For the development, provision, sale and delivery of products and services by companies which are part of ODMedia BV.
These conditions apply to every offer, tender and agreement between ODMedia BV and a Counterpart to which ODMedia BV has declared these conditions to be applicable, unless the parties have declined these conditions expressly and in writing.
If one or more provisions of these terms and conditions are at any time wholly or partially invalid or voided, the remainder of these conditions apply in full. ODMedia BV and the Counterpart will then consult on new provisions to replace the invalid or void provisions, which correspond as much as possible to the purpose and intent of the original provisions.
In the event of uncertainty regarding the interpretation of one or more provisions of these terms and conditions, consultation should take place « in the spirit » of these provisions.
On the occurrence of a situation that is not covered in these conditions, such situation must be reviewed in the spirit of these terms and conditions.
If ODMedia BV does not require strict compliance with these conditions, this does not mean that the provisions do not apply, or that ODMedia BV forfeits the right to require strict compliance with the provisions of these conditions in other cases to any extent.
Contract, delivery deadlines and implementation
The agreement between ODMedia BV and the Counterpart is concluded for a definite period, unless the nature of the agreement dictates otherwise or the parties expressly agree otherwise in writing.
If a deadline is agreed or specified for the completion of certain activities or for the supply of certain items, this is never a mandatory deadline. If a deadline is exceeded, the Counterpart must send ODMedia BV a written notice of default. ODMedia BV must be offered a reasonable time still to give effect to the agreement.
If ODMedia BV requires information from the Counterpart for the performance of the agreement, the performance time only commences after the Counterpart has provided accurate and complete information to ODMedia BV.
If the Counterpart is in default with the proper fulfilment of what it does ODMedia BV, then the Counterpart is liable for all damages (including costs) which thereby arise directly or indirectly on the part of ODMedia B.
Suspension, dissolution and termination of the agreement
Either party is authorized to suspend the fulfilment of the obligations if the other party does not fully or timely comply with its obligations under the agreement, such suspension being lifted if and when the other party resumes its obligations under the agreement. If a party suspends fulfilment if its obligations, it will retain its rights under the law and the agreement.
Either party shall be entitled, after expiration of a grace period of 30 (thirty) days following written notice to the other party, to terminate the agreement by notice of such termination in writing to the other party:
If through the delay on the part of one of the parties the other party can no longer be expected to honor the agreement on the originally agreed conditions.
If one of the parties does not comply with obligations under the agreement and this non-compliance justifies termination. If the agreement is terminated, the claims of either party on the other party are immediately due and payable. The defaulted party will be required to pay damages or compensation with immediate effect.
In the event of liquidation, (application for) suspension of payment or bankruptcy, attachment – if and insofar as the attachment is not lifted within three months – against of one of the parties, or debt restructuring or any other circumstance which means that a party is no longer freely able to dispose of its assets, the other party is free to terminate the agreement with immediate effect or to cancel the order or agreement without any obligation to pay any damages or compensation. The claims of the other party will in that case be due immediately.
The termination of this agreement as provided in this agreement, shall be without prejudice to any rights of either party arising prior to the termination or to the remedies available to either party as the result of any breach of this agreement by either party or to such rights as by the terms of this agreement are to survive termination or breach.
If the agreement is terminated early by one of the parties, then this party will, in consultation with the other party, ensure transfer of the work still to be done to third parties. This applies unless the termination is attributable to one of the parties. If the transfer of the work causes additional costs for the party, they will be charged to the other party. The other party is obliged to pay these costs within the period mentioned unless the party indicates otherwise.
Either party is not required to discharge any obligation to the other party if it is hindered due to a circumstance that is not attributable to fault and, under the law, a legal action or general commercial practice is accepted for its account.
Force majeure is defined in these terms and conditions, in addition to what is understood in the law and case law, as all external causes, whether foreseen or unforeseen, over which the parties are unable to exercise any influence but which prevent the parties from fulfilling their obligations.
Either party may, during the period that the force majeure continues, suspend obligations under the agreement. If this period lasts longer than two months, each party is entitled to terminate the agreement without any obligation to pay damages to the other party.
Payment must be made within 30 days after the invoice date, in a manner to be indicated by ODMedia BV in the currency of the invoice, unless otherwise agreed in writing by ODMedia BV.
If the Counterpart fails to make timely payment of an invoice, the Counterpart is legally in default. The Counterpart will owe interest of 1% per month, unless the statutory interest rate is higher, in which case the statutory interest will be payable. The interest on the amount due will be charged from the time that the Counterpart is in default until the moment of payment of the full amount owed.
Objections to the amount of an invoice will suspend the payment by 14 days.
All pricing is excluding VAT and subject to changes.
If ODMedia BV is liable, this liability is limited to what is stipulated in this provision.
ODMedia BV is not liable for damages of any kind, caused because ODMedia BV relies on incorrect and/or incomplete data provided by or on behalf of the Counterpart.
If ODMedia BV or the Counterpart is liable for any damage, then the liability of ODMedia BV or the Counterpart is limited to twice the invoice value of the order, or at least that part of the order to which the liability relates.
The liability of ODMedia BV is always limited to the amount paid by its insurer in the relevant case, except if the damages of Counterpart evaluated by a court decision exceed the insured amount.
ODMedia BV is only liable for direct damages.
Direct damage means only the reasonable costs incurred to establish the cause and extent of the damage, if such establishment relates to damage in the sense of these conditions.
ODMedia BV is never liable for indirect damage, including consequential damage, lost profits, lost savings and damage due to business interruption.
The limitations of liability contained in this Article will not apply if the damage is due to intent or gross negligence of ODMedia BV or its subordinates.
Either party indemnifies the other party against any claims of third parties who suffer damages in connection with the performance of the contract.
If either party is approached in that respect by third parties, that party is required to assist the other party both outside and inside court and immediately to do or that may be expected of it in that case. Should the other party fail to take adequate measures, then the approached party is, after written notice to the other party, entitled to take action itself to that end. Each party takes on its own court costs and all resulting costs and damages on the part of the approached party and third parties will be determined by the court decision.
Intellectual or industrial property rights
ODMedia BV cannot exercise over any material delivered by the Counterpart any claim, title or right, other than those granted under the terms of this agreement.
ODMedia BV retains the rights and authorities to which it is entitled under the Copyright and other intellectual property laws and regulations.
ODMedia BV is free to take technical measures to protect the Software Products.
The source code of the Software Products will not be made available to the Counterpart.
If and to the extent that the Software Products have been developed by ODMedia BV, ODMedia BV retains complete and exclusive access to all the knowledge, expertise and skills that have supported their development. ODMedia BV will always be entitled to use the information, expertise and skills referred to in the previous sentence for other tasks or projects without any compensation or set off in any form being due to the Counterpart.
The Parties are independent contractors. Nothing in this Agreement shall make either Party a partner or representative of the other and neither shall so hold itself out. Neither Party shall be lawfully bound by any representation, act or omission of the other.
Applicable law and disputes
All legal relationships to which ODMedia BV is a party are subject exclusively to Dutch law even if a commitment is implemented wholly or partly abroad or if the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention is excluded.
The judge in the jurisdiction of ODMedia BV has exclusive competence to hear actions, unless the law mandatorily requires otherwise. Nevertheless, ODMedia BV has said right to bring proceedings before the competent court according to the law.
The parties will only approach the court after they have made every effort to settle a dispute by consultation among themselves.
During the Term of this Agreement and thereafter, each party will use and reproduce the other party’s Confidential Information only for purposes of this Agreement and only to the extent necessary for such purpose and will restrict disclosure of the other party’s Confidential Information to its employees, consultants or independent contractors with a need to know and will not disclose the other party’s Confidential Information to any third party without the prior written approval of the other party.
Notwithstanding the foregoing, it will not be a breach of this Agreement for either party to disclose Confidential Information of the other party if required to do so under law or in a judicial or other governmental investigation or proceeding, provided the other party has been given prior notice and the disclosing party has sought all available safeguards against widespread dissemination prior to such disclosure.
“Confidential Information” refers to each party’s trade secrets, business plans, strategies, methods and/or practices, any other information relating to either party or its business that is not generally known to the public; and the terms and conditions of this Agreement.