GENERAL TERMS AND CONDITIONS

General Terms and Conditions of Linvision HPC B.V.


Part 1: General provisions

July 2009 (English version)

 

General Terms and Conditions of Linvision HPC B.V., acting also under the name “Melrow Technology”, hereinafter referred to as: “Melrow Technology”.

Nijverheidsweg 26, 3251 LP  Stellendam, the Netherlands.

 

1. Applicability
1.1 These general terms and conditions of delivery and payment (hereinafter: the “General Conditions”) apply to all offers, legal relationships and agreements of any nature whatsoever made by or with Melrow Technology.
1.2 Clauses that deviate from these General Conditions are only valid if and to the extent that Melrow Technology has explicitly accepted these clauses in writing. Melrow Technology explicitly rejects the applicability of any terms and conditions used by buyers/clients. Such terms and conditions are replaced by these General Conditions.
1.3 The General Conditions also apply without exception to all agreements between the buyer/client and all parent companies, sister companies and/or affiliated companies of Melrow Technology, unless explicitly otherwise agreed in writing.
1.4 In the event that any provision of the agreement and/or these General Conditions is invalid or nullified or cannot be enforced in any other way, the other provisions of the agreement and these General Conditions will remain in full force and effect. In that case, if necessary without intervention by the parties, such non-enforceable provision is replaced by a valid provision that is as similar to the non-enforceable provision as possible. In the event that the General Conditions and an agreement between Melrow Technology and the buyer/client include conflicting clauses, the agreement between Melrow Technology and the buyer/client prevails.
1.5 “Part 1: General provisions” of the General Conditions is a general part that applies to all deliveries by and orders to Melrow Technology. The specific parts of the General Conditions are: “Part 2: General Terms and Conditions for the Web Shop”, “Part 3: Computer Service,” “Part 4: Services”, “Part 5: Sale of Equipment”, and “Part 6: Maintenance of Equipment”. In the event of conflicts between a provision included in part 1 of these General Conditions and a provision included in a specific part of these General Conditions, the provision included in the specific part of the General Conditions prevails.

1.6 Article 23 of these General Conditions applies mutatis mutandis.

 

2. Offers
2.1 All offers and other statements of Melrow Technology are without obligation, unless explicitly stipulated otherwise in writing by Melrow Technology.

2.2 Melrow Technology cannot be required to abide by its offers in the event that the buyer should have realized that the offer or part of the offer contains an obvious mistake or slip of the pen.
2.3 An offer made by Melrow Technology is valid for 14 days, unless stipulated otherwise in writing.

 

3. Agreement
3.1 The agreement is established after Melrow Technology has confirmed the order without reservation and the order has been signed by its authorized managing director or by an officer explicitly authorized for this purpose by the managing director.
3.2 Acts, notifications, promises or registered orders only bind Melrow Technology to the extent that Melrow Technology has validly confirmed these in writing in the sense referred to in Article 3.1 above.
3.3 The written order confirmation sent by Melrow Technology serves as proof of the agreement and the agreed conditions between Melrow Technology and the buyer/client, to the exclusion of any other communication as evidence. The first sentence does not apply in the event that the buyer/client has informed Melrow Technology in writing of any errors within eight days after the date of the order confirmation.
3.4 All changes to the order(s) that result in extra costs will be considered to be additional work that qualifies for compensation, unless explicitly agreed upon otherwise in writing. Changes will be billed as part of the invoice for the final order.
3.5 To the extent that changes agreed upon at the client’s request result in delays, these come at the client’s risk and expense.
3.6 Melrow Technology will never be required to take back any surplus goods ordered by the buyer/client.

 

4. Cooperation by the client
4.1 The buyer/client will always provide Melrow Technology with all useful and requisite data or information in a timely fashion and render the assistance required to implement the agreement.

4.2 The buyer/client is responsible for the use and correct application of the equipment, software and the services to be rendered by Melrow Technology within his organization, as well as for handling the requisite administration and providing data protection.
4.3 In the event that the parties have agreed that the buyer/client will make equipment, materials or data on information media available, these will satisfy the requisite specifications for performance of the work.
4.4 In the event that employees of Melrow Technology perform work at the buyer’s/client’s site, the buyer/client will arrange – free of charge – for the facilities reasonably requested by those employees, such as a workspace with computer and telecommunication facilities. The workspace and facilities will comply with all prevailing (statutory) requirements and regulations regarding working conditions.

4.5 The buyer/client indemnifies Melrow Technology against any third party claims, including claims from Melrow Technology employees who suffer damage in connection with the fulfilment of the agreement, which is the result of acts or omissions on the part of the buyer/client or of unsafe situations in the buyer’s/client’s organization. The buyer/client will inform the employees of Melrow Technology to be assigned to his organization of the company and security rules in force in his organization in a timely manner.
4.6 In the event that telecommunication facilities, including the Internet, are used in fulfilling the agreement, the buyer/client is responsible for the proper selection and timely and adequate availability of these facilities, except for those facilities that are used and managed directly by Melrow Technology. Melrow Technology will never be liable for any damage or costs due to transmission errors, failures or non-availability of these facilities unless the buyer/client proves that this damage or these costs are the result of the intent or wilful recklessness on the part of the board of Melrow Technology. If telecommunication facilities are used in fulfilling the agreement, Melrow Technology is entitled to assign access or identification codes to the buyer/client. Melrow Technology can change any assigned access or identification codes. The buyer/client will keep the access codes confidential, handle them with due care and will only disclose these codes to authorized employees. Melrow Technology will never be liable for any damage or costs that result from abuse made of access or identification codes.

4.7 In the event that the buyer/client fails to make the data, equipment, software or employees required for the fulfilment of the agreement available to Melrow Technology in time or in conformance with the agreements or if the buyer/client fails to fulfil his obligations in any other way, Melrow Technology is entitled to suspend all or part of the fulfilment of the agreement and Melrow Technology is entitled to charge the resulting costs at its customary rates, all this without prejudice to Melrow Technology’s right to exercise any other statutory right.

4.8 In cases described in the previous paragraph, Melrow Technology may set a term within which the buyer/client must still fulfil the obligations mentioned in the previous paragraph. After the set term has expired, Melrow Technology will be released from its obligations.

 

5. Prices
5.1 Prices are exclusive of value added tax (VAT) and other government charges, unless explicitly stipulated otherwise.
5.2 Unless otherwise agreed in writing, the prices and conditions in force on the date on which the order is confirmed in writing will apply to the orders accepted by Melrow Technology, with the exception of changes to prices and conditions as referred to in Article 5.3.
5.3 Any changes in wage costs, prices of materials and/or services of third parties, transport costs, factory prices, exchange rate differences, charges and/or taxes occurring after the date of the order confirmation will be passed on to the buyer/client.

 

6. Payments
6.1 Payments must be made within 14 days after the invoice date into a Melrow Technology bank account, unless otherwise agreed upon in writing. The buyer/client is not entitled to invoke any discount, offset or suspension. In the event of resale by the buyer/client, the buyer/client is specifically prohibited from making payment dependent on payment by the third party buyer.
6.2 Melrow Technology is entitled at all times, particularly in the event of credit deliveries, to demand an advance payment on the current price up to an amount or percentage to be determined by Melrow Technology, or to demand that security is furnished for the payment.
6.3. Any failures of the client in accepting delivery of goods or services or not enabling Melrow Technology to perform the agreed work are without prejudice to the client’s payment obligation.
6.4 In the event that the buyer/client fails to fulfil his obligation to pay or furnish security, he will immediately be in default without any prior summons or notice of default being required; in such cases Melrow Technology will be entitled to suspend fulfilment of its obligations, without prejudice to its other statutory rights.
6.5 In the event that the buyer/client fails to pay the amounts due in time, the buyer/client will be liable to pay interest at a rate of 1.5 per cent of the outstanding amount per month, including the interest that has fallen due, where part of a month is calculated as a whole month, without any summons or notice of default being required.

6.6 In the event that following a summons or notice of default, the buyer/client fails to pay the claim, Melrow Technology may refer the debt for collection. In that case, in addition to the total amount due at that time, including all interest agreed upon, the buyer/client is also required to pay all judicial and extrajudicial costs, including any costs charged by external experts over and above the costs ascertained in law. These costs amount to 15% of the amount due, with a minimum of EUR 150.00 (one hundred and fifty Euros).
6.7. Should the event described in the previous paragraph occur, Melrow Technology is no longer required to fulfil this agreement, even though the buyer/client is still required to pay.

6.8 Payment of a sum to be allocated to the agreement will first be deducted from the (collection) costs, then from the interest agreed upon and finally from the principal and accrued interest. Such payments will be applied to the longest outstanding invoices due first, even if the client stipulates that the payment is to be applied to a later invoice.

 

7. Delivery, transport and transport risk

7.1. All (delivery) terms specified or agreed by Melrow Technology have been set to the best of Melrow Technology’s knowledge based on the information known to Melrow Technology at the time the agreement was entered into. Melrow Technology will make every effort to comply with the (delivery) terms agreed upon.

7.2. Melrow Technology will not be deemed to be in default as the result of merely exceeding a term or failing to meet a deadline agreed upon for delivery. In all cases, thus including in the event that the parties explicitly agreed upon a deadline in writing, Melrow Technology will only be in default for exceeding a term or failing to meet a deadline after the buyer/client has issued Melrow Technology a written notice of default.
7.3 Melrow Technology is not bound by deadlines (for delivery) that cannot be met due to circumstances that are beyond its control and due to any of the other circumstances described in Article 11.2, which occurred after the agreement was entered into. These circumstances suspend Melrow Technology’s delivery obligation, without the buyer/client being entitled to claim dissolution or compensation of costs, damage and/or interest on this account.
7.4 Delivery is made at Melrow Technology’s premises or at least in a warehouse to be designated by Melrow Technology, unless stipulated otherwise in writing. Deliveries elsewhere, as well as returns, are made at the expense and risk of the buyer/client.
7.5 In the event that the buyer/client fails to take up the goods and materials after expiry of the delivery term, the goods will be stored at his expense and risk, at the normal local rates.
7.6 To the extent that they are not insured, all goods and materials are transported at the expense and risk of the buyer/client from the time of dispatch. Moreover, in the event that delivery carriage paid has been agreed upon, the buyer/client is liable for all damage (such as transport, fire and water damage, theft or embezzlement) the goods suffer during transport.

 

8. Acceptance
8.1 The buyer/client must inspect the condition of the goods immediately after delivery. If it is demonstrated that the goods and/or materials are damaged, the buyer/client must notify Melrow Technology in writing of the damage within eight days after delivery of the goods at the latest, failing which any claim against Melrow Technology will lapse.

8.2 The provision of the first paragraph is exclusively reserved for the original buyer/client of Melrow Technology and explicitly does not apply to a third party who purchases Melrow Technology products from a buyer/client. In the event of resale, the buyer/client explicitly indemnifies Melrow Technology against any claims by third party buyers.
8.3 In the event that the buyer/client exercises the right described in the first paragraph, this does not release the buyer/client from the obligation to pay in conformance with the invoice.

 

9. Retention of title, specification and right of retention
9.1 As long as the buyer/client has not fulfilled his payment obligations in full, Melrow Technology retains the title to the sold and/or delivered goods, at the expense and risk of the buyer/client. In that case, the buyer/client is deemed to hold the materials and goods for Melrow Technology until such time as the buyer/client has fulfilled his payment obligation to Melrow Technology. The buyer/client is not entitled to sell the goods, to give the goods in pledge to a third party, or to use the goods as security for third parties. Replaced materials or goods become the property of Melrow Technology during the period described in the first sentence, without the buyer/client being entitled to claim any compensation, unless explicitly agreed otherwise.

9.2. The buyer/client is required to individually mark all goods that he has received and which are the property of Melrow Technology such that these goods can be identified as Melrow Technology’s property at all times. In the event that Melrow Technology has delivered a certain kind of goods subject to retention of title to the buyer/client, it is presumed that all goods of this kind in the possession of the buyer/client are the property of Melrow Technology, subject to proof to the contrary.
9.3 In the event that Melrow Technology holds a good of the buyer/client for processing, Melrow Technology is entitled to keep this good in its possession until all claims by Melrow Technology regarding work on this good or those goods as well as all other claims of Melrow Technology against the same buyer/client have been paid in full, unless the buyer/client has furnished sufficient security to cover these costs.
9.4. In the event that the buyer/client creates a new good (in part) from goods delivered by Melrow Technology, the buyer/client merely creates this good for Melrow Technology; the buyer/client will keep the newly formed good for Melrow Technology until the buyer/client has paid all amounts due under the agreement. In that case, until the time of payment in full by the buyer/client, Melrow Technology holds all rights as the owner of the newly created good.
9.5 All rights described in the previous paragraph are only granted or transferred to the buyer/client subject to the condition that the buyer/client pays the relevant amounts agreed upon in full and on time.

9.6. All brochures, drawings, documents and the like of Melrow Technology in the possession of the buyer/client continue to be the property of Melrow Technology, unless explicitly agreed upon otherwise.

 

10. Liability
10.1 Melrow Technology will perform the services and work to the best of its ability and knowledge. At all times, Melrow Technology will only have an obligation to the client to perform to the best of its ability.
10.2 Melrow Technology’s liability is limited to liability for direct damage to persons and goods.

10.3 Liability of Melrow Technology for indirect damage, consequential damage, lost profits, lost savings, reduced goodwill, losses due to business interruptions, damage resulting from claims from the buyer/client’s buyer/clients, corruption or loss of data, damage related to the use of third party goods, materials or software that the buyer/client instructed Melrow Technology to use, damage related to engaging suppliers that the buyer/client instructed Melrow Technology to engage, and all other forms of damage on any account whatsoever other than the damage mentioned in Article 10.2 are excluded.
10.4 Any liability on the part of Melrow Technology is explicitly limited to the amount that Melrow Technology charged the buyer/client regarding the agreement. In the event that the agreement is primarily a continuing performance contract with a term of more than one year, the price stipulated for the agreement is set at the total of the payments stipulated for one year. However, in no event will the total compensation for damage exceed EUR 1,000,000.00 (one million Euros).
10.5 Melrow Technology is not liable for damage occurring because the delivered goods do not conform to the requirements regarding the quality of those goods that are stipulated or are to be stipulated by law or by the government or inspection agencies.
10.6 In no event is Melrow Technology required to pay compensation for damage due to late delivery or late performance of the work. Melrow Technology is not liable for the accuracy or completeness of information or recommendations issued before the agreement is established. Nor is Melrow Technology liable for damage in the event that the buyer/client fails to live up to its responsibilities or in the event that the buyer/client provides incorrect, defective or incomplete information or materials.

10.7 Software or materials that are lost due to damage or theft will come at the buyer’s/client’s risk and expense from the time this software or these materials have been installed or delivered.

10.8 Melrow Technology’s liability for damage caused by death or physical injury will never exceed EUR 1,000,000.00 (one million Euros).
10.9 The limitations mentioned in the previous paragraphs of this article do not apply if and to the extent that the damage was the result of intent or wilful recklessness of the board of Melrow Technology.

10.10 Melrow Technology’s liability due to culpable failure to fulfil an agreement can only occur if - without prejudice to the provisions of Article 8.1 - the buyer/client immediately gives Melrow Technology a proper written notice of default, setting a term of eight working days to remedy the failure, and Melrow Technology continues to culpably fail to fulfil its obligations after this term. The notice of default must include a complete and detailed description of the failure to the extent possible, so that Melrow Technology is able to respond adequately.

10.11 Without prejudice to the provisions of Article 8.1, the buyer/client must report each alleged failure in the performance of Melrow Technology that results or could result in damage to Melrow Technology at once, but no later than within two months after the buyer/client is familiar with or should be familiar with the defect, failing which every right of action of the buyer/client against Melrow Technology in connection with the defect lapses by operation of law.

10.12 The buyer/client indemnifies Melrow Technology against all claims from third parties on account of product liability as a result of a defect in a product or system that the buyer/client delivered to a third party, and which included equipment, software or other materials supplied by Melrow Technology, except if and to the extent that the buyer/client proves that the damage was caused by such equipment, software or other materials.

10.13 The provisions of this article also apply with respect to all employees and other natural persons or legal entities that Melrow Technology engages in the performance of the agreement.

 

11. Termination and force majeure

11.1 No circumstances beyond Melrow Technology’s control can be ascribed to Melrow Technology.

11.2 The circumstances referred to in the previous paragraph in any event include any unforeseeable circumstance that delays, hinders or encumbers fulfilment of the agreement or as a result of which the agreement can only be fulfilled at considerably higher costs, including:

a. delays by Melrow Technology’s suppliers;

b. circumstances regarding the possibilities of transport;

b. general scarcity of raw materials, fuels or other production resources;

c. strikes, riots, war and the like;

d. designations or regulations of competent government authorities;

e. all other circumstances reasonably beyond the control of Melrow Technology.
11.3. In the event that a force majeure situation has continued for more than 30 days, the parties are entitled to terminate the agreement by means of written extrajudicial dissolution. In that case, the part of the agreement that has already been fulfilled at that time will be settled proportionately; except for this amount, neither party will owe the other party anything.

11.4 Melrow Technology can terminate all or part of the agreement in writing with immediate effect and without any notice of default being required in the event that the buyer/client is granted (provisional) suspension of payments, the bankruptcy of the buyer/client is applied for, the buyer/client is declared bankrupt or the buyer/client’s business is liquidated or terminated, the business is reorganized or merged, a substantial part of the capital, software or tangible assets of the buyer/client is attached or if the buyer/client can no longer fulfil his obligations for any reason whatsoever. Melrow Technology will never be liable to repay any amounts already received or to pay compensation on account of such termination. In the event of the bankruptcy of the buyer/client, the right to use the software made available to the buyer/client will become null and void immediately and by operation of law.

11.5 The buyer/client is only authorized to dissolve the agreement in the event that Melrow Technology culpably fails to fulfil substantive obligations under this agreement, after expiration of a term stipulated in a proper written notice of default, which is as detailed as possible, specifying a reasonable term in which to remedy the failure.

11.6 In the event that, at the time of the dissolution referred to in the previous paragraph, the buyer/client already received performances in implementation of the agreement, these performances and any related payment obligations cannot be revoked, unless the buyer/client proves that Melrow Technology is in default regarding those performances. Amounts that Melrow Technology invoiced before the dissolution in connection with any proper performance or delivery in implementation of the agreement continue to be fully payable subject to the provisions of the previous sentence and will become immediately due and payable at the time of the dissolution.

 

12. Confidentiality

12.1 Both before and during the existence of the agreement as well as after the agreement has ended for any reason whatsoever, the client undertakes not to disclose data regarding business matters of Melrow Technology in the broadest sense of the word, as well as data regarding the business and the buyer/clients or the existence, the nature and the contents of the (draft) agreement to any third party in any way whatsoever without the prior written consent of Melrow Technology. The client will only use the confidential data mentioned above for the purpose for which such data have been provided. In the event that the client acts in breach of the provisions of this article, the client will be liable to pay Melrow Technology a penalty of EUR 5,000.00 (five thousand Euros), payable at once and without reduction or setoff, for every violation, without any notice of default being required and without prejudice to Melrow Technology’s right to claim full compensation in addition to the penalty referred to above.

 

13. Intellectual and industrial property rights

13.1 All intellectual and industrial property rights to the software, websites, data files, equipment or other materials, such as analyses, designs, documentation, reports, quotations, and preparatory materials created in this context, which are developed or made available under the agreement are held exclusively by Melrow Technology, its licensors or its suppliers. The buyer/client only acquires the rights of use explicitly allocated under these General Conditions and by law. Any other or more extensive right of the buyer/client to reproduce software, websites, data files, or other materials is excluded. Any right of use to which the buyer/client is entitled is non-exclusive and is not transferable to third parties.

13.2 In the event that in contrast to the terms of Article 13.1, Melrow Technology is prepared to accept an obligation to transfer an intellectual or industrial property right, such obligation can each time only be entered into explicitly in writing. In the event that the parties explicitly agree in writing that any intellectual or industrial property rights regarding software, websites, data files, equipment or other materials specifically developed for the buyer/client will pass to the buyer/client, this is without prejudice to Melrow Technology’s authority to apply and exploit the components, general principles, ideas, designs, documentation, works, programming languages and the like on which that development is based for other purposes, without any limitation, either for itself or for third parties. Nor does a transfer of intellectual or industrial property rights affect Melrow Technology’s right to embark upon developments for itself or for third parties that are similar to those that have been or are being performed for the buyer/client.

13.3 The buyer/client is not entitled to remove any designation regarding the confidential nature or regarding copyrights, trademarks, trade names or other intellectual or industrial property rights from the software, websites, data files, equipment or materials or to change such designations.

13.4 Melrow Technology is entitled to take technical measures to protect the software or in view of agreed upon limitations on the duration of the right to use the software. The buyer/client is not entitled to remove or circumvent such technical measures. In the event that the buyer/client is unable to make a backup copy of software due to protection measures, Melrow Technology will make a backup copy available upon request.

13.5 Unless Melrow Technology makes a backup copy of the software available to the buyer/client, the buyer/client may only make one backup copy of the software, which may exclusively be used to protect against damage to or involuntary loss of the software. The backup copy is only installed after involuntary loss or damage. A backup copy must contain the same labels and copyright designations as those affixed to the original copy (see Article 13.3).

13.6 Subject to the other provisions of these General Conditions, the buyer/client is entitled to correct errors in software made available to him if this is necessary for the software’s intended use. Where the term ‘errors’ is used in these General Conditions, this includes any substantial failure to satisfy functional or technical specifications indicated by Melrow Technology in writing and, in the event of custom software and websites, functional or technical specifications that the parties explicitly agreed upon in writing. An error is only involved if the buyer/client can demonstrate this error and if it can be reproduced. The buyer/client is required to immediately inform Melrow Technology of any errors.

 

14. Indemnifications for the buyer/client

14.1 Melrow Technology will indemnify the buyer/client against third party claims based on the assertion that software, websites, data files, equipment or other materials developed by Melrow Technology itself infringe an intellectual or industrial property right that is valid in the Netherlands exclusively under the conditions stipulated in this article.

14.2 The buyer/client will notify Melrow Technology in writing within eight days of the existence and contents of the claim and the handling of the case, including reaching any settlement, at the risk of forfeiting this right.

14.3 The buyer/client will give Melrow Technology the requisite powers of attorney, information and assistance that Melrow Technology needs to defend itself against these legal claims, whether or not in the name of the buyer/client.

14.4 Any obligation of Melrow Technology to indemnify the buyer/client will lapse if the reproached infringement is related to:

(i) materials or software that the buyer/client made available to Melrow Technology for use, operation, processing or incorporation, or

(ii) changes that the buyer/client made to the software, websites, data files, equipment or other materials or had made by third parties.

14.5 In the event that it has been irrevocably established in court that the software, websites, data files, equipment or other materials developed by Melrow Technology itself infringe any third party intellectual or industrial property right or if Melrow Technology is of the opinion that there is a reasonable chance that such infringement will occur, Melrow Technology will make an effort to make it possible for the buyer/client to continue to use the software, websites, data files, equipment or the relevant other materials delivered - or other functionally equivalent items – without interruption, for example by modifying the infringing parts or by acquiring a right of use for the buyer/client. If in Melrow Technology’s sole opinion it is unable to ensure that the buyer/client can continue to have uninterrupted use of the delivered goods, or can only do this in an (financially) unreasonably onerous manner, Melrow Technology will take back the delivered goods in return for a credit based on the acquisition costs, less a reasonable user fee. Before making its choice in this scope, Melrow Technology will consult the buyer/client.

14.6 All other or more extensive liability or indemnification obligation on the part of Melrow Technology due to infringement of intellectual or industrial property rights held by a third party is fully excluded, including liability and indemnification obligations of Melrow Technology for infringements caused by the use of the delivered software, websites, data files, equipment and/or materials:

(i) in a form not modified by Melrow Technology;

(ii) together with goods or software not delivered or provided by Melrow Technology; or

(iii) in a manner other than the purpose for which the equipment, software, websites, data files and/or other materials are intended or have been developed.

14.7 The buyer/client guarantees that there are no rights of third parties that stand in the way of Melrow Technology making available equipment, software, material intended for websites (visual material, text, music, domain names, logos, etc.), data files or other materials, including design material, for the purpose of use, treatment, installation or incorporation (for example in a website). The buyer/client will indemnify Melrow Technology against any action based on the assertion that making such items available, and the use, treatment, installation or incorporation or such items infringes any third party rights.

 

15. Warranty

15.1 In the event that Melrow Technology receives goods and/or services of a supplier and supplies these goods and/or services on to the buyer/client, Melrow Technology’s warranty will be limited to the supplier’s applicable warranty. At a request to this effect, Melrow Technology will inform the buyer/client of the applicable provisions.

15.2 The buyer/client is required to report any defect that comes at Melrow Technology’s expense and risk pursuant to the agreement with Melrow Technology, which is not a defect as described in Article 8.1, and which occurs within one year after delivery in the goods and/or services delivered by Melrow Technology within eight days after the occurrence. Melrow Technology will repair the defect mentioned above, without any charge for repair work and/or parts.
15.3 The warranty exclusively regards the right of repair, replacement or exchange of the equipment, all at Melrow Technology’s discretion. Melrow Technology will specifically never be required to repay the purchase price of the good.

15.4 Melrow Technology only issues a warranty to and for buyers/clients. In the event of resale, the buyer/client explicitly indemnifies Melrow Technology against warranty claims by third party buyers.

15.5 Melrow Technology is not required to repair defects as mentioned in Article 15.2 if these occurred as a result of:

- improper use and maintenance;

- normal wear and tear;

- defects that have no appreciable effect on the operation and value of the product;

- changes in or repairs to the delivered good that the buyer/client made or had a third party make;

- acting or failures in breach of the instructions for use.
 15.6 A warranty for articles with a sales value of less than EUR 50.00 is only granted if a claim to this effect is submitted in writing to Melrow Technology no later than within eight days after receipt of the goods.

15.7 Melrow Technology will charge for all work and repair costs that fall outside the scope of this warranty in conformance with its normal rates.
15.8 No warranties are issued for repairs and/or replacement of parts.
15.9 The buyer/client must give Melrow Technology the opportunity to repair the good in question. The buyer/client will send goods carriage paid and at his own risk to Melrow Technology. Melrow Technology does not accept any consignments that are not carriage paid, including returns. If goods are returned as a result of incorrect delivery by Melrow Technology, the postage and/or freight costs will be credited; however, this will only be done if Melrow Technology has confirmed this in writing. Goods returned other than by virtue of substantiated and timely complaints are not permitted. If goods are nevertheless returned without due cause, all costs connected with the return will come at the expense of the sender of the returned good.

 

16. Third parties
16.1 Melrow Technology is entitled to have orders or parts of orders performed by third parties who are not employed by Melrow Technology.
16.2 All clauses regarding the exclusion or limitation of Melrow Technology’s liability and regarding the indemnification of Melrow Technology against third party claims are also stipulated on behalf of those parties - both employees of Melrow Technology and third parties who are not employed by Melrow Technology - for whose acts or failures Melrow Technology may be liable.

 

17. Indemnification

17.1 The buyer/client indemnifies Melrow Technology against all third party claims and related costs and damage regarding the delivered products and services of Melrow Technology, except in as far as stipulated otherwise in the agreement or in these General Conditions.

 

18. Cancellation
18.1 In the event that the buyer/client unilaterally cancels the agreement in breach of these General Conditions, and in addition to his liability for full compensation, the buyer/client will be liable to pay Melrow Technology a penalty equal to 10% of the price agreed upon, with a minimum of EUR 150.00 (one hundred and fifty Euros).

 

19. Other clauses:

19.1 Melrow Technology reserves the right, without giving reasons and without being required to pay any compensation, to cancel or refuse orders or assignments and the related payments for buyers/clients who in any way are connected with countries that are on any list prepared by the Dutch government, the European Union or any other international organization governed by public law, or the government of the United States of America, if and to the extent that – at Melrow Technology’s sole discretion – the delivery of goods or services to such buyers/clients could reflect badly on Melrow Technology in any way whatsoever, all this in the broadest sense of the word.

 

20. Applicable law and disputes
20.1 All offers, legal relationships and agreements between Melrow Technology and the buyer/client, including these General Conditions are governed by Dutch law.

20.2 The 1980 Vienna Sales Convention does not apply.

20.3 All disputes arising out of the agreement or these General Conditions between Melrow Technology and the buyer/client, including disputes for which injunctive relief is requested, will be submitted in the first instance to the competent judge of the Court of Rotterdam.
20.4. The original Dutch text of these General Conditions is the only authentic text; in the event of differences or differences in interpretation the Dutch text will prevail over all translations of these General Conditions into other languages.

 

21. Amendment of the General Conditions and filing
21.1 Melrow Technology is entitled to amend the General Condition and to declare the amended General Conditions applicable to existing agreements.
21.2 In the event that Melrow Technology declares the amended General Conditions applicable to existing agreements, Melrow Technology will notify the amendments in a timely fashion. The amendments will take effect 30 days after the written notification of the amendments or on a later date specified in the notification.
21.3 In the event that the buyer/client refuses to accept an amendment of the General Conditions, he can cancel the agreement as of the date on which the amended General Conditions take effect. One condition is that the buyer/client notifies Melrow Technology in writing by registered letter of the cancellation as soon as possible, but in any event no later than within two weeks after the written notification of the amendment.
 21.4 The General Conditions of Melrow Technology have been filed in Dutch with the Chamber of Commerce in Rotterdam, on the date and under the number specified by Melrow Technology, for example on its website.

 

Part 2: General Conditions for the Web Shop:

The “General Conditions for the Web Shop” set out in this part apply in addition to the ‘General provisions’ of these General Conditions to the extent that Melrow Technology offers and sells its products via the Web Shop of Melrow Technology (www.melrowdirect.com).

 

22. Orders and Shipment

22.1 The buyer/client will meticulously provide all information necessary to place an order.

22.2 Melrow Technology exclusively accepts the order or assignment subject to the condition that the buyer/client prepays the order. After receipt of the prepayment, Melrow Technology will try to the best of its knowledge to ship the order or assignment as soon as possible. Consumers are only required to prepay half of the purchase price.

22.3 Melrow Technology is entitled to indicate the method of shipment.

22.4 The buyer/client will bear the risk of the goods from the time the goods are offered for receipt at the specified address.

22.5 Upon delivery, the buyer/client is required to accept the goods. Failing this, the goods will be stored at the expense and risk of the buyer/client. Melrow Technology will notify the buyer/client as soon as possible of the time and place of storage; the buyer/client will have to collect the goods as soon as possible, but no later than within 10 working days following this notification.

22.6 In the event that the buyer/client fails to collect the goods or fails to collect them in time, the buyer/client will be liable to pay a penalty amounting to 25% of the purchase price, the total storage costs, plus the statutory interest, including the costs specified in Article 18.

 

23. Consumer purchase and distance selling:

23.1 Consumer purchase is the sale of products and (financial) services of Melrow Technology and the purchase of the same by a natural person who is not acting in the conduct of a profession or business.

23.2 Subject to the previous paragraph, remote selling is the agreement pursuant to which use is made exclusively of one or more techniques for remote communication, more in particular the Internet, up to and including the establishment of the agreement. This agreement is established without the parties being present at the same time.

23.3 The buyer/client is entitled to dissolve the remote purchase for seven working days after receipt of the goods, without stating his reasons. The direct costs of returning the good come at the expense and risk of the buyer/client. The cooling-off period and the related possibility to dissolve the transaction does not apply to the remote purchase of computer software if the buyer has broken the seal on this software.

23.4 The buyer/client who uses a credit or debit card to pay Melrow Technology’s charges is required to take all reasonable measures to guarantee the security of the credit or debit card and the means via which the card is used.

23.5 The buyer/client guarantees that he will honour transactions made by authorized parties using his credit card and/or debit card.

 

PART 3: COMPUTER SERVICES

In addition to the General Provisions in these General Terms and Conditions, the provisions set forth in this Chapter "Computer Services" shall apply if Melrow Technology provides services in the area of computer services, including automated processing of data using software and equipment managed by Melrow Technology.

 

24 Term

24.1 If the agreement relates to providing computer services periodically or regularly, the agreement shall be entered into for the term agreed between the parties, in the absence of which a one-year term shall apply. The term of the agreement shall be tacitly extended each time by the length of the original period, unless the buyer/client or Melrow Technology terminates the agreement in writing with due observance of a notice period of three months before the end of the period concerned.

 

25 Performance of the work

25.1 Melrow Technology shall only provide the computer services at the buyers/clients instruction. If Melrow Technology provides computer services pursuant to an authorised order from a government body regarding information of the buyer/client or its employees, all related expenses shall be charged to the buyer/client. Melrow Technology shall provide the computer services with due care in accordance with the procedures and agreements recorded in writing with the buyer/client.

25.2 All data to be processed by Melrow Technology shall be prepared and delivered by the buyer/client in accordance with the conditions to be stated by Melrow Technology. The buyer/client shall bring the data to be processed to and pick up the results of the processing at the location where Melrow Technology performs the computer services. Transport and transmission, in whatever manner, shall occur at the buyers/clients expense and risk, even if they have been carried out or arranged by Melrow Technology.

25.3 The buyer/client warrants that all materials, data, software, procedures and instructions provided by it to Melrow Technology to perform the computer services shall always be correct and complete and that all data carriers furnished to Melrow Technology shall meet Melrow Technology's specifications.

25.4 All equipment, software and other objects used by Melrow Technology for the computer services shall remain Melrow Technology's property or the subject of Melrow Technology's intellectual and industrial property, even if the buyer/client pays a fee for Melrow Technology to develop or acquire them. Melrow Technology may maintain possession of the products and data received from the buyer/client and the results generated from the processing until the buyer/client has paid all amounts owed to Melrow Technology.

25.5 Melrow Technology may modify the substance or scope of the computer services. If such modifications result in a change in the procedures applicable at the buyer/client, Melrow Technology shall inform the buyer/client as soon as possible and the buyer/client shall be responsible for the costs of this change. The buyer/client may terminate the agreement in that case by providing written notice no later than the date on which the modification becomes effective, unless this modification relates to changes in relevant legislation or other rules provided by competent authorities or Melrow Technology assumes the costs of this modification.

25.6 Melrow Technology shall, to the best of its ability, do its utmost to ensure that the software used by it to perform the computer services is adapted in a timely manner to amendments in the Dutch laws and regulations observed by it in connection with its services. Upon request, Melrow Technology shall advise the buyer/client at its usual rates with regard to the effects of these adaptations for the buyer/client.

 

26. Security, privacy and retention periods

26.1 Melrow Technology shall comply with the statutory obligations which it has as a processor concerning its processing personal data. Melrow Technology shall provide appropriate technical and organisational measures to protect personal and other data against loss or against any form of unlawful processing.

26.2 The buyer/client warrants that all statutory provisions concerning processing personal data, including provisions in or under the Personal Data Protection Act, have been strictly observed and that all prescribed registrations have been carried out and all required consents to process personal data have been obtained. The buyer/client shall provide Melrow Technology immediately in writing with all requested information in this respect.

26.3 The buyer/client shall indemnify the Melrow Technology against all third-party claims which may be filed against Melrow Technology because of a violation of the Personal Data Protection Act and/or other laws concerning processing personal data which is not imputable to Melrow Technology.

26.4 The buyer/client shall indemnify Melrow Technology against all claims of third parties, including government bodies, which may be filed against Melrow Technology because of a violation of the laws concerning the statutory retention periods.

 

27. Guarantee

27.1 Melrow Technology shall not be responsible for checking the accuracy and completeness of the results of the computer services. The buyer/client shall check these results itself after receiving them. Melrow Technology does not warrant that the computer services shall be provided without errors or without interruptions. If defects in the results of the computer services are a direct consequence of products, software, data carriers, procedures or operating actions for which Melrow Technology is expressly responsible under the agreement, Melrow Technology shall repeat the computer services in order to fix these imperfections to the best of its ability, provided the buyer/client notifies Melrow Technology of these imperfections in writing and in detail as soon as possible, but no later than within one week after receiving the results of the computer services. Repetition shall only be done free of charge if the defects in the computer services are imputable to Melrow Technology. If the defects cannot be imputed to Melrow Technology and/or are the result of errors or imperfections on the buyers/clients part, such as providing incorrect or incomplete information, Melrow Technology shall charge the costs of any repetition to the buyer/client according to its usual rates. If fixing the defects imputable to Melrow Technology is not technically or reasonably possible, Melrow Technology shall credit the amounts owed by the buyer/client for the computer services concerned, without further or otherwise being liable to the buyer/client. The buyer/client shall not have any other rights because of defects in the computer services besides those described in these guarantee provisions.

 

PART 4: SERVICES

In addition to the General Provisions in these General Terms and Conditions, the provisions set forth in this Chapter "Services" shall apply if Melrow Technology provides services, such as giving advice, feasibility studies, consultancy, study programmes, courses, training sessions, support, secondment, hosting, the design, development, implementation or management of software, websites or information systems and services regarding networks. These provisions shall not affect the provisions included in these General Terms and Conditions concerning specific services, such as computer services, sale of computer equipment and maintenance.

 

28 Performance

28.1 Melrow Technology shall, to the best of its ability, do its utmost to perform the services with due care and, where appropriate, in accordance with the agreements and procedures recorded in writing with the buyer/client. All of Melrow Technology's services shall be performed on the basis of a best efforts obligation, unless and insofar as Melrow Technology has expressly promised a result in the written agreement and the result concerned has also been described with sufficient definiteness. Any agreements concerning a service level can only be expressly and in writing agreed.

28.2 If it has been agreed that the services shall be provided in stages, Melrow Technology shall be entitled to postpone the start of the services which are part of a stage until the buyer/client has approved the results of the preceding stage in writing.

28.3 In performing the services, Melrow Technology shall only be obliged to follow timely and sensible instructions of the buyer/client if this has been expressly agreed in writing. Melrow Technology shall not be required to follow instructions which change or supplement the substance or scope of the agreed services; if such instructions are followed, however, the work in question shall be compensated pursuant to Article 29.

28.4 If a services agreement has been entered into with a view to performance by a particular person, Melrow Technology shall always be entitled to replace this person after consultation with the buyer/client with one or more other persons with the same qualifications.

28.5 In the absence of an expressly agreed invoicing schedule, all amounts relating to services provided by the Melrow Technology shall be owed once every calendar month in arrear.

 

29. Modification and additional work

29.1 If, at the request of or with prior consent from the buyer/client, Melrow Technology has performed work or

rendered other performance which goes beyond the substance or scope of the agreed services, the buyer/client shall pay for that work or performance according to Melrow Technology's usual rates. Expanding or modifying a system analysis, a design or specifications shall also constitute additional work. Melrow Technology shall never be obliged to satisfy such a request, and it may require that a separate written agreement be concluded.

29.2 The buyer/client accepts that work or performance as referred to in Article 29.1 may affect the agreed or expected time of completion of the services and the mutual responsibilities of the buyer/client and Melrow Technology. The fact that additional work (or the demand for it) arises during execution of the agreement shall never be a ground for the buyer/client to rescind or terminate the agreement.

29.3 Insofar as a set price has been agreed for the services, Melrow Technology shall, upon request, inform the buyer/client in writing in advance about the financial consequences of the extra work or performance.

 

30. Study programmes, courses and training sessions

30.1 Insofar as the services by Melrow Technology consist of providing a study programme, course or training session, Melrow Technology may always demand payment of the amount owed before it begins to provide these services. Melrow Technology's normal rules shall govern the consequences of cancellation of participation in the study programme, course or training session.

30.2 If the number of registrations justifies doing so in Melrow Technology's judgment, Melrow Technology shall be entitled to combine the study programme, course or training session with one or more other study programmes, courses or training sessions, or to have them take place at a later date or a later time.

 

31. Secondment

31.1 There shall be secondment within the meaning of these Terms and Conditions if Melrow Technology makes an employee (hereinafter: "the Seconded Employee") available to the buyer/client in order to have this Seconded Employee perform work under the buyer/client's supervision, management and/or direction.

31.2 Melrow Technology shall exert its best efforts to ensure that the Seconded Employee remains available for the term of the agreement, notwithstanding the provisions in Article 28.4 concerning replacement.

31.3 The buyer/client shall be entitled to request replacement of the Seconded Employee (i) if the Seconded Employee demonstrably does not meet expressly agreed quality requirements and the buyer/client provides written notice of this to Melrow Technology within three working days after the work commences, or (ii) if the Seconded Employee experiences a long-term illness or leaves Melrow Technology's employment. Melrow Technology shall immediately address the request, making it a priority. Melrow Technology does not warrant that replacement shall always be possible. If replacement is not or not immediately possible, the buyer/client claims to further performance of the agreement as well as all claims of the buyer/client on account of non-performance of the agreement shall be extinguished. The buyer/client's payment obligations concerning the work performed shall continue to exist.

31.4 Melrow Technology shall be obliged to make timely and complete payment of the wage tax and social security contributions (including advance contributions) to be paid for the Seconded Employee in connection with the agreement. Melrow Technology shall indemnify the buyer/client against all statutory claims by the Tax Authorities or social insurance agencies regarding taxes and social security contributions directly relating to Melrow Technology's making the Seconded Employee available ("liability for using external personnel"), provided the buyer/client allows Melrow Technology to handle the claims concerned completely, cooperates fully with it and furnishes it with all necessary information and, if Melrow Technology desires, powers of attorney to conduct legal proceedings.

31.5 Melrow Technology shall not accept any liability for the selection of the Seconded Employee or for the results of the work arising under the buyer/client's supervision, management and/or direction.

 

PART 5: SALE OF EQUIPMENT

In addition to the General Provisions in these General Terms and Conditions, the provisions set forth in this Chapter "Sale of Equipment" shall apply if Melrow Technology sells equipment to the buyer/client. Insofar as the purport of the following provisions is not inconsistent with this, the term "equipment" shall also include separate equipment parts.

 

32. Selection of equipment, delivery and risk

32.1 The buyer/client shall bear the risk of selecting the equipment purchased. Melrow Technology shall not warrant that the equipment is appropriate for the use intended by the buyer/client, unless the intended uses have been clearly specified without reservation in the written purchase agreement between the parties.

32.2 The equipment sold by Melrow Technology to the buyer/client shall de delivered to the buyer/client at the site of Melrow Technology's warehouse. Melrow Technology shall deliver the equipment sold to the buyer/client or have this delivered at a location to be designated by the buyer/client only if this has been agreed in writing. Melrow Technology shall inform the buyer/client before delivery in as timely a manner as possible of the time which it or the carrier used intends to deliver the equipment. The delivery times indicated by Melrow Technology shall always be indicative.

32.3 Equipment shall be delivered at the agreed location for the agreed purchase price. Unless expressly otherwise agreed, the equipment's purchase price shall not include the costs of transport, insurance, rigging and hoisting, leasing temporary facilities and the like.

32.4 The risk of loss and theft of and damage to the equipment shall pass to the buyer/client when it is delivered to the buyer/client. If a carrier is used for the delivery (whether or not at the buyer/client's request or instruction), the risk of loss, theft and damage shall, however, already pass to the buyer/client when the equipment is delivered to the carrier.

32.5 Melrow Technology shall package the equipment in accordance with the usual standards branch of industry applies. If the buyer/client desires a specific manner of packaging, it shall bear the related additional costs. The buyer/client shall handle the packaging released with the products delivered by Melrow Technology in a manner that is consistent with the applicable government regulations. The buyer/client shall indemnify Melrow Technology against third-party claims based on non-compliance with such regulations.

 

33. Environment requirements and installation

33.1 The buyer/client shall ensure an environment which meets the requirements specified by Melrow Technology for the equipment in a particular case (for example, concerning temperature, humidity, technical environment requirements and the like).

33.2 If the parties have expressly agreed on this in writing, Melrow Technology shall install the equipment or have it installed. Any requirement by Melrow Technology to install equipment shall not include the requirement to install software or to convert data.

33.3 If Melrow Technology has undertaken to perform installation, the buyer/client shall provide a suitable installation site with all necessary facilities, such as cable work and telecommunications facilities, before delivery of the equipment and follow all instructions of Melrow Technology necessary for the installation.

33.4 To enable Melrow Technology to perform the necessary work, the buyer/client shall give Melrow Technology access to the installation site during Melrow Technology's normal working days and hours.

 

34 Guarantee

34.1 Melrow Technology shall do its utmost to fix, to the best of its ability, any defective material and manufacturing defects in the equipment, as well as in parts delivered by Melrow Technology in connection with the guarantee or maintenance within a reasonable time period and free of charge, if these have been reported, with a detailed description, to Melrow Technology within three months after delivery. If, in Melrow Technology's reasonable judgment, repairs are not possible, will take too long or will entail disproportionately high costs, Melrow Technology shall be entitled to replace the equipment free of charge with other, similar, but not necessarily identical, equipment. The guarantee shall not include data conversion which is necessary due to repairs or replacement. All parts replaced shall be the property of Melrow Technology, during the period as referred to  in Article 9.1 of this General Terms and Conditions. The guarantee obligation shall be extinguished if the defective material or manufacturing defects result in whole or in part from incorrect, careless or incompetent use, from external causes such as fire or water damage, or if, without Melrow Technology's permission, the buyer/client makes changes or causes changes to be made to the equipment or to the parts delivered by Melrow Technology in connection with the guarantee or maintenance. Melrow Technology shall not withhold such permission on unreasonable grounds.

34.2 Melrow Technology shall charge work and repair costs falling outside the scope of this guarantee in accordance with its usual rates.

34.3 Melrow Technology shall not have any obligations concerning fixing errors reported after the expiry of the guarantee period referred to in Article 34.1, unless the parties have concluded a maintenance agreement which includes such a duty to fix.

 

35. The equipment of the Melrow Technology's supplier

35.1 If and insofar as Melrow Technology provides equipment from third parties to the buyer/client, those third parties' terms and conditions shall replace the deviating provisions in these Terms and Conditions and shall apply with regard to that equipment, provided that Melrow Technology notifies the buyer/client in writing. The buyer/client shall accept the aforementioned third-party terms and conditions. These terms and conditions shall be available for the buyer/client's inspection at Melrow Technology's and Melrow Technology shall send these terms and conditions free of charge to the buyer/client at its request. If and insofar as the aforementioned third-party terms and conditions are deemed or declared inapplicable to the relationship between the buyer/client and Melrow Technology for whatever reason, the provisions in these General Terms and Conditions shall fully apply.

 

PART 6: MAINTENANCE OF EQUIPMENT

In addition to the General Provisions in these General Terms and Conditions, the provisions set forth in this Chapter "Maintenance of Equipment" shall apply if Melrow Technology and the buyer/client have concluded an agreement for maintenance of equipment.

 

36. Duration of the maintenance obligation

36.1 The agreement to maintain equipment shall be entered into for the term agreed between the parties, in the absence of which a one-year term shall apply.

36.2 The term of the agreement shall be tacitly extended each time by the length of the original period, unless the buyer/client or Melrow Technology terminates the agreement in writing with due observance of a notice period of three months before the end of the period concerned.

 

37. Maintenance

37.1 The substance and scope of the maintenance services to be provided by Melrow Technology and any related service levels shall be recorded between the parties in a written agreement. In the absence of such an agreement, Melrow Technology undertakes to do its utmost to remedy, to the best of its ability and within a reasonable time period, malfunctions which have been properly reported to Melrow Technology by the buyer/client. In this Chapter, "malfunction" shall mean not meeting the equipment's specifications expressly made known by Melrow Technology in writing, or not meeting these specifications without interruption. A malfunction shall only exist if the buyer/client can demonstrate it and it can be reproduced.

37.2 The maintenance shall be performed during Melrow Technology's normal working days and working hours.

37.3 Melrow Technology reserves the right to suspend its maintenance obligations during the time that, in Melrow Technology's judgment, there are circumstances at the site where the equipment is to be set up which entail risks to the safety or health of Melrow Technology's employees.

37.4 Melrow Technology shall ensure that its expertise concerning the equipment is kept up-to-date. Melrow Technology shall register and record in its administration all relevant data concerning the work performed on the equipment. Upon request, Melrow Technology shall allow the buyer/client to examine the data recorded.

37.5 Parts shall be replaced if this is necessary in Melrow Technology's judgment to fix or prevent malfunctions. The parts replaced shall be or remain Melrow Technology's property.

 

38. Maintenance and use terms and conditions

38.1 The buyer/client shall immediately inform Melrow Technology after a malfunction occurs in the equipment by having one of its employees with expertise in this area draw up a detailed description of the malfunction. Melrow Technology shall be obliged to give access to Melrow Technology's employees or third parties designated by Melrow Technology to the site of the equipment, to provide all other necessary cooperation, and to make the equipment available to Melrow Technology for the maintenance work.

38.2 At Melrow Technology's request, an employee of the buyer/client with expertise in this area shall be present

during the maintenance work for consultation. The buyer/client shall be entitled to be present during all work to be performed for the buyer/client.

38.3 The buyer/client shall not be entitled to connect equipment and systems not delivered by Melrow Technology

to the equipment sold to the buyer/client and to install software not delivered by Melrow Technology on it. The buyer/client shall be responsible for the costs of examining and remedying malfunctions which occur through connecting equipment not delivered by the buyer/client or installing software not delivered by Melrow Technology.

38.4 If, in Melrow Technology's judgment, maintenance of the equipment requires that the equipment's connections be tested with other systems or equipment, the buyer/client shall provide these other systems or this other equipment, as well as the relevant test procedures and data carriers, to Melrow Technology.

38.5 Test material necessary for maintenance work which is not part of Melrow Technology's normal equipment shall be provided by the buyer/client.

38.6 The buyer/client shall arrange for the technical, spatial and telecommunications facilities which are necessary to allow the equipment to operate. "Maintenance" shall expressly not include the aforementioned facilities and terminals.

38.7 The buyer/client shall bear the risk of loss or theft of or damage to the equipment during the period that Melrow Technology has the equipment in its possession for the maintenance work. The buyer/client shall be responsible for insuring this risk. Before the equipment is provided to Melrow Technology for maintenance, the buyer/client shall ensure that a proper and complete back-up copy has been made of all software and data recorded in the equipment.

38.8 Melrow Technology shall not accept any maintenance obligations for equipment not set up in The Netherlands, unless expressly otherwise agreed in writing.

38.9 In the absence of an expressly agreed invoicing schedule, all amounts relating to maintenance of equipment shall be owed when the maintenance period commences.

 

39. Exclusions

39.1 Work to examine or repair malfunctions which arise from improper use of the equipment or external causes, such as defects in communication lines or in the power supply, or connections with and/or use of equipment, software or materials not covered by the agreement, shall not be part of Melrow Technology's obligations under the agreement, and shall be charged to the buyer/client separately at the usual rates.

39.2 The maintenance price shall not include: replacing consumer goods, such as, for example, magnetic storage media and printer ribbons; replacement costs for parts as well as maintenance services for remedying malfunctions which are caused in whole or in part by attempts to repair made by others besides Melrow Technology; work to service the equipment in whole or in part; equipment modifications; moving, relocating or reinstalling equipment or work resulting from this.