GENERAL TERMS AND CONDITIONS

Definitions

In these General Terms and Conditions the following terms shall have the following meanings, except where stated otherwise:

General Terms and Conditions: these general terms and conditions.

Day: calendar day.

Linkest: the company Linkest.nl, located at De Nieuwe Erven 3, 5431 NV, Cuijk, in Cuijk.

Customer: every legal person or individual, acting in the conduct of a business or profession, who would like to enter into a contract with Linkest.

Website: name of the website of Linkest, being www.Linkest.nl.

Applicability

These General Terms and Conditions apply to all offers, proposals and agreements made by Linkest and all obligations arising thereto to the customer. To the extent the customer (also) orders other products or services whereupon special general terms and conditions are applicable, these special general terms and conditions are also declared applicable to the agreement between the customer and Linkest.
In case the customer declares its own general terms and conditions applicable to an agreement with Linkest or refers to it, these general terms and conditions shall not be accepted by Linkest. The General Terms and Conditions of Linkest shall prevail, unless explicitly agreed otherwise at an earlier stage.
The General Terms and Conditions are provided to the customer in advance and can be found and downloaded as a PDF file on the website. The General Terms and Conditions shall be provided for free on request.
All the agreed provisions on behalf of Linkest of these General Terms and Conditions and of any further agreements, are also applicable to any third party hired, called in or used by Linkest.
These General Terms and Conditions do not apply to offers to and agreements with individuals who do not act in the conduct of a business or profession.

Offers/proposals

All offers/proposals, unless explicitly stated otherwise, qualify as a non-committal offer and/or proposal and can always be revoked, even if it contains a term for acceptance. Proposals/offers can also be revoked in writing without delay after receipt, but at the latest within two business days, by Linkest, in which case no agreement will be concluded.
Offers/proposals can only be accepted in writing (including an acceptance by telefax or those made through electronic means). However, Linkest is entitled to accept an oral acceptance as if this would have been done in writing. Once the customer of Linkest receives a confirmation by e-mail, a binding agreement between parties is established.
Information that is included in advertising material in the broadest sense of the word, such as catalogues, pricing lists, brochures and websites of third parties, shall never be binding for Linkest.
Except for written agreements stating explicitly otherwise, specifications of size, weight and other information are estimates, as accurate and reliable as possible.

Prices

All prices provided by Linkest are based on price determining factors that are known at the time of issuance of an offer/proposal.
Unless explicitly agreed otherwise in writing, prices provided by Linkest are always excluding VAT and excluding shipment costs.
Linkest is entitled to adjust the prices or parts thereof for products and/or services that have not been delivered or paid yet due to changes of price determining factors, such as raw material prices, wages, taxes, production costs and currency exchange rates.
Linkest is authorized to adjust the prices with immediate effect in case a legal price determining factor causes such.

Payment

At all times Linkest is entitled to request certainty from the customer for the correct and timely fulfilment of its payment obligations.
In case of delivery in parts, every part can be charged separately by Linkest, unless agreed otherwise in writing with the customer.
In case of a payment default, Linkest is entitled to suspend or cancel the execution of the agreement and any other related agreement.
All payments shall be transferred to a Dutch bank account number provided by Linkest.
All payments received from the customer shall first be applied to the payment of all costs, expenses and accrued and unpaid interest and subsequently to the repayment of the oldest overdue invoices, even in case the customer states that such payment relates to other invoices overdue.
The customer waives its right to set off (verrekenen) any amount due by Linkest. The customer is not entitled to set off any amount.
Transferring payments by the customer to Linkest through electronic means, including via the internet and by credit cards, is at the customer's own risk. Linkest is not liable for any damages of the customer which are connected to or are the result of such payments through electronic means. Providing credit card details by the customer to Linkest via the internet or otherwise is at the customer's own risk.
Linkest maintains the right to request a payment in advance of 50 to 100 per cent to newly registered enterprises.

Accounts and registration

The customer can create an account or otherwise register on the Website. Linkest reserves the right to refuse or cancel any such registration, for example in the event of irregularities.
The login details are strictly personal and must not be disclosed to third parties. The customer is responsible for his login details, even in case this is done without his knowledge.
The customer shall immediately alert Linkest in case he suspects that his login details are known by an unauthorized third party or in the event of irregularities.
The customer may not create or manage more than one account. Moreover, the customer shall not be allowed to register or manage an account (again) after Linkest has denied the request of the customer to create an account or after cancellation of the registration.

Delivery

At all times the place of delivery is – except where stated otherwise in writing – the customer’s actual registered office or the registered office that is specified during the order process and/or the registered office of the party to the agreement.
The delivery times included in offers/proposals, confirmations and/or contracts are given in good faith. Such delivery times will be taken into account as much as possible, though they can never be considered as a final date.
The customer is obliged to enable Linkest to perform the delivery.
The customer guarantees for its own account and risks:
to provide the support that is necessary for Linkest to conduct the performance;
to purchase the ordered products and/or services; and
to enable the delivery to occur under average working conditions, during average working hours from 8 a.m. to 6 p.m.
In case the ordered products and/or services are offered to the customer, yet delivery is not possible due to the fact that the customer did not fulfil its obligations under paragraph 3 and 4 of this Article, the delivery will be considered declined. From this moment on, the customer is in default without the requirement of a formal notice of default from Linkest. The day of refusal of the delivery is considered to be the delivery date of the ordered products and/or services. From this moment on, the products are at the customer’s own risks as stated under Article ‘Transfer of Risk’ of these General Terms and Conditions.
Notwithstanding the obligation to pay, the customer is entitled to repay the damages Linkest has suffered as a result of the refusal referred to under paragraph 5 of this Article, including the costs of storage and transport. The transport costs are based on local common rates.

Transfer of risk

Notwithstanding the contents of the agreements made between Linkest and the customer with respect to the costs of transport and insurance, the products are at the risk of Linkest, until the moment such products are in the actual power of disposal of property of the customer or of any third party hired by the customer by means of signing bills of lading, signing lists and/or packing lists or actual delivery.

Retention of title

The ownership of products delivered to the customer by Linkest shall transfer to the customer once the customer has fulfilled the terms that Linkest may request based on an agreement made with the customer and the related services or activities performed.
Notwithstanding what is stated in paragraph 1 of this Article, the customer is entitled to use the products received from Linkest for its normal business operations.
The customer is not allowed to encumber, pledge, transfer as security and/or to loan or to loan for consumption and/or to license products that are delivered under retention of title (eigendomsvoorbehoud) in any way. In addition, the customer is not allowed to modify the products in any way.
In the event the customer fails to fulfil its obligations, Linkest is entitled to retrieve the products that belong to Linkest from where they are at the expense of the customer.

Right to complain

During or immediately after the delivery the customer needs to inspect whether the delivered products and/or the performed services comply with the agreement.
If the customer did not perform aforementioned inspection or did not inform Linkest regarding the defects in writing within the applicable term as mentioned hereafter the customer loses his right to claim.
Visible defects need to be reported in writing to Linkest within five business days after the delivery and/or performing the relevant service.
Hidden defects need to be reported in writing immediately after the customer discovered them, but at the latest within two months after delivery of the products and/or performing the service.
Products subject to the claim may only be returned to Linkest with explicit prior permission from Linkest.
Returns need to be provided with the original packaging. Returns need to occur in accordance with instructions from Linkest at all times. Linkest reserves the right to appoint an address to which the product subject to the claim must be sent to.
If according to Linkest there are justified and properly submitted complaints, Linkest is obliged, this at her choice and taking into account the customer’s interests and the nature of the complaint, to either replace/exchange the delivered products and/or performed services or to grant a price discount.
The right of complaint expires in case the delivered product is not in the same condition as it was during delivery.
Complaints regarding invoices need to be submitted in writing within five business days after the date of sending the invoice.

Liability

The limitation mentioned in paragraph 1 of this Article applies also in the event that Linkest is held liable by the customer for reasons other than this agreement.
Direct damage means exclusively:
any reasonable costs incurred by a party to repair the default by the other party in order to meet the agreement. However, these damages are not reimbursed if the other party has terminated the agreement.
the reasonable costs of ascertaining the cause and scope of the damage, to the extent the determination is related to damage as referred to in the Terms and Conditions;
and/or reasonable costs incurred to prevent or limit damage, to the extent the suffering party is able to demonstrate that these costs have led to a limitation of direct damage as referred to in the Terms and Conditions.
Linkest shall never be liable for any indirect damage, including consequential loss, loss of profits, lost savings and damage caused by interruption of operations and all damages which are not covered by direct damage as referred to in these Terms and Conditions.
In the event of intent or gross negligence of the directors or managers of Linkest the limitation of liability is not applicable.
Linkest shall never be liable for the materials that have been made available to Linkest by the customer under the agreement. It is mandatory for the customer to take out a sufficient insurance regarding these materials.
Without prejudice to the abovementioned, Linkest shall not be liable in the event the damages are caused by intent and/or gross negligence and/or imputable acts or incompetent or inappropriate usage of the delivered products by the customer.

Software

In case a new software product is purchased the customer acquires a Sustainable Data Carrier (cd-rom, etc.), the corresponding documentation (if available), as well as a license in accordance with the license terms of the manufacturer.
The customer automatically agrees with the corresponding license terms by using the software for the first time. The intellectual property rights of the product remain fully with the licensor. All rights of the mentioned and used product names, brands, logo's etc., used by Linkest shall belong to the respective holders of these rights. With regard to the use of the products, the customer shall respect all rights of third parties.
The instalment of new software as well as the modification of software already installed carry the risk of data loss. The customer should take necessary measures to prevent data loss. Linkest cannot be held liable for any damage resulting from the installation or modification of new software.
Linkest cannot be held liable in any way for the loss of data by data storage devices purchased by Linkest, except in the case of intent or serious misconduct of Linkest, proven by the customer.

Indemnification

The customer indemnifies Linkest, to the extent permitted by law, against all liabilities towards one or more third parties, arisen from and/or connected to the performance of the agreement, irrespective of whether the damage is caused or inflicted by Linkest or by the third parties appointed by Linkest (hulppersonen), by auxiliary materials or the completed Assignment. In addition, the customer indemnifies Linkest, to the extent permitted by law, against all liabilities from third parties in connection with any infringement of intellectual property rights of these third parties.
The customer shall take care of adequate insurance of the risks and liabilities mentioned above.
The customer is always obligated to make every effort to limit the damage to a minimum.

Force majeure and unforeseen circumstances

In case compliance by Linkest or the purchase by the customer is delayed for more than one month due to force majeure, each party is – with the exclusion of further rights – entitled to terminate the agreement in accordance with the law. Anything that already has been performed in accordance with the agreement, shall be settled pro rata between the parties.
Force majeure in relation to Linkest shall in any case include:
the circumstance where a performance (including a performance of the customer) that is important regarding the performance to be executed by Linkest has not, not in a timely manner or not properly, been executed;
strikes;
traffic obstructions;
acts of government that prevent Linkest from timely and/or proper fulfilment of its obligations;
riots, civil disturbance, wars;
extreme weather conditions;
fire; and/or
transport disruptions.
In case an unforeseen circumstance of such a nature occurs that the customer cannot expect Linkest to fulfil because of equity or natural justice, the judge can terminate the agreement as a whole or partially at the request of one of the parties.

Right of retention

Linkest is entitled to retain possession of all customer’s products that Linkest possesses for the customer, until the customer has fulfilled its obligations towards Linkest, with which the concerning products have direct or sufficient coherence. In case Linkest loses control over products covered by this right, Linkest shall be entitled to claim these products as if Linkest was the owner.

Termination

Each party is entitled to terminate the agreement with immediate effect, as a whole or partially, without any further notice of default or judicial intervention, in the cases described below and insofar as granted below:
in case the other party has applied for suspension of payments (surseance van betaling), in case the other party has obtained suspension of payments or in case the other party has been declared bankrupt (faillissement);
in case the company of the other party is liquidated voluntarily or involuntarily (opheffing);
in case the company of the other party merges or is acquired (fusie of overname);
in case a substantial part of the assets of the other party is seized and/or (beslaglegging);
in case other circumstances occur in which case the continuation of the company cannot reasonably be required.
Each party is entitled to terminate the agreement in the event the other party – after a notice of default in writing that is as clear and detailed as possible and includes a proposal for a reasonable period of time to correct or repair the defects – fails attributably to meet its essential obligations under the agreement, provided that the defects justifies the termination.
In the event the agreement is terminated, the claims of Linkest are immediately due and payable by operation of law and without any notice of default. In the event Linkest suspends the fulfilment of its obligations, Linkest maintains its claims deriving under Dutch law and the agreement.
In any case Linkest maintains the right to claim (full) damages.

Intellectual property

Linkest guarantees that products delivered by it do not infringe any Dutch patents, design rights or any other industrial or intellectual property rights of third parties.
Nevertheless if Linkest has to acknowledge or in case a Dutch judge determines in a lawsuit that is no longer appealable, that any product that any product delivered by Linkest infringes any of the third party’s right as referred to under paragraph 1 of this article, Linkest shall, at its own discretion, (i) replace such product with a product that does not infringe this right, (ii) acquire a right of licence in this respect, or (iii) take back such product against repayment of the paid sum, reduced by typical depreciations, without being required to further compensation.
In case the customer does not inform Linkest in a timely manner or not in full regarding the claims of third parties as referred to in paragraph 2 of this Article, the customer will not be entitled to the rights of performance as referred to in paragraph 2 and, in addition, Linkest has not been able to properly defend its right in this matter as a result thereof.

Transfer

The customer is not entitled to transfer its rights and obligations arising from any agreement concluded with Linkest to third parties, without the written permission of Linkest.

Privacy and security

Linkest respects the privacy of the customer. Linkest treats and processes all personal data transmitted to it in accordance with the applicable legislation, in particular the Personal Data Protection Act. The customer agrees to this processing. For the purpose of protecting the customer’s personal data, Linkest observes appropriate security measures.
For more information regarding privacy, reference is made to the Website of Linkest.

Final provisions

Any possible derogations in respect of these General Terms and Conditions may be agreed upon only in writing. No rights can be derived from these deviations with regard to future agreements.
The administration of Linkest serves as proof of purchase orders and requests of the customer, unless the customer proves otherwise. The customer acknowledges that electronic communication can serve as proof.
In case and to the extent that any provisions of these General Terms and Conditions are cancelled or declared invalid, Linkest shall draw up a new provision to replace the null/nullified provision, duly observing as much as possible the object and purpose of the annulled provision.
The place of the performance of the agreement is deemed to be the place where Linkest is located.

Governing law and jurisdiction

All disputes between Linkest and customer in relation to an agreement between these parties, or the agreements concluded in the performance of or in connection with such agreement, will be submitted exclusively to the competent of the district of the location of Linkest, unless Linkest and the customer have agreed otherwise in writing.
All agreements, and any non-contractual obligations arising thereto, between Linkest and the customer to which these General Terms and Conditions apply to, are governed by the laws of The Netherlands. The Vienna Sales Convention 1980 is explicitly excluded.