General Terms and Conditions
Boland B.V.
Lodged with the Chamber of Commerce on the 24th of August 2023, under Number 24117002
ARTICLE 1. GENERAL – DEFINITIONS AND SCOPE OF APPLICATION
1.1The written clauses which follow are deemed to constitute the general terms and conditions of Boland B.V. governing sales and supplies.
1.2 The following terms bear the meaning assigned to them for the purposes of these general terms and conditions governing sales and supplies:
* General Terms and Conditions: these general terms and conditions of Boland governing sales and supplies;
* Boland: Boland B.V., which is registered with the Chamber of Commerce under Number 24117002;
* Client: any natural person or legal entity that procures products and/or services from Boland or enters into consultations or negotiations with Boland concerning the supply of products and/or services;
* Party: Boland or a Client;
* Parties: Boland and a Client.
1.3 These General Terms and Conditions shall govern all offers from, contracts with, supplies from and agreements with Boland concerning the sale and supply of products, the performance of work and the provision of services, unless and in so far as the Parties explicitly derogate from them in writing.
1.4 The application of any general terms and conditions other than these General Terms and Conditions, howsoever such other general terms and conditions may be called and whatsoever form they may take, is explicitly precluded. This is deemed to include procurement terms and conditions or any other general terms and conditions employed by a Client. A Client shall be deemed to have consented to these General Terms and Conditions applying unconditionally as soon as the Client accepts an offer from Boland, an agreement between them comes into effect, and/or the Client accepts any supply from or on behalf of Boland and or services provided. Furthermore, a Client shall be deemed to have agreed that any general terms and conditions other than those referred to in this article will not apply. Furthermore, in so far as is relevant, a Client shall be deemed to have waived the application of any other general terms and conditions.
1.5 Boland shall be entitled to amend these General Terms and Conditions unilaterally and any such amendment shall apply in respect of any existing agreement. A Client shall be deemed to have consented to any such amendment at the outset. An amendment shall come into effect one (1) month after it is announced.
ARTICLE 2. OFFERS AND CONCLUSION OF AN AGREEMENT
2.1 All budgets, quotations and offers issued by Boland shall be free of obligation, unless otherwise explicitly applicable pursuant to same.
2.2 An agreement shall only come into effect between Boland and a Client by virtue of Boland confirming the relevant contract in writing, where Boland starts to execute the contract or in the event that Boland has in any way notified the Client concerned that it has started (or will start) to execute the contract.
2.3 Any verbal undertaking from or arrangement made by Boland and/or any of its subordinates shall only be binding on it provided that and in so far as Boland has subsequently issued the relevant Client with written confirmation.
2.4 Unless a Client lodges an objection as soon as possible or by no later than within two (2) weeks, the relevant agreement shall be deemed to have been accurately presented in full in a notice from or issued on behalf of Boland confirming the agreement.
2.5 An addendum to or amendment of an agreement between Boland and a Client shall only come into effect once Boland has confirmed it and shall only apply to the agreement in respect of which such addendum and/or derogation has been agreed to.
2.6 Although Boland shall comply with any (delivery) deadline stipulated in the notice confirming a contract as far as possible, its failure to do so shall not confer on the relevant Client entitlement to compensation and/or to rescind the agreement, except in the case of a wilful act or omission, or gross negligence on the part of Boland. A delivery deadline shall also be based on the timely supply of any materials or products which Boland has ordered from other parties. In the event of a delay which is due to the late delivery of materials or products which were ordered, the delivery deadline shall be extended proportionately in so far as is necessary.
2.7 Although all statements of quantities, dimensions, weights and/or other designations of products and or services shall be made with due care, Boland shall not warrant that no derogation from same may occur. Any catalogues, drawings, photographs, internet images or other illustrations and/or descriptions supplied by Boland or any of its suppliers shall merely serve as general information and shall not render it mandatory for Boland to effect supply in accordance with the dimensions, weights or technical details listed in them.
ARTICLE 3. PRICES
3.1 In principle, Boland shall calculate prices including the cost of transport and insurance, as well as any duties or taxes levied by the relevant public authorities, except where an order falls below a value stipulated by Boland. In the latter case the prices of products shall apply ex-works in principle and, as such, they shall not include the cost of transport or insurance, any duties or taxes levied by the relevant public authorities or any other costs incurred for the purposes of executing the relevant contract, unless this has been explicitly agreed otherwise in writing.
3.2 After an agreement has been concluded, Boland shall be entitled to raise the agreed prices in the event of – amongst other things but not confined to – interim increases of and/or surcharges on shipping costs, Customs duties, the prices of products and/or raw materials, taxes and other regulations, labour costs or social security charges, interim increases charged by its suppliers and any variations in currency exchange rates which have an inflationary effect.
3.3 A Client shall not be entitled to rescind an agreement due to any of the aforementioned price increases, unless the Client can show that they are unreasonable or unfair. A rescission may not affect any products or services that have already been supplied. In any such circumstances which may occur a Client shall not be entitled to compensation on any grounds whatsoever.
3.4 In so far as Boland has (openly) published sales prices, they shall serve as recommended prices and may be subject to change. Patent errors or mistakes in offers and/or any other communications from Boland shall not be binding on the latter.
ARTICLE 4. DELIVERY AND RISK
4.1 Boland shall be deemed to effect delivery at such time as the relevant products are presented at the agreed delivery address. In the event that it is agreed that the products are to be collected, delivery shall be deemed to have been effected at such time as the products are ready to be collected and the relevant Client has been notified of this.
4.2 Where it is agreed that Boland will be responsible for the transport of any products ordered by a Client, such transport shall occur at Boland’s risk and/or expense. Boland shall be entitled to designate the method and means of transport, and the transporter.
4.3 Boland expressly reserves the right to deliver a Client’s order in instalments.
4.4 A Client shall have a duty to enable Boland to deliver the products which they have ordered to them on the agreed delivery date, or the Client shall have a duty to collect the products which they have ordered from Boland on the agreed delivery date or within three (3) working days after Boland has notified the Client that the products are ready to be collected. Should they fail to comply with this duty, Boland shall keep the products that have been ordered in its warehouse or elsewhere for no longer than one (1) month. Boland reserves the right to charge the relevant Client a reasonable amount by way of a storage fee. Upon the expiry of the aforementioned period of one (1) month, Boland shall be entitled to sell the relevant products to any other party.
4.5 Except where and in so far as may be agreed to otherwise in writing, any delivery time stipulated by or on behalf of Boland in the case of a quotation, offer (or other offer), or confirmation of an order or agreement shall not be deemed to be material or a deadline specified for the relevant performance. Any deadline stipulated by Boland (for supply or otherwise) shall be deemed to have been estimated to the best of its knowledge based on any information disclosed when the relevant offer was made or agreement was concluded and it shall be observed as far as is possible.
4.6 In the event that a delivery deadline is not met, default shall not occur in the absence of prior notice of default, nor shall the relevant Client be entitled to compensation or have the power to cancel the agreement concerned except in the case of a willful act or omission, or gross negligence on the part of Boland.
ARTICLE 5. PAYMENT
5.1 A Client shall be required to effect payment within thirty (30) days after the relevant invoice date, unless otherwise explicitly agreed in writing. A Client shall effect payment in the manner in which Boland stipulates – by means of a bank transfer by default – and in the currency which Boland has mentioned in the relevant invoice.
5.2 A Client shall not be permitted to apply a discount, deduction, suspension or debt setoff. Payment by a Client shall first serve to pay all charges and interest due and then those invoices which are due and have been payable the longest, even if the Client stipulates that the payment is for a subsequent invoice.
5.3 In the event that a Client fails to effect payment by the deadline mentioned in Article 5.1, they shall be in default by operation of the law, all of the claims which Boland has against the Client shall fall due immediately and the Client shall be liable for the legally stipulated interest – the commercial interest in the case of a trading partner – in the absence of any additional prior notice of default or reminder. Furthermore, the Client shall be liable for all reasonable costs incurred for the purposes of securing extrajudicial payment and shall bear the risks involved. These costs shall amount to 15% of the relevant invoice amount, including any interest due, unless the expenses which Boland has actually incurred are higher. In the latter case the Client shall be liable for the actual costs. In the case of judicial debt collection the relevant Client shall also have a duty to pay any reasonable costs that have actually been incurred – including those for legal aid – in full in so far as the actual costs exceed the amount of any costs awarded for the legal proceedings.
5.4 In the event that a Client defaults on payment to Boland, the latter shall be entitled to suspend the further execution of all agreements between the Parties until such payment occurs, and Boland shall be entitled to demand payment in advance in the case of any other contract or delivery.
ARTICLE 6. QUALITY, CLAIMS AND RECALLS
6.1 Boland shall be deemed to have complied with its obligations in full in the event that the products and/or services which it has supplied satisfy the requirements of standard merchantable quality. Any more stringent quality requirements shall only apply, provided that they have been agreed to in writing.
6.2 Boland shall not provide a Client with a warranty for (parts of) products sourced from other parties (its suppliers, amongst others) which extends further than that granted to it by the relevant supplier. Furthermore, the following shall apply in addition to the foregoing:
* any products that are supplied may be subject to limited and/or technically unavoidable anomalies in terms of quality, finish and/or durability. This is also deemed to refer – but is not confined – to any derogation from the specifications, functional descriptions, colours and any statement concerning the dimensions and weight of the products supplied;
* no warranty shall be provided where the relevant products and materials are (or have) not (been) used normally and properly for the purposes for which they are designed in ordinary circumstances;
* no warranty shall be provided for any defects due to the normal wear and tear experienced by the relevant product;
* no warranty shall be provided for any defects which have (probably) occurred as a result of the assembly and/or installation of the relevant product by the Client concerned and/or any other party;
* no warranty shall be provided for any defects which occur as a result of the application of any government regulation concerning the nature or quality of the materials used;
* no warranty shall be provided for any defects which occur as a result of the use of the relevant products, materials, goods, works and/or structures as employed or applied at the request or on the instructions of the Client concerned.
6.3 Immediately after receiving them, the relevant Client shall check whether the products supplied are in good condition and/or comply with the agreement in question.
6.4 Immediately following their receipt, the relevant Client shall immediately lodge a claim concerning any apparent aspects of the products which are deficient or any error on the delivery slip and the like. In the event that a claim is not filed in writing by no later than five (5) days after their receipt or delivery stating the invoice number, such aspects shall be deemed to have been found to be appropriate and any claim against Boland in respect of such deficiencies shall lapse.
6.5 A claim concerning a non-external visible defect must be filed in writing along with appropriate grounds as soon as possible but by no later than fourteen (14) days after delivery and any claim against Boland with regard to such deficiencies shall lapse in the event of a failure to meet that deadline.
6.6 A claim concerning a specific delivery shall not excuse the relevant Client from their financial obligations in respect of that or any other delivery.
6.7 A Client shall provide every assistance to Boland for the purposes of investigating whether a complaint is well-founded on pain of all claims lapsing. Such assistance may take the form of – but shall not be confined to – the provision of information and/or additional evidence. A Client shall not be at liberty to return any product before Boland has consented to this in writing.
6.8 Where it is established at Boland’s discretion that a claim is well-founded, Boland shall repair or replace any (part of the) product covered by the claim free of charge or shall compensate the relevant Client, such at Boland’s discretion.
6.9 In the case of a claim on the grounds of a defect and/or a failure to comply with any obligations pursuant to the relevant agreement, Boland shall only be liable provided that the relevant Client has complied with all of their obligations stipulated in this article. A Client shall be required to afford Boland a reasonable period of time within which to ensure proper compliance with its obligations pursuant to the relevant agreement. The provisions of Article 8 concerning liability and compensation shall apply in this respect.
6.10 Should a Client have any indication that the quality of one (1) or more products is compromised or that a product constitutes a risk to consumer health and safety to such an extent that a product recall or notice concerning product safety may be required, the Client shall have a duty to notify Boland of this in writing first. The Client shall provide Boland with every assistance required for the purposes of an appropriate, effective procedure and to supply all relevant documents and other information. A Client shall not proceed with a product recall or notification without consulting Boland in writing beforehand. Only Boland shall hold final decision-making powers with regard to a product recall and it shall determine the content of any warning, press release and/or other publicity in connection with the relevant products.
6.11 In the event that Boland proceeds with a product recall, when first requested to do so by Boland, the relevant Client shall have a duty to sell all of the products which are the subject of such recall and which the Client has in stock back to Boland in return for payment of the price charged to the Client and to deliver them to it.
6.12 In so far a Client has already sold (or onsold) and supplied any products which are subject to a recall, the Client shall provide Boland with every assistance and any information which in Boland's opinion is required to inform the end customers and users of the recall.
6.13 Under no circumstances shall Boland have a duty to compensate a Client for any loss suffered and/or expenses incurred in connection with a product recall, unless the Client can show that the recall was necessary because of a culpable failure on the part of Boland to comply with its obligations pursuant to the relevant agreement, in which case Article 8 shall apply in full in respect of (any) liability on the part of Boland.
ARTICLE 7. RETENTION OF TITLE
7.1 All of the products that are supplied to a Client shall remain Boland’s property until such time as the Client complies with all of their obligations pursuant or related to any agreement giving rise to a duty on the part of Boland to effect supply.
7.2 Before ownership of such products passes to a Client, the latter shall not be entitled to rent or lease them out to any other party, to alienate them, to allow them to be used by anyone, or to pledge or otherwise encumber them. A Client may only sell, deliver or treat such products in so far as it is necessary to do so for the purposes of their normal business operations. Furthermore, in this respect when first requested to do so by Boland, the relevant Client shall have a duty to pledge all of the claims which they have or may acquire against their customers in relation to such products to Boland immediately.
7.3 A Client shall have a duty to exercise the requisite level of due care for the purposes of storing any products which have been supplied subject to retention of title as the Boland's recognisable property. In the event of a breach of the foregoing provisions the purchase price shall fall due immediately.
7.4 Boland is hereby deemed to have been irrevocably authorised by the relevant Client to repossess any products supplied subject to retention of title (or to arrange for this to be done) in the absence of any legal intervention, demand or notice of default. The relevant Client shall be required to provide every assistance in this respect on pain of payment of a penalty, payable with immediate effect, of €1,000.00 (one thousand euros) for every day that they are in default in this respect. Repossession by Boland shall not terminate the relevant agreement, unless Boland has notified the Client concerned of this.
7.5 In the event that a Client uses any products that have been supplied to create a new asset, the Client shall be deemed to have created such asset for Boland and the Client shall hold it for Boland until all of the financial obligations stipulated in this article have been fulfilled.
7.6 A Client is hereby deemed to have given Boland an undertaking to insure the relevant products against the risks of their damage or destruction in any way whatsoever and to maintain such insurance until such time as the obligations stipulated in Article 7.1 have been fulfilled in their entirety.
7.7 A Client shall have a duty to notify Boland immediately in the event that the Client:
a. intends to file an application for a (provisional) moratorium on payments;
b. intends to arrange for the provisions of the Debt Rescheduling (Natural Persons) Act [Wet schuldsanering natuurlijke personen] to be declared applicable to them or if this has already occurred;
c. has obtained a (provisional) moratorium on payments;
d. intends to file for bankruptcy;
e. has learned that one (1) or more of their creditors intends to lodge an application for their bankruptcy;
f. has been declared bankrupt.
ARTICLE 8. LIABILITY
8.1 Only Boland may be liable towards a Client in its capacity as a legal entity. Articles 7:404 and 7:407(2) of the Dutch Civil Code shall not apply.
8.2 Boland shall only be liable for any loss that occurs directly as a result of unforeseen, avoidable non-compliance for which it may be held to be culpable, and which is directly related to the relevant contract and/or agreement (or its execution) and, more specifically, for compensation by way of substitution, that is to say, the payment of the value of the performance which has not been rendered. Boland’s liability shall at any rate be precluded or at least limited in accordance with the warranty provisions stipulated in Article 6 of these General Terms and Conditions.
8.3 Any (legally stipulated) duty on the part of Boland to provide compensation to a Client on any grounds whatsoever, for example – but not confined to – a culpable failure to comply with or pursuant to the relevant agreement, unlawful action, the restoration of the status ante quo and/or indemnification, shall at all times be confined to compensation for no more than direct loss (as set out in Article 8.7 below) subject to a maximum equivalent to what Boland’s liability insurer pays out or provides by way of compensation in the relevant case plus Boland’s excess (if any). Where necessary and acting at the relevant Client’s request, Boland shall provide information concerning the amount up to which it is insured.
8.4 In the event that and in so far as Boland’s liability insurer refrains from paying anything out or providing compensation as provided for in Article 8.3 for any reason whatsoever, any duty on the part of Boland to provide compensation on any grounds whatsoever (cf. Article 8.3) shall be confined to the equivalent of no more than the amount invoiced by Boland in respect of the relevant contract and/or agreement (exclusive of VAT). Where an agreement is primarily a continuing performance contract with a term in excess of one (1) year, the agreed compensation (exclusive of VAT) shall be calculated in respect of the year preceding the circumstances which caused the relevant loss.
8.5 In the event that and in so far as Boland’s liability insurer does not proceed with a payout or the provision of compensation as provided for in Article 8.3 and any limitation of Boland’s liability referred to in this article contravenes any provision of mandatory law or is not upheld by a court of law (for example, because it is in breach of principles of equity and fairness) and this would mean that Boland would be liable for a loss (including any indirect loss in this respect) in excess of EUR 1,000.00 (one thousand euros), its liability or at any rate its (legally stipulated) duty to provide compensation on any grounds whatsoever (cf. Article 8.3) shall be confined to no more than the latter amount.
8.6 Nevertheless, the maximum amounts referred to in Articles 8.3 to 8.5 shall cease to apply, provided that but only in so far as the relevant loss is due to a deliberate act or omission, or willful recklessness on the part of Boland, such to be proven by the relevant client unless otherwise applicable pursuant to the legally stipulated assignment of the onus of proof.
8.7 ‘Direct loss’ is only deemed to refer to:
a. material damage inflicted on property belonging to the relevant Client;
b. any reasonable costs incurred by the relevant Client for the purposes of establishing liability and the amount of any direct) loss;
c. any reasonable costs which the relevant Client has or could have incurred, or was entitled to incur for the purposes of preventing or limiting such loss in so far as that Client can show that those costs had the effect of limiting that direct loss;
d. any reasonable costs incurred by the relevant Client for the purposes of obtaining extrajudicial judicial relief in accordance with Section 6:96(2)(c) of the Civil Code.
8.8 Under no circumstances may Boland be held liable or be required to pay compensation for any indirect and/or incidental loss, unless any applicable legislation constituting mandatory law does not permit the exclusion of such loss (or part thereof) or at any rate does not permit it in its entirety. Amongst other things, ‘indirect and/or incidental loss’ is deemed to refer to (but is not confined to) consequential loss, loss of turnover and/or earnings, forgone savings, impaired goodwill, investments, any loss due to the disruption or stoppage of business, a loss due to the corruption or loss of data and/or any expenses incurred for the purposes of preventing, determining or limiting any indirect and/or incidental loss, and/or liability for same, and any costs incurred for the purposes of securing extrajudicial compensation for such indirect or incidental loss. Should Boland nevertheless be liable for any indirect loss, the provisions of Article(s) 8.4 and/or 8.5 (including direct loss) shall apply.
8.9 In the event that an occurrence cause multiple Clients or aggrieved parties to suffer a loss, Boland’s liability shall be distributed proportionately amongst the affected Clients or aggrieved parties subject to the exclusion and limitation of liability provided for in these General Terms and Conditions.
8.10 Where multiple exclusions or limitations of liability apply in the case of Boland, that which produces liability for the lowest sum shall always apply.
8.11 In all circumstances Boland shall only be liable on the grounds of a culpable failure to comply with an agreement provided that the relevant Client properly holds Boland liable as quickly as possible, affording it a reasonable period of time within which to remedy its non-compliance, and Boland also fails to comply with the agreement after such reasonable period of time. The notice of default must contain as comprehensive and detailed a description as possible of the non-compliance, so as to enable Boland to respond appropriately.
8.12 A Client shall indemnify Boland completely and hold it harmless in respect of any loss, claim, proceedings, punitive measure, costs and any other claim against Boland (or anyone allied with it) or any other party pursuant to a breach or failure to comply with the relevant agreement on the part of the Client, these General Terms and Conditions and/or any applicable legislation or regulations. This obligation on the part of a Client shall apply without limitation, irrespective of what is implicitly or explicitly stipulated in this respect in the relevant agreement, general or other terms and conditions and without diminishing the Client’s (own) liability.
8.13 A Client shall also indemnify Boland completely and hold it harmless in respect of any claim by another party on the grounds of product liability as a result of a defect in a product which the Client has supplied to a third party and which partly consisted of products and/or services supplied by Boland, unless the Client can show that the loss was occasioned by such products and/or services.
8.14 Any claim for compensation and/or compliance filed against Boland or any right which a Client may be able to enforce in relation to Boland shall lapse or be barred by the mere expiry of one (1) year following the occurrence occasioning the relevant loss or giving rise to the invocation of any other right, unless some other term (or deadline) applies pursuant to these General Terms and Conditions.
ARTICLE 9. NON-CULPABLE NON-COMPLIANCE ON THE PART OF BOLAND
Boland shall not accept any liability in the event that it is unable to comply with its obligations due to non-culpable non-compliance.
9.2 For the purposes of these General Terms and Conditions, ‘non-culpable non-compliance’ is deemed to refer to any circumstances as a result of which a Client can no longer reasonably require Boland to comply with the relevant agreement, which is at any rate deemed to include war, the threat of war, civil war, insurrection, natural disasters (which are also but not exclusively deemed to include epidemics or pandemics), flooding, industrial strikes or lockouts, staffing shortages, transport difficulties, fire, nuclear reactions, government measures, import or export restrictions and the disruption of business.
9.3 In the case of non-culpable non-compliance Boland, acting at its own discretion, shall be entitled to extend the delivery time by the duration of the impediment and thereby suspend its obligations, or to cancel the relevant agreement to the extent that it is affected by that impediment. In the event that a Client reminds Boland to do so in writing, Boland shall have a duty to express its preference within fifteen (15) days.
9.4 Should a situation of force majeure persist for longer than three (3) months, either Party shall be entitled to rescind the relevant agreement by means of a written notice given to the other Party.
9.5 In accordance with the provisions of Article 8.2, Boland shall not be liable and/or have a duty to provide compensation to the relevant Client in the event of force majeure.
ARTICLE 10. TERMINATION
10.1 In the event that a Client is in default (in so far as compliance is not permanently or temporarily impossible), Boland shall be entitled to cancel or rescind the relevant agreement in the absence of any judicial intervention and subject to Boland’s right to seek compensation (instead) and/or compensation (instead or in addition thereto), and/or to take any other action (legal or otherwise).
10.2 A Client shall have the power to cancel the relevant agreement in the event that Boland still culpably fails to comply with any material obligations stipulated in that agreement after receiving a proper and an as detailed as possible written notice of default stipulating a reasonable period of time within which such material non-compliance may be remedied. The reasonable period of time stipulated by a Client for compliance must make allowances for all of the concrete circumstances of the relevant case.
10.3 Furthermore, Boland may cancel all or part of an agreement with immediate effect by means of a written notice in the absence of any notice of default or judicial intervention in the event that the relevant Client is granted a moratorium on payments which is provisional or otherwise, an application is filed for their bankruptcy or is granted, their business is liquidated or discontinued other than for the purposes of restructuring or merging businesses, their business is sold or a change occurs in their business’ management board. Under no circumstances shall Boland be liable for any compensation on the grounds of such termination.
10.4 Any amount for which Boland has issued an invoice prior to such cancellation or rescission in connection with what it has already done or supplied for the purposes of executing the relevant agreement, shall remain payable in full and shall fall due immediately at the time of cancellation.
ARTICLE 11. INTELLECTUAL PROPERTY
11.1 All intellectual property rights to any product supplied and associated materials, such as designs, advice, sketches, drawings, documentation, as well as any preparatory materials for same belonging to Boland (or its licensers or suppliers) shall explicitly continue to be vested in it (or its licensers or suppliers).
11.2 Intellectual property rights shall be deemed to include all worldwide intellectual property rights and similar or related rights in the broadest sense of the term, which includes, in particular, but is not confined to (1) copyrights, (2) design rights, (3) trademark rights, (4) trading name rights, (5) patents, (6) knowhow, (7) database rights, (8) domain name rights and (9) rights pursuant to the doctrine of slavish imitation, including any future intellectual property rights, which are deemed to include all entitlements conferred or still to be conferred by the relevant national or international legislation.
11.3 The provisions of Article 11.1 shall also apply in relation to any products developed, supplied or delivered to a Client pursuant to an agreement (a service or other agreement) which are to be publicly disclosed in the Client’s name, for example, because the latter will in turn be marketing the products.
11.4 A Client shall not be permitted to remove or modify any Boland intellectual property right inscription on a product, unless otherwise explicitly agreed to in writing.
11.5 A Client shall be deemed to have warranted that they will not do or fail to do anything which may infringe Boland’s intellectual property rights, render them invalid and/or endanger the ownership of such rights.
11.6 In the unlikely event that it may appear that any products which Boland has supplied to a Client infringes any other party’s intellectual property rights and the Client is called to account for this, the latter shall have a duty to notify Boland of this in writing immediately. Acting at its own discretion, Boland shall be entitled to either continue to supply the products which have been delivered, to supply (equivalent) replacement products which do not constitute an infringement or to refund the purchase price to the relevant Client after receiving the products concerned from the latter. Subject to what is stipulated in Article 8 of these General Terms and Conditions, Boland shall not accept any liability for the infringement of intellectual property rights outside the Netherlands, which means that a Client will not be permitted to enforce any entitlement or have any claim in respect of such an infringement against Boland.
11.7 Boland may not in any way whatsoever be held, or notified that it is, liable in respect of the infringement of any intellectual property or any other exclusive right due to any modification of products sold or supplied by or on behalf of Boland, or any use or application of such a product which differs from what Boland has prescribed, the basis on which it has acted or which has occurred without its knowledge or consent.
11.8 In so far as any intellectual property right is established in relation to Boland and/or its products and/or services with respect to an agreement and in so far as they are not vested in a Client or partially so, such (partial) rights shall be transferred to Boland free of charge when this is first requested and assistance shall also be rendered to comply with any requisite formalities for the purposes of such transfer to Boland or any other party designated by the latter without any conditions being stipulated in this respect.
11.9 In so far as any further deed is required at any point in time for the purposes of transferring any intellectual property right as provided for in this article, in this case the relevant Client shall be deemed to have hereby irrevocably authorised Boland to draw up such a deed and to sign it partly on behalf of the Client. In so far as is necessary, the Client shall also be deemed to have hereby irrevocably authorised Boland to register the transfer of such intellectual property right in the relevant registers or to transfer it (or to arrange for this to be done).
11.10 In so far as the aforementioned transfer is legally impossible, the Client shall be deemed to have hereby issued a free, comprehensive, unlimited, global, perpetual licence to the relevant intellectual property right or at any rate a right or any element which is created, established and/or developed in relation to Boland's products and/or services. The provisions of the foregoing clause of this article shall apply mutatis mutandis in respect of the intellectual property rights referred to in this clause.
11.11 In so far as is necessary, the Client shall be deemed to have hereby irrevocably authorised Boland to take any (legal) action at its own expense against an (impending) infringement of any rights referred to in this article which Boland deems necessary.
11.12 In so far as the aforementioned intellectual property rights referred to in this article are established by virtue of their registration, a Client shall not be permitted to make any disclosure to another party or other parties concerning such creations or to make any public disclosure about such creations (or any part thereof) without Boland's prior written consent.
11.13 In the event that a Client supplies or provides any designs, patterns, drawings, illustrations, texts or any other item or designation to Boland, the Client shall warrant that they do not infringe any other party's (intellectual property) rights and that this will not be the case either should Boland use them in accordance with an agreement. In the event of a claim by a third party on the grounds of an (alleged) infringement of any rights, the relevant Client shall indemnify Boland and shall compensate the latter in full for any costs incurred or loss suffered by Boland due to such a claim.
ARTICLE 12. TENDERING SECURITY
12.1 Should Boland receive any indication that a Client's creditworthiness is inadequate or impaired, Boland shall be entitled to decline to render performance or any further performance, unless the Client tenders security for compliance with all of their obligations at Boland's request and to its satisfaction. In the event that the Client fails to assist with this, Boland shall be entitled to suspend the (further) execution of the relevant agreement and to seek compliance in respect of any performance already rendered.
12.2 A Client shall also have a duty to tender security to Boland as provided for in foregoing clause, even if Boland has not proceeded to suspend or halt its performance. The Client shall be liable for any costs incurred by Boland for the purposes of expert advice, bailiff's fees and the like.
ARTICLE 13. CONVERSION AND PREVAILING LANGUAGE
13.1 In the event that any provision of these General Terms and Conditions is null and void or is nullified, the other provisions of these General Terms and Conditions shall continue to apply in full. Boland and the relevant Client shall enter into consultation with each other for the purposes of agreeing to new provisions to replace any void or nullified ones, approximating the purpose and meaning of the void or nullified provisions as far as possible.
13.2 These General Terms and Conditions may be translated and published in various languages. In the event of any discrepancy, omission or any other inaccuracy in these different linguistic versions, the text and interpretation of the Dutch version of these General Terms and Conditions shall prevail.
ARTICLE 14. GOVERNING LAW AND COMPETENT COURT OF LAW
These General Terms and Conditions, all agreements and all other legal relations between Boland and a Client shall be solely construed in accordance with and governed by the law of the Netherlands. In the event that any dispute between Boland and a Client cannot be amicably settled, it shall only be brought before a (relatively) competent court of law in The Hague.