard Terms & Conditions of Sale and Delivery of NYOYN International BV
Chamber of Commerce Eindhoven number 854995560
Standard Terms & Conditions
of Sale and Delivery of NYOYN International BV, with its registered office at
High Tech Campus 25, hall 2, 5656AE Eindhoven, listed in the Commercial Register
of the Chamber of Commerce in Eindhoven under number 854995560. These Standard Terms
& Conditions of Sale and Delivery are filed with the Chamber of Commerce in
Eindhoven under number 854995560.
Article 1. Definitions
In this agreement, the following terms are defined as stated below:
1. NYOYN; the private limited company NYOYN International BV;
2. the other party; the party with whom NYOYN enters into negotiations or enters into an agreement;
3. conditions; the present standard terms and conditions of sale and delivery;
4. products; any goods and/or services and/or parts thereof delivered by NYOYN.
Article 2. Applicability
1. The conditions apply to all offers and agreements relating to the delivery and sale of products of whatever nature, by NYOYN.
2. Deviation from these conditions is only possible if and insofar as this has been agreed between NYOYN and the other party in writing.
3. Any possible purchase conditions or other conditions of the other party do not apply, except where they have been accepted by NYOYN in writing.
4. The present conditions also apply in favour of third parties engaged by NYOYN in the complete or partial performance of the agreement.
5. If one or more provisions of these conditions turn out to be void or voidable, the remaining provisions of these conditions shall remain unimpaired.
6. In that case, NYOYN and the other party shall enter into consultation to agree (a) new provision(s) in replacement of the void or voidable provision(s) whereby the purpose and meaning of the original provision(s) shall be taken into account as far as possible.
Article 3. Offers and agreements
1. Any offer made by NYOYN is free of engagement, unless it would explicitly appear different from the content of the offer. If the other party accepts the offer, NYOYN is entitled to revoke its offer within 3 working days after receipt of the acceptance.
2. An agreement between NYOYN and the other party is only formed if NYOYN has issued a written order confirmation or if NYOYN has commenced the performance of the agreement.
3. Any possible agreements or changes, as well as (verbal) agreements and/or promises made by staff, representatives, agents or intermediaries are only binding on the part of NYOYN if and insofar as they have been confirmed by NYOYN in writing.
4. If the other party asserts that a product does not comply with the agreement, the burden of proof rests with the other party.
Article 4. Cancellation
1. If the other party cancels the agreement before NYOYN has commenced the execution of the agreement, the other party shall pay compensation in the height of 30% of the agreed sum.
2. Once NYOYN has commenced the execution of the agreement, cancellation will no longer be permitted. In such an instance, the other party will be obliged to pay the agreed amount in full.
Article 5. Price
1. Unless otherwise stated in
the offer or order confirmation, the prices mentioned by NYOYN are exclusive of
turnover tax and other levies imposed by government and the prices apply to a
delivery “carriage paid/free domicile”.
2. Any extra costs related to registered, cash on delivery and express shipments and/or deliveries of limited value, shall be passed on to the other party.
3. Agreed prices can be increased pursuant to government regulations or other compulsory measures without the other party being able to derive a right to repudiate the agreement from this.
4. Unless otherwise stated, all price quotations by NYOYN are subject to price change.
5. In case of an agreement whereby the other party is held to pay periodical amounts, NYOYN will be entitled to adjust the applicable prices and tariffs by means of a written notification sent at least 2 months in advance.
Article 6. Delivery
1. The delivery times stated by NYOYN are indicative in nature. Said delivery times are only to be regarded as deadlines if this has been expressly agreed in such terms.
2. If no specific lead-time has been agreed, NYOYN shall observe a reasonable term.
3. NYOYN can only be held liable for attributably exceeding the delivery time after it has been granted a new and reasonable term for execution of the agreement and after it has been served with a written notice of default by the other party.
4. Unless otherwise agreed, the place of delivery is the location for delivery as given by the other party.
The other party is obliged to:
a. enable NYOYN to make an actual delivery;
b. inspect what has been delivered on taking receipt;
c. sign the delivery note as issued by NYOYN in evidence of receipt;
d. record any visible defects to what has been delivered on the delivery note; if the delivery note is signed without restrictions, the delivery is presumed to have occurred in accordance with the agreement;
e. notify NYOYN of any other defects to what has been delivered than those stated in section d, within 5 working days after delivery, all this in accordance with the procedure referred to in article 11 (complaints).
5. Any risk relating to the products is automatically passed to the other party at the time of delivery.
Article 7. User rights with regard to software
1. NYON grants the other party the non-exclusive, non-transferable right to use the software it has delivered. The other party shall at all times comply with the restrictions on use as agreed between the parties. Subject to the other provisions of these conditions, the user rights of the other party only cover the right to load and execute the software.
2. The other party shall only use the software within its own organization in combination with the corresponding equipment as delivered by NYOYN. Insofar as nothing has been agreed to this end, the equipment of the other party on which the software is used for the first time, is considered to be the equipment for which the user rights have been granted. The user rights can relate to several pieces of equipment insofar as this is clearly apparent from the agreement.
3. NYOYN is entitled to make software it has improved available to the other party; even if no maintenance agreement has been entered into between the parties. Three months after such software has been available, NYOYN is no longer obliged to rectify any possible faults in the old version or to provide support in respect of the old version.
Article 8. Maintenance
1. Maintenance means:
a. preventive maintenance: any inspection, adjustment, improvement and/or cleaning of the products considered necessary by NYOYN to avoid failures; whether or not executed via the internet;
b. remedial maintenance: the elimination of failures in the equipment that have arisen during normal use of the products as a result of natural wear and tear and by inherent defects of the products as well as the carrying out of repairs necessary to this end and the replacement of worn or damaged parts respectively; whether or not executed via the internet.
2. The term ‘failure’ (= also ‘fault’) is deemed to refer to the failure of the products to meet the written product specifications issued by NYOYN or the failure to meet these without interruption. A failure is only deemed to exist if said failure can be demonstrated and reproduced.
3. The other party shall notify NYOYN in detail of any failures in the products in accordance with NYOYN’s reporting procedure referred to in article 11 (complaints) below.
4. NYOYN shall try to rectify any failures to the best of its abilities. NYOYN is entitled to introduce temporary solutions or problem-avoiding restrictions to the products. NYOYN does not guarantee that the products shall work without failure or that all faults shall be rectified.
5. Maintenance work will be carried out on weekdays (Monday to Friday) during such office hours as applicable at NYOYN, with the exception of generally recognized bank holidays.
6. The other party shall allow NYOYN’s staff, or third parties appointed by NYOYN, access to the products and provide any other necessary cooperation.
7. At the request of NYOYN, an employee of the other party shall be present during the maintenance work for consultation. The other party is entitled to be present at the work carried out for the other Party.
8. The Other Party supplies and is responsible for the technical, physical and telecommunication provisions necessary to operate the products. The maintenance expressly does not extend to the aforementioned provisions and connections.
9. The agreement for the maintenance of products is entered into for the term agreed between the parties, failing which a term of one year applies.
10. Unless otherwise agreed, the term of the agreement will each time be tacitly renewed for the original length of time, unless NYOYN or the other party terminates the agreement in writing with due observance of a notice period of three months before the end of the relevant period.
11. The parties are not obliged
to pay compensation by reason of the termination of the maintenance agreement.
Article 9. Guarantees
1. NYOYN guarantees the operation of the newly purchased products for a period of 12 months, commencing on the date the delivery took place. Deterioration or damage as a result of wear and tear is excluded from this guarantee.
2. Under the terms of the guarantee NYOYN shall, at the discretion of NYOYN, repair or replace any damaged products free of charge.
3. NYOYN’s guarantee only passes to a third party if this has been expressly agreed with the other party in writing.
4. Any claim under the terms of the guarantee shall only be honored if the products that have been delivered by NYOYN have been used in accordance with their intended use and insofar as the accompanying instructions for use have been followed correctly.
5. A claim under the terms of the guarantee will lapse if:
a. the other party carries blame in respect of the arisen defect;
b. the defect has arisen due to an unforeseen use of the product by the other party;
c. the other party has made alterations to the product or has had alterations made, by a party other than NYOYN;
d. the other party has transferred the product to a third party, either in ownership or in use;
e. the other party has not performed its obligations arising from the agreement.
6. All products that have been replaced within the framework of the guarantee will become property of NYOYN.
7. NYOYN shall, to the best of its ability, ensure the operation of the software it has delivered. If imperfections are the (in)direct result of faults in the software or user manuals, NYOYN shall, to the best of its ability, ensure to rectify said situation as quickly as possible.
8. On expiry of the guarantee period as referred to in paragraph 1, NYOYN is not obliged to rectify any faults unless a maintenance agreement, including such rectifications, has been entered into between the parties.
Article 10. The impracticability of the agreement and ‘force majeure’
1. If, during the execution of the agreement, it appears that a full and proper execution of the agreement is not possible due to circumstances that NYOYN and/or the other party were not aware of or were not expected to have been aware of upon entering in to the agreement, the parties are entitled to propose to each other to change the agreement to an agreement that is correct and that can be fully executed.
2. If the agreement is not amended in accordance with the first paragraph, the parties are entitled to terminate the agreement, cases of force majeure excepted. In such an instance, the other party is obliged to pay NYOYN for those costs already incurred in respect of the execution of the agreement.
3. In the event of force majeure on the part of NYOYN, the execution of the agreement is suspended as long as the cause of the force majeure renders execution by NYOYN impossible, without the other party being able to claim compensation and/or terminate the agreement.
4. If force majeure continues for more than 2 months, the other party is obliged, in reasonable proportion to the price of the full delivery, to pay for that part of the goods that might in the meantime have been delivered. NYOYN and the other party are then entitled to terminate the agreement relating to the remainder of the delivery. The other party cannot claim execution and/or compensation.
5. In the event that only a specific part of the agreement cannot be performed, termination shall only take place in respect of that part of the agreement that cannot be executed, unless this cannot reasonably be required.
6. Force majeure is deemed to include, and as such is not limited to: war, threat of war and riot, natural and nuclear disasters, impeding measures of national and international governments, fire, sabotage, general strike, sickness of personnel, congestion, shortcomings on the part of suppliers and other unforeseeable circumstances as a result of which the execution of the agreement is permanently or temporarily impossible.
Article 11. Complaints
1. ‘Complaints’ is deemed to refer to any grievances with regard to the execution of the agreement by NYOYN. Complaints relating to the delivered products shall be reported immediately by the other party upon delivery by means of the delivery note but, if this is not possible, within 5 working days after delivery. In respect of defects arising subsequently it applies that complaints must be reported within 10 working days after the defect has been discovered or reasonably could have been discovered.
2. The complaint incorporates a description of the grievances and the observed defects and or failures.
3. Complaints in respect of an invoice from NYOYN shall be submitted in writing within 5 working days stating the invoice date, invoice number and any possible consignment numbers. This does not permit the other party to suspend any of its payment obligations.
4. Complaints shall be declared inadmissible if it appears that the instructions for use have not been followed by or on behalf of the other party, or if there has been actual incorrect use, or if alterations or changes have been made to the delivered product by a party other than NYOYN.
Article 12. Liability
1. Save for NYOYN’s liability pursuant to mandatory statutory provisions and the general requirements of reasonableness and fairness, NYOYN cannot be held liable. NYOYN is only liable for loss attributable to its intent or gross negligence. NYOYN is not liable for consequential loss and/or loss of profit.
2. NYOYN’s liability is, in any case, limited to the amount of the invoice that includes the product causing the liability.
3. If loss is suffered by third parties, directly or indirectly relating to the execution of the agreement between NYOYN and the other party, the other party is obliged to fully indemnify NYOYN and any third party engaged by NYOYN during the execution of the agreement in this respect.
4. If NYOYN is held liable by the other party on other grounds than the present agreement, the same limitation of liability as set out in the preceding paragraphs will apply.
Article 13. Payment
1. Payment shall be made within 14 days from date of invoice at the latest. If this term is exceeded, the other party will be considered to be in default towards NYOYN by operation of law and NYOYN will be entitled to terminate the agreement without prejudice to its other statutory and contractual rights.
2. In the event of late payment, the other party shall pay NYOYN interest of 1% per month on the invoice amount.
3. If NYOYN is forced to turn the collection of the payment over to a collection agency, both the judicial and extrajudicial costs shall be for the account of the other party.
4. Payment by or on behalf of the other party shall successively be applied to the extrajudicial collection costs due, the interest and subsequently, in order of seniority, the outstanding sums, irrespective of any instructions made by the other party to the contrary.
5. If the other party is in default and/or NYOYN has good grounds for fearing that the other party shall not fulfil its payment obligations towards NYOYN or not fulfil them on time, NYOYN is, without being liable to pay any compensation and without prejudice to its other statutory and contractual rights, entitled to require advance payment or security from the other party, in addition to suspending the agreement, wholly or in part, revoking the agreed payment term - whether or not relating to other agreements with the other party - as a result of which the outstanding sums will become immediately due and payable and is entitled to suspend its obligations arising from other agreements entered into with the other party.
6. The maintenance fee, plus the turnover tax due and other levies imposed by government, are paid in advance for the duration of the maintenance agreement, at the latest on the day of the commencement of the agreement or the relevant renewal period.
7. In default of a timely payment, NYOYN is entitled to suspend the maintenance work without being liable to pay any compensation to the other party.
Article 14. Retention of title
1. NYOYN retains the ownership of all the products it has delivered to the other party until the purchase price of these goods as well as any other goods or services it has delivered pursuant to other agreements entered into with the other party, has or have been paid in full.
2. If NYOYN has carried out work for the benefit of the other party within the framework of the present agreement, the retention of title applies until the other party has also paid this claim.
3. The retention of title also applies in respect of any claims NYOYN might make on the other party due to the failure of the other party to fulfil its obligations towards NYOYN.
Article 15. Telecommunication
The other party is responsible for ensuring the availability of the internet provider it uses. NYOYN is not responsible for any transmission faults that cannot be attributed to NYOYN.
Article 16. Intellectual and industrial property rights
1. All products and/or services delivered by NYOYN shall - unless the contrary is proved – be deemed to have been developed and/or built by NYOYN whether or not in conjunction with its suppliers. Claims pursuant to intellectual and industrial property rights in respect of any product and/or service built or developed by NYOYN, or on instruction of NYOYN, or parts thereof, including the software, games, name of the product and/or service as well as designs, illustrations, drawings, samples and models – are exclusively vested in NYOYN.
2. All intellectual and industrial property rights to products and/or services, or parts thereof that have been developed by, or on instruction of, NYOYN remain at all times the property of NYOYN, irrespective of the question whether any statutory possibility for registration has been utilized and irrespective of whether the development by NYOYN took place on the instruction of the other party.
3. The other party is not permitted to register any product and/or service, or part thereof, delivered by NYOYN, without the permission of NYOYN.
4. The other party is not permitted to change the products and/or services delivered by NYOYN in any way without the prior written permission of NYOYN.
5. All intellectual or industrial property rights to the software and games made available by virtue of the present agreement, are exclusively vested in NYOYN or its licensors. The other party only acquires the user rights and powers conferred by these conditions or otherwise expressly conferred and it shall, for the rest, not reproduce the software, games or other material or make copies of such.
Article 17. Termination
If the other party does not fulfil any of its obligations arising from the agreement, as well as in those instances of termination, liquidation, suspension of payment or winding up of the other party’s business, NYOYN will be entitled, without any notice of default being required and without any judicial intervention, to suspend its obligation(s) pursuant to the agreement with the other party or to terminate it, wholly or in part, without NYOYN being held liable for any compensation but without prejudice to the rights it may be entitled to.
Article 18. Applicable law and disputes
1. All agreements between NYOYN and the other party as well as the present conditions and any offers made by NYOYN are exclusively governed by Dutch law.
2. Insofar as it is not contrary to the law, any dispute arising from agreements, offers or from the present conditions shall be heard by the competent court in the district of Eindhoven.
3. The present document is a translation of the Standard Terms & Conditions of Sale and Delivery of NYOYN International BV as drawn up in Dutch. In case of a dispute between the parties or in case of a disagreement between the English translation and the original Dutch version of these Conditions, the content of the original Dutch version will prevail.