GENERAL TERMS AND CONDITIONS

Maxicom IT Distribution B.V.

Chamber of Commerce registration no. 271195138

August 2021

ARTICLE 1: APPLICABILITY/DEFINITIONS

1.1 These terms and conditions are applicable to every offer, sale and lease of products (both material and non-material in nature), services and supplies, as well as those purchases of products, which are hereinafter referred to as ‘asset(s)’, made by Maxicom IT Distribution B.V. (which is registered with the Chamber of Commerce under number 27195138 and hereinafter referred to as MAXICOM and/or its affiliated subsidiaries/companies as described in the Netherlands Civil Code, Book 2, Articles 24 a up to and including 24 b) to third parties, and to all offers, supplied products and/or delivered services undertaken on behalf of the other party, as well as to all agreements in the broadest sense of the word entered into with third parties by MAXICOM.

1.2 The ‘other party’ referred to in these terms and conditions means the buyer (see Definitions), lessee, client, user, supplier and seller of “Assets” as described in Appendix 8, where it is not relevant whether the definition is spelled with a capital or not.

1.3 The following definitions apply to delivery of products as they apply to Offers by MAXICOM or its supplier and where the condition of these products is mentioned to the other party;
a. “New”: the Item is 100% new and has a sealed box with tape from the manufacturer. The Item may have been pre-owned but is absolutely 100% new, never used;

b. “New-retail”: this describes Items that are purchased new from a distributor or manufacturer; they are intended for re-sale and carry a manufacturer’s warranty;

c. “New open box – may be missing some accessories”: indicates the Items that may have been opened and some of the accessories are missing. It is highly possible that these Items may be part of the cancelled configured orders or demo stock that has not been used but has been kept in the original packaging, maybe subject to warranty. These Items come with a warranty;

d. “Unused – sealed in the original packaging”: this describes the Items that have never been used and the package has not been opened. It may be the excess inventory that has been stored for some time. In some cases, the manufacturer’s warranty may have expired;

e. “Offer”: any Offer from the MAXICOM, whether or not in the form of a written quotation which is superseded by a prevailing (purchase) order (hereinafter to be referred to as: “the Order”) from the other party.

f. “Purchaser”: the purchaser of the other party, the natural person or legal entity to whom the other party has resold the Items supplied – either for own use or otherwise;

g. “Refurbished”: indicates the Items that definitely have been used and may properly have some form of Smartnet or maintenance contract. However, the Items may be re-sprayed and refurbished by the the other party’s supplier through a highly standard procedure and restored in a plain box;

h. “Used products”: indicate that the Items have been used and come with a 30 day warranty. The other party is obliged to describe the condition of used Items to purchaser. It is the puchaser’s decision whether or not it wants to purchase the Item;

i. “Factory refurbished/ certified refurbished”: these are used Items that were tested and re-sprayed by the OEM. These Items come with a warranty;

j. “Wholesale”: used Items that that are in mint condition sold by the OEM through selected partners. These Items come with an OEM warranty and original boxes and can be recognized by the letters WS after the part number;

1.4 a. MAXICOM undertakes a range of business activities in the area of automation and communication technology. The nature of the various activities means that these general terms and conditions consist of a general section and a specific section (the appendices).
b. Provisions have been added in the appendices for the various activities relating to a number of Articles in these terms and conditions. The deviating provisions in the relevant appendix shall prevail insofar as these additional provisions deviate from that which is included for the relevant topic in the general section.

c. A number of provisions in the appendices include specifics with regard to that which is stipulated in general terms in the general section. These specifics should, amongst other things, be read as examples. They are not exhaustive and do not impede the additional effect of that which is stipulated by MAXICOM in the general section, nor do they restrict the rights of MAXICOM that are not described in these terms and conditions.

1.5 These terms and conditions apply within and outside of the Netherlands, irrespective of the residence or domicile of the parties to any agreement and irrespective of the place where the agreement is formed or should have been enforced.

1.6 Due to the applicability of these general terms and conditions the applicability of all general terms and conditions used by the other party and/or general terms and conditions introduced at any moment relating to purchase and/or otherwise is excluded for all agreements concluded or to be concluded between the other party and MAXICOM.

1.7 If the other party inspects or could have inspected these terms and conditions in a language other than Dutch and there is a difference of opinion about the interpretation of the text the Dutch version shall prevail above the foreign language version unless MAXICOM renounces this explicitly in writing.

ARTICLE 2: OFFERS

2.1 Unless stated specifically otherwise in writing, all offers, quotations and cost estimates from MAXICOM are entirely without obligation.

2.2 The statements provided by MAXICOM in images, websites, multimedia, catalogues, folders, drawings or in any other way concerning the size, capacity, performance, colour, material structure, finish or results must be regarded as an approximation and provided without obligation.

2.3 MAXICOM is not bound by the statements given in sub 2.1 and 2.2 and therefore accepts no liability whatsoever for any inaccuracies in this information.

2.4 Unless agreed explicitly otherwise in writing, all offers from the other party are final.
2.5 MAXICOM retains the right, without giving reasons, to reject offers and orders from the other party, to supply on a ‘cash on delivery’ basis only or to demand payment in advance.

ARTICLE 3: ORDERS/AGREEMENTS

3.1 An order means: every agreement with MAXICOM, irrespective of whether it is for the performance of work, the provision of personnel, material or space or any other form of performance, such being in the broadest sense of the word.

3.2 a. All agreements from other parties concluded with MAXICOM, where MAXICOM for instance is the purchaser or client, shall only become binding for MAXICOM after written confirmation by MAXICOM

b. All agreements from MAXICOM concluded with other parties, where MAXICOM for is the seller or contractor shall only become binding for MAXICOM after written confirmation by MAXICOM or because MAXICOM has commenced performance of the order.
c. Any supplements or changes to the aforementioned agreements shall only become binding for MAXICOM after and insofar as they have been accepted by MAXICOM and confirmed in writing.

d. The other party shall be deemed to have accepted changes or supplements to agreements with MAXICOM if the other party has not objected to this (these) change(s) and/or supplement(s) in writing within 8 days after the other party has become aware of or could have become aware of the change/supplement.

e. The other party is deemed to be aware of the intended change/supplement at the moment that MAXICOM has commenced the work to which the change/supplement relates.
f. Only the Board and any person explicitly authorised by the Board for that purpose can and may conclude agreements on behalf of MAXICOM.

3.3 Unless agreed explicitly otherwise in writing, MAXICOM has the right at all times to arrange for part or all of the order to be undertaken by third parties, whereby these terms and conditions shall also work in favour of these third parties, on condition that MAXICOM authorises them, if necessary subsequently, in writing to invoke these terms and conditions without this authorisation creating any obligations whatsoever to MAXICOM.

3.4 MAXICOM has the right to dispose of and/or encumber the agreements concluded with the other party without the need for MAXICOM to seek the permission of the other party. The other party is not permitted to exercise such acts.

3.5 Where MAXICOM agrees with the other party to provide a service to the other party this shall be an obligation to perform this service to the best of one’s ability.

3.6 MAXICOM is free to choose whom it shall engage to provide the service agreed with the other party. Unless agreed otherwise explicitly in writing, it is also free to choose to replace this person or persons and/or third party as it sees fit.

3.7 In the event that MAXICOM supplies and/or makes equipment and/or software available to the other party as part of the agreement and this equipment and/or software is the subject of licenses granted to MAXICOM by third parties the other party shall be subject to all of the provisions of those licenses and shall indemnify MAXICOM against all consequences from the use of that equipment and/or software that is in conflict with the provisions of those licenses.

3.8 In the event that MAXICOM supplies and/or makes available equipment and/or software applications to the other party as part of an agreement, which have been developed by and/or for MAXICOM, or in respect of which the other party otherwise becomes aware of, these may not be used by and/or on behalf of the other party for any purpose other than that for which the equipment and/or software was supplied and/or made available to the other party. These applications may not be copied and/or distributed by the other party in any way whatsoever unless this is with the prior written permission of MAXICOM.

3.9 Unless otherwise explicitly agreed in writing, the other party is responsible for the removal of all software and/or data from the “Assets” purchased by MAXICOM. The other party shall indemnify MAXICOM for all claims related to loss or disclosure of data. The other party is in all cases responsible for securing the data and/or software and is required to back up the data before delivery of the products to MAXICOM. In no circumstance can MAXICOM be held liable by the other party for the loss of data and /or software.

3.10 In the event that MAXICOM has agreed with the other party in writing to wipe the data and/or software, MAXICOM has an effort obligation. In the event the wiping of data and/or software has been agreed with the other party or in the event MAXICOM deems it necessary to remove the data and/or software, MAXICOM will use the tools and knowledge at its disposal. MAXICOM will not be held liable by the other party if it appears afterwards that the tools and knowledge MAXICOM used for removal of the data and/or software was not sufficient to prevent the restoring the removed data/and or software partially or in its entirety.

3.11 Disputes that supervise the quality and / or qualifications delivered by the other party in “Assets” will then not prevent the performance of the service sold by MAXICOM to the other party and the obligations of the other party regarding this service. It never gives the other party the right to set off and / or not take the service for those reasons.

ARTICLE 4: LIABILITY AND PRODUCT LIABILITY

4.1 With the exception of that which is stipulated in Article 9 of these terms and conditions, MAXICOM is not liable for any loss, either direct and/or indirect ̧ that is the result of failure to comply with the products and/or services provided by and/or on behalf of MAXICOM under the agreement – including additional work – unless this is the result of an intentional act or gross negligence. MAXICOM is likewise not liable towards the other party in any way whatsoever in the event that its suppliers remain in default nor is MAXICOM liable in the event of damages as a result of major calamities such as fire, water damage and external contingencies such as wars and earthquakes for example.

4.2 Insofar as the other party or a third party engaged by the other party is involved in the execution of a transaction between MAXICOM and the other party on the basis of co-work and/or the provision of assistance, MAXICOM shall not in any way whatsoever and in any form whatsoever be liable for any damage caused on the part of the other party and/or the third party that it engages; nor shall MAXICOM be liable towards the other party’s ultimate client.

4.3 If, for any other reason relating to the agreement, MAXICOM is held liable for compensation, the compensation owed shall always be limited to the highest invoice amount (excluding value added tax) in relation to the supplied products and/or services up to a maximum of 11,500 euro (in words; eleven thousand and five hundred euro).

4.4 A claim under these terms and conditions shall not suspend the other party’s payment obligation towards MAXICOM.

4.5 A condition for assessing whether a request for compensation is to be handled is that the other party directly and immediately reports the damage to MAXICOM by registered letter containing sufficient detailed information. Every entitlement for the other party to claim compensation from MAXICOM shall be cancelled on the mere expiry of six (6) months after the loss occurred or after this could reasonably have been discovered.

4.6 For product liability the following applies;

4.6.a. The other party is liable for all damage and losses MAXICOM incurs either directly or indirectly as a result of a defect in the Items/deliveries due to a failure of the other party to meet its obligations under the Order or Agreement, the applicable warranty/guarantee and these General Terms and Conditions of Purchase or by reason of an unlawful act, a violation of official safety regulations or other reasons attributable to or which lies within the responsibility of the other party.

b. The other party shall assume full responsibility and shall indemnify, defend and hold MAXICOM, its affiliated companies, and its respective officers, directors, employees, customers, users and agents (hereinafter collectively to be referred to as: “Indemnitees”) harmless from and against all allegations, suits, actions, losses, damages, claims, or liability of any character, type, or description, including without limiting the generality of the foregoing, all expenses of litigation, court costs, and attorneys’ fees (hereinafter collectively to be referred to as: “Damages”), received or sustained by any person(s) or property, arising out of, occasioned by, attributable or related to i) the Items/deliveries; ii) any breach of any representation or warranty made by other party; iii) any failure by the other party to perform or fulfill any of its covenants or due to its acts or omissions; iv) any litigation, proceeding or claim by any third party relating in any way to the obligations of the other party; or v) any act or omission, negligent or otherwise, in the performance of any contract, whether by Other party, its subcontractors or employees. If, based on no-fault liability vis-à-vis third parties, claims are made against MAXICOM on the basis of foreign law which may not be varied by Agreement between the parties, the other party shall further intercede on MAXICOM’s behalf to the same extent as if the MAXICOM were directly liable to the third party.

c. The other party represents and warrants to the Indemnitees that the Items/deliveries shall not infringe any intellectual property rights including, without limitations, claims arising from patent, copyright, trademark, trade secret, or other intellectual property infringement. The other party agrees to hold the Indemnitees harmless from and defend the Indemnitees against any such (alleged) claim of intellectual property infringement, including any Damages resulting from that claim, the cost to Indemnitees of complying with any preliminary or permanent injunction, and all other costs of defense (including the attorneys’ fees and costs), in connection with any breach of the foregoing.

d. The other party shall assume all costs and expenses – including the costs of any legal action – MAXICOM may incur as a result of any of the circumstances referred to in this Article.

e. MAXICOM reserves the right to conduct settlement with its customers and/or other effected third parties where necessary for business purposes and without the other party’s liability being affected in any way by such settlement. The other party is obliged to take out insurance and remain insured against the liability referred to in this Article and shall allow MAXICOM inspection of the insurance policy and the accompanying premium payment receipts on its first demand.

A condition for assessing whether a request for compensation is to be handled is that the other party directly and immediately reports the damage to MAXICOM by registered letter containing sufficient detailed information. Every entitlement for the other party to claim compensation from MAXICOM shall be cancelled on the mere expiry of six (6) months after the loss occurred or after this could reasonably have been discovered.

ARTICLE 5: DELIVERY DATE AND PLACE OF DELIVERY

5.1 The delivery date and/or delivery period stated in the quotes, confirmations and contracts for the products and/or services to be supplied by MAXICOM is a rough estimate of the target moment for delivery/realisation and/or completion. MAXICOM shall endeavour to comply with this as much as possible, however, it is non-binding for MAXICOM.

5.2 If MAXICOM exceeds the delivery date and/or delivery period for whatever reason and whether or not excessively, shall never give the other party the right to claim compensation, termination of the agreement or breach of any obligation on MAXICOM that may arise under the relevant agreement or under any other agreement that may or may not be associated with this agreement.

5.3 a. Delivery by and/or on behalf of MAXICOM shall be made ex-works MAXICOM or at another place determined by MAXICOM. This shall also apply to non-material products such as, for example, but not limited to digital communication.
On handover by MAXICOM of the products to be delivered to and/or on behalf of the other party, MAXICOM is entitled to demand that valid proof of identity of the recipient, being the other party or third party engaged by the other party, is provided. MAXICOM is also entitled to make and archive a copy of that ID for the benefit of its administration.

b. On the other hand, all deliveries by the other party shall be made carriage paid to MAXICOM’s premises and/or to another location determined by MAXICOM.

5.4 a. If the products or services offered by MAXICOM to the other party on delivery are not accepted by the other party then the other party shall automatically be in breach and the products and/or services offered shall be kept available for the other party for a period of 8 days at the expense and risk of the other party. After the aforementioned period, MAXICOM has the right to recover from the other party as compensation for the damage suffered and to be suffered the total amount that the other party would have owed in the event of timely compliance in relation to the contested transaction, plus all costs incurred as a result of the non-compliance by the other party plus back interest, without this requiring any further notice of default and/or supply obligation in relation to the contested products.

b. Irrespective of whether MAXICOM invokes the aforementioned right to compensation for loss suffered and/or to be suffered, it shall have the right, by the mere lapse of the aforementioned availability period of 8 days, to freely possess the contested products and to dispose or not dispose of those products.

5.5 The other party must ensure that the room to be used by the other party or on its behalf for the service agreed with MAXICOM is equipped adequately in order to facilitate a successful delivery and/or installation by MAXICOM. If this is not the situation, in full or in part, MAXICOM shall be entitled to apply that which is stipulated in Article 10 of the general section or to charge the other party for the costs of the suffered delay and/or the modifications to be made.

ARTICLE 6: TRANSPORT AND TRANSPORT RISK

6.1 MAXICOM shall determine the method of transport and the means of transport.

6.2 a. Unless agreed explicitly otherwise in writing, the transport of the products ordered from, repaired by and/or maintained by MAXICOM shall be undertaken at the cost and expense of the other party.
b. Unless agreed explicitly otherwise in writing, the transport of products from the other party to MAXICOM, also in the case of Assets purchase as described in Appendix 8, shall also be undertaken at the cost and expense of the other party.

c. In the event that MAXICOM has arranged and pre-paid and/or paid the costs for the transport, the other party shall be liable for any damage suffered during transport.

6.3 The other party must ensure proper accessibility to the object where the products/services to be provided by MAXICOM or on its behalf are to be delivered and/or collected. If, in the opinion of MAXICOM, the object is not properly accessible MAXICOM cannot be obliged in any way whatsoever by and/or on behalf of the other party to still deliver the products.

Despite this, if MAXICOM does assist with the delivery of the products, MAXICOM shall be entitled to charge the other party for the additional costs it has had to incur for this.

6.4 a. The products to be delivered to the other party shall only be delivered to ground floor. Products to be collected by MAXICOM from the other party must be properly accessible at the moment of collection on the ground floor.
b. If the products have to be delivered to or collected from a location other than on the ground floor, MAXICOM cannot be obliged to make that delivery or collection by or on behalf of the other party. If MAXICOM assists with the delivery or collection at a location other than on the ground floor it shall be entitled to charge the other party for the additional costs incurred for that and the risks shall also be entirely at the expense of the other party.

c. If at the time of the delivery or collection the other party is not present and/or appears unable to take receipt of the products or to make the products available or is otherwise in default then MAXICOM shall have the right to convert the delivery into a collection obligation, or delivery obligation on the other party at an address specified by the carrier or MAXICOM. This shall be after the other party has been notified of this by means of written notice left for the other party. The extra costs associated with this shall be entirely at the expense of the other party.

6.5 a. On arrival/receipt of the products the other party must satisfy itself of the condition of the products. If it appears that the products or material has been damaged the other party must then take all measures to recover compensation from the carrier.
b. By signing for the products without lodging a protest against the proof of receipt, issued by or on behalf of MAXICOM/the carrier, the other party declares that it has received the products in good condition.

c. If the other party takes receipt of the products but fails to sign the proof of receipt issued by or on behalf of MAXICOM/the carrier, the other party declares that the products have been received in good condition.

6.6 Unless agreed explicitly otherwise in writing, if MAXICOM allows the other party to return to MAXICOM and/or its supplier – in full or in part – the products supplied by and/or on behalf of MAXICOM then this shall only be permitted on the basis of the “RMA and conditions”. MAXICOM has the right to only make the content of the “RMA and conditions” procedure known before the return, without this interfering with the applicability of this provision. In that case this provision shall not be eligible for set-aside.

6.7 a. If the other party returns the products in conflict with the “RMA and conditions” MAXICOM shall have the right to refuse their acceptance or can accept their receipt without the other party being able to derive any rights from that.
b. In the event of sub 6.7a, MAXICOM has the right to retain possession of the products as additional security, the right to subsequently return the products to the other party again at the other parties expense and risk, the right to offer the products for collection by the other party, whether or not after payment by the other party of the outstanding amounts it owes, and MAXICOM has the right – after the expiry of 4 weeks – to sell, dispose of or destroy/have destroyed the returned products if the other party remains in default in any aspect against MAXICOM.

ARTICLE 7: PRICES AND COSTS

7.1 a. Unless agreed explicitly otherwise in writing, for each order MAXICOM shall set a separate price or a rate in euro, excluding VAT where applicable.
b. This price or rate is exclusively intended as the amount to be paid for the products or services to be provided by MAXICOM, including the normal costs associated with that.

c. The prices stated in the quote are based on cost price factors, exchange rates, wages, taxes, rights, charges, freight, etc., prevailing at that time. In the event of an increase in these factors MAXICOM has the right to correspondingly change the quoted (sale) price. MAXICOM also has the right to change the price for current agreements at any moment, as it deems fit, by an inflation correction according to the Dutch or European consumer price index (CPI).

7.2 The price or the rate excludes levies from the government and/or other bodies, including penalties, insurance premiums, etc.

7.3 MAXICOM has the right to demand payment in advance or security (in the form of a bank guarantee).

7.4 MAXICOM retains the right to charge for collection costs and/or shipping costs.

ARTICLE 8: PAYMENT TERMS

8.1 Unless agreed explicitly otherwise in writing, the payment of the invoices sent by MAXICOM is to be made within 14 days after the date of the invoice, without deduction of discounts and without any kind of offset.

8.2 Unless agreed otherwise, payment of rental instalment is to be made exclusively before the start of the rental period, subject to a maximum payment term of 14 days.

8.3 MAXICOM is authorised to offset its outstanding claims against the other party, including for additional work, against the amounts it owes to the other party, or to another entity belonging to the group or organisation of the other party. The other party waives any right to offset with regard to mutually owed amounts.

8.4 Invoices from the other party and/or on behalf of the other party that MAXICOM receives later than six months after delivery of the products from the other party shall not be accepted. The other party’s right to payment shall lapse on expiry of the period stated in this paragraph.

8.5 MAXICOM is authorised to raise part invoices for orders that will be delivered in parts and to demand payment for such invoices in accordance with that which is stated in relation to invoice payment in Article 8.

8.6 If the other party has authorised a standing order for the total amount of the order to be collected automatically from its account this shall concern a one-off and irrevocable collection instruction. However, in the event of a failed collection, MAXICOM has the right to issue a new collection order at the expense of the other party.

8.7 MAXICOM has the right to demand further security if the other party’s creditworthiness gives cause for this. As long as that security is not provided by the other party, MAXICOM shall have the right to suspend the work and/or the delivery, such being without prejudice to its right to demand compliance and/or compensation.

ARTICLE 9: CLAIMS

9.1 a. Any claims regarding both the delivery of products by MAXICOM and the services provided by MAXICOM and in respect of its invoice amounts must be submitted to MAXICOM in writing and by registered letter within 7 days after receipt of the relevant products, services and/or relevant invoices, with precise details of the facts to which the claims relate.

b. Where it is agreed that the transport risk rests with MAXICOM, the transport claims for the delivered products must be submitted by and/or on behalf of the other party within 2 working days, with precise details of the facts to which the claims relate. Insofar as the damage is deemed to be immediately visible on receipt, the damage must also be recorded on the carriage note / delivery note signed by or on behalf of the other party.

9.2 Unless agreed explicitly otherwise in writing, insofar as the submitted claim relates to the return of products it shall be subject to MAXICOM’s “RMA and conditions”. The other party can find the “RMA and conditions” in the “RMA and conditions” Appendix in these terms and conditions. These conditions can also be requested from MAXICOM.

9.3 The right of the other party to make a claim shall be cancelled with regard to products that have been processed by or on behalf of the other party.

9.4 The other party cannot derive any rights from MAXICOM’s agreement to investigate a claim and/or acceptance of the RMA Request. A claim does not release the other party for its payment obligations towards MAXICOM.

9.5 The other party is not only obliged to immediately stop the use, processing and/or installation of the relevant products and/or services and to also do and arrange everything that is reasonably possible to prevent (further) damage. The other party is also responsible to immediately – on first request – provide full assistance to MAXICOM within a reasonable period of 10 working days in order for the claim to be handled.

9.6 Claims from the other party with regard to the clauses in these terms and conditions as referred to, amongst other things, in Article 6:233 sub a of the Netherlands Civil Code (invalidity with regard to one or more clauses on the basis of being unreasonably onerous) must also be submitted to MAXICOM in writing by recorded delivery with precise details of the fact to which the claim relates within 5 days after inspection of these terms and conditions or the moment at which they could have been reasonably become aware of. The other party’s right to claim shall be cancelled at the moment the agreement is formed.

9.7 If claims submitted by the other party fail to comply with that which is stipulated above they can no longer be accepted and the other party is deemed to have accepted the products delivered and/or service provided. In that case, MAXICOM cannot be held liable by the other party and/or on behalf of the other party in any way whatsoever and in any form whatsoever for the alleged claim and the consequences of that.

9.8 If MAXICOM is of the opinion that a justified claim has been submitted it shall have the right to either determine in mutual consultation to pay a financial sum to the other party as compensation in relation to the value of the products forming the justified complaint or to make a new delivery under the existing agreement or to properly repair the delivered products or to terminate the agreement, such being under the obligation on the part of the other party to return to MAXICOM (carriage paid) the incorrect or defective products; this being at MAXICOM’s discretion.

9.9 MAXICOM is only obliged to investigate submitted claims when the other party has met in full all of its existing obligations towards MAXICOM at the time the claims are submitted, irrespective of the agreement under which they exist or their nature.

9.10 MAXICOM has the right to refuse to accept return shipments that are not franked or are insufficiently franked or inadequately packed. All return shipments from the other party are to be undertaken exclusively under the applicability of the “RMA conditions” (see Articles 6.6 and 6.7) and are at the expense and risk of the other party.

9.11 MAXICOM has the right to charge the other party the extra costs incurred by MAXICOM with regard to the handling of claims submitted by or on behalf of the other party that are unjustified.

ARTICLE 10: CANCELLATION/TERMINATION AND SUSPENSION

10.1 If the other party fails or continues to fail to comply with its obligations with regard to one, multiple and/or all supplies made by MAXICOM, work undertaken and/or for any other reason, MAXICOM has the right to suspend all or some of its obligations towards the other party and/or to cancel/terminate the underlying agreement in full or in part without MAXICOM being held liable in any way whatsoever by the other party and without prejudice to MAXICOM’s rights.

10.2 MAXICOM also has the right stated in 10.1 in the event the following situations arise with regard to the other party; committing of punishable acts that affect the business relationship with MAXICOM as well as the good name and reputation of MAXICOM, bankruptcy, suspension of payments, accession to the Debt Management (Natural Persons) Act, other forms of debt management, liquidation of legal form / business activities, seizure or – in MAXICOM’s opinion – the threat of one or more of these situations, including tax arrears. All claims by MAXICOM against the other party shall in that case become immediately due and payable without the need for any breach notice and/or default notice being required.

10.3 If the other party wishes to terminate/cancel the agreement(s) it has concluded with MAXICOM then MAXICOM shall have the right to demand compliance with the concluded agreement(s) or – at MAXICOM’s discretion – the other party must pay cancellation/termination costs of at least 30% of the financial value of the agreement.

MAXICOM also has this right for the situations stated in 10.1.

10.4 In the event of cancellation or termination of lease and/or contract agreements the other party shall owe at least the remaining instalments under the relevant agreement, subject to a minimum of 50% of the original financial value of the agreement.

10.5 In all of the cases referred to in Article 10, MAXICOM also has the right to recover from the other party all losses suffered or to be suffered by MAXICOM and/or on its behalf in any way and/or in any form whatsoever.

10.6 In all of the cases referred to in Article 10 MAXICOM cannot be held liable in any way whatsoever by and/or on behalf of the other party for any direct or indirect consequences experienced as a result of any of MAXICOM’s actions pursuant to this Article.

10.7 MAXICOM has the right to continue the performance of the agreement concluded with the other party or to suspend the performance in part or in full until after the moment it provides its approval, insofar as MAXICOM considers this necessary for the performance and/or continuation of the agreement.

ARTICLE 11: LATE PAYMENT OR NON-PAYMENT CHARGE

11.1 If the invoices sent by MAXICOM are not paid within the agreed term from the date of the invoice the other party shall be deemed to be in default by operation of law.

11.2 In the event of late payment or non-payment, MAXICOM has the right, without the need for further notice of default, to charge the other party interest from the due date of the invoice on the entire amount owed by the other party, such interest being at the statutory overdue interest rate subject to a minimum of 1% per month or part thereof. This is without prejudice to MAXICOM’s further rights, including the right to charge the other party for all costs associated with the collection, both judicial and extrajudicial collection costs, the latter of which is fixed in advance at 15 % of the amount to be collected, subject to a minimum of 250.00 euro (in words; two hundred and fifty euro).

11.3 Where the legislator has determined under law that the extrajudicial collection costs to be paid by the other party, the other party shall owe the extrajudicial collection costs determined in that order.

ARTICLE 12: RETENTION OF TITLE

12.1 As long as the other party fails to make payment in full to MAXICOM for all of the products, parts and installations supplied by MAXICOM and/or work undertaken by MAXICOM, all of the products supplied shall remain the undisputed property of MAXICOM.

12.2 The other party is responsible for ensuring the careful handling of the products supplied and for insuring them against normal risks and unless it has written permission from MAXICOM and for as long as the other party has failed to meet all of its obligations towards MAXICOM, it shall not have the right to sell and/or re-sell, encumber, lease out, make available for use and/or pledge (without notice to the debtor) the products.

12.3 If and for as long as MAXICOM remains the owner of the products supplied, the other party shall notify MAXICOM immediately if the products supplied are seized and/or threaten to be seized, or if any other claim is made against (any part of) the products supplied. Furthermore, the other party shall (in that case) notify MAXICOM of the location where the products it owns are located. In the event of seizure or (provisional) suspension of payments, the other party shall immediately inform the bailiff making the attachment or the administrator of MAXICOM’s (title) rights. The other party guarantees that an attachment on the products will be lifted immediately.

12.4 If the other party fails to meet any obligations arising under the agreement with regard to the sold products and/or work undertaken, MAXICOM shall have the right – without the need for further notice of default – to take possession of the products or materials, in which case the agreement shall be terminated without legal intervention and without prejudice to MAXICOM’s right to claim judicial or extrajudicial compensation for any loss suffered or yet to be suffered by MAXICOM, including: losses incurred, loss of profit, interest, transport costs, etc..

12.5 When data carrier products are recovered under retention of title, MAXICOM can in no way be held liable by and/or on behalf of the other party for the loss of data, software and such like that is present on those products. MAXICOM has the right – also without being held liable in any way whatsoever towards or on behalf of the other party – to remove and/or destroy at any moment, in full or in part, the information present on those products.

12.6 MAXICOM retains the right to take actual possession of products, tools, materials, cars, money, securities, (financial) records, data received or generated, documents, software, databases, etc., belonging in any way to the other party and which MAXICOM holds, until such time as the other party has fully complied with its financial and other obligations towards MAXICOM.

12.7 For transactions with the other party which is based in a country where an extended retention of title is applicable, MAXICOM has the right to declare at any moment the extended retention of title in that country applicable, without the need to notify the other party of this in advance.

ARTICLE 13: FORCE MAJEURE

13.1 Force majeure releases MAXICOM from its obligations towards the other party. The following are regarded as force majeure factors on the part of MAXICOM: such events and situations that have a demonstrable and direct effect on MAXICOM’s business practices such as, though not limited to: major faults in its production process, war (including outside of the Netherlands), riot, epidemic, fire, power failure, traffic disruption, strike, lock-out, IT or telecom failure or disruption, loss of or damage to transport, staff accident or illness, import restrictions or other government restrictions, etc.. MAXICOM shall be released from its obligations irrespective of whether the force majeure has occurred at its own premises or elsewhere, for example at the premises of suppliers, transport companies, wholesalers, etc..

13.2 In the event of disruption to the performance of the agreement as a result of force majeure MAXICOM has the right, without legal intervention, to either suspend the performance of the agreement for a maximum of six months and/or to terminate the agreement in part or in full, such at the discretion of MAXICOM, without MAXICOM being held liable in any way whatsoever by or on behalf of the other party. The other party shall receive written notification of the decision taken by MAXICOM in this respect.

ARTICLE 14: INTELLECTUAL/INDUSTRIAL PROPERTY RIGHTS, IMAGE RIGHTS AND DESIGN PROTECTION

14.1 Unless otherwise agreed in accordance with the provisions in 14.2the intellectual and industrial property rights, image rights and design protection of all products produced and services provided, etc. by MAXICOM, including those for the benefit of the other party, are the property of MAXICOM. The use or alternative use of these MAXICOM rights, designs and/or ideas, in full and/or in part, is strictly prohibited unless permission has been explicitly granted by MAXICOM in writing and all of the conditions set for this by MAXICOM have been met in full.

14.2 The transfer of an intellectual property right by MAXICOM to the other party can only occur explicitly and in writing.

14.3 If the parties agree in writing that an intellectual property right for software, websites, databases, equipment or other materials which has/have been developed specifically for the other party is to be transferred to the other party this shall have no impact on the right or the possibility of MAXICOM to use and/or exploit without restriction, the parts, general principles, ideas, designs, preparation materials, algorithms, documentation, works, programming language, etc. on which that development is based, for other purposes, either for itself or for third parties. Nor shall this affect the right of MAXICOM to undertake developments for itself or for third parties that are similar or which are derived from those developments made or to be made for the benefit of the other party.

14.4 All intellectual property rights relating to software, websites, databases, equipment or other materials such as analyses, designs, documentation, reports, quotes as well as the preparatory material in respect of these, and which have been developed on the basis of an agreement or which have been made available to the other party, shall be vested in MAXICOM, its license provider or its supplier. The other party shall only expressly obtain a user right which shall be explicitly granted via these general terms and conditions, the written agreement concluded between the parties and under law. A user right granted to the other party shall be non-exclusive, non-transferrable, non- pledgeable and may not be sub-licensed.

14.5 The other party shall not remove or have removed or change or have changed any details in the software, website, databases, equipment or materials relating to their confidential nature or relating to the copyrights, marks, trade names or any intellectual property right.

14.6 The other party guarantees that no third-party rights preclude availability to the supplier of the equipment, software, material destined for websites, databases and/or designs for the purposes of use, maintenance, processing, installation or integration. The other party indemnifies MAXICOM against all claims by a third party based on the assertion that such availability, use, maintenance, processing, installation or integration infringes any right of that third party.

14.7 MAXICOM shall never be responsible for data conversion unless this is agreed explicitly with the other party in writing.

14.8 If the other party fails to adhere to that which is stipulated above under 14.1 up to and including 14.7, MAXICOM shall claim – without the need for further notice of default and/or legal intervention – a penalty of at least 11,500 euro (in words; eleven thousand five hundred euro) per day or part thereof during which the breach continues. The aforementioned shall be without prejudice to all other rights such as the right to recover losses from the other party and/or related third parties.

ARTICLE 15: PRIVACY, CONFIDENTIALITY, SECURITY, NON-ACQUISITION

15.1 The privacy statement of MAXICOM applies to the processing of personal data for which MAXICOM is responsible. This can be consulted on the website of MAXICOM (www.maxicom-it.com).

15.2 The other party is responsible within the meaning of the General Data Protection Regulation (GDPR) for the data that are processed using a service provided by MAXICOM to the other party. The other party guarantees that the content, the use and / or the processing of the personal data concerned takes place in accordance with the obligations of a controller under the GDPR, are not unlawful and do not infringe any right of a third party. The other party indemnifies MAXICOM against any legal claim by third parties in connection with these data or the execution of the agreement, unless and insofar as there is a question of joint and several responsibility as provided for in the GDPR for MAXICOM as the processor of the personal data.

15.2 Responsibility for data processed using a service provided by MAXICOM rests exclusively with the other party. Within the framework of its normal business activities MAXICOM can transfer this data to other associated entities or to other relevant business partners who will, in that case, be able to inspect that data. The other party warrants that the content, the use and/or the processing of the relevant data is not illegal and does not infringe any third-party right. The other party indemnifies MAXICOM against any legal action by third parties relating to this data or the performance of the agreement.

15.3 The other party shall take appropriate technical and organizational measures, maintain and, if necessary, adapt the data to protect the personal data against destruction, either accidentally or unlawfully, against accidental loss, forgery, unauthorized distribution or access, or any other form of unlawful processing. These measures ensure, taking into account the state of the art and the costs of implementation, an appropriate level of security in view of the risks involved in the processing and the nature of the personal data to be protected. These measures are also aimed at preventing unnecessary collection and further processing of personal data.

15.4 The other party will only process personal data of which MAXICOM is a processor in the Netherlands.

15.5 The other party instructs its employees (own or hired) that they do not act contrary to the Processor Agreement.

15.6 The other party will immediately notify the Data Protection Officer or its equivalent of MAXICOM of security incidents by reporting this security incident to the agreed address. An incident here refers in any case to an infringement of the security of personal data.

15.7 The other party and MAXICOM will meet at the highest level of upcoming changes in laws and regulations and in mutual consultation to make the desired or necessary adjustments in, for example, the security measures to be taken.

15.8 If and in so far as MAXICOM has to process personal data on behalf of the other party, the parties will enter into a processing agreement.

15.9 MAXICOM has the right to allocate access and identification codes to the other party and to change the allocated access and identification codes. The other party shall handle the access and identification codes confidentially and with due care. MAXICOM shall never be liable for losses or costs resulting from the use or misuse of the access and identification codes unless the misuse has been possible due to a direct consequence of an intentional act or gross negligence on the part of MAXICOM management personnel. .

15.10 The other party is responsible for ensuring that all data received from MAXICOM in respect of which the other party knows or should reasonably know that it is of a confidential nature, remains confidential. If the other party receives confidential data it shall only use this data for the purpose for which it has been provided and shall protect that data in an adequate manner. In any event, data shall be regarded as being confidential if it is designated as such by either of the parties.

15.11 In the event of breaching that which is stipulated in 15.5 the other party shall pay compensation for the resulting damage. Furthermore, for each breach the other party shall owe an immediately due and payable penalty of 25,000 euro (in words; twenty-five thousand euro). For each day that the breach continues, the other party shall pay to MAXICOM a sum of 5,000 euro (in words; five thousand euro).

15.12 During the term of the agreement and/or the business relationship between MAXICOM and the other party, and for a period of one year immediately thereafter, without the explicit written permission of MAXICOM the other party is prohibited from attempting to entice, even via third parties, the person/persons who have performed work for the benefit of the other party on behalf of MAXICOM and/or who have performed similar work to a greater or lesser degree, to join the other party and/or affiliated company/organisation/entity as: an employee, an independent or if the person/persons is/are made available on secondment by a third party. A breach of this prohibition is subject to a penalty amounting to the annual salary for one year, with a minimum of 25,000 euro (in words; twenty-five thousand euro) plus 5,000 euro (in words; five thousand euro) for each day that the breach continues. This penalty shall be due and payable immediately to MAXICOM upon discovery of the breach, without the need for legal intervention and any other form of notification of default and/or breach.

This shall also be without prejudice to the other rights and claims that MAXICOM can invoke against the other party in order, for example (not exhaustive), to recover money and losses yet to be suffered, such being without prejudice to the rights that MAXICOM can invoke against the relevant person(s).

ARTICLE 16: GUARANTEES

Without detracting from the provisions in Appendix 10, the following applies to guarantees:

16.1 Unless agreed otherwise in writing, MAXICOM provides a guarantee for the products it supplies that is the same guarantee it receives from the manufacturer or supplier. In those cases, the other party is provided with a guarantee according to the provisions of the guarantee clause from the manufacturer that is supplied with the product. Before making a claim under such a “Factory Guarantee” the other party must contact the manufacturer in the first instance.

16.2 Insofar as the manufacturer has agreed with MAXICOM that the guarantee will (in part) be implemented via MAXICOM or insofar as MAXICOM has agreed explicitly with the other party that MAXICOM shall handle any “Factory Guarantee” claim with the manufacturer on behalf of the other party and the other party contacts MAXICOM in accordance with the “RMA and conditions” then MAXICOM shall only act as an intermediary between the other party and the manufacturer. In these cases, the “RMA and conditions” described in Appendix 9 are applicable. MAXICOM is not responsible and/or liable in any way whatsoever for the duration and/or the quality of the Factory Guarantee.

16.3 If MAXICOM is to provide a guarantee directly to the other party then that shall only be the case when this is agreed explicitly in writing by MAXICOM with the other party.
In that case, the guarantee conditions described in Appendix 10 shall be applicable, unless agreed explicitly otherwise in writing, for example by means of the guarantee provisions of the guarantee certificate for the products supplied by MAXICOM and in that event the conditions stated in Appendix 10 shall serve as a supplement to those. In the event of conflict the provisions of the guarantee certificate shall prevail.

16.4 In the case of a Factory Guarantee and a claim is made against this by the other party it can only be determined whether the claim in relation to the product supplied is covered by the scope of the Factory Guarantee after the nature of the complaint has been established definitively by or on behalf of the guarantee provider.

16.5 If the claim is not covered by the scope of the Factory Guarantee and MAXICOM has – on the request of and/or on behalf of the other party or on the request of and/or on behalf of the manufacturer – supplied replacement products to the other party before the definitive establishment, then MAXICOM shall have the right to charge the other party for the costs of the replacement product for the duration it is in the possession of the other party, including the costs of return transport, which shall equate to MAXICOM’s normal rental that is applicable for that product.

16.6. With regard to products, the following applies to MAXICOM.

16.6.a. If no explicit warranty/guarantee period has been agreed, a period (of):

a. 90 days after delivery shall apply for the Items mentioned under Article 1.3.g;

b. 30 days after delivery shall apply for the Items mentioned under Article 1.3.h;

c. one year after delivery shall apply for the Items mentioned under Article(s) 1.3.a and 1.3.b and 1.3.c and 1.3.d and 1.3.i, and

d. equal to the OEM- warranty shall apply for the Items mentioned under Article 1.3.j.

e. for batteries a maximum warranty period of 90 days shall apply independent of the status of the product.

16.7. For Items that are destined to be processed in, on or to other Items, the warranty/guarantee period shall not commence until the day of processing.

16.8. If the Items are intended to be resold, the warranty/guarantee period shall not start until the day that the Items have been received by the Purchaser.

16.9. In the event of repair or replacement during the warranty/guarantee period, a new warranty/guarantee period shall be established for the repaired or replaced Items and for all other Items which were unusable as a result of the defect. The new warranty/guarantee period shall become effective from the time of commissioning or putting the Items into service after repair or replacement of the Items.

16.10. The other party warrants/guarantees that it has authorization from the brand-owner to sell the delivered Items within Europe and the European Union. The other party is not entitled to recover the Items from MAXICOM if it turns out that it wasn’t authorized to (re)sell the Items. The other party agrees to assume full responsibility for and shall indemnify MAXICOM against claims, lawsuits, damages, losses, liabilities, settlements or payments flowing from infringement of patents, copyrights, trademarks or any other intellectual property right of any third party.

16.11. The other party is aware that MAXICOM consigns the Items to its customers and Purchasers all over the world. This does not invalidate a claim by MAXICOM under any warranty/guarantee or on account of non-conformity, and the other party shall in such a case remedy the defects in accordance with the provisions of this Article. MAXICOM is entitled to assign the warranty/guarantee rights to its customers and Purchasers at any time.

ARTICLE 17: PRODUCTS ON APPROVAL AND/OR DISPLAY PRODUCTS

17.1 Only if MAXICOM has confirmed this in advance in writing to the other party can the products offered and supplied by or on behalf of MAXICOM be regarded as products on approval and/or display products for shows, exhibitions, fairs and/or for other purposes specified by MAXICOM.
Unless agreed explicitly otherwise in writing, these products shall be supplied to the other party by MAXICOM on a loan basis.

17.2 The other party undertakes to return to MAXICOM on first request the products it receives under the applicability of this Article, with due regard for the agreement concluded by MAXICOM with the other party in this respect and/or the notification relating to this issued by MAXICOM. It also applies here that the products shall in that case be returned to MAXICOM under the “RMA and conditions” and the return shipment shall be undertaken at the expense and risk of the other party.

17.3 If the other party fails to return the products referred to above under Article17 within the reasonable period of 10 working days or within another period agreed explicitly in writing with MAXICOM then MAXICOM shall have the right to regard the relevant products as having been sold to the other party and invoice the other party for them at new value.

ARTICLE 18: GOVERNING LAW AND COMPETENT COURT

18.1 All quotes, orders and agreements concluded with MAXICOM are governed by Dutch law.

18.2 All disputes shall be subject to the judgement of the absolute competent court in the court district of The Hague or the judgement of another competent legal body, such being at the discretion of MAXICOM.

18.3 MAXICOM can and may freely invoke the law of the country in which the other party is established at any time. In that case, and in deviation from that which is stated under 18.2, the dispute shall be subject to the absolute competent court in the territorial jurisdiction of the other party.

18.4 The applicability of the Vienna Sales Convention is excluded.

18.5 If any article or sub-article of these “General Terms and Conditions” is in conflict with the law and/or mandatory law and consequently has no effect or is not applied by MAXICOM then this shall have no impact on the validity of the other articles.

19. EXPORT CONTROL

19.1. As part of the Agreement the Supplier shall deliver to MAXICOM all the (spare) parts, accessories, Documents, including but not limited to a REACH-statement including supporting report(s), a CE-declaration including supporting reports proving compliance with the relevant EU-legislation.

19.2. In addition, the other party shall comply with the relevant legislation (eg EMC and RoHS), an IEC 60825 certificate or an equivalent thereof, an IEC 60950 certificate or an equivalent accession number including confirmation letter and other attachments or documents belonging to the items or requested by the MAXICOM.

19.3. the other party shall comply with all applicable export control, customs and foreign trade regulations (hereinafter referred to as “Foreign Trade Regulations”) and shall actively advise MAXICOM without undue delay on any information and data required by the MAXICOM to comply with all Foreign Trade Regulations in case of export and import as well as re-export, including without limitation:

a. all applicable export list numbers, including the Export Control Classification Number according to the U.S. Commerce Control List (ECCN);

b. the statistical commodity code according to the current commodity classification for foreign trade statistics ;

c. the HS (Harmonized System) coding;

d. the country of origin (non-preferential origin);

e. Supplier’s declaration of preferential origin (in case of European suppliers) or preferential certificates (in case of non-European suppliers);

f. An accession number of the Food and Drug Administration of the United States of America (FDA).

19.4. In case of any breach of the obligations referred to in this Article the Supplier shall be fully liable for any expenses and/or damage deriving of such breach and indemnifies and hold harmless MAXICOM from any claim of any third party based upon such breach.

 

APPENDICES – GENERAL:
a.
 MAXICOM refers to the provisions of article 1.3 it has made regarding the applicability of additional activities and / or activities mentioned in the appendices.

b. The activities included in the appendices will apply per agreement and concern the following activities:

  1. Services
  2. Secondment and consultancy
  3. Repair, maintenance and support
  4. Software and/or programs
  5. Software as a service
  6. Cloud solutions and hosting
  7. Equipment leasing
  8. Assets
  9. Return Material Authorisation and conditions
  10. General guarantee terms

APPENDIX 1: SERVICES

1.1 The services referred to in this appendix cover all other forms of services that are not referred to in the other appendices, including but not limited to – (project-based) design, realisation and/or installation of automated infrastructures, work environments relating to hardware and/or software and forms of telecommunication.

1.2 Any agreements regarding a service level (Service Level Agreements) shall only be valid if agreed explicitly in writing. The other party shall always notify MAXICOM immediately about all circumstances that can affect the service level and its availability. The notification by the other party shall not release the other party from that which is stated in 5.5 “Delivery date and place of delivery” in the general section of these terms and conditions.

1.3 If agreements have been made with regard to a service level then the availability of software, systems and related services should always be measured in such a way that shut-down for preventive, corrective or adaptive maintenance or other forms of service that are announced in advance by MAXICOM, as well as the circumstances that are beyond the control of MAXICOM, are not taken into account. Expect where evidence to the contrary is provided by the other party, the availability measured by MAXICOM shall also be regarded as complete evidence.

1.4 MAXICOM and its employees shall only be bound to follow the instructions issued by the other party during service delivery if this has been agreed explicitly in writing. However, MAXICOM and its employees are not obliged to follow instructions that change or supplement the substance of the agreed services. However, if such instructions are followed, the relevant work shall be paid by the other party in accordance with MAXICOM’s normal rates and conditions.

1.5 If a service agreement is concluded with the intention that this is provided by a specific person then MAXICOM shall be entitled, whether or not after consultation with the other party, to replace that person with one or more persons with the same and/or similar qualifications.

1.6 If it is agreed that the services shall be delivered in phases then MAXICOM shall have the right to postpone the start of the services belonging to a phase until the other party has approved the results of the previous phase in writing.

1.7 The other party must ensure that a proper, accessible and complete back-up is present prior to the start of work. The other party must ensure that, if necessary, this back-up will be made available on first request to MAXICOM and/or a third party engaged by MAXICOM for the proper execution of the services to be delivered.

1.8 If MAXICOM provides services on the basis of information to be provided by the other party then this information shall be prepared by the other party in accordance with the conditions specified by MAXICOM and shall be provided at the expense and risk of the other party. The other party guarantees that all materials, information, software, procedures and instructions it provides to MAXICOM for the delivery of the service are always correct and complete and that all information carriers provided to MAXICOM comply with MAXICOM’s specifications.

1.9 Where MAXICOM agrees with the other party that the service will be delivered for the other party on site then this work shall be undertaken on working days between 08.30 hours and 17.30 hours unless agreed explicitly otherwise in writing. In that case, for the service to be provided by MAXICOM or on its behalf, MAXICOM shall have the right – for whatever reason – to undertake / have undertaken and/or continue the work outside of these hours. In that case there shall be a higher hourly rate up to a maximum of 200%.

1.10 MAXICOM has the right to charge the other party for costs, including travel and accommodation costs incurred and costs for lost time, if – in MAXICOM’s opinion – this has been caused by or on behalf of the other party or if MAXICOM has not been provided with sufficient opportunity to perform its service work at the agreed time.

1.11 If the time and/or the location of the service to be provided mean that travel and/or accommodation costs have to be incurred then MAXICOM shall be entitled – at its own discretion – to charge these costs to the other party.
In addition, for work undertaken abroad, all charges/ duties, taxes and suchlike imposed by any government body in the relevant country shall be at the expense and risk of the other party.

1.12 If, in the framework of its service provision to the other party, MAXICOM is provided at any time with products then this shall be at the risk of the other party.

1.13 Without prejudice to the “Force majeure” and “Liability” articles in the general section of these general terms and conditions and that which is stated above under 1.15 in the appendix, for its service MAXICOM is, amongst other things though not limited to, not liable in any way and in any form whatsoever in the event of:

a) improper use or inadequate preparation of the site;

  1. b)  changes or inadequate system maintenance that is not undertaken by or with the permission of MAXICOM;
  2. c)  defects and/or other limitations caused by non-MAXICOM products that have an impact on the operation of the systems for which MAXICOM provides service support;
  3. d)  data loss or downtime of system;
  4. e)  malicious software (i.e. virus, worm, etc.) not introduced by MAXICOM or against which the

other party has not implemented reasonable security measures, for example in the form of

up-to-date virus protection and firewall software;

  1. f)  incorrect use, negligence, accident, fire or water damage, power failures, transport by the

other party or other causes beyond the control of MAXICOM.

1.14 Where MAXICOM provides advice within the framework of its service provision to the other party, such advice is provided to the best of its knowledge and on the basis of information available to MAXICOM, whether or not this information is obtained from the other party. MAXICOM is not liable in any way and in any form whatsoever for the non or incomplete compliance with the advice provided under MAXICOM’s service in relation to the products supplied or the programs, software and hardware-based products present and in relation to the work associated with the installation, unless this is the result of gross negligence on the part of MAXICOM.

1.15 All products received within the framework of the service provided by MAXICOM and/or on its behalf and products sent to the other party and/or on its behalf by MAXICOM shall be transported at the expense and risk of the other party. Unless agreed explicitly otherwise in writing, MAXICOM’s RMA and conditions are applicable to the shipment of products to MAXICOM by the other party.

1.16 Where the service is delivered on a project or other basis at the other party’s premises or on behalf of the other party and/or on a project basis at a location other than the aforementioned and/or different manner, a handover shall be undertaken on completion and/or part completions. The handover can take place by means of a completion statement or via tacit handover to the other party, whereby a period of 5 days applies for the tacit handover immediately after completion of the relevant delivery and/or part delivery.

APPENDIX 2: SECONDMENT AND CONSULTANCY

2.1 A fixed-term secondment and consultancy agreement shall be extended automatically and consecutively for the same period and repeatedly at the end of the agreed period unless it is terminated by MAXICOM or unless the other party has explicitly terminated the automatic extension in a timely manner before the end of the term by means of a registered letter.

2.2 MAXICOM has the right in the case of automatic extension to implement a price rise at the start of the extension period provided this does not exceed the inflation correction and/or wage increased for comparable “Collective Contracts of Employment”, such being at the discretion of MAXICOM. MAXICOM also has the right to implement a price increase based on increasing internal and external cost price factors.

2.3 MAXICOM shall make every endeavour to ensure that the seconded person who is made available remains available during the term of the agreement for the work on the agreed days, with the exception of illness or if the seconded person leaves the company’s employment. This shall be with due regard for holidays/holiday hours awarded to the seconded person and official leave such as though not limited to, leave for the birth of children and the death of once removed and twice removed relatives.

2.4 The supervision and management of the work produced by the seconded person(s) rest with the other party.

2.5 When the seconded person and/or consultant provided by MAXICOM performs work abroad on the instructions of or for the benefit of the other party then all charges/duties, taxes, compulsory employee insurances and suchlike imposed by any government body in the relevant country shall be at the expense and risk of the other party.

2.6 The other party is also responsible for paying all reasonable travel and accommodation costs incurred for MAXICOM’s consultant and/or seconded person and for adequately insuring the seconded person against all business, travel and accommodation risks faced in that by the seconded person for work undertaken in the Netherlands and/or abroad.

2.7 MAXICOM has the right to charge the other party additional costs up to a maximum of 200% of the hourly rate for the work undertaken by the seconded person and/or consultant outside of normal working hours. Normal working hours are between 08.30 and 17.30 hours on working days (Monday to Friday).

Before allowing work to be undertaken outside of the agreed working hours the other party must first have obtained the explicit written permission of MAXICOM.

2.8 At any time the seconded person reports absent to the other party or is effectively absent, the other party must notify MAXICOM of this immediately within 24 hours, if possible stating the reasons for the absence.
When the seconded person reports available again to the other party or has actually resumed work, the other party must notify this immediately to MAXICOM, though no later than within 24 hours. Both notifications must always be made in writing. If these periods are exceeded MAXICOM shall then have the right to dismiss the notification/complaint.

2.9 MAXICOM is free, without burden or encumbrance of agreements by or on behalf of the other party, to make a change to the consultant and/or seconded person named in the agreement working for the other party, whereby MAXICOM shall strive to ensure an equivalent replacement.
Within its abilities, MAXICOM shall notify the other party of this as quickly as possible.

MAXICOM shall in that case be free to apply a price change to the agreement, as it sees fit, in the event of an interim replacement of the seconded person and/or consultant if the qualifications and/or the purchase price of the replacement consultant and/or seconded person give cause for this.

2.10 Neither MAXICOM nor the consultant made available by MAXICOM to the other party and/or on behalf of the other party and/or the person seconded by MAXICOM to the other party and/or on behalf of the other party shall be held liable in any way whatsoever for the consequences of their actions with third parties and which arise from the nature of their work at the other party or when this work is undertaken on the instructions of the other party.

2.11 MAXICOM shall do its utmost to make the most competent consultant available and/or to second the most competent personnel to the other party during the term of the agreement. However, MAXICOM cannot in any way whatsoever be held liable by or on behalf of the other party for shortfalls in the extent and/or quality of the work delivery and the performance of the consultant and/or seconded person(s).

2.12 MAXICOM is in no way or any form whatsoever liable for the circumstances under which the consultant and/or the seconded person delivers his/her performance. The liability for this rests with the other party.

2.13 Notwithstanding the earlier intention expressed between MAXICOM and the other party, if MAXICOM does not succeed in supplying a consultant and/or seconded person MAXICOM shall not be deemed to be accountable for the deficiency. This shall also apply if for whatever reason MAXICOM is no longer able to provide a replacement consultant/seconded person. In that case, MAXICOM shall not be liable for paying any damages or costs.

2.14 During the term of the agreement and/or the business relationship between MAXICOM and the other party, and for a period of one year immediately thereafter, without the explicit written permission of MAXICOM the other party is prohibited from attempting to entice, even via third parties, the person/persons who have performed work for the benefit of the other party on behalf of MAXICOM and/or who have performed similar work to a greater or lesser degree, to join the other party and/or affiliated company/organisation/entity as: an employee, an independent or if the person/persons is/are made available on secondment by a third party. A breach of this prohibition is subject to a penalty amounting to the annual salary for one year, with a minimum of 25,000 euro (in words; twenty-five thousand euro) plus 5,000 euro (in words; five thousand euro) for each day that the breach continues. This penalty shall be due and payable immediately to MAXICOM upon discovery of the breach, without the need for legal intervention and any other form of notification of default and/or breach.

This shall also be without prejudice to the other rights and claims that MAXICOM can invoke against the other party in order, for example (not exhaustive), to recover money and losses yet to be suffered, such being without prejudice to the rights that MAXICOM can invoke against the relevant person(s).

2.15 Unless agreed explicitly otherwise in writing, the notice period for the other party is one third of the term before the end of the secondment and/or consultancy agreement with a term of 2 months or less. For agreements with a term in excess of 2 months the notice period shall be at least 31 days before the end of the secondment and/or consultancy agreement.

MAXICOM has the right to terminate the secondment and/or consultancy agreement by means of written notice of termination up to and including one day before the end of the secondment and/or consultancy agreement or its extension.

APPENDIX 3: REPAIR, MAINTENANCE AND SUPPORT

3.1 Repair means the performance of work aimed at restoring faulty equipment, software and functionality.
Maintenance means the performance of work aimed at allowing equipment, software and functionality to operate in the best way possible.

Support means all forms of remote and/or on-site assistance (read support) relating to automation and communication technology that MAXICOM provides as service products.

3.2 MAXICOM’s work in the field of repair, maintenance and/or support concerns best efforts on the basis of the knowledge and resources available at MAXICOM for resolving a number of product type related issues and/or problems, either remotely or otherwise.

3.3 Prior to sending products for repair, maintenance and/or support the other party must ensure adequate back-up of information.

3.4 In the event that the required information is lost or missing from the information carrier components the other party must provide MAXICOM with that information on MAXICOM’s first request.

3.5 The repair, maintenance and/or support work agreed with the other party shall be undertaken to the best of its ability by MAXICOM and/or on its behalf, whereby it will be endeavoured to achieve the realisation within the promised period. If this period is exceeded for whatever reason, this shall not entitle the other party to any form of compensation, including for direct and/or indirect losses.

3.6 MAXICOM has the right – at its discretion – to perform the repair, maintenance and/or support without having to enter into consultation with the other party about this, even if the costs of the repair, maintenance and/or support are substantial in relation to the new value and/or replacement product, and even if they exceed this in a particular case.

3.7 MAXICOM has the right – at its discretion – to select replacement parts for the repair, maintenance and/or support and to charge the other party for these without having to submit these to the other party for evaluation; the same applies if these replacement parts are not original and/or new parts. With regard to this, MAXICOM also has the right to charge the other party for external costs that are incurred. Unless agreed explicitly otherwise in writing, on repair, maintenance and/or support, the replacement parts shall automatically become the property of MAXICOM without the need to inform the other party of this.

3.8 MAXICOM has the right at all times to charge the other party for the costs of investigating the possibilities and impossibilities of repair, maintenance and/or support. For example, though not exhaustive, in the event that following investigation it appears that the costs of repair, maintenance and/or support will be disproportionately high to such an extent that repair, maintenance and/or support no longer appears possible, or that – on the instructions of the other party and/or on its behalf – the repair, maintenance and/or support is not to be carried out.

3.9 If MAXICOM establishes that products supplied or presented for repair, maintenance and/or support cannot be repaired, maintained and/or supported within what it considers to be reasonable limits and the other party has failed to explicitly state in writing within a reasonable period of 4 weeks after notification of this that it wishes to have the products returned then MAXICOM shall have the right – against payment for costs by the other party – to destroy, dispose of or recycle the relevant products.

3.10 The right stated in 3.9 of this appendix also applies to the return shipment of products to the other party which are not accepted by the other party after they have been offered repeatedly by MAXICOM.
In that case, MAXICOM also has the right to dispose of these products against any reasonable offer and to use the revenue from that to reduce the amount of loss it has suffered.

3.11 When MAXICOM undertakes the repair, maintenance and/or support on site then the other party must ensure that the working environment on site is adequately equipped to guarantee good and smooth progress of the repair, maintenance and/or support to be provided by and/or on behalf of MAXICOM. Examples of this (not exhaustive) include, amongst others, a suitably equipped workspace with, amongst other things, heating, lighting, required electrical power supply and suitable communication facilities.

3.12 Where MAXICOM agrees with the other party to undertake repair, maintenance and/or support work on site this work shall be undertaken on working days between 08.30 hours and 17.30 hours, unless agreed explicitly otherwise in writing. In that case, MAXICOM has the right, for whatever reason, to undertake or have undertaken and/or continue the repair, maintenance and/or support work outside of these hours. In that case an increased hourly rate of up to a maximum of 200% shall apply.

In deviation from that which is stated above, MAXICOM also has the right to make new agreements for repair, maintenance and support.
In both cases the other party is not entitled to any compensation, even for direct and/or indirect losses suffered.

3.13 MAXICOM has the right to charge the other party for costs, including travel costs and costs for lost time, if – in MAXICOM’s opinion – this has been caused by or on behalf of the other party or if MAXICOM has not been provided with sufficient opportunity to perform its repair, maintenance and/or support work at the agreed time.

3.14 If the time and/or the location of the repair, maintenance and/or support work to be undertaken mean that travel and/or accommodation costs have to be incurred then MAXICOM shall be entitled – at its own discretion – to charge these costs to the other party.
In addition, for work undertaken abroad, all charges/ duties, taxes, compulsory employee insurances and suchlike imposed by any government body in the relevant country shall be at the expense and risk of the other party.

3.15 Insofar as the products supplied by MAXICOM and/or by a third party or parties it engages for repair, maintenance and/or support contain information carrier components and/or they affect the information processing of other products, then MAXICOM shall never be held liable for any loss of information, functionalities and/or revelation of that information before, during and after the repair, maintenance and/or support.

The same applies to proper functioning or non-functioning of those products and/or incorrect influence. MAXICOM can never be held responsible by and/or on behalf of the other party for the storage of information from the products containing information; either before, during or after the work undertaken.

3.16 Where the removal of software and/or data is agreed with the other party, or when this is deemed necessary by MAXICOM in the interests of the work to be undertaken then this removal shall take place on the basis of the resources and knowledge it has available. MAXICOM cannot be held liable in any way whatsoever by and/or on behalf of the other party if at any subsequent moment it appears that using the resources and knowledge available at that time it appears impossible to recover the removed software and/or data in full or in part.

3.17 When undertaking its repair, maintenance and/or support work on site, MAXICOM is in no way and in any form whatsoever liable for damage to, for example but not limited to, equipment, furniture and buildings that is the direct and/or indirect result of the work performed by or on behalf of MAXICOM on the instructions of the other party, unless there is evidence of an intentional act and/or gross negligence. MAXICOM shall never be held liable by and/or on behalf of the other party if the maintenance provided does not have the required result.

3.18 The products accepted by MAXICOM for repair, maintenance and/or support remaining with MAXICOM or with a third party it engages shall in all cases be held at the risk of the other party. The other party must personally ensure adequate insurance that covers every form of direct and indirect loss such as, for example though not limited to, fire, water damage, loss and theft.

3.19 In the event of early termination by the other party, the other party shall remain liable to pay the financial obligations during the remaining period of the earlier concluded agreement, without the other party being able to derive any rights from this.

3.20 MAXICOM has the right on extension of the agreement to adjust the price without the need for prior (written) notification in the event that market conditions give cause for this or the amount of maintenance undertaken gives cause for this. MAXICOM has the right to terminate the contract agreement by means of written notice of termination up to one week before the end of the contract or its extension.

3.21 If MAXICOM has concluded a contract agreement for maintenance and/or support with the other party this shall on each occasion be extended automatically by the same period without the need for prior notification, unless the other party has terminated the agreement in a timely manner. Termination by the other party must be notified at least 7 days before the end of a contract agreement which has a term of 3 months or less. For contract agreements longer than 3 months the notice period is 31 days before the end of the contract agreement. If the other party gives notice of termination in less than the stated notice period before the end of the contract agreement this shall not be legally valid in relation to preventing the automatic extension of the contract. MAXICOM has the right to terminate the contract agreement by means of written notice up to and including one day before the end of the contract agreement or its extension.

APPENDIX 4: SOFTWARE AND/OR PROGRAMS

4.1 Where MAXICOM sells or supplies software and/or programs to the other party the licenses supplied with the software and/or programs are also applicable – in addition to these general terms and conditions – and they cannot be subject to annulment, even if the substance of the license is only made known to the other party at the time of first use after the formation of the agreement.

4.2 The sale of software and/or programs means the sale of the user rights, whether or not this is in accordance with that which is stipulated in the associated license. Where, for whatever reason, MAXICOM has not supplied a license or fails to supply a license in a timely manner during the transaction, it may still supply the license at a later stage without this compromising the applicability and/or voidability of the license and/or the relevant transaction.

4.3 MAXICOM is not liable in any way whatsoever by or on behalf of the other party for the correct functioning and /or properties of the software and/or programs, including external accessibility and data exchange. Nor is MAXICOM liable for mismatches occurring at any time between the software and/or programs supplied and the other software and/hardware used by the other party.

4.4 The other party indemnifies MAXICOM against every form of liability relating to losses suffered by or yet to be suffered by the other party and/or on its behalf in whatever form that are the result of; faults, breaches of intellectual property right, the loss of data, functionality and suchlike in the software and/or programs supplied to the other party by MAXICOM, which can be traced back to the ultimate suppliers and/or manufacturer.

4.5 In case MAXICOM supplies equipment branded Cisco Systems, the other party recognizes the fact that for the Right-To-Use of the embedded software, Cisco’s End User License Agreement https://www.cisco.com/c/en/us/about/legal/cloud-and-software/end_user_license_agreement.html ) and the Software Transfer and Re-Use Policy (https://www.cisco.com/c/dam/en_us/about/doing_business/legal/policy/Cisco_Software_Transfer_and_Relicensing_Policy.pdf ) apply to all supplied equipment. MAXICOM disclaims all warranties, express or implied, statutory or otherwise, with regard to the equipment, including but not limited to any implied warranties and conditions of merchantability, fitness for a particular purpose, performance, suitability or non-infringement. In no event shall MAXICOM be liable for any kind, including, but not limited to, damage or loss of other property or products, loss of profits or revenue or loss of use.

APPENDIX 5: SOFTWARE AS A SERVICE

5.1 Software As A Service (hereinafter referred to as: SAAS) is one of MAXICOM’s business activities whereby MAXICOM offers the other party (online or otherwise) a user right for this service for a limited period, which may or may not be in the form of a software contract.

5.2 On formation of an SAAS agreement the other party accepts the applicability and the non- nullification of the license conditions that are supplied with the product by the manufacturer. The other party also accepts this if it first becomes aware of these or could have become aware of these after the formation of the agreement.

5.3 The user right period commences from the moment that MAXICOM makes the SAAS product available to the other party.

5.4 The other party is not permitted to change the source codes in the SAAS-supported software from MAXICOM and is not permitted to use it for other purposes.

5.5 At any moment that the other party acts or has acted in conflict with the license conditions then MAXICOM shall have the right on discovery of this by MAXICOM, the manufacturer and/or an appropriately authorised third party, to terminate the agreement with immediate effect and/or dissolve the agreement by extrajudicial means without the need for any further notice of breach and/or default. MAXICOM cannot be held liable in any way whatsoever for any form of loss that the other party suffers as a result of the termination. However, in that case MAXICOM has the right to claim from the other party the losses that MAXICOM has and/or will suffer in respect of both direct and indirect losses.

5.6 The other party indemnifies MAXICOM, both during the term of the agreement and thereafter, against any form of liability relating to losses suffered or to be suffered by or on behalf of the other party in whatever form as a result of; faults, breach of intellectual property rights, the loss of data, functions and suchlike in the SAAS product supplied by MAXICOM to the other party which can be traced back to the original suppliers and/or manufacturer.

5.7 At any moment that the configuration at the other party does not or no longer, in full or in part, meets the properties of the SAAS product supplied by and/or on behalf of MAXICOM then MAXICOM shall in no way whatsoever be held liable for that by and/or on behalf of the other party. The same applies, though is not limited to, when the operating software used by the other party does not support or no longer supports the software supplied under SAAS.

5.8 Neither MAXICOM nor its supplier and/or the manufacturer can be held liable in any way whatsoever by and/or on behalf of the other party for breach of the privacy and/or confidentiality when this is the result of providing assistance in response to a request from a body that is duly authorised by the government. The same applies in the event of corruption and/or loss of data and /or functionalities and confidentiality if this is the result of non-permitted actions by third parties.

5.9 In the event of early termination by the other party, the other party shall be liable to pay the financial obligations during the remaining period of the earlier concluded agreement, without the other party being able to derive any rights from this.

5.10 In the event of an extension MAXICOM has the right to amend the price without prior (written) notice in the event that market conditions give rise to this. MAXICOM has the right to terminate the contract agreement by means of written notice up to one week before the end of the contract or its extension.

5.11 If MAXICOM has concluded a contract agreement with the other party this shall on each occasion be extended automatically by the same period without the need for prior notification, unless the other party has terminated the agreement in a timely manner. Termination by the other party must be notified at least 7 days before the end of a contract agreement which has a term of 3 months or less. For contract agreements longer than 3 months the notice period is 31 days before the end of the contract agreement. If the other party gives notice of termination in less than the stated notice period before the end of the contract agreement this shall not be legally valid in relation to preventing the automatic extension of the contract. MAXICOM has the right to terminate the contract agreement by means of written notice up to and including one day before the end of the contract agreement or its extension.

APPENDIX 6: CLOUD SOLUTIONS AND HOSTING

6.1 Cloud solutions are one of MAXICOM’s business activities, whereby it offers an online user right to the other party for a solution (including the use of a software application offered in the cloud) in the cloud for a limited period, which may or may not be a contract form.

6.2 Hosting is one of MAXICOM’s business activities whereby it offers the other party a user right for web and/or service space for a limited period, which may or may not be a contract form.

6.3 On formation of a cloud-solution agreement the other party accepts the applicability and the non-nullification of the license conditions, insofar as they exist, that are supplied with the product by the manufacturer. The other party also accepts this if it first becomes aware of these or could have become aware of these after the formation of the agreement. The service offered to the other party by MAXICOM may only be used by a single user and for the other party’s own use. The other party does not have the right to dispose of, encumber and/or make available on a professional basis or otherwise to third parties the user right granted to the other party under the agreement, whether in full or in part, unless agreed otherwise explicitly in writing.

6.4 The period of the user right commences from the moment that the cloud solution and/or hosting is made available to the other party.

6.5 The other party indemnifies MAXICOM, both during the term of the agreement and thereafter, against any form of liability relating to losses suffered or to be suffered by or on behalf of the other party in whatever form as a result of; faults, breach of intellectual property rights, the loss of data, functions and suchlike in the cloud and/or made available by MAXICOM which can be traced back to the original suppliers and/or manufacturer.

6.6 At any moment that the other party acts or has acted in conflict with the agreement, the terms and conditions of use, the license conditions and/or in conflict with the law and/or if the good name and reputation of MAXICOM is threatened then MAXICOM shall have the right on discovery of this by MAXICOM, the manufacturer and/or an appropriately authorised third party, to terminate the agreement with immediate effect and/or dissolve the agreement by extrajudicial means without the need for any further notice of breach and/or default. MAXICOM and/or its supplier has/have the right to delete the data and/or information itself or to block access to this, if there is evidence of potential conflicting actions by the other party as referred to above in this clause. MAXICOM cannot be held liable in any way whatsoever for any form of loss that the other party suffers as a result of the termination. However, in that case MAXICOM has the right to claim from the other party the losses that MAXICOM has suffered and/or will suffer in respect of both direct and indirect losses.

6.7 MAXICOM is in no way liable whatsoever and in any form whatsoever for the loss of data and/or functionalities due to the use of the cloud solutions and/or hosting by and/or on behalf of the other party. The same applies after dissolution of the agreement, whether or not this is by means of termination.

6.8 Neither MAXICOM nor its supplier and/or the manufacturer can be held liable in any way whatsoever and in any form whatsoever by and/or on behalf of the other party for breach of privacy and/or confidentiality when this is the result of providing assistance in response to a request from a body that is duly authorised by the government. The same applies in the event of corruption and/or loss of data and /or functionalities and confidentiality if this is the result of non-permitted actions by third parties.

6.9 The other party undertakes to make timely backups of its activities in the purchased cloud solution and hosting service. Although MAXICOM is required to make the storage of data and the functionality available to the other party continuously it cannot be held liable in any way whatsoever and in any form whatsoever for faults (such as, for example – though not limited to – during maintenance) in the availability of the cloud solution and/or hosting and the loss and/or corruption of data and/or functionalities, even when these are not the result of force majeure such as, though not limited to, misadventure.

6.10 MAXICOM has the right after termination of the agreement concluded between MAXICOM and the other party to delete/remove all data and functionalities from the systems and storage made available to the other party, without MAXICOM being held liable for this in any way whatsoever by the other party.

6.11 Unless agreed explicitly otherwise in writing, all services purchased by the other party are covered by the “Fair Use Policy” (FUP) regime in operation by MAXICOM. This means that in the event of misuse of its services, for example a substantial excess of monthly band width transfer, MAXICOM shall have the right to charge the user / the other party for this financially by issuing extra invoices and/or by terminating the agreements with immediate effect or otherwise, without MAXICOM being held liable in any way whatsoever and in any form whatsoever.

6.12 In the event of early termination by the other party, the other party shall be liable to pay the financial obligations during the remaining period of the earlier concluded agreement, without the other party being able to derive any rights from this.

6.13 In the event of an extension, MAXICOM has the right to amend the price without prior (written) notice in the event that market conditions give rise to this. MAXICOM has the right to terminate the contract agreement by means of written notice up to one week before the end of the contract or its extension.

6.14 If MAXICOM has concluded a contract agreement for a cloud solution and/or hosting with the other party this shall on each occasion be extended automatically by the same period without the need for prior notification, unless the other party has terminated the agreement in a timely manner. Termination by the other party must be notified at least 7 days before the end of a contract agreement which has a term of 3 months or less. For contract agreements longer than 3 months the notice period is 31 days before the end of the contract agreement. If the other party gives notice of termination in less than the stated notice period before the end of the contract agreement this shall not be legally valid in relation to preventing the automatic extension of the contract. MAXICOM has the right to terminate the contract agreement by means of written notice up to and including one day before the end of the contract agreement or its extension.

APPENDIX 7: EQUIPMENT LEASING

7.1 The lease agreements between MAXICOM and the other party are, in principle, of an unlimited duration. The leased products from MAXICOM must be inspected immediately upon receipt by or on behalf of the other party for – amongst other things, though not limited to – completeness, damage and functionality. If there is evidence of the aforementioned shortcoming the other party must notify MAXICOM of this immediately and explicitly in writing within one working day. If the other party fails to do this then it may no longer subsequently make a claim and the other party shall be deemed to have received the leased products in good condition.

7.2 MAXICOM guarantees in no way the compatibility of the leased products with other equipment, software or other materials and/or the other party’s intended use.

7.3 MAXICOM has the right to request a security before entering into a lease. The amount of the security may never be used by the other party to offset other obligations, including rent owed to MAXICOM but not yet paid, unless this is agreed otherwise explicitly in writing.

7.4 The other party is not permitted to allow third parties to undertake repairs and/or maintenance on the leased products unless permission for this has been explicitly granted by MAXICOM in writing.

7.5 If a defect, damage, theft, loss, malicious damage and (threatened) seizure is discovered the other party must notify MAXICOM of this immediately, stop using the products and follow the instructions of MAXICOM.

7.6 In the event of loss, theft or malicious damage then in addition to that which is stipulated in 7.16 of this Appendix, the other party must immediately following the discovery report this to the police and provide a copy of the official report to MAXICOM immediately after its receipt.

7.7 If a breach by the other party is discovered by and/or on behalf of MAXICOM of that which is stipulated above in this Appendix under 7.4, 7.5 and 7.6 then MAXICOM shall have the right to impose a maximum penalty on the other party of 2,500 euro (in words; two thousand five hundred euro) for each breach. This shall be without prejudice to the right to terminate the agreement on an extrajudicial basis in full or in part and the right to recover losses as described in Article10 of the general section of these terms and conditions.

7.8 In the event of loss, theft or malicious damage or otherwise due to causes outside of normal use of the products leased to the other party MAXICOM shall have the right to charge the other party the new value of or the new value of the replacement of those products (in the event the original products are no longer readily available) as a direct loss suffered. This shall be without prejudice to any other right vested in MAXICOM on the basis of consequential loss.

7.9 If, with regard to that which is stipulated here under 7.16 and 7.17 in this Appendix, the other party remains in default then it shall also be liable for all consequential losses suffered by and/or on behalf of MAXICOM as a result of this omission.

7.10 The other party must ensure adequate insurance in a timely manner and this must be provided to MAXICOM on first request.

7.11 If at any moment during the lease it becomes evident to the other party that for whatever reason the leased information-carrier products still contain information and that information is not intended for the other party, then the other party must notify MAXICOM of this immediately and assist MAXICOM in the removal of the relevant information. In that case, the other party shall handle the relevant information confidentially and not distribute it.

7.12 During the term of the lease MAXICOM has at all times the right to check the condition and the method of use of the leased products by the other party. On first request, the other party must grant MAXICOM immediate and unrestricted access to the leased products.

7.13 The other party indemnifies MAXICOM against all consequences relating to failure to meet the terms and conditions (whether or not in the form of a license) of programs/software associated with the leased products.

7.14 The products leased by the other party shall remain at the expense and risk of the other party (including for defects and/or damage) until the moment that the products have been handed back to MAXICOM and MAXICOM has inspected the returned products.
The other party is not only liable for the costs of repair but also for the direct and indirect losses that MAXICOM suffers as a result. Exceptions to the above are defects and damage as a result of failures demonstrably attributable to MAXICOM.

7.15 If MAXICOM at any moment has to undertake repair, maintenance and/or support on the basis of its findings in relation to the products leased by the other party, the conditions stated in the appendix relating to repair, maintenance and/or support shall also be applicable. Where MAXICOM’s findings are the result of a fault attributable to MAXICOM then MAXICOM shall resolve this fault within a reasonable period of time or replace the relevant products or issue a credit note, such being at its own discretion. In the aforementioned situations and for the consequences arising from this for and/or on behalf of the other party, MAXICOM is not liable towards and/or on behalf of the other party in any way whatsoever and in any form whatsoever.

7.16 Without the explicit written permission of MAXICOM, the other party is not permitted to make changes to the leased products, such as – for example, though not limited to – optical, aesthetic and/or functional changes. If changes are made by the other party without the aforementioned approval then MAXICOM shall have the right to terminate the lease agreement early on an extrajudicial basis, in full or in part, whilst retaining all financial rights that it may otherwise derive from the relevant agreement.

As a result of the aforementioned acts by the other party, MAXICOM has the right to recover from the other party all losses suffered and to be suffered by MAXICOM in any way and in any form whatsoever.

7.17 Without the explicit written permission of MAXICOM, the other party is not permitted to locate the products leased from MAXICOM and/or the materials obtained from MAXICOM for the benefit of the lease outside of the national borders. The other party is also not permitted to lease out, loan or otherwise transfer control to third parties of the products leased from MAXICOM.

7.18 If the other party’s financial circumstances are such that there is a tax arrears situation in its obligations towards third parties the other party must notify this immediately to MAXICOM. If MAXICOM suffers losses due to an omission on the part of the other party with regard to that which is stipulated in this Article – such being at the discretion of MAXICOM – then MAXICOM shall have the right to recover such losses from the other party, whereby the value of the leased products shall be equated to the new value.

7.19 When taking back possession of the leased products, including software, programs and suchlike, which have information carrier properties, MAXICOM shall not be liable to and/or on behalf of the other party in any way whatsoever for the loss of the information present in those leased products, nor is MAXICOM responsible for storing and/or archiving this information.

7.20 When taking back possession of the leased products, MAXICOM has the right, also without being held liable by and/or on behalf of the other party, to remove and/or destroy the information present on the leased products – in full or in part – at any moment at its discretion.

7.21 The other party must ensure that when taking back possession of these products, MAXICOM is provided with the required access codes such as, amongst other things, user names and passwords. If the other party fails to do this then MAXICOM shall have the right to charge the other party a daily rental for the relevant products for each day that this situation continues, without the need for MAXICOM to issue notice of breach / default to the other party with regard to this. This shall be without prejudice to MAXICOM’s right to recover from the other party all losses MAXICOM suffers and/or may suffer.

7.22 With respect to a lease purchase agreement the other party may only take advantage of the purchase option provided it has met all of its obligations arising under the (lease) rental agreement.

7.23 In the event of cancellation of the lease agreement by the other party up to 7 days before the commencement of the lease period the other party shall owe MAXICOM 50% of the total agreed rental sum. In the event of cancellation of the lease agreement by the other party within 6 days of commencement of the lease period the other party shall owe MAXICOM 100% of the total agreed rental sum. Cancellation of the lease agreement must always be made in writing.

7.24 In the event of early termination by the other party, the other party shall be liable to pay the financial obligations during the remaining period of the earlier concluded agreement, without the other party being able to derive any rights from this.

7.25 The equipment leased by the other party from MAXICOM must be handed over to MAXICOM immediately at the end of the term of the lease agreement in the same condition as at the start of the lease agreement. The handover must take place at MAXICOM’s business address or at another business location specified by MAXICOM.

7.26 For every day that the leased products have not been handed over to MAXICOM after the end of the lease agreement, MAXICOM shall have the right to charge the other party a daily rental for this, without the need for MAXICOM to issue notice of breach / default to the other party with regard to this.

7.27 If MAXICOM has concluded a lease agreement with the other party this shall on each occasion be extended automatically by the same period without the need for prior notification, unless the other party has terminated the agreement explicitly in writing in a timely manner. Termination by the other party must be notified at least 1 day before the end of a lease agreement which has a term of 3 months or less. For a lease agreement between MAXICOM and the other party longer than 3 months the notice period is at least 7 days before the end of the lease period. If the other party gives notice of termination in less than the stated notice period before the end of the lease agreement this shall not be legally valid in relation to preventing the automatic extension of the contract. MAXICOM has the right to terminate the lease agreement by means of written notice up to and including one day before the end of the lease agreement or its extension.

APPENDIX 8: ASSETS

8.1 In these terms and conditions “Assets” means; all automation and communication technology products used and/or depreciated that MAXICOM buys or takes possession of free of charge from the other party.

8.2 If MAXICOM concludes an asset agreement with the other party then MAXICOM has the right to regard the agreed purchase price as an indicative price as a result of an initial inventory of the specifications and delivery times supplied by the other party, without being obliged to issue any notice regarding that in advance to the other party.

8.3 MAXICOM has the right to adjust the purchase price after its inspections if the quality and/or specifications does/do not correspond with the advance details provided to it by the other party.

8.4 The inspection of the products purchased as or regarded as “Assets” shall be undertaken during a period of approximately 4 to 8 weeks after they have arrived at the premises or at another location specified by MAXICOM. The authority to assess rests with MAXICOM. MAXICOM shall provide the other party with a copy of the inspection protocol on request.

8.5 After the inspection MAXICOM shall notify the other party about the price adjustment by means of a valuation report. Nonetheless, MAXICOM has the right to immediately process the purchased “Assets” and or products involved following inspection and prior to handing over the valuation report, unless it is agreed explicitly in writing that MAXICOM shall provide the other party with the opportunity to check the valuation report on the basis of the products inspected by MAXICOM.

8.6 The title to the products purchased as “Assets” shall transfer from the moment the supply has taken place or at the moment of payment and/or settlement if this has taken place before supply.

8.8 The other party also warrants to MAXICOM on the formation of the agreement that the relevant products used comply with the qualifications agreed and meet all relevant legal requirements with regard to health, safety, the environment and quality.

8.9 With the formation of the asset agreement the other party unconditionally agrees – on its own initiative or otherwise – to provide MAXICOM with assistance for any investigation by a duly authorised government body to establish a legal breach with regard to that which is supplied by the other party.

8.10 The Asset products purchased by MAXICOM from the other party or which are involved in the agreement must be free, unencumbered and duty-free. The other party indemnifies MAXICOM against any form of liability towards the other party and/or towards any related third party that concerns the products purchased by MAXICOM from and/or on behalf of the other party and/or the products that MAXICOM has acquired in a different manner from and/or on behalf of the other party.

8.11 When the removal of software and/or data is agreed with the other party this concerns an obligation to use best endeavours. Disputes relating to the quality and/or qualifications of the products supplied by the other party as “Assets” shall not stand in the way of the performance of the service sold by MAXICOM to the other party and the other party’s obligations relating to the service. It shall never give the other party the right to offset and/or not to purchase the service for those reasons.

8.12 Unless agreed explicitly otherwise in writing, the delivery date for the Asset products from the other party is a fixed delivery date. If the delivery date is exceeded MAXICOM shall then have the right to terminate the agreement without it being held liable for that by the other party.

8.13 MAXICOM has the right – for its own reasons – to suspend the delivery after it has notified the other party of this prior to the delivery, and without MAXICOM being held liable for that by the other party.

8.14 In the event of late delivery by and/or on behalf of the other party of “Assets”, MAXICOM shall have the right – in the event of a delay in excess of one week, to impose a penalty on the other party for every full and/or part week thereafter that the delay continues, such penalty amounting to 1% per week of the invoice value, whereby a part of a week must be regarded as a full week. This shall have no prejudice on MAXICOM’s other rights arising from this failure.

8.15 The other party is obliged to package the products properly and in accordance with statutory instructions and the requirements specified by MAXICOM.

8.16 The other party is obliged to include a packing note with the products which states the name and the address of the other party, the purchase order number issued by MAXICOM, the delivery address and other information relevant for the delivery. The other party must state in writing in the agreement as well as on the packing note whether the products are packed in return packaging. If MAXICOM arranges the transport, the other party shall enclose the delivery document with the products and, for the remainder, adhere to the instructions from MAXICOM.

8.17 After the products have been delivered, the other party is obliged to take back the packaging material and other materials used for transport insofar as these are not the property of MAXICOM and do not form part of the products. MAXICOM has the right at all times to return the packaging material to the other party at its expense and risk.

8.18 Packaging material, instructions, specifications, drawings, models, other auxiliary materials and other products made available by MAXICOM for the delivery remain the property of MAXICOM and must be returned as soon as possible after the products have been delivered. The other party undertakes to designate auxiliary materials as the property of MAXICOM and to ensure these are maintained in a good condition.

MAXICOM has the right to refuse the shipment if the other party has failed to meet the aforementioned obligations regarding packaging and transport of products, such being without prejudice to other rights.

8.19 The other party likewise indemnifies MAXICOM against all civil and criminal aspects that would be or could be associated with the products supplied by and/or on behalf of the other party prior to, during and after the formation of the agreement.If at any moment it appears that the other party has acted in conflict with the above then MAXICOM shall have the right to cancel, terminate or suspend the relevant or all agreements with the other party. In addition, MAXICOM shall have the right to recover from the other party all losses suffered or to be suffered by MAXICOM, including the relevant invoices it has paid to the other party and to third parties, such being subject to a minimum of 150% of the invoice value.

8.20 Where MAXICOM has sold a further service to the other party for the “Assets” it has purchased from the other party then this sale shall be regarded as a separate agreement even when both elements are referred to in an agreement. Such a service includes but is not limited to the removal of software and data.

8.21 The other party shall invoice any final purchase price after this has been accepted and notified by MAXICOM. Invoices must be drawn up properly and be itemised and must in any event contain, in addition to the information required under law, the following elements: Order number; VAT and Chamber of Commerce numbers of the other party; invoice date; Intrastat code; SWIFT code/BIC; a clear description of the products supplied stating the delivery date; the price excluding and including VAT; the amount of VAT to be paid.

For intra-Community transactions the other party must state the BTW exemption number on the invoice.

8.22 Unless MAXICOM instructs otherwise in writing, the other party must send a single copy of the invoices electronically in PDF format to finance@maxicom-it.com. If electronic transmission is not possible the other party must then send a single copy of the invoice to: Maxicom IT Distribution B.V., Radonstraat 300, 2718 TB Zoetermeer, the Netherlands.

8.23 a. MAXICOM shall pay the invoice on the basis of the following conditions; correct performance of that which is agreed (including these terms and conditions), receipt by MAXICOM of a correct invoice as described in these articles, receipt by MAXICOM of an MAXICOM “IT Asset Recovery” registration form completed by the other party. Payment will then be made no sooner than 30 days after receipt of the invoice.

b. Each (new) other party of MAXICOM in the context of asset agreements is obliged to register with MAXICOM using MAXICOM’s “IT Asset Recovery” registration form. MAXICOM assumes the correctness of the information contained on this form and shall, amongst other things, only make payments to the bank account stated on this form, irrespective of the information stated on the invoice.

8.24 If the other party’s information stated on the form changes the other party must notify MAXICOM of this immediately. The registration form held by MAXICOM will then be cancelled and in that case the other party must provide MAXICOM with a new registration form.

8.25 In the event of a breach and in the event the other party fails to comply with that stated on the “IT Asset Recovery” form MAXICOM shall always have the right to suspend and/or terminate – in full or in part – its ongoing obligations. In the event of a breach, that which is stipulated in this paragraph shall also apply to obligations under agreements that are separate from that breach.

APPENDIX 9: RETURN MATERIAL AUTHORISATION AND CONDITIONS.

(elsewhere referred to as “RMA and conditions”)

Preliminary general provisions:

9.1 a. Return Material Authorisation (hereinafter referred to as: RMA) means the written permission from MAXICOM to the other party for products to be returned by and/or on behalf of the other party.

b. For all products to be returned to MAXICOM by the other party, the other party must submit an authorisation request (hereinafter referred to as the: RMA Request) to MAXICOM. Acceptance of an RMA Request for processing does not mean the other party can derive any rights other than the fact that the other party has submitted an RMA Request.

9.2 MAXICOM is free to decide whether and if it so wishes for what products, etc., it will grant an RMA to the other party under any other conditions than those stated here in this appendix. The other party cannot derive any other rights from the issue of an RMA other than the fact that MAXICOM has only agreed under the applicability of the “RMA and conditions” to the return of the products stated on the RMA Request.

 

9.3 The “RMA and conditions” means the conditions that the authorised products must comply with before and during their shipment to MAXICOM.

9.4 Unless agreed explicitly otherwise in writing, the “RMA and conditions” apply to all products to be returned to MAXICOM. The products eligible for RMA are subdivided into the following groups: A. Factory Guarantee and DOA, B. MAXICOM Guarantee, C. Out of Guarantee, D. Transport Damage, E. Trial and/or Display Products. The term DOA “Dead On Arrival” (not working on arrival) is only applicable for Factory Guarantee within the context of the “RMA and conditions”.

9.5 The return costs are always at the expense of the other party. 

RMA Request:
9.5 a. 
The RMA must be preceded by a request from the other party sent exclusively by electronic means, consisting of a fully and correctly completed online RMA Request Form which is available from MAXICOM’s website. Insofar as the other party’s request relates to products previously invoiced to the other party by MAXICOM then the RMA is limited to the products listed on the relevant invoice sent by MAXICOM. It is not possible for products from several different invoices to be included on the same RMA unless agreed explicitly otherwise in writing. In all cases, the other party must therefore enter the correct invoice number on the RMA Request Form.

b. Request Forms that are incomplete and/or unclear shall not be accepted by MAXICOM and MAXICOM shall in no way and in no form whatsoever be held liable for this by and/or on behalf of the other party.
c. When considering the RMA request from the other party, MAXICOM has the right to demand a copy of the relevant invoice. The inability to hand over the invoice can result in a rejection of the RMA Request or a delay in the handling of the RMA Request.

Guarantee claim:

In addition to and subject to the stipulations in art. 16 General part, the following applies to guarantees.


9.6 a. 
When the other party wishes to return products and the other party wishes to make a claim under the guarantee, MAXICOM advises the other party to investigate before making its RMA Request, whether the guarantee claim is covered by the terms of the guarantee. For a Factory Guarantee this is usually stated in the guarantee clauses. When a guarantee is issued by MAXICOM this will be stated in either the guarantee clauses or in MAXICOM’s general terms and conditions. b. Unless agreed explicitly otherwise in writing, the commencement date of the guarantee for products covered by a guarantee issued by MAXICOM is the delivery date stated on MAXICOM’s invoice. The guarantee shall lapse automatically at the end of the agreed guarantee period. In cases where no delivery date is stated on the invoice the date of the invoice shall apply as the commencement date of the guarantee period unless an earlier delivery date can be demonstrated from the proof of delivery, in which case the delivery date stated on the proof of delivery shall apply as the commencement date of the guarantee.

A. Factory Guarantee and DOA:

9.7 If the other party wishes to return products in relation to a Factory Guarantee claim then the other party must only contact the manufacturer directly for the processing and settlement of the claim unless, pursuant to Article 9.9, the other party is referred to MAXICOM by the manufacturer or unless otherwise agreed by the other party and MAXICOM.

9.8 For products purchased by and received by the other party in which there is a “Dead On Arrival” (hereinafter: DOA) in respect of products covered by a Factory Guarantee then the terms and conditions of the manufacturer shall apply insofar as they provide an applicable arrangement for this. The other party is obliged to report the DOA directly to the manufacturer and to follow the manufacturer’s instruction.

Factory Guarantee and DOA via MAXICOM’s RMA procedure
9.9 
In a number of cases the return of products covered by a Factory Guarantee, or DOA, may only be undertaken after the explicit approval of MAXICOM and only by means of the RMA Request and under the applicability of the “RMA and conditions”.
These specific cases are those in which the manufacturer has agreed with MAXICOM that the other party is to refer to MAXICOM for the handling (in part) of the Factory Guarantee/DOA claim, or in which MAXICOM has specifically agreed in writing with the other party that it will arrange any claim with the manufacturer under the Factory Guarantee /DOA (in part) on behalf of the other party.

9.10 If the relevant products have to be returned to MAXICOM because of a DOA pursuant to Article 9.9 of this Appendix the other party must always obtain a DOA Authorisation Form from the manufacturer first. The other party must then – within 5 working days after the date of the DOA Authorisation Form – submit an RMA Request with the DOA Authorisation Form appended.

9.11 After obtaining an RMA for products covered by a “Factory Guarantee” the other party must ensure that the products are prepared for shipment in the manner described in Article 9.35.a of this Appendix and in the case of a DOA in the manner described in Article 9.35.b.

B. MAXICOM Guarantee:

9.12 If the other party wishes to return products in relation to an “MAXICOM Guarantee” claim and/or it is deemed necessary by MAXICOM for the handling of the claim, then this shall only take place via an RMA Request and under the applicability of the “RMA and conditions”.

9.13 After obtaining an RMA for products covered by an “MAXICOM Guarantee” the other party must ensure that the products are prepared for shipment in the manner described in Article 9.36.a of this Appendix and in the case of a “Carry-in Guarantee” in the manner described in Article 9.36.b.

C. Outside of Guarantee:

Products Supplied As Per Agreement:
9.14 
If the other party wishes to return products in relation to products supplied “As Per Agreement” due to an incorrect order and suchlike then this can only take place after the explicit approval of MAXICOM and only by means of an RMA Request and under the applicability of the “RMA and conditions”. MAXICOM is in no way obliged to approve the return of products supplied “As Per Agreement”. Products that do not or no longer form part of MAXICOM’s product range, which are no longer available or obsolete and/or have been modified and no longer meet the wishes of the other party shall never be eligible for return and/or credit by MAXICOM. The same applies to, amongst other things, warranty packs, components, memories, software and suchlike.

9.15 If the other party submits an RMA Request for Products Supplied As Per Agreement and MAXICOM has granted an RMA in response to that then those products, including all accessories, are to be returned to MAXICOM in an as-new condition, undamaged, without broken seals and in the original undamaged and unopened packaging and in accordance with the RMA and MAXICOM’s instructions. In the event that damage has been caused by and/or on behalf of the other party that could have been prevented then MAXICOM shall charge a minimum of 10% of the sale price as compensation for the damage that has been caused.

9.16 a. The other party must submit an RMA Request for the return of products to MAXICOM within a period of 5 days after the delivery date stated on the invoice.
b. In cases where no delivery date is stated on the invoice, the date of the invoice shall apply as the commencement date unless an earlier delivery date can be demonstrated from the proof of delivery, in which case the delivery date stated on the proof of delivery shall apply as the commencement date of the guarantee.

9.17 In the event that MAXICOM grants an RMA following an RMA Request from the other party for Good Supplied As per Agreement and the products are received by MAXICOM in accordance with the “RMA and conditions” and are accepted after processing then the costs of restocking and administration costs for that shall be charged to the other party. For unopened packaging of products the costs amount to 20% and for opened packaging 25% of the sale value, subject to a minimum of 60.00 euro (in words; sixty euro) per return (or product).

9.18 After obtaining an RMA for products covered by “As Per Agreement” the other party must ensure that the products are prepared for shipment in the manner described in Article 9.36.a of this Appendix.

Products Supplied Not As Per Agreement:
9.19 
If the other party wishes to return products to MAXICOM in relation to products supplied “Not As Per Agreement” then this can only take place after the explicit approval of MAXICOM and only by means of an RMA Request and under the applicability of the “RMA and conditions”.

9.20 If the other party submits an RMA Request for Products Supplied Not As Per Agreement and MAXICOM has granted an RMA in response to that and it is clearly identifiable from the outside of the packaging that this concerns Products Supplied Not As Per Agreement, then those products, including all accessories, are to be returned to MAXICOM in an as-new condition, undamaged, without broken seals and in the original undamaged and unopened packaging and in accordance with the RMA and MAXICOM’s instructions. In the event that damage has been caused by and/or on behalf of the other party that could have been prevented then MAXICOM shall charge a minimum of 10% of the sale price as compensation for the damage that has been caused.

9.21 a. The other party must submit an RMA Request for the return of products to MAXICOM within a period of 5 days after the delivery date stated on the invoice.

b. In cases where no delivery date is stated on the invoice the date of the invoice shall apply as the commencement date unless an earlier delivery date can be demonstrated from the proof of delivery, in which case the delivery date stated on the proof of delivery shall apply as the commencement date.

9.22 After obtaining an RMA for products covered by “Not As Per Agreement” the other party must ensure that the products are prepared for shipment in the manner described in Article 9.36.a of this Appendix.

D. Transport Damage:

9.23 If the other party wishes to return products to MAXICOM in relation to “Products Supplied Suffering Transport Damage” then this can only take place after the explicit approval of MAXICOM and only by means of an RMA Request and under the applicability of the “RMA and conditions”.

9.24 Transport-damaged products shall only be eligible for an RMA on the basis of Transport Damage if the products have been dispatched to the other party at the expense and risk of MAXICOM and there is evidence of transport damage. Insofar as the damage is deemed to be immediately visible on receipt then the damage must also be recorded on a carriage note/proof of delivery that is signed by or on behalf of the other party.

9.25 a. The other party must submit an RMA Request for the return of transport-damaged products to MAXICOM within a period of 2 working days after the delivery date stated on the invoice.
b. In cases where no delivery date is stated on the invoice the date of the invoice shall apply as the commencement date unless an earlier delivery date can be demonstrated from the proof of delivery, in which case the delivery date stated on the proof of delivery shall apply as the commencement date.

9.26 If the other party submits an RMA Request for Products Supplied Suffering Transport Damage and MAXICOM has granted an RMA in response to that and it is clear from the outside of the packaging that there is evidence of transport damage, then those products – without causing further damage – including all accessories, are to be returned to MAXICOM without broken seals and in the original undamaged and unopened packaging and in accordance with the RMA and MAXICOM’s instructions. In the event of further damage that could have been prevented then MAXICOM shall charge a minimum of 10% of the sale price as compensation for the damage that has been caused.

9.27 After obtaining an RMA for products covered by “Transport Damage” the other party must ensure that the products are prepared for shipment in the manner described in Article 9.36.a of this Appendix.

E. Trial and/or Display Products:

9.28 If the other party wishes to return products to MAXICOM in relation to “Trial and/or Display Products” then this can only take place after the explicit approval of MAXICOM and only by means of an RMA Request and under the applicability of the “RMA and conditions”.

9.29 If it is agreed between MAXICOM and the other party that the other party is obliged to return the trial and/or display products it receives from MAXICOM then the other party must submit an RMA Request within the period agreed with MAXICOM or within the notice period from MAXICOM. If no explicit period is agreed or in the case of the aforementioned notice, the RMA Request must then be submitted to MAXICOM within 5 days after the return shipment is agreed or the notice has been issued by MAXICOM.

9.30 After obtaining an RMA for products covered by “Trial and/or Display Products” the other party must ensure that the products are prepared for shipment in the manner described in Article 9.36.a of this Appendix.

Other general provisions:

9.31 The transport of all products to be returned by the other party under an RMA is to be arranged by MAXICOM with the exception of products to be returned under the applicability of the Carry-in guarantee and products in relation to which there is a DOA. In the aforementioned exceptions, the transport is to be arranged directly by the other party.

In those cases in which the other party arranges the transport the products shall be transported at the expense and risk of the other party.

9.32 Were MAXICOM arranges the transport the products shall be transported at the expense and risk of the other party, with the exception of products to which the Pick-up and return guarantee is applicable and the Products Supplied Not As Per Agreement. For the Pick-up and return guarantee MAXICOM is specifically (and only) responsible for the transport costs ad for the products supplied by MAXICOM Not As Per Agreement the costs as well as the transport risk are borne by MAXICOM.

9.33 Unless explicitly agreed otherwise in writing, the products accepted by MAXICOM under guarantee are in all cases held by MAXICOM and/or the third party it engages at the expense and risk of the other party.

9.34 MAXICOM is in no way and in any form whatsoever liable to and/or on behalf of the other party for:
a. the deficiencies in packaging of the products to be returned and the consequences that can arise as a result of that both during and after transport. MAXICOM is also not therefore responsible for inspecting the reliability of the packaging prior to and during transport. The other party remains independently responsible for the proper packing for transport of the return products and is also obliged to implement the measures as described in Article 9.37.

b. the loss or the disclosure of information and/or functionalities on the products referred to above in this Appendix for the duration that MAXICOM is holding and/or in possession of these products, or when these products remain under its responsibility with a third party it has engaged. The other party remains independently responsible for the data security and is obliged to ensure adequate and timely storage of the aforementioned information and/or functionalities and is also obliged to implement the measures as described in Article 9.37.

9.35 MAXICOM endeavours to complete the technical-administrative handling and issue of a credit note (if applicable) within approximately 10 working days after inspection in the stores of the products received from the other party which are returned as “Outside of Guarantee” products.

Obligations of the other party
9.36 a. 
Where MAXICOM issues an RMA to the other party, the products for which MAXICOM organises the transport must be easily accessible on the ground floor and ready for transport no later than 5 working days after the issue date of the RMA (see under ‘Transport’ Article 6 of the general section) but in any event at the moment of collection by or on behalf of MAXICOM.
b. Where MAXICOM issues an RMA to the other party in relation to a DOA or Carry-in Guarantee, the products for which the other party organises the transport must be received by MAXICOM at the address instructed by MAXICOM within 5 working days after the issue date of the RMA.

9.37 After obtaining an RMA from MAXICOM the other party is obliged to implement the following measures for the return of products in accordance with the RMA and conditions:

  • –  The other party must make a backup of the data and/or functionalities insofar as the return

concerns information carrier products;

  • –  Theotherpartymustensuretherequiredpropertransportpackagingasspecifiedaboveinthis

Appendix;

  • –  Toners, and paper in the paper drawer and such like must ber emoved;
  • –  Bios passwords must be provided to MAXICOM.;
  • –  Accesss ecurity, such as passwords, pincodes and such like must be removed.

9.38 Prior to transport the other party is obliged to attach the RMA Authorisation Form it receives from MAXICOM to the outside of the (transport) packaging in a clearly visible position and in a proper manner; therefore also in those cases in which transport is to be arranged directly by the other party.

Rights of MAXICOM
9.39 a. 
MAXICOM has the right and shall (generally) apply this right to refuse and/or return products that are not returned to MAXICOM in accordance with MAXICOM’s instructions and/or RMA conditions and/or in cases where the condition of the products returned by the other party and/or the packaging of those products gives cause, such being without MAXICOM being held liable in any way whatsoever by and/or on behalf of the other party. The return by MAXICOM to the other party referred to shall be undertaken at the expense and risk of the other party, including any costs for re-packing.
b. If, despite this, MAXICOM accepts the products returned to it with regard to which the condition and/or the packaging is defective then MAXICOM shall have the right to adjust the price correspondingly in the event that a credit is agreed.

9.40 Where the other party returns products to MAXICOM that are in conflict with MAXICOM’s instructions and/or the RMA conditions and/or after it becomes evident following inspection of the returned products that the reason MAXICOM issued the RMA was unfounded, for example in the case that there is no evidence of; Guarantee, DOA, Products Supplied Not As Per Agreement and suchlike – such being at the discretion of MAXICOM – then MAXICOM shall have the right to also charge the other party investigation and/or handling costs and suchlike, in addition to any shipping costs for returning the products to the other party, subject to a minimum of 50.00 euro (in words; fifty euro) per return (or product).

9.41 Where MAXICOM issues an RMA for products to be returned by the other party for which a Factory Guarantee applies or applies in part, then MAXICOM shall have the right to include –in full or in part – the terms and conditions and procedure specified at that time for the return by the manufacturer as a condition for granting an RMA.

9.42 The aforementioned rights apply without prejudice to all other rights that MAXICOM has under the law and that which is stipulated in these general terms and conditions.

APPENDIX 10: GENERAL GUARANTEE TERMS

Without detracting from the provisions in art. 16 General part the following provisions apply:

10.1 Unless the period is agreed explicitly otherwise in writing, the guarantee period for a guarantee issued by MAXICOM is a maximum of 3 months immediately following the date of delivery of the relevant products, as stated on the invoice. The guarantee shall lapse automatically at the end of the agreed guarantee period.

In cases in which no delivery date is stated on the invoice the invoice date shall be regarded as the commencement date for the guarantee period unless an earlier delivery date can be demonstrated from the proof of delivery, in which case the delivery date stated on the proof of delivery shall apply as the commencement date of the guarantee.

10.2 Unless agreed explicitly otherwise in writing and/or instructed otherwise by MAXICOM, MAXICOM shall only consider a guarantee claim from the other party for products supplied under its own guarantee when the relevant products have been returned to MAXICOM by the other party and a Return Request has been submitted for this within the guarantee period. The return can only take place by means of an RMA Request and under the applicability of the “RMA and conditions” as described in Appendix 9.

10.3 There can never be a double guarantee situation. In the event, for whatever reason, a double guarantee has been issued; one from the manufacturers and one from MAXICOM, then the only applicable guarantee shall be the Factory Guarantee. In that case, the other party cannot derive any rights from the guarantee provided by MAXICOM for the period during which both guarantees have been issued.

10.4 The other party cannot derive any rights from the consideration of a claim and the method of handling a guarantee claim or from the approval of the RMA Request by MAXICOM.

10.5 A claim by and/or on behalf of the other party under a guarantee provided by MAXICOM shall not interrupt the guarantee period. For future purchases, whether similar or not, no rights can be derived by and/or on behalf of the other party from a guarantee provided by MAXICOM, even when a guarantee was/will be provided to third parties.

10.6. When a guarantee is provided by MAXICOM and the other party makes a claim under that then it can only be determined whether the complaint is covered by the applicability of the guarantee after definitive establishment of the nature of the complaint by MAXICOM.

10.7 If the claim is not covered by the scope of the guarantee and MAXICOM has – on the request of and/or on behalf of the other party – supplied replacement products to the other party before the definitive establishment, then MAXICOM shall have the right to charge the other party for the costs of the replacement product for the duration it is in the possession of the other party, including the costs of return transport, which shall equate to MAXICOM’s normal rental that is applicable for that product.

10.8 MAXICOM shall have the right to also charge the other party the extra investigation and/or handling costs it has incurred for an unjustified claim by the other party under a guarantee provided by MAXICOM, in addition to any shipping costs, subject to a minimum of 50.00 euro (in words; fifty euro) per return (or product).

10.9 Insofar as not agreed explicitly otherwise in writing between MAXICOM and the other party, for a guarantee provided by MAXICOM the other party shall arrange the transport to and from MAXICOM for the products to be sent under a guarantee claim and this shall be at the risk and expense of the other party (so-called Carry-in Guarantee).

10.10 Insofar as not agreed explicitly otherwise in writing, for a guarantee provided by MAXICOM, MAXICOM shall only arrange the transport to and from MAXICOM for products to be sent under a guarantee claim (so-called Pick-up & Return Guarantee). In that case, MAXICOM shall – with the exclusion of the transport risk – only pay the costs of the transport.

10.11 The products for which a claim under the guarantee is made and any replacement products, if that is the case, shall be transported at the expense and risk of the other party. Amongst other things, this means that when shipping those products to MAXICOM or to its supplier, directly or indirectly, this is to be undertaken on a carriage-paid basis and when the products are sent to the other party by MAXICOM this is to be undertaken on an ex-works basis from its premises or from another location determined by MAXICOM.

10.12 The guarantee provided by MAXICOM concerns an obligation to use best endeavours and can include repair or replacement (by equivalent or functionally equivalent products), or full or partial credit for the relevant products, such being at the discretion of MAXICOM.

10.13 By complying with one of the activities referred to above under point 10.12 MAXICOM shall have discharged its guarantee obligations in full.

10.14 The right to a guarantee claim under a guarantee provided by MAXICOM shall lapse when the guarantee claim – in MAXICOM’s opinion – is based on a spurious request or a suspicion of such; for example though not limited to, if:

  • –  Something has been changed, crossed out, deleted or made illegible on the invoice.
  • –  The model (type) or production (batch) number has been changed, crossed out, deleted or made illegible on the product.
  • –  Repairs or modifications have been undertaken by non-authorised (service) organisations or persons.
  • –  There has been a case of improper use.
  • –  There is a defect that is the result of external contingencies such as, though not limited to, lightning strike, flooding, fire, negligence, incorrect or improper use, inexpert use, use in an environment that is unsuitable for the product, exposure to extreme temperature and peak voltage and damage caused by animals.
  • –  There is a defect that has been caused by connected peripheral equipment, accessories or consumables that are not specified by the manufacturer.
  • –  There is a defect that has been caused by software or configuration problems.
  • –  The product has been overloaded.
  • –  The product defect is the result of normal wear and tear of replaceable components.
  • –  The product is being used in a country for which it has not been designed, produced or approved and as a consequence for example (though not limited to this) it fails to comply with local or national technical standards that are in force.
  • –  The products to which the guarantee request related have been resold.
  • –  The other party is in default or breach in any way whatsoever towards MAXICOM.

10.15 Software and consumables such as for example (though not limited to) batteries, toner cartridges, printer ribbons, ticket rollers, disk packs and memory carriers shall never be covered by the guarantee provided by MAXICOM.

10.16 MAXICOM is not obliged to provide replacement products to the other party during the period that MAXICOM is holding products that have been returned under a guarantee that it has provided. Where such products are made available to the other party they are not covered by the guarantee.

10.17 Products or product components that are replaced pursuant to a guarantee provided by MAXICOM shall remain the full property of MAXICOM as a result of a guarantee provided.

10.18 Unless agreed explicitly otherwise in writing, products accepted for repair under guarantee shall remain in all cases with MAXICOM or with a third party engaged by MAXICOM at the expense and risk of the other party.

10.19 MAXICOM is in no way and in any form whatsoever liable for the loss or the disclosure of information and/or functionalities on the products referred to above in this Appendix for the duration that MAXICOM is holding and/or in possession of these products, or when these products remain under its responsibility with a third party it has engaged. The other party remains independently responsible for the data security and is obliged to ensure adequate and timely storage of the aforementioned information and/or functionalities.

10.20 MAXICOM shall never be liable under a guarantee claim made correctly or otherwise by and/or on behalf of the other party for obligations that extend beyond those described above in this Article. MAXICOM is not therefore also liable for any form of loss that was and/or shall be suffered by and/or on behalf of the other party.

10.21 The guarantee provided to the other party by MAXICOM shall be cancelled automatically at the moment the other party disposes of the relevant products to third parties and/or transfers them for use by third parties.

10.22 For pre-owned and refurbished CISCO branded equipment, CISCO branded equipment acquired outside of authorized resale channels (i.e. “new in box” or “out of channel” equipment) a warranty period of 90 days applies. This warranty does not apply to any failure of the Equipment as a result of misuse, abuse, accident, neglect or mishandling, lack of proper maintenance, environmental factors, improper installation or configuration, flood, fire or other natural disasters, physical damage, electrical issues such as lightning, power surges or incorrect electrical voltages, or improper modifications.