GENERAL TERMS AND CONDITIONS ULTRA-X
PC Diagnostics is part of Ultra-X B.V.
1. Applicability terms and conditions
(1) These general terms and conditions shall apply to all legal relationship of Ultra-X B.V. and/or its group companies (“Ultra-X”) on the one hand and their clients, former and potential clients on the other hand, such clients hereinafter together referred to as “the Client”.
(2) These general terms and conditions shall, without limitation, apply to:
(a) all offers of Ultra-X;
(b) all agreements under which Ultra-X provides goods, services, including, without limitation, software and hardware and/or combinations thereof;
(c) all other obligations and/or rights and/or remedies of Ultra-X towards or against a Client regardless the source thereof.
(3) Deviations from and additions to these general terms and conditions shall only be valid if agreed on in writing.
(4) Any general terms and conditions of the Client are hereby rejected.
2. Prices and pictures
(1) Prices published by Ultra-X on its website or otherwise, may be incorrect. Prices are only binding upon Ultra-X confirming such prices to the Client e.g. in an offer to a specific Client or in an order confirmation.
(2) The outward appearance of the product delivered may deviate from illustrations published on Ultra-X’ website or elsewhere. Such deviation will not constitute any default of Ultra-X in any way.
(1) It is the own responsibility of the Client to ensure that its systems meet the requirements necessary to run Ultra-X’ products.
(2) Title 1 of book 7 Burgerlijk Wetboek (Dutch Civil Code) does not apply.
(3) Delivery and shipping dates communicated in any way to the Client are not binding. In the event a delivery date is not met, no default of Ultra-X can occur unless Ultra-X has been given (a) a written notice of default send by registered mail providing for a term of at least 45 days to allow Ultra-X to repair such default; and (b) Ultra-X fails to repair such default.
(4) Ultra-X is entitled to engage third-parties to perform its obligations.
(5) Ultra-X is always entitled to halt execution of an order and/or an agreement, providing Ultra-X shall refund any amounts pay, e.g., without limitation, in the event the product is out of stock, export restrictions apply, and/or the Client is based outside Ultra-X’ territory of sale.
4. Price and payment
(1) The Client shall pay Ultra-X’ invoices in accordance with the payment conditions specified in the respective agreement. In the absence thereof, the Client shall pay within fourteen days of the invoice date.
(2) Prices are exclusive of turnover tax (VAT) and withholding tax if applicable and exclusive of all other comparable levies or taxes.
(3) If the Client does not meet a payment term, by virtue of law, the Client shall have to pay interest in accordance with 6:119A Burgerlijk Wetboek (Dutch Civil Code). Further the Client shall pay all of Ultra’s reasonable costs of recovery such outstanding amount with a minimum of EUR 350,-- per event. Such reasonable costs of recovery shall include, without limitation, all legal fees, costs of investigation of the Clients whereabouts and property, bailiffs’ costs, translation costs, court fees and the like.
5. Confidential information
(1) The Client shall keep secret any information of a confidential nature relating to Ultra-X disclosed to the Client or to another person on behalf of the Client including, without limitation, any information relating to Ultra-X’ products (especially in respect of their code and performance), operations, processes, product information, know how, design rights and trade secrets.
(2) The Client shall not reverse engineer the software that form part of the product delivered unless and in as far expressly allowed under the applicable Dutch law.
(3) This article 5 does not apply to confidential information:
(a) to the extent that the confidential information is or comes into the public domain other than by breach by the Client of the agreement;
(b) which the Client can show by its written or other records was in its possession prior to receipt from Ultra-X and which had not previously been obtained from Ultra-X or another person under an obligation of confidence;
(c) which the Client obtains or has available from a source other than Ultra-X without breaching any obligation of confidence.
6. Intellectual property rights
(1) All intellectual property rights of Ultra-X and/or relating to the product delivered or to be delivered including, without limitation, copyrights, trademark rights, patents and all rights in non-registered inventions, model rights, trade name rights and database rights, shall be held solely by Ultra-X, its licensors and/or its suppliers.
(2) The Client shall only acquire the right of use expressly granted in the agreement. The Client may only use the products delivered in its own company, on its own systems and in the manner detailed in the agreement. Further, the right of use is limited to the number of end users detailed in the agreement. In the event no number of end users is specified, the product can only be used by one end user. Such right of use cannot be transferred and is not exclusive.
(3) The Client is not allowed to lease, sell, rent, or give access to third parties in respect of the products delivered.
(4) The Client will not change, delete or block or otherwise tamper with any trademarks or copyright notices and/or any other propriety notices affixed on the products delivered. (5) The Client will not unlock, break, or otherwise tamper with any of the protective measures aimed at protecting the product delivered against use beyond the license granted and nor will the Client attempt to do so.
7. IP Guarantee
(1) Ultra-X guarantees the Client that the delivered products do not infringe any intellectual property right that can be enforced in the Netherlands. Ultra-X does not provide any further guarantee in respect of the IP. Ultra-X does not guarantee, without limitation, that a delivered product does not infringe an intellectual property right that e.g. outside the Netherlands may be used to oppose the use of the product delivered or the sale by Ultra-X thereof. This limited guarantee is without prejudice to limitations of liability detailed in these general terms and conditions.
(2) In the event: (a) the Client does not inform Ultra-X in writing within fourteen days of the day the Client became aware of an alleged infringement; and/or (b) the Client does not inform Ultra-X properly and in full in respect of the alleged infringement and/or the claim made; and/or (c) the Client tries to settle the claim itself without prior consent of Ultra-X; Ultra-X’ obligation out of the guarantee as detailed in paragraph 1 of this article will lapse.
(3) If a third-party action is based on the claim that a product infringes an intellectual property right, Ultra-X has the right to modify or replace the delivered product by comparable products.
(4) The Client shall provide its full cooperation free of charge in defending Ultra-X against the claim made.
8. Limited warranty
(1) Ultra-X’ products contain software. The Client acknowledges that software generally will not perform without faults. Further, performance of Ultra-X’ products heavily depends on the systems used. Ultra-X therefore can, in respect of performance of its products, only warrant that on its own systems, the products will perform materially conform the specifications published to the Client.
(2) Ultra-X cannot guarantee that its products are faultless; neither does Ultra-X guarantee that its products will serve the Client’s purpose.
(3) In the event the software contained in the product does not function in accordance with the specifications on the Client’s system, the liability of Ultra-X (notwithstanding any provision regarding liability elsewhere in these terms and conditions) shall always be limited to the delivery (through download or through a tangible medium in Ultra-X’ sole discretion) of a new copy of such software.
(4) Ultra-X provides limited assistance to its Clients during office hours through the phone number(s), email address, forms etc. published on its website.
(1) Ultra-X shall accept returns of products delivered only upon prior authorization by Ultra-X, such authorization to be provided in Ultra-X’ sole discretion. Such authorization may be subject to: (a) Sufficient proof of the purchase by the Client with Ultra-X; (b) Sufficient proof that a malfunction is actually present.
(2) Without prejudice to article 8, software cannot be returned.
(3) The Client shall act in accordance with Ultra-X’ further return procedures (if any) as published on its website or otherwise communicated to the Client by Ultra-X.
(4) Ultra-X may provide prior authorization in the form of an RMA number. The Client shall, in such event, mark the return products package with the RMA number in such way that such number shall be easily identifiable and clearly readable. An RMA number shall be valid for 30 days.
(5) Costs of return to Ultra-X shall be paid by the Client and the transport shall be fully on the Clients risk. The Client shall have to return the product itself as well as all accessories and documentation.
(6) In the event the product was malfunctioning, Ultra-X will send a replacement or repaired product to the Client, the costs of which will be for Ultra-X with the exception of brokers’ and customs’ fees. Article 10.2 applies.
(7) In the event the Client shall not act in accordance with Ultra-X procedures and/or these terms and conditions, all rights of the Client regarding replacement of a malfunctioning product under an agreement shall lapse.
(8) Ultra-X shall not have to accept any product sent without authorization, without proper identification, that otherwise is not dealt with in accordance with its return procedures or these terms and conditions and/or for which transport is not sufficiently paid.
10. Property and risk
(1) All products delivered shall remain Ultra-X’ property, until the Client has met all of its payment obligations.
(2) All risks, such as loss or damage to the product, passes to the Client upon leaving Ultra-X’ premises. Transportation to the Client shall be for the Client’s risk.
(1) All liability of Ultra-X is excluded with the exception of liability caused by gross negligence or intent by members of the board of directors and/or executives of Ultra-X.
(2) Only in the event and to the extend exclusion of the liability as defined in the preceding paragraph, can, in a specific case, be annulled on the grounds of article 6:233 sub a Burgerlijk Wetboek (Dutch Civil Code), subparagraphs a-c of this paragraph will apply.
(a) The liability of Ultra-X shall be limited to the amount that Ultra-X received for the products delivered or, in the event such latter amount shall be higher, to the amount actually paid out under an insurance that covers the event that causes the damage or losses.
(b) In the event Ultra-X may recover the Client ’s damages and losses wholly or partly with a third party and such recovery will probably lead to amounts actually received by Ultra-X higher than the amounts stated in the preceding subparagraph, Ultra-X shall be entitled, in its sole discretion, to assign its claim on such third party to the Client against full discharge of the claim the Client has or pretends on Ultra-X.
(c) Any liability of Ultra-X is always limited to direct damage suffered. Direct damage shall solely refer to out of pocket expenses that the Client must make in connection with the event that gives rise to Ultra-X’ liability. Loss of goodwill, loss of future sales or earnings, claims by third parties for other than direct damages, own personnel hours and all other kinds of damage or injury shall be excluded.
12. Force Majeure
(1) Failure by Ultra-X to perform its obligations or delay in such performance as a result of an Act of God, war, strikes, lock-outs, shortened working hours, other industrial action, machine breakdown, export restrictions, fire, flood, explosion, injunctions, judgements, adverse claims, default of its supplier or licensors, illness of its personnel and/or any cause or other beyond Ultra-X’ reasonable control shall not constitute a breach of the terms of an agreement for Ultra-X.
(1) If any provision of these general terms and conditions is null and void or annulled, the other provisions of the terms shall remain in full force.
(2) The headings of these terms and conditions are for convenience only and are not in any way binding upon the parties.
(3) Ultra-X’ electronic or physical administration will provide full evidence of any and all of Ultra-X’ statements. However, the Client shall be entitled to provide evidence to the contrary.
(4) The Vienna Sales Convention does not apply to any agreement between Ultra-X and the Client.
(5) These general terms and conditions shall be governed by and construed in accordance with the laws of the Netherlands.
(6) The Amsterdam District Court shall have exclusive jurisdiction in all disputes between the Client and Ultra-X.