Tympro Hearing Protection BV
4817 ZB BREDA
Chamber of Commerce number: 20111001
hereinafter referred to as: Tympro
Article 1: Definitions
1. In these general conditions, the terms below are defined as follows, unless explicitly stated otherwise:
- Tympro: the user of the general terms and conditions;
- Contractor: Tympro’s (potential) contracting party, i.e. a trading party in business;
- User: the wearer of hearing-protection products delivered or to be delivered by Tympro to the Contractor;
- Offer/tender: all tenders and other offers made by Tympro to the Contractor;
- Agreement: the agreement(s) between Tympro and the Contractor, to which the present general terms and conditions apply;
- Purchase: the sale by Tympro of a (hearing-protection) product to the Contractor, while the Contractor purchases this product from Tympro, also relating to customised hearing protection products;
- Written: agreements, notifications and statements on paper or sent or received by email, by SMS, per WhatsApp etc.
- Hearing-protection products: the products (with any accessories and by-products) Tympro is (in particular) engaged in, including customised otoplastics and non-customised re-usables;
- Accessories and by-products: means of communication (such as headphones to be connected through an adapter to an otoplastic or headphones with blue-tooth functionality), cleaning agents (such as cleaning tablets and cleaning wipes) etc.
- Services: services offered by Tympro to the extent that these services do not provide for fitting and/or the personal delivery of the customised otoplastics, such as performing noise measurements/noise research, performing hearing tests and performing periodic leak tests and periodic maintenance for customised otoplastics;
- Personal delivery: Tympro offers as a service to personally deliver a customised otoplastic to the user, so that Tympro or the third party to be engaged by Tympro can perform a so-called leak test and - where necessary - adjust the attenuation of the hearing-protection product and can give the user a personal user instruction.
Article 2: General
1. The provisions of these general terms and conditions apply to every offer and every agreement between Tympro and the Contractor, insofar as the parties have not explicitly deviated from these conditions in writing.
2. These terms and conditions moreover apply to all agreements with Tympro, in which third parties need to be engaged for their execution.
3. Tympro expressly dismisses the applicability of any general terms and conditions of the Contractor, unless Tympro expressly notified the Contractor in writing of its acceptance of the Contractor's general terms and conditions. If, in addition to these general conditions, any general terms and conditions of the Contractor have also been declared applicable, these general terms and conditions of Tympro shall prevail in the event of any discrepancies.
4. Deviations from the Contractor's general terms and conditions are only valid if and insofar as they have been expressly agreed in writing between the parties.
5. If one or more provisions in these general terms and conditions are void or should be annulled, the other provisions of these general terms and conditions shall continue to be fully effective. Tympro and the Contractor will in that case consult with each other in order to agree on new provisions to replace the null and void or nullified provisions, which shall be as much as possible in keeping with the purpose and the scope of the original provision.
Article 3: Offers
1. All offers from Tympro are without obligation, unless a period for acceptance has been set in the offer. If no acceptance period is attached to the offer, the Contractor cannot derive any rights from the offer, unless Tympro has not immediately revoked the offer upon acceptance by the Contractor.
2. Acceptance shall in any case apply if and when:
a) the offer signed by the Contractor has been returned by Tympro, or;
b) in the absence of a signed offer, the offer is accepted in writing or verbally by the Contractor.
3. If the acceptance deviates (on minor points) from the offer included in Tympro's offer, this shall be regarded as a rejection of Tympro's offer and as a new offer from the Contractor to Tympro. In that case the agreement will not be concluded in accordance with this deviating acceptance, unless Tympro expressly states otherwise in writing.
4. Delivery times in Tympro's offers are indicative and therefore not deadlines, so that in case delivery times are exceeded this shall not result in a default on the part of Tympro and therefore does not constitute a shortcoming of Tympro and therefore does not entitle the Contractor to dissolve the agreement or to compensation, unless expressly agreed otherwise.
5. The prices in offers are in euros and exclusive of VAT and other government charges, unless explicitly stated otherwise in the offer.
Article 4: Execution of the contract
1. Tympro shall execute the agreement to the best of its knowledge and ability and in accordance with the requirements of professional practice, all of this on the basis of the technology available at such time.
2. If and where required for the proper execution of the agreement, Tympro has the right to have certain work performed by third parties.
3. The Contractor shall ensure that all data, of which Tympro indicates that these are required or of which the Contractor should reasonably understand that these are necessary for the (further) execution of the agreement, shall be provided to Tympro as soon as possible. The same applies to the purchase order if the Contractor makes the payment of invoices contingent on a purchase order or a purchase order number.
4. If the Contractor, having been held in default thereto by Tympro in writing with a deadline of at least two weeks, has not yet provided to Tympro the information and/or purchase order required for the (further) execution of the agreement, Tympro shall be entitled to:
a) suspend the performance of the contract, or;
b) dissolve the agreement.
All of the above without prejudice to Tympro’s claim to legal compensation.
5. If, pursuant to the provisions of paragraph 4 above, Tympro suspends its obligations under an agreement concerning the delivery of a customised hearing-protection product at a time when fitting has already taken place, Tympro is entitled to charging the Contractor with 50% of the order amount, which amount will be offset against the final invoice, subject to the handling charges up to an amount of 5% of the total order amount with a minimum of € 50.00. In that case, the handling fee will be additionally due to Tympro.
6. Tympro is not liable for damage of any kind whatsoever, when Tympro has based itself on incorrect and/or incomplete information provided by the Contractor - or by User on behalf of the Contractor - unless Tympro was aware of or should reasonably have known such inaccuracy or incompleteness.
7. Subject to the provisions of Article 5 paragraph 6 of the present general terms and conditions, the execution of the agreement takes effect:
a) with regard to the sale of customised hearing-protection products: from the moment the products are being fitted to the User or an impression is made of the User’s auditory canals;
b) with regard to the sale of all other products: from the moment of the start of the production and in the case of a finished product, from the moment of Tympro’s (internal or external) order;
c) with respect to Services: from the moment at which the actual execution of the Service commences.
8. If it has been agreed that the agreement will be executed in phases, Tympro may suspend the execution of those parts that belong to a following phase until Contractor has approved the results of the preceding phase in writing.
9. If Tympro or third parties engaged by Tympro have to execute work or services at the Contractor's location or at a location designated by Contractor for the fulfilment of an agreement, the Contractor will provide any facilities reasonably required for the fulfilment of the agreement to Tympro or third parties engaged by Tympro free of charge.
10. If Tympro or third parties to be engaged by Tympro have doubts about the condition of the User’s ear canal or other circumstances are present pursuant to which Tympro or the third party to be engaged by Tympro do not believe it is a good idea to fit the product and/or conduct a leak tests and/or to conduct a hearing test or anything else, then no fitting or leak test and hearing test or anything else shall be conducted. In that case Tympro is entitled to a purchase price equal to the already incurred (internal and external) costs related to the purchase, production, storage, transport and shipping costs etc. of the product or materials, plus payment for the work already performed pursuant to the hourly rate applicable or normally applied at Tympro.
Article 5: Delivery
1. Delivery of customised hearing-protection products shall take place from the time of personal delivery to the User, unless the User waives this service. In that case the delivery of the product takes place from the time of dispatch/delivery of the hearing-protection product to the address supplied by the Contractor or User, which equally applies to all other products, including a customised hearing-protection product of which the Contractor and/or the User has waived the service of personal delivery, and insofar as products have not been left behind in the personal delivery. With regard to non-customised products and non-personally delivered hearing-protection products, delivery takes place ex Tympro’s site in Breda.
2. An agreement can only be cancelled if and where this agreement relates to the delivery of a customised hearing-protection product. From the moment a customised hearing-protection product is fitted on the User, cancellation of the contract is only possible subject to payment of the agreed purchase price, less the savings arising from the cancellation for Tympro, not being savings on personal delivery. If the order for production and/or dispatch/transport of the hearing-protection product has already been given by Tympro, the costs associated with production and/or shipping/transport cannot be regarded as "savings", so that these costs do not involve a reduction of the purchase price.
3. After cancellation, the Contractor is entitled to deliver the hearing-protection product (without the right to personal delivery and without the right to periodic leak testing and maintenance), if and insofar as this product was a finished product at the time cancellation, provided that the Contractor made this request to Tympro within one week of termination in writing. If the Contractor does not make use of this right within this one-week period, Tympro is not obliged to hand over the product (whether or not as a finished product) to the Contractor and Tympro is entitled to have this product destroyed or reused.
4. If Tympro requires information from the Contractor for the execution of the agreement, including a purchase order as referred to in Article 4 paragraph 3 of the present general terms and conditions, the delivery period shall, notwithstanding the provisions in the general terms and conditions, only commence after this data have been provided to Tympro. An agreed delivery date will therefore be extended by the duration of the Contractor’s default in providing Tympro with the required information.
5. If Tympro has specified a delivery period, such period shall be indicative. A specified delivery time is therefore never a deadline. If a term is exceeded, the Contractor must give Tympro notice of default in writing, whereby a period of at least fifteen workdays for compliance must be granted.
6. Tympro is entitled to deliver the goods and Services in parts, unless this has been deviated from by agreement or if the partial delivery does not have an individual value. Tympro is entitled to invoice the delivered goods separately.
7. If it has been agreed that the agreement will be executed in phases, Tympro may suspend the execution of those parts that belong to a following phase until the Contractor has approved the results of the preceding phase in writing.
Article 6: Samples and models
1. If a sample or model has been shown or provided to the Contractor, it is presumed to have been provided as an indication only, while the goods need not meet the quality of the sample, unless it is expressly agreed that the item must correspond to the sample.
Article 7: Investigation, complaints
1. As soon as possible after the supply/delivery, however, within ten workdays at the latest, the Contractor must thoroughly investigate and verify that the delivered goods comply with the agreement and does not show any defects, and the Contractor must notify Tympro as soon as possible in writing after such investigation, however within five workdays at the latest, of the complaints, accurately stating the nature and details of the complaints.
2. If a defect develops later or in case of defects that are invisible upon delivery, the Contractor must report the defects within the shortest possible delay after their discovery, but no later than within the guarantee period referred to in Article 12 of the present general terms and conditions – to Tympro with an accurate statement of the nature and further details of the defects.
3. If complaints are timely and rightly filed pursuant to this Article, Tympro has the right to either repair the delivered goods or to replace the delivered goods. In the event of replacement, the Contractor undertakes at present for such time to return the item to be replaced to Tympro and to transfer the title to such item to Tympro.
4. The Contractor's failure to comply with the provisions of this Article will result in the cancellation of rights.
Article 8: Price, costs and invoices
1. Unless explicitly stated otherwise in the offer or unless the parties have expressly agreed otherwise, all prices are in euros and exclusive of VAT and other government charges.
2. With regard to customised hearing-protection products, all prices are, unless the offer expressly indicates otherwise or unless the parties have expressly agreed otherwise, including fitting prior to the production of the product, including personal delivery and including shipping and any transport and packing costs. If a Contractor and/or User does not wish to make use of the personal delivery, this does not give any entitlement to a price reduction.
3. If, however, a Contractor cancels an appointment for fitting or an appointment for personal delivery of customised hearing-protection product(s) or an appointment for Service less than three workdays before the scheduled appointment or the number of Users/persons to whom the appointment applies is reduced less than three workdays before the scheduled appointment, Tympro is entitled to charge the time scheduled for the relevant User(s)/persons or for the Service at the agreed hourly rate of Tympro or the hourly rate normally applied by Tympro.
4. With respect to non-customised hearing-protection products and any other products, all prices, unless expressly stated otherwise in the offer or unless the parties subsequently expressly agree otherwise, are exclusive of shipment costs and any packaging and administration costs.
5. Tympro is entitled to charge costs that are not included in the price or at the same time as the purchase price or separately to the Contractor.
6. A composite quotation does not oblige Tympro to deliver part of the goods and Services included in the offer at a corresponding part of the stated price.
7. The prices stated in an offer and/or in the agreement do not apply to repeat orders, unless expressly agreed otherwise.
8. In case there are more than two months between the time of the offer and the moment of commencement of the execution of the agreement, Tympro is entitled to adjust the price. If the Contractor does not wish to agree to such an adjustment, the Contractor shall, within one week of notification, however not later than before the start of the implementation of the agreement, terminate the agreement in writing, without any liability for either party to pay any compensation.
9. Tympro may, among other things, charge price increases if between the moment of the offer and the moment of execution of the agreement significant price changes have occurred in respect of, for example, exchange rates, wages, raw materials, semi-finished packaging material, etc. and in case of the annual inflation indexation.
10. Tympro is entitled to invoice the amount due by the Contractor from the moment that:
a) a customised hearing-protection has been produced, in compliance with the provisions of Article 4 paragraph 5 of the present general terms and conditions;
b) with regard to the compensation referred to in Article 8 paragraph 3 of these general terms and conditions, the relevant agreement will be cancelled or the number of User/persons for the appointment is being reduced;
c) a non-customised hearing-protection product, including means of communication and cleaning agents, is delivered to the Contractor;
d) a Service has been provided;
Article 9: Amendment of the agreement
1. If during the execution of the agreement it appears that for a proper execution it is necessary to change and/or supplement the products to be delivered, the work to be performed and/or the Services to be provided, the parties shall timely and in mutual consultation amend the agreement accordingly.
2. If the parties agree that the agreement will be amended and/or supplemented, this may cause the time of completion of the execution to be affected. Tympro will in that case notify Contractor as soon as possible.
3. Tympro shall notify the Contractor in advance of any financial and/or qualitative consequences from the change and/or addition to the agreement.
4. If a fixed rate has been agreed, Tympro will indicate to what extent the fixed rate will be exceeded caused by the change or supplement to the agreement. If the Contractor cannot agree to the increase of the fixed rate, both parties have the right to terminate the agreement, on the understanding that the Contractor is obliged to reimburse the costs incurred by Tympro at that time.
Article 10: Payment
1. Unless expressly agreed otherwise, payment must be made within 30 days after the invoice date, in a manner to be indicated by Tympro on the invoice and in the currency in which the invoice is submitted.
2. Complaints regarding the amount of the invoice must be submitted to Tympro in writing within fourteen days after the invoice date, with an accurate statement of the incorrect items in the invoice. After this period, the Contractor will no longer be entitled to filing any complaints.
3. The Contractor is not entitled to offsetting any amounts or to suspension of a payment.
4. If the Contractor fails to pay an invoice on time, the Contractor will be in default by operation of law and the Contractor will be due an interest of 1% per month on the outstanding amount, while a reminder or notice of default shall not be required.
5. If the Contractor still remains in default after a first reminder, the Contractor will furthermore be due to Tympro the extrajudicial costs amounting to 15% of the principal sum, with a minimum of € 1000.00.
6. In the event of liquidation of the Contractor and in cases of (an application for) suspension of payment, bankruptcy, applicability of the Act on the Debt-restructuring scheme for natural persons and in case the Contractor is placed under guardianship or the Contractor otherwise in whole or in part loses free control of her capital or income or in case the Contractor sells his business, then Tympro's claims against the Contractor will become immediately due and payable in full. Payments made by the Contractor are first of all deducted from the costs, then from the interest that has been accumulated and finally from the principal sum and the current interest, regardless of the specification given by the Contractor to the payment. Tympro is at all times entitled to demand payment of an advance on the (purchase) sum to be paid by the Contractor and/or to demand from the Contractor another security for the fulfilment of the obligations ensuing from the agreement.
Article 11: Retention of title
1. The title to all products delivered by Tympro shall be vested in Tympro until the Contractor has fulfilled all obligations, on any account, in respect of Tympro, both with regard to the delivery concerned and in connection with earlier or later deliveries and services performed.
2. The Contractor is not authorised to resell the items subject to the retention of title, unless the resale takes place with the permission of Tympro.
3. The Contractor is not authorised to pledge the goods that fall under the retention of title or to encumber them in any other way.
4. The Contractor must inform any third party, who wishes to seize or has seized (including seizure by the tax authorities on matters that are related to the respective land) matters that are subject to retention of title, or the receiver or the trustee in case of suspension of payment/debt restructuring or bankruptcy, immediately and through the fastest means of communication (at the time of attachment to the bailiff in person and immediately thereafter by telephone and through confirmation by e-mail [and if it is not possible by e-mail, in another fast written manner] to the client of the bailiff), of the fact that the goods in question belong to Tympro, with the concurrent notification by e-mail (in a cc) to Tympro and, in case communication by email is not possible, as soon as possible by sending a copy of this written notice to Tympro.
5. The Contractor undertakes to insure the goods delivered under retention of title and to keep them insured against fire, explosion and water damage as well as against theft and to provide the policy of this insurance to Tympro at first request.
6. During the period that the goods are under the Contractor and/or the User or any other third party, but no payment has yet been made of the Contractor's amounts due to Tympro, the Contractor must ensure to properly look after the goods and with due care, in any case in a manner that damage to or loss of the items shall be prevented.
7. The Contractor must inform Tympro at first request and within twelve hours about the location of the goods subject to the retention of title, on penalty of a fine of € 500.00 per day that the Contractor has failed to comply with this request in time.
8. If the Contractor fails to comply with its obligations in respect of Tympro or if there is reasonable fear that the Contractor will not comply with its obligations and in all cases referred to in Article 10 paragraph 6, Tympro shall be entitled to claim the actual return of the goods subject to the retention of title.
9. In the event Tympro wishes to assert its rights of retention referred to in this Article, the Contractor will at present give its unconditional and non-revocable consent to Tympro or third parties to be designated by Tympro in order to enter all those places where the property of Tympro is located and to take such items back.
Article 12: Guarantee
1. Tympro guarantees that the products to be delivered have the properties that the Contractor could reasonably expect pursuant to the agreement, and without defects, which guarantee will be cancelled after the expiration of the following (guarantee) periods:
a) with regard to customised otoplastics, one year from the date of delivery, provided that in the event of any defect in the second year after delivery, 75% of the purchase price will be reimbursed to the Contractor. After two years, no further guarantee will be provided with regard to the customised otoplastics, except that the otoplastics can be insured via Tympro in those years, in which case 50% of the purchase price will be reimbursed in the third year and 25% of the purchase value in the fourth year;
b) re-usables: one year from date of delivery;
c) with regard to other products: after expiry of the guarantee period provided by the producer.
2. If the Contractor and/or User does not wish a personal delivery of a customised hearing-protection product, the guarantee provision regarding the quality of the fit and attenuation will be completely cancelled. In that case, the Contractor has nothing to expect from the fit and the attenuation level of the hearing-protection product.
3. The guarantee referred to in this Article also applies if the goods to be delivered are intended for a Contractor and/or User residing and/or established abroad, provided that the Contractor has explicitly notified Tympro of this at the time this agreement was concluded.
4. If the Contractor has filed a complaint to Tympro within the aforementioned guarantee periods in the manner referred to in Article 7, Tympro has the right to either rectify the delivered goods or to replace the delivered goods or to refund (the share due in) the purchase value of the product, without being otherwise liable for damages. In the event of replacement of the product or restitution of the purchase value, the Contractor commits itself at present for such case to return the item to be replaced to Tympro and to transfer the title to the item to Tympro.
5. If Tympro has not proceeded to rectification and/or replacement within one month of the complaint referred to in paragraph 4 of this Article, the Contractor shall be entitled to give Tympro notice of default with due regard for a period of at least fourteen days.
6. The guarantee referred to in this Article does not apply if the defect was caused due to irresponsible or improper use of the delivered goods and/or if changes have been made to the delivered goods by the Contractor or third parties without Tympro’s written permission, or if they have tried to make changes to the delivered goods and/or have used the delivered goods for purposes other than those for which the delivered goods are intended.
Article 13: Suspension and dissolution
1. Tympro is entitled to suspend the fulfilment of obligations in respect of the Contractor and/or dissolve the agreement(s) if:
a) The Contractor does not, not fully or not timely fulfil the obligations arising from any agreement and is in default with its fulfilment or Tympro has good reasons to fear that the Contractor will fail its obligations in respect of Tympro;
b) The Contractor or the User does not cooperate within two months after the conclusion of the agreement to the fitting of the hearing-protection product, including the impossibility to schedule an appointment for a fitting within two months after the conclusion of the agreement, unless the cause is fully due to Tympro.
c) A case as referred to in Article 4 paragraph 3 and 4 of these general terms and conditions exists;
d) Tympro requires further security pursuant to Article 10.8 and the Contractor does not comply with this request to the satisfaction of Tympro;
e) The Contractor is being liquidated or an application thereto has been filed, the Contractor has been granted a moratorium, the Contractor has been declared bankrupt, the Act on the Debt restructuring scheme for natural persons has been declared applicable to the Contractor or the Contractor has been placed under guardianship, the Contractor loses his free control of (part of) his assets or income in whole or in part or the Contractor sells his business;
f) circumstances arise of such a nature that fulfilment of the agreement(s) by Tympro is impossible or, by standards of reasonableness and fairness, can not or no longer be required of Tympro or, with regard to only the right to dissolution of the agreement, if other circumstances arise which are such that unaltered maintenance of the agreement cannot reasonably be expected.
2. If Tympro proceeds to suspension or dissolution, it shall in no way be obliged to compensate the loss caused in any way whatsoever and Tympro retains all other rights under the agreement and the law, including the claims for damages against the Contractor.
3. If Tympro proceeds to dissolution of the agreement, the claims of Tympro against the Contractor are immediately due and payable and in full.
Article 14: Return of provided goods
1. If, before or at the conclusion of the agreement or in the performance of the agreement, Tympro has temporarily provided items to the Contractor, whether or not for the purpose of the execution of the agreement, the Contractor will be obliged to return the temporarily provided goods to Tympro in the original state, free of defects and in full, at Tympro’s first request; in failure of which the Contractor undertakes to compensate Tympro for all damage resulting from the non(-timely and/or complete) return, including the costs of replacement.
Article 15: Liability on the part of Tympro
1. Tympro bears no liability whatsoever for indirect damage, including - but not limited to - consequential damage, loss of profit, missed savings and damage due to interruption of operations.
2. Tympro bears no liability in respect of the Contractor for damage (including damage resulting from injury) resulting from the fitting and/or personal delivery of hearing-protection products and/or the periodic performance of leak tests at the User and/or the periodic maintenance of hearing-protection products and/or the purchase of a hearing test, unless the damage was exclusively caused by incompetent actions on the part of Tympro or by third parties engaged by Tympro, who should have been aware of or reasonably should have known the risk of damage.
3. Tympro is not liable for damage, which is partly or wholly caused by acts or omissions of the Contractor, the User or other third parties.
4. Tympro is not liable for damage, which has been caused because a customised hearing-protection product was delivered to Contractor/User without personal delivery.
5. If Tympro is liable under the present conditions, the agreement and/or the law for any damage, the liability shall be limited to the amount to be paid by its insurer, including the deductible excess borne by Tympro under the insurance.
6. If and where the insurance offers no cover for damage in a certain case, Tympro's liability will be limited to twice the invoice value of the delivered item to which the damage is related.
7. The limitations and exclusions of liability included in this Article (and otherwise in the general conditions and agreement) do not apply if the damage is due to intent or gross negligence on the part of Tympro or of management staff to be identified with Tympro.
8. Legal entities or persons who are directly or indirectly involved by Tympro in the execution of the agreement in any way whatsoever, may also legally appeal to the provisions of this Article.
Article 16: Transfer of risk
1. The risk of loss or damage to the products that are the object of the agreement shall transfer to the Contractor at the time they are legally and/or effectively delivered at the Contractor and are consequently brought into the control of the Contractor or of third parties, but no later than one month after the invitation for personal delivery was sent to the Contractor, unless the Contractor has explicitly indicated in writing to Tympro that it does not require personal delivery.
Article 17: Force Majeure on the part of Tympro
1. If Tympro is unable to or not timely or properly fulfil its obligations arising from the agreement due to a non-attributable cause ("force majeure"), the obligations shall be suspended until the time Tympro is still capable of performing these obligations as agreed.
2. Force majeure shall include, in addition to the provisions of Book 6, Article 75 of the Dutch Civil Code: strikes, transport or business failures (for example due to an IT or power failure) in the company itself or in Tympro’s suppliers and/or auxiliary staff, extreme weather conditions, traffic conditions , theft, fire, war risk, governmental measures, including in any event import and export prohibitions, quota restrictions, and breach of contract by Tympro’s suppliers and/or auxiliary persons.
3. Tympro furthermore has the right to invoke force majeure if the circumstance preventing (further) performance occurs after Tympro should have fulfilled its obligation.
4. If the period in which fulfilment of Tympro’s obligations is not possible due to force majeure lasts longer than three months, each of the parties shall be entitled to dissolve the agreement, without any compensation being due by Tympro or by the Contractor.
5. To the extent Tympro has partly fulfilled or will be able to fulfil its obligations under the agreement at the time of force majeure, and individual value can be attributed to the part fulfilled or to be fulfilled, Tympro shall be entitled to separately invoice the part fulfilled or to be fulfilled. The Contractor undertakes to pay this invoice as if it were a separate agreement.
Article 18 Viruses and defects
If the Contractor provides Tympro with information Users, electronic files or software etc., the Contractor guarantees that the information Users, electronic files or software are free of viruses and defects.
Article 19: Indemnity for claims by third parties
1. The Contractor must indemnify Tympro and any third parties engaged by Tympro against:
a) all claims for damages from third parties, including from the User, with regard to which Tympro's liability in the relationship with the Contractor is excluded and/or limited;
b) for claims from third parties with regard to intellectual property rights to materials or data provided by Contractor to Tympro that are used in the performance of the agreement.
2. Contractor undertakes to support Tympro both in and outside a court of law, if Tympro is held liable by a third party for a claim for damages under paragraph 1 of this Article. The Contractor is in that case also obliged to immediately take any actions that may be expected of him in that case. If the Contractor fails to take adequate measures, Tympro is entitled to take these measures without prior notice of default. All damage (including costs) on the part of Tympro and third parties engaged by Tympro shall be fully for the account and risk of the Contractor.
Article 20: Intellectual property and copyrights
1. Copyrights, trademarks, design rights and all other industrial and intellectual property rights to all items delivered by Tympro, promotional materials and created offers etc. shall be deemed to remain the property of Tympro, even if these have been manufactured on the instructions or at the direction of the Contractor.
2. If User Documentation has been provided to the Contractor, the Contractor is not permitted to disclose such documentation to third parties without Tympro’s prior written permission, or to multiply it for purposes other than for its own use.
3. The Contractor is not permitted to make changes to the delivered items, unless the nature of the delivery requires otherwise or it has been agreed otherwise in writing.
4. Any designs, sketches, drawings, films, software and other materials or (electronic) files created by the Tympro under the terms of the agreement shall remain Tympro’s property, regardless of whether they have been provided to the Contractor or to third parties, unless otherwise agreed.
5. Tympro reserves the right to use any knowledge gained due to the execution of the work for other purposes, to the extent that this does not cause any confidential information to be disclosed to third parties.
6. For each infringement committed in violation of the previous paragraphs (directly or indirectly through third parties), the Contractor shall be due to Tympro a fine of € 50,000.00 per infringement and of € 5,000.00 per day that the infringement continues, without prejudice to Tympro’s right to claim to compensation, to the extent the penalty payable does not cover the damage.
Article 21: Non-solicitation clause
1. During the term of the agreement, as well as one year after its termination, the Contractor shall in no way, except with Tympro’s permission, employ employees of Tympro or of companies which Tympro has engaged for the performance of this agreement and which are or have been involved in the execution of the agreement, or to have them work for itself in any other way, either directly or indirectly. For each infringement committed in violation of the previous paragraph (directly or indirectly through third parties), the Contractor shall be due to Tympro a fine of € 50,000 per infringement and of € 5,000.00 per day that the infringement continues, without prejudice to Tympro’s right to claim compensation, to the extent the penalty payable does not cover the damage.
Article 22: Competent court
1. Disputes will be submitted to the competent court within the District Court of Zeeland-West Brabant, location Breda, with the exclusion of any other court, provided that Tympro is furthermore entitled to summon the Contractor before the court that according to the law has jurisdiction.
Article 23: Applicable law
1. Contracts concluded by Tympro and the offers made by Tympro are governed by Dutch law only. The applicability of the Vienna Sales Convention is not excluded.
Article 24: Modification, interpretation and location of the terms and conditions
1. If a dispute arises with regard to the interpretation of text, the Dutch version of these general terms and conditions filed with the Chamber of Commerce in Breda shall prevail.
These general terms and conditions have been filed at the Dutch Chamber of Commerce on 18 October 2018.