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General conditions

General conditions of supply and service to consumers and non-consumers

From:

Bernax Informatie Technologie B.V., established and holding office at NL 3705 LP, ZEIST at the Dijnselburgerlaan 1-11, the Netherlands.

Hereinafter referred to as: User.

Article 1. Definitions

  1. In these general terms and conditions, the following will suffice:

– User: Bernax Informatie Technologie B.V.;

– Client: the User’s counterparty;

– Consumer: a Client who is a natural person and not acting in the course of a business or profession;

– Non-consumer: a Client acting in the course of a business or profession.

Article 2. Applicability of these terms and conditions

  1. These conditions apply to every offer and every agreement between the User and a Client, insofar as these conditions have not been explicitly deviated from by the parties in writing.
  2. The present terms and conditions also apply to all agreements with the User for the execution of which third parties must be involved.

Article 3. Quotes

  1. All offers by the User are without obligation unless the offer specifies a deadline for acceptance.
  2. In the case of a compound quotation, there is no obligation for the User to deliver a portion of the items included in the offer at a corresponding portion of the quoted price nor does an offer by the User automatically apply to new or repeat orders.
  3. Quotations issued by User are valid for thirty days unless otherwise indicated. User is only bound to the offers if the acceptance thereof is confirmed in writing by the Client within thirty days. Prices stated in an offer are exclusive of VAT unless otherwise indicated.
  4. Unless otherwise agreed upon, the Client may not use the items purchased and rented by him from the User for commercial purposes such as (sub)renting these items or otherwise deploying them to third parties against payment, this under penalty of a fine of Euro 10,000 per violation.

Article 4. Delivery

  1. Unless otherwise agreed, delivery shall be made from the User’s place of business. Where one of the “Incoterms” (these are the international trade terms published by the International Chamber of Commerce in Paris) has been agreed upon as the delivery condition, the Incoterms in force at the time of the conclusion of the agreement shall apply.
  2. The Client is obliged to take delivery of the purchased or leased items at the time they are delivered to him or at the time they are made available to him according to the agreement.
  3. If the Client refuses to take delivery or is negligent in providing information about instructions necessary for delivery, the goods will be stored at the Client’s risk. The Client shall in such case be liable for all additional costs, including in any case storage costs.
  4. Delivery of purchases is ex magazine. User will charge a per kilometer fee for home delivery as stated on the document entitled “Bernax Price List.
  5. In particular, User shall perform an agreement to provide services (e.g. service contracts for hardware and software, as well as software development) to the best of its knowledge and ability and in accordance with the requirements of good workmanship and on the basis of the then known state of the art.
  6. If and insofar as the proper execution of such an agreement requires it, User has the right to have certain work performed by third parties.
  7. The Client ensures that all information which the User indicates is necessary or which the Client should reasonably understand is necessary for executing the agreement is provided to the User in time.


If the information required for the execution of the agreement is not provided to the User in time, the User is entitled to suspend the execution of the agreement and/or charge the Client for the additional costs resulting from the delay according to the usual rates.

  1. The User is not liable for damages, of any kind, due to the fact that the User has relied on incorrect and/or incomplete information provided by the Client, unless this inaccuracy or incompleteness should have been known to him.
  2. If it has been agreed that the agreement will be executed in phases, the User can suspend the execution of those parts that belong to a subsequent phase, until the Client has received the results of the corresponding phase.

prior stages has approved in writing.

Article 5. Delivery time / contract duration

  1. The delivery times specified by the User are always approximate and are never deadlines.
  2. Therefore, in case of untimely delivery, the Client should give the User written notice of default and give the User a reasonable time to still fulfill his obligations.
  3. The delivery time specified by the User shall not commence until all required information is in its possession.
  4. The service agreement shall be entered into for a definite period, unless the parties expressly agree otherwise in writing.
  5. If, within the term of the service agreement, a deadline has been agreed for the completion of certain work, this shall also never be a deadline. Therefore, if the execution deadlines are exceeded, the Client must give written notice of default.
  6. When delivering items to Non-consumers, the User is permitted to deliver sold items in parts. This does not apply if a partial delivery has no independent value. If the goods are delivered in parts, User is authorized to invoice each part separately.

Article 6. Technical requirements, etc.

  1. If the items to be delivered in the Netherlands are to be used outside the Netherlands, the User is not responsible for ensuring that the items to be delivered meet the technical requirements, standards and/or regulations imposed by laws or regulations of the country where the items are to be used. This does not apply if, at the time of concluding the agreement, the use abroad was mentioned under submission of all necessary data and specifications.
  2. Any other technical requirements imposed by the Customer on the goods to be delivered which differ from the normally applicable requirements must be expressly reported by the Customer at the time of concluding the purchase agreement.

Article 7. Delivery time / contract duration

  1. User guarantees that the items it sells are free of material, design and manufacturing defects for a period of six months after delivery, at least for the period guaranteed by the manufacturer of that particular item.
  2. If the warranty mentioned in paragraph 1 applies and the delivered items have a defect, the User is obliged to repair the items within thirty days after the Consumer reports the defect to it in writing.
  3. All items must be presented to the User for repair. For other repairs, the User will charge the, for the purpose of the repair.
  4. The User may choose to replace the items.
  5. The Consumer may claim replacement of the items or dissolution of the purchase agreement only if in the warranty period:

– the User has twice unsuccessfully attempted to repair the same defect and the defect is sufficiently serious to justify replacement or dissolution;

– if the Consumer proves that the items are or have been so defective that they do not comply with the agreement and that these defects justify replacement or dissolution.

  1. The Consumer must prove that the item has a defect within the warranty period for which the warranty applies. The warranty is void if the type or serial number of an item has been removed or altered.
  2. The Consumer must examine (or have examined) the purchased items upon delivery – or as soon thereafter as possible. In doing so, the Consumer must verify that the delivered item complies with the agreement, namely:

– Whether the right case was delivered;

– Whether the delivered item meets the agreed quality requirements or – if these are lacking – the requirements that may be demanded for normal use.

  1. If a visible defect or shortcoming is found, the Consumer must report this/these to User within three days of delivery.
  2. A non-visible defect must be reported in writing by the Consumer to User within three days of discovery, but at the latest within six months of delivery.

Article 8. Guarantee for the Non-consumer

  1. User guarantees that the items it delivers are free of design, material and manufacturing defects for a period of three months after delivery.
  2. If the item has a design, material or manufacturing defect, the Client/Non-consumer is entitled to have the item repaired. User may choose to replace the item if repair meets with objections. The Client/Non-consumer is only entitled to replacement if repair of the item is not possible.
  3. The warranty does not apply if damage results from improper handling or failure to properly follow instructions.
  4. If the warranty concerns a product manufactured by a third party, the warranty is limited to the warranty given by the relevant manufacturer for that product.
  5. The Client/Non-consumer must examine (or have examined) the purchased items upon delivery or as soon thereafter as possible.

In doing so, the Client must verify that the delivered goods comply with the agreement, namely:

– Whether the right items have been delivered;

– Whether the goods delivered correspond to what was agreed in terms of quantity (e.g., quantity and number);

– Whether the delivered goods meet the agreed quality requirements, or if these are lacking, the requirements that may be demanded for normal use and/or commercial purposes.

  1. If visible defects or shortages are detected, the Client/Non-consumer must report them to the User in writing within three days of delivery.
  2. Non-visible defects must be reported in writing to the User by the Client/Non-consumer within three days of discovery, but at the latest within three months of delivery.
  3. Even if the Client complains in a timely manner, his obligation to pay and take delivery of orders made shall remain.
  4. Items can be returned to the User only after prior written consent.
  5. If paragraph 2 of this article applies, the items in question must be presented to the User for repair. For other repairs, the User will charge the, for the purpose of the repair.

Article 9. Samples, models and examples

If a model, sample or example has been shown or provided by User, it is presumed to have been shown or provided only by way of indication: the qualities of the items to be delivered may differ from that sample, model or example, unless it is expressly stated that delivery would be made in accordance with the sample, model or example shown or provided.

Article 10. Modification of service agreement

  1. If during the execution of the service agreement it appears that for a proper execution it is necessary to change or supplement the work to be performed, the parties will timely and in mutual consultation adjust the agreement accordingly.
  2. If the parties agree to modify or supplement the agreement, the time of completion of the output may be affected. User will notify the Client of this as soon as possible.
  3. If the amendment or supplement to the agreement has financial and/or qualitative consequences, the User will inform the Client in advance.
  4. If a fixed fee has been agreed upon, User will indicate the extent to which the amendment or supplement to the agreement will result in an overrun of this fee.
  5. Notwithstanding the provisions of paragraph 3, the User will not be able to charge additional costs if the change or supplement is the result of circumstances attributable to him.

Article 11. Secrecy/intellectual property in a service agreement

  1. Both parties are obliged to keep confidential all confidential information obtained from each other or from other sources in the context of an agreement. Information is considered confidential if it has been communicated by the other party or if it arises from

flows from the nature of the information.

  1. Without prejudice to the provisions of the first paragraph, User reserves the rights and powers to which it is entitled under the Copyright Act.
  2. All documents provided by the User, such as reports, advice, designs, sketches, drawings, soft-ware and so on, are exclusively intended to be used by the Client and may not be reproduced, disclosed or brought to the notice of third parties by him without the User’s prior permission.
  3. User also reserves the right to use the knowledge gained from the execution of the work for other purposes, as long as no confidential information is brought to the knowledge of third parties.

Article 12. Termination of service agreement

Either party may terminate the agreement in writing at any time. In this case, the parties must observe a notice period of at least 30 days.

Article 13. Dissolution of the agreement

  1. An agreement between the User and the Client may be terminated immediately in the following cases:

– if after the conclusion of the agreement circumstances come to the User’s knowledge which give the User good reason to fear that the Client will not (be able to) fulfil his obligation;

– if, upon entering into the agreement, the User has stipulated to the Client to provide security for fulfillment or to make a down payment and this security or down payment fails to materialize or is insufficient in spite of demand.

In said cases, the User is authorized to suspend the further execution of the agreement or to dissolve the agreement, all this without prejudice to the User’s right to claim compensation.

  1. If circumstances occur with regard to persons and/or materials which the User uses or tends to use in the execution of the agreement which are of such a nature that the execution of the agreement becomes impossible or so difficult and/or so disproportionately expensive that compliance with the agreement can no longer reasonably be required, the User is authorized to dissolve the agreement without being obliged to pay any compensation.

Article 14. Retention of title in consumer purchases

  1. User remains the full owner of any item sold by it to a Consumer until the purchase price has been paid in full.

Ditto for non-consumer purchases

  1. All items delivered by the User remain the User’s property until the Client has fulfilled all the following obligations from all purchase agreements concluded with the User.
  2. Items delivered by User that are subject to retention of title pursuant to paragraph 2 may only be resold in the normal course of business and may never be used as a means of payment.
  3. The Client is not authorized to pledge or otherwise encumber the items subject to retention of title.
  4. The Client hereby unconditionally and irrevocably authorizes the User or a third party to be designated by him, in all cases in which the User wishes to exercise his property rights, to enter all those places where the User’s property will then be located and to take these items with him.
  5. If third parties seize the items delivered under retention of title or wish to establish or assert rights to them, the Client is obliged to inform the User thereof as soon as can reasonably be expected.
  6. The Client undertakes to insure and keep insured the goods delivered under retention of title against fire, explosion and water damage, as well as theft, and to make the policy of this insurance available for inspection by the User on demand.
  7. The obligation described in the previous paragraph also applies to items rented out by the User to Principals at home and abroad.

Article 15. Price / price increase

  1. Unless expressly stated otherwise, the prices issued by User shall apply:

– in Euros;

– exclusive of VAT;

– based on minimum quantities used by User;

– excluding transportation costs;

– af company.

  1. If the User agrees on a certain price with the Client, the User is nevertheless entitled to increase the price if the User can prove that significant price increases have occurred between the time of offer and delivery with regard to raw materials, currency and/or wages or otherwise unforeseen circumstances.
  2. If a price increase occurs during the first three months after the conclusion of the contract, a Consumer may dissolve the contract regardless of the percentage of the increase. Afterwards, the Consumer can only rescind if the price increase exceeds 10%.
  3. The Non-consumer has the right to dissolve the agreement if the price increase exceeds 15%.

Article 16. Packaging near consumer purchase

  1. The Client is obliged to return loaner packaging within fourteen days empty and in undamaged condition. If the Client fails to fulfill its obligations with respect to packaging, all costs resulting from this shall be borne by the Client.

Such costs include the costs, resulting from late returns and the costs of replacement, repair or cleaning.

  1. If the Client does not return loanable packaging after a reminder within the term specified therein, the User is entitled to proceed with replacement and charge the costs thereof, provided that the User has announced these steps in his reminder.

Article 17. Payment

  1. In the case of a Consumer Purchase, payment must be made net cash or giro unless otherwise agreed.
  2. If payment is not made in cash, it must be made within eight days of the invoice date in the case of a Consumer Purchase and within fourteen days of the invoice date in the case of a Non-Consumer Purchase in a manner to be specified by User in the currency in which it was invoiced.
  3. Payment shall be made in two equal parts, the first part upon acceptance of the offer and the second part upon delivery.
  4. After the expiry of the periods mentioned in paragraph 2, the Client shall be in default by operation of law; the Client shall owe interest of 1% per month on the amount due from the moment of being in default, unless the statutory interest rate is higher, in which case the statutory interest rate shall apply.
  5. In case of liquidation, bankruptcy or suspension of payment of the Client, the User’s claims and the Client’s obligations towards the User shall be immediately due and payable.
  6. Payment shall be made without discount or unreasonable offset.
  7. Payments made by the Client always serve first to settle all interest and costs due, and secondly to settle due and payable invoices that have been outstanding the longest, even if the Client states that the payment relates to a later invoice.
  8. In the case of a Non-consumer purchase, User is entitled to charge a credit limitation surcharge of 2%, which is not due if payment is made within eight days of the invoice date.

Article 18. Collection costs

  1. If the Client is in default or breach of one or more of its obligations, all judicial and extrajudicial costs incurred to obtain satisfaction shall be borne by the Client. In any case, the Client shall owe:

– on the first Euro.6,500,– 15%

– on the excess up to Euro 13,000.– 10%.

– on the excess up to Euro 32,500.– 8%.

– on the excess up to Euro 130,000.– 5%.

– on the excess 3%.

  1. If User proves to have incurred higher costs which were reasonably necessary, these will also be eligible for reimbursement.

Article 19. Liability

  1. For defects in delivered items, liability shall apply as regulated in Articles 8 and 9 (Warranty) of these terms and conditions.
  2. For other damages the User is only liable if they are caused by intent or gross negligence of the User or its subordinates.
  3. The User’s liability is limited to the amount of the payment to be provided by the User’s insurer.

Article 20. Force majeure

  1. In these general terms and conditions, force majeure is defined, in addition to its definition in the law and jurisprudence, as all external causes, foreseen or unforeseen, over which the User cannot exercise any control, but which prevent the User from fulfilling his obligations, including strikes at the User.
  2. User is also entitled to invoke force majeure if the circumstance preventing (further) fulfillment occurs after User should have fulfilled its commitment.
  3. During force majeure, the delivery and other obligations of the User are suspended. If the period in which fulfillment of obligations by the User is not possible due to force majeure lasts longer than two weeks, both parties are authorized to dissolve the agreement, without any obligation to pay damages in that case.
  4. If at the onset of force majeure the User has already partially fulfilled his obligations, or can only partially fulfill his obligations, he is entitled to invoice the part already delivered or the deliverable part separately and the Client is bound to pay this invoice as if it were a separate contract.

However, this does not apply if the part already delivered or deliverable has no independent value.

Article 21. Dispute resolution

The court of the User’s place of residence shall have exclusive jurisdiction to hear disputes, unless the Cantonal Court has jurisdiction. Nevertheless, the User is entitled to sue the Client before the court that is competent according to the law.

Article 22. Applicable law

Any agreement is governed by Dutch law. The Vienna Sales Convention is expressly excluded.

Article 23. Changes and location of terms and conditions

These terms and conditions are on 28-6-2023 under number ______________ filed at the office of the Utrecht Chamber of Commerce and Industry. Applicable is always the last filed version or the version in force at the time of the conclusion of the present transaction.

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