General Terms & Conditions of 4SUITES B.V.
Last updated: 1st April 2023.
“Company” means 4Suites B.V. company number 65632338 or 4Suites Cloud B.V. company number 81608233.
“Products” means the hardware as goods and/or services sold or delivered by the Company.
“Cloud Services” the Software as a Service delivered by the Company.
“Customer” means any person, firm, company, government body, or other entity with whom the Company contracts to supply goods or services.
“Event of Default” includes any of the following things: (a) the Customer is in breach of these Terms and Conditions and fails to remedy the breach within 7 days of being required to do so in writing by the Company;
(b) the Customer fails to pay any monies owing under these Terms and Conditions by the date that they are due and payable; (c) the Customer is unable to pay its debts as they fall due or a petition is presented or application made for the purpose of winding up the Customer or enters into liquidation or administration whether compulsorily or voluntarily or has a receiver, liquidator, administrator or other like person appointed over all or any part of its assets or takes or suffers any similar action in consequence of debt.
“Duration” number of successive months agreed and written on the order to use the Cloud Services.
“Ex Works” (EXW) has the meaning ascribed to that term by Incoterms with the place of delivery being the Company’s premises from which the goods are made available by the Company for collection by the Customer.
“Incoterms” means the International Chamber of Commerce official rules for the interpretation of trade terms known as “Incoterms 2020”.
“Other Property” means all present and after-acquired property of the Customer.
“Party” either Company or Customer.
“Parties” both Company and Customer.
“Termination Fee” the fee that is obliged in case of termination of the order.
“Terms and Conditions” means these terms and conditions for sale and delivery.
“Total Monthly Service Fee” the total monthly fee (net amount) as agreed and written on the order.
1.1 By placing an order with the Company, the Customer accepts these Terms and Conditions.
1.2 Any conditions of purchase offered by the Customer which purports to add to or are otherwise inconsistent with these Terms and Conditions shall be deemed to be waived by the Customer upon placement of an order by the Customer with the Company unless such conditions of purchase are expressly agreed to by the Company in writing.
1.3 No order accepted by the Company (in writing, orally or by conduct) may be cancelled, deferred or varied by the Customer without the prior written consent of the Company.
1.4 The Company reserves the right to require orders to be for a minimum value determined by the Company from time to time and to otherwise accept in whole or in part any orders for goods or services by the Customer or to decline such orders.
2. QUOTATIONS AND PUBLISHED PRICES
2.1 All prices mentioned are stated in Euros (unless stated otherwise on the order confirmation for shipments outside the EU).
2.2 Quotations issued by the Company are open for the Customer to whom the quotation is addressed to place an order within 30 days from the date of quotation (unless a shorter or longer period is expressly provided for in the quotation or the quotation is withdrawn by the
Company) and such orders are subject to acceptance by the Company in accordance with Clause 2.
2.3 The issue of a quotation and other publication of prices by the Company do not constitute offers to supply, and are subject to changes in the costs of labour, materials, production, transport and duty, exchange rate fluctuations and other increases in the cost to the Company of supplying the goods or services and any errors by the Company in listing, determining or calculating the prices.
2.4 Quotations are based on the information and details provided by the Customer to the Company. Where exact specifications of the scope, nature or extent of the work are not available to the Company at the time of providing a quotation, such quotations are estimates only.
2.5 In the event the cost to the Company of supplying goods or services, or the scope, nature or extent of the work required to be undertaken by the Company to supply the goods or provide the services, changes or the Customer requests any variations to be made (which may be consented to by the Company in writing), the Customer will be responsible for and pay for all extra costs and charges associated with such changes.
3.1 The Company reserves the right to vary the prices charged from time to time without prior notification. Published and quoted prices are (unless otherwise indicated) for the sale of goods or provision of services Ex Works and are exclusive of Goods and Services Taxes. Any applicable taxes, duties, costs and charges associated with the carriage and insurance of goods, and all such items shall be included as additional items in the invoiced price.
3.2 All orders (including, without limitation, changes in the scope, nature or extent of work) will be invoiced at the price current at the date of delivery.
3.3 Company is entitled to adjust the prices for the Products and Cloud Services once (1) per calendar year in accordance with reference to the percentage change in the CPI (Consumer Price Index as published by CBS Netherlands) over the most recent 12 months for which published data is available at that point in time. Such price adjustments will usually be announced in November and will be effective for the following calendar year beginning in January.
4.1 Payment should take place according to the terms mentioned on the invoice, unless otherwise agreed upon writing.
4.2 The Company reserves the right to terminate all or part of the Customer’s credit facility at any time in its absolute discretion and to require full or part payment at the time of placing an order or prior to delivery.
4.3 The Company may charge interest on any overdue payments at a rate of 10%. Without limiting any of the Company’s other rights, the Company reserves the right to withhold further deliveries of goods or the provision of services until all arrears from the Customer have been paid.
4.4 The Company also reserves the right to the maximum extent permitted by law to charge the Customer for all bank and other credit provider or facility fees and charges incurred by the Company in processing the Customer’s payment, including (without limitation) by credit card or for dishonored payment.
4.5 The Customer agrees to pay all costs incurred by the Company for the collection of any monies owing by the Customer to the Company which are not paid when due upon demand by the Company, including, without limitation, commission charges by collection agencies and legal costs and disbursements (on an own solicitor/client indemnity basis), including (without limitation) instructing the Company’s lawyers to provide advice in relation to, and/or to commence, the collection of monies owing by the Customer to the Company.
5. SUPPLY AND DELIVERY
5.1 Supply of goods and services by the Company to the Customer will (unless other terms of supply have been agreed and accepted by the Company in writing on an order basis) be carried out according to Incoterms 2020, Ex works.
5.2 Risk in the goods passes to the Customer when the Company makes the goods available for collection by the Customer Ex Works (unless other terms of supply have been agreed and accepted by the Company in writing on an order by order basis). The Company shall not be responsible for any loss or damage to goods in transit or otherwise once they have been delivered to the Customer Ex Works.
5.3 If (where applicable) the Customer has not made or notified the Company of arrangements for delivery, the Customer hereby authorizes and requests the Company to nominate a carrier to take delivery of the goods from the Company on behalf and at the risk of the Customer, for carriage to the Customer or as the Customer directs. Arrangements for insurance of the goods is the responsibility of the Customer. Where the Company nominates a carrier on behalf of the Customer, all freight and other carriage charges will be billed to the Customer.
5.4 The Company will use all reasonable efforts to deliver the Products order within the time limit specified in the Agreement. Exceeding this period doesn’t entitle the Customer to compensation or dissolution of the agreement. The Company shall not be liable for any loss or damage whatsoever (including, without limitation, special or consequential loss or damage) caused directly or indirectly by any early delivery or delay or failure to deliver. The Company reserves the right to make delivery in installments and to invoice each installment as a separate order.
5.5. Standard delivery hours are business hours Monday to Friday, with the exception of the public holidays of the country where the Company legal entity with which the Customer orders is established (“Country of Order”). The delivery period starts on the date of Written acceptance of the order. If not all the data necessary for the execution of the order have been provided by the Customer, the delivery time will only start as soon as this data is available.
6.1 All goods must be examined upon delivery and the Customer must immediately notify the carrier and the Company’s Customer Service Department of any shortages or that goods supplied by the Company do not comply with an order. The Customer must then make a written claim to the Company and include a copy of the relevant invoice issued by the Company within 7 days of delivery of the goods.
6.2 Any claims for shortages or that goods supplied by the Company do not comply with an order made more than 7 days following delivery of such goods will be at the sole discretion of the Company.
7.1 The Company’s policy is one of continuous development, and the Company therefore reserves the right to improve, change, alter or discontinue specifications without prior notice. All illustrations and samples are intended as approximate representations only and are not binding in detail with regard to finishes, color, shades, materials, design and other specifications. To the maximum extent permitted by law, the Company accepts no liability whatsoever for any loss or damage (including, without limitation, consequential loss or damage), directly or indirectly, arising out of or in connection with any illustration or sample, or any goods not being identical to an illustration or sample.
8. INSTALLATION AND USE
8.1 Installation and fitting of goods by the Company is not included unless otherwise specifically indicated by the Company in writing. To the maximum extent permitted by law, the Company takes no responsibility for the installation and fitting of goods other than goods which are installed or fitted directly by the Company.
8.2 The Company shall not be liable for any damage or loss whatsoever arising in connection with the improper installation or fitting of goods by the Customer or a third party or the use of such improperly installed or fitted goods, including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from the improper installation or fitting of goods or the use of such improperly installed or fitted goods.
8.3 The Customer shall indemnify and keep the Company fully indemnified from and against any and all suits, actions, claims, demands, losses, liabilities, damages, costs and expenses of any nature whatsoever suffered or incurred by the Company arising out of or in connection with the proper or improper installation or fitting of goods by the Customer or any third party and/or the use of such improperly installed or fitted goods by the Customer or any third party.
8.4 In case additional hours and/or materials are needed additional costs will be charged on the final invoice.
9. SPECIAL ORDERS
9.1 Orders for specially made or customized goods or services (“Special Orders”) may not be cancelled, deferred or varied by the Customer without the prior written consent of the Company.
9.2 The Customer acknowledges and agrees that the Company may require full or part payment for any Special Order at the time of order, prior to production or delivery.
9.3 In the event the scope, nature or extent of the work required to be undertaken by the Company to produce the goods or provide the services change (including, without limitation, as a result of the Customer not providing required specifications or other information in the prescribed form or within the required time frame, requesting special freight, provision of mock-up of goods, ordering special material, etc.) the Customer will be responsible for and pay for all extra costs and charges associated with the changes.
9.4 The Company shall be entitled to increase the price for Special Orders if there is an increase in the cost to the Company of supplying the goods or services due to changes in the costs of labor, materials, production, transport, duty, exchange rate fluctuations or other increases in the cost to the Company of supplying the goods or services.
9.5 In the event the Customer provides the Company with specifications for the supply of goods or services, the Customer warrants to the Company that the specifications and any goods or services supplied by the Company based on such specifications will comply with all applicable laws relating to the supply of such goods and services and will not infringe the trade mark, copyright, patent, design, other intellectual property rights or other rights of any third party. The Customer shall indemnify and keep the Company fully indemnified from and against any and all suits, actions, claims, demands, losses, liabilities, damages, costs and expenses which may be made or brought against or suffered or incurred by the Company arising out of or in connection in any way with the use by the Company of specifications provided by the Customer or the manufacture and supply of goods or services based on such specifications.
10. CUSTOMER MATERIALS
10.1 The Customer shall be fully responsible for ensuring that it keeps and maintains duplicate originals or copies of any materials and other property which it provides to the Company. Any such materials or property provided to the Company shall be held or used by the Company solely at the risk of the Customer, and the Company shall not be under any liability of any nature whatsoever to the Customer for loss or spoilage of, or damage to, such materials or property.
11.1 The Company Warranty, subject to the provisions elsewhere in these Terms and Conditions, that the Product it supplies are in conformity with the Agreement and are suitable for normal use for a period of twenty-four (24) months after delivery on all hardware components that are delivered by the Company.
11.2 The Company is not responsible for the components that are not delivered by the Company or might be electro and/or mechanically connected or mounted with or to the products and services from the Company.
11.3 The warranty according to Article 11.1 does not apply if the non-compliance or non-functioning of the delivered Products in accordance with the specification and Agreement is (partially) the result of, for example, but not limited to, negligence, misuse, incorrect or performance of maintenance instructions on the part of the Customer or of other external causes. In addition, the warranty does not apply if it concerns deviations that cannot reasonably be avoided technically, imply a qualitative improvement or do not significantly limit the functionality of the item given the purpose for which the Customer uses the item in its normal performance.
12. POTENTIALLY DEFECTIVE GOODS PROCEDURE
12.1 If the Customer believes that goods are potentially defective and that a Warranty claim may exist, the Customer shall in the first instance, contact the Company’s Customer Service Department before the goods are attempted to be repaired, replaced or removed for return to discuss the nature of the issue and whether it is appropriate for the Company to attend the premises where the goods have been installed or fitted. The Customer must provide the Company with as much information as is necessary in order for the Company to assess the issue. If there is a legal obligation on the Company to repair or replace the goods under the terms of the applicable Warranty, then the Company will do so.
12.2 The Customer acknowledges and agrees that if the Customer requests the Company to attend the Customer’s premises (or the premises of any third party, including the premises of a customer of the Customer), then the Customer will, upon demand, pay the Company the costs and charges incurred by the Company in organizing for the premises to be attended and the goods to be assessed.
13. GOODS RETURN POLICY
13.1 All goods must be examined upon delivery and the Customer must immediately notify the carrier and the Company’s Customer Service of any damage to the goods or if any of the ordered goods are missing or oversupplied or if the goods delivered are not those that were ordered.
13.2 The Customer must obtain a returned material authorization number (“RMA Number”) from the Company’s Customer Service. Goods must be returned by the Customer at the Customer’s expense and risk in their original undamaged packaging with a copy of the original invoice and the RMA Number must be clearly marked on the outside of the box or other packaging. Goods returned without a RMA Number may not be accepted by the Company’s warehouse staff. The issue of a RMA Number and acceptance of returned goods by the Company’s staff does not constitute acceptance by the Company of the Customer’s claim for return.
13.3 Any request to return goods by the Customer following delivery of such goods will be at the sole discretion of the Company.
13.4 Goods returned to the Company will be at the Customer’s risk until such time as the Company’s staff takes possession of the goods at the Company’s premises.
13.5 The Customer acknowledges and agrees that Special Orders are non-returnable.
13.6 To the maximum extent permitted by law, the Company will not accept any goods for return which have been altered, installed or fitted in any way unless they are otherwise the subject of a Warranty provided by the Company. The Company therefore encourages the Customer to fully inspect and test all goods and services provided by the Company prior to goods being altered, installed or fitted.
14. LIMITATION OF LIABILITY
14.1 The Company shall not be liable for any loss or damage of any kind whatsoever, arising from the supply of goods and services by the Company to the Customer, including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from the goods and services provided by the Company to the Customer.
14.2 The Customer agrees that the liability of the Company is limited to:
- a) in the case of the supply of goods, any 1 or more of the following (at the Company’s option):
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the costs of replacing the goods or of acquiring equivalent goods;
(iv) the payment of the costs of having the goods repaired;
- b) in the case of the supply of services any 1 or more of the following ( at the Company’s option):
(i) the supply of the services again;
(ii) the payment of the costs of having the services supplied again.
14.3 Other than as provided in clause 14.2. in no event will the Company be responsible for alterations made to, or the removal, re-installation or refit of, goods or services by or on behalf of the Customer.
14.4 The Company’s total aggregate liability (if any) to a Customer for any particular order for the supply of goods or services by the Company to the Customer will not, in any event, exceed the amount invoiced by the Company to the Customer for the said order.
14.5 Loss of turnover, loss of profit or commercial damage to the Customer, damage caused by auxiliary goods, damage resulting from intent and/or gross negligence is not eligible for compensation.
14.6 The Customer indemnifies the Company for all claims from third parties, due to product liability, as a result of a defect in an item that was supplied by the Customer to a third party and that (also) consisted of items and/or materials supplied by The Company.
15.1 Title to and property in goods supplied by the Company shall not pass to the Customer until the Company has received payment in full of the price of all goods supplied by the Company to the Customer at any
time and the Customer has discharged all existing indebtedness to the Company, whether for the price of the goods or services supplied or for any other amount which may be owing by the Customer to the Company on any other account (some of which may not necessarily be due for payment); provided however that the Customer shall bear the risk of any loss or damage to or deterioration of the goods from whatever cause arising following delivery of the goods to the Customer in accordance with Clause 6.
15.2 Until the price has been so paid:
(a) The Customer shall insure the goods for all outstanding amounts owing to the Company in relation to the goods.
(b) The Customer shall store the goods in such a place and manner that they are clearly identified as the property of the Company which the Customer is holding as the Company’s bailee.
(c) The Customer may resell the goods only after Company agreed in writing that the Customer resell the goods or services (but may not otherwise sell or encumber the goods) and if it does so shell receive the proceeds of resale as trustee of the Company, and shall hold such proceeds as such. The Company shall be entitled to trace the proceeds of resale. Company holds the right to reject the right or reselling the goods.
(d) The Company shall have the right, at any time and without prejudice to any other remedies:
(i) to enter without prior notice any premises where the goods may be without liability for trespass or any resulting damage, and to repossess any of the goods; and
(ii) to require the Customer not to resell or part with
possession of, otherwise dispose of, charge or otherwise encumber or in any way alter the goods until payment is made in full. The Company’s right to retain title of goods shall not affect its rights as unpaid sellers.
15.3 The Customer hereby grants the Company an irrevocable perpetual license to sell all goods (including, without limitation, specially ordered, made or customized goods and goods which have been altered by or on behalf of the Customer) which are not paid for by the Customer, and the Customer warrants to the Company that the sale of such goods by the Company will not infringe the trade mark, copyright, patent, design, other intellectual property rights or other rights of any third party, and the Customer shall indemnify and keep the Company fully indemnified from and against any and all suits, actions, claims, demands, losses, liabilities, damages, costs and expenses which may be made or brought against or suffered or incurred by the Company arising out of or in connection in any way with the sale of such goods by the Company. The ability of the Company to sell such goods shall not affect its rights as unpaid sellers.
16. TERM AND TERMINATION
16.1 The term of the order shall commence as of the day and year set in the order and shall continue in force until terminated by a Party or by either Party as specified in Article 16.6 or Article 16.7.
16.2 Each order shall, unless otherwise agreed in a specific addendum, automatically be renewed for successive terms of 12 months unless one of the Parties terminates the order taking effect from the last day of the then current term, by giving at least six (6) months written notice prior to the end of the then current term.
16.3 The recurring Total Monthly Service Fee for the Cloud Service is agreed for a Duration of 60 (sixty) months, unless differently agreed upon in writing. The Total Monthly Service Fee for the Cloud Service invoicing will start on the date the services are operational.
16.4 If the Customer cancels the order for the products and services, 25% of the total sum will be charged.
16.5 In case Customer terminates the Cloud Services order before the Duration end of the order, a Termination Fee is obligated. The Termination Fee is equal to the remaining months to go as described in the order multiplied with 50% of the Total Monthly Service Fee. The Termination Fee is due as described in Article 4.1 of this Agreement.
16.6 Either party may terminate the order extra-judicially should the other Party fail attributable to perform essential obligations under the order and fails to remedy such failure within a reasonable time of being served notice of such default in writing, in accordance with Article 16 of this Terms and Conditions Termination will not release Customer from any payment obligations in respect of the order, invoicing and delivery, unless Company agree therewith.
16.7 Parties may terminate the order with immediate effect without any more additional notice of default being required and without the terminating Party being liable for damages to the other on that account if that Party is granted a provisional or final moratorium, if application is made to have it declared insolvent, if any attachment is imposed on that Party’s goods, in whole or in part, or if that Party’s business is liquidated or terminated.
17. INTELLECTUAL PROPERTY
17.1 The Customer acknowledges and agrees that all intellectual property rights in goods and services supplied by the Company are owned by the Company and that the Customer acquires no intellectual property rights in any goods or services provided by the Company to the Customer.
18. DATA CONFIDENTIALITY
18.1 “Confidential information” means any information, technical data or know-how in any form whatsoever, documented, contained in machine-readable or physical components, masking or artwork, or otherwise, originating from the Company, including but not limited to service and maintenance manuals.
18.2 The Customer and its customers, employees and agents shall treat and will not treat or disclose any confidential information obtained directly or indirectly from the Company without the prior Written consent of the Company, nor use them for the manufacture, purchase, maintenance or calibration of Products or similar products, nor allow these products to be manufactured, maintained or calibrated by or obtained from any other source, or reproduce or otherwise make them suitable.
18.3 All this confidential information remains the property of the Company. No rights or licenses are granted to the Customer or its customers, employees or agents, express or implied, with respect to the Company’s confidential information or any intellectual property or other proprietary right, with the exception of the limited licenses of use provided for by law or Agreement.
18.4 For the use of Google Pay, Customer must comply with the terms and conditions set forth by Google Pay:
Changes in the terms and conditions of Google Pay may lead to increased monthly service fees charged by Company to Customer. Changes in the terms and conditions of Google Pay may lead to changes in the operational use or non-use of the service.
19. FORCE MAJEURE
19.1 The Company shall not be liable for any direct,indirect, special or consequential loss or damage of any kind arising from non-delivery or delay in delivery of any goods or services caused by act of God, riot or civil commotion, strike, lock out, labor disputes, fire, flood, drought, power restrictions, act of government, acts of terrorism, delays in transport, breakdowns in machinery, failure to obtain or shortages of raw materials or other supplies obtained from third parties or any cause whatsoever beyond its control. The provisions of this Article shall also apply if the circumstances in question arise with regard to factories, importers or other traders whose goods himself or are required to be involved.
20.1 Nothing in these Terms and Conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law and which by law cannot be excluded, restricted or modified.
20.2 These Terms and Conditions are subject to variation by the Company by notice in writing to the Customer.
20.3 References to any document (including these Terms and Conditions) are references to that document as varied, amended, consolidated, supplemented, novated or replaced from time to time.
20.4 References to any law are references to that law as amended, consolidated, supplemented or replaced from time to time.
20.5 The failure of the Company to enforce or exercise at any time or for any period of time any term of any contract incorporating these Terms and Conditions shall not constitute or be construed as a waiver of such term and shall in no way affect the Company’s right thereafter to enforce or exercise the same.
20.6 Any provision of these Terms and Conditions which is or becomes prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective and severed to the extent thereof without invalidating any other provision of these Terms and Conditions, and any such prohibition or unenforceability shall not invalidate such provision in any other jurisdiction.
20.7 These Terms and Conditions and any order for goods and services from the Customer which may be accepted by the Company shall be governed by and construed in accordance with the laws of Zutphen, The Netherlands and the Customer hereby irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of The Netherlands.