These General Terms and Conditions are applicable to all
Offers and Agreements (and/or changes or additions thereto) by virtue of which
Hermess B.V. undertakes work including the delivery of Data and Services.
These General Terms and Conditions shall
take precedence over any conditions sought to be imposed by the Customer,
including conditions containing a Condition similar to this one.
Deviations from these General Terms and
Conditions shall only be binding in the event that they have been agreed upon
in writing between the Provider and the Customer.
For the purpose of these
General Terms and Conditions, the terms below are defined as follows:
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"Agreement": |
an Agreement for the
provision of Services will come into force through the acceptance by the
Provider of an Order issued by the Customer; |
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"Customer":
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the person, firm or company to whom the Provider provides
the Services; |
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"Conditions":
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these general terms and conditions; |
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“Data”: |
meteorological,
environmental, hydrological or oceanographic (whether historical or
otherwise) information and/or graphs, graphics, drawings, documents,
trademarks, know-how or any other material provided as part of the Services; |
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“Intellectual Property |
any Intellectual property right including but not limited
to copyright, |
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Rights” |
moral right, database
right, patent, trade mark, domain name, trade confidential or design right
(whether registered or unregistered) or where relevant any application for
any such rights in any jurisdiction.
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“Offer”:
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A specification of the Data and/or Services to be provided; |
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“Order” : |
the Customer’s request
for the Provider to deliver the Services whether verbally or in writing and
whether electronically or otherwise; |
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"Party":
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Provider or Customer as the case dictates; |
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“Permitted Use” : |
the purpose for which the Data and/or Services may be
used;
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"Price" : |
the sums payable in EURO
by the Customer to exclusive VAT, any local taxes and bank costs; |
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“Provider” :
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Hermess
B.V. whose registered address is at Ecu 23, 8305 BA Emmeloord, The
Netherlands |
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"Services":
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the activities, the
provision of Data or weather forecasting services as described in the Offer
that the Provider provides to the Customer pursuant to an Order (in whatever
medium) solely for the Permitted Use;
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“Term” :
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in respect of the
Services, either the period during which the Provider agrees to supply the
Customer with the Services; |
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"Third Party":
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any entity other than Customer or Provider; |
1.1. The Conditions will govern each Agreement and the
Customer will be deemed to have accepted the Conditions supplying or returning
an Order to the Provider or in any event on the Provider commencing to provide
the Services.
2.1. All Offers and quotations are without commitment
unless stated otherwise. Unless otherwise specified, an Offer is valid for a
period of 1 month from the date of Offer.
2.2. An Agreement for the provision of Services will come
into force either when the Provider accepts an Order and/or later changes or
additions to it in writing or when the Providers first makes available or
delivers the Services to Customer, whichever occurs first.
3.1. The Provider shall perform the Services as described
in the Offer, including all modifications agreed upon afterwards between
Parties. The Customer may request variations to the Services in writing or may
request the Provider to submit proposals for variation to the Services.
3.2. In consideration of the Customer paying the Provider
the Price, The Provider will provide the Customer with the Services for the
Term. Customer will use the Data solely for the Permitted Use and as permitted
by these Conditions.
3.3. The Services shall be carried out within the estimated
term referred to in the Offer, unless this can not reasonably be required in
the circumstances. Should the term threaten to be exceeded, the Provider shall
be committed to confer with the Customer as soon as possible. The Provider
shall not - due to the simple expire of the term - be in default without prior
written notice thereof.
3.4. In providing the Services the Provider shall exercise
the degree of skill, care and diligence normally expected of a competent
professional.
3.5. The Customer shall provide to the Provider, free of
cost, as soon as practicable following any request for information, all
information in his or her power to obtain which may relate to the
Services. The Provider shall not,
without the Customer’s prior consent, use information provided by the Customer
for purposes unrelated to the Services. The Customer shall fully indemnify
Provider for claims arising from violations of any (intellectual property)
rights that a Third Party may have in any information provided.
3.6. In respect to the Services, Customer acknowledges that
despite the Provider’s professional endeavours the Services to be rendered by
the Provider are limited to those based upon meteorological and oceanographic
analysis and are of a predictive nature, and, as a result, contain elements of
uncertainty for which no assurance can be given. And the Customer agrees that
the Services may not be relied upon as though it were a statement of fact.
3.7. The Provider reserves the right at any time, subject
to reasonable notice, to suspend the Services in the event of any actual or
suspected breach by the Customer of these Conditions.
3.8. The Customer accepts that it may be necessary to
upgrade or change the content of the Services during the Term.
3.9. When the Services include
the supply of Third Party information, software or material object(s), the
Provider shall, without prejudice to the provisions of the article, give no
other guarantee with respect to such information, software, object(s) than the
one described in the Offer.
3.10. By accepting an Order to develop (a(n))
(experimental) procedure(s), (experimental) model(s), equipment, computing
method(s) and/or computer software, The Provider shall commit itself to no more
than - when carrying out the activities agreed up - to strive for a result
which is useful to the Customer.
4.1. The Customer shall pay the Provider for the Services
the Price and expenses at the times and in the manner set out in the
Offer.
4.2. Where Services are carried out on a time charge basis,
the Price payable by the Customer to the Provider shall be determined by
subsequent calculation on the grounds of the methods and rates in use at the
Provider. Should the Offer stipulate a "reference price", the amount
mentioned shall constitute no more than an estimate, free of engagement, of the
costs. Should the Offer stipulate a "fixed price", such price shall
be considered to be the agreed price.
4.3. Unless otherwise specified, all Prices referred to by
the Provider are exclusive VAT, any local taxes and bank costs.
4.4. Unless otherwise specified, all Prices referred to by the Provider
are in EURO.
4.5. Unless otherwise agreed between the Parties, the
Provider will not be obliged to supply the Customer with any Services or Data
until the Customer has paid the Provider the Price in full.
4.6. In the event that the Customer pays for Services by
invoice, the Customer must pay the Price in EURO within 30 days from the date
of invoice unless otherwise agreed in writing. If the Customer fails to pay the
Price or any part of the Price in accordance with the payment term then,
without prejudice to the Provider’s other rights and remedies, the Provider may
suspend any Services and charge both the costs of collection and the legal
interest on the amount outstanding from the date of the invoice until the
Provider receives full payment in cleared funds both before and after any
judgment.
4.7. The Provider reserves the right to require the
Customer to make advance payments on account of the Price before the Provider provides
any Services and/or to submit invoices periodically.
5.1. The Provider cannot accept any liability for any
losses incurred by the Customer or any third party as a result of the Customer
or their reliance on Data and or any other information supplied to the Customer
as part of the Services.
5.2. The Provider does not represent or warrant that the
Customer will have uninterrupted access to the Services nor that errors in the
Data will or can be rectified.
5.3. The Provider excludes all other warranties,
Conditions, terms, undertakings and obligations whether express or implied by
statute or otherwise to the fullest extent permitted by law.
5.4. The Customer warrants to the Provider that the
Customer will not use the Services, or the Data, or products derived from the
Data, in ways which are knowingly or potentially libellous or slanderous of
individuals, companies or organisations.
5.5. The Customer further warrants to the Provider that the
Customer will not use the Data for the Customer purpose of advertising or
promoting a particular product or service without express permission, or in a
way which could imply endorsement by the Provider or generally in a manner
which is likely to mislead others.
6.1. Unless otherwise specified, the Customer may view,
print, copy for internal use, distribute internally and archive the Data.
6.2. Any and all proprietary rights in the Data and/or the
Services remain the property of the Provider. The Customer will not acquire nor
will the Customer attempt to register any Intellectual Property Rights in the
Data and/or Services.
6.3. Nothing in these Conditions transfers to the Customer
the copyright or any other Intellectual Property Rights in the Data, Services,
or any software, software tools, design concepts, knowhow, techniques or
methodologies which the Provider uses in producing Data, or providing the
Services, the ownership of which remains absolutely with the Provider.
6.4. “Hermess B.V.” and its logo(s) are registered
trademarks of the Provider. The Customer does not have the right to use or
reproduce the Provider’s logo(s) or other trademarks without The
Provider’s prior written
authorisation.
6.5. Only upon prior written authorisation from The
Provider, the Customer shall be authorised to use (part of) the Services for
instituting claims, for conducting legal proceedings, for advertising purposes,
for publications and/or for other similar applications.
6.6. Where the Permitted Use provides for the reproduction
or publication of Data, such reproduction or publication must contain a
copyright acknowledgement in the form: © Hermess B.V. copyright year Published by the Provider
In cases where the Customer wants to
reproduce or publish Data that has been superseded, the Customer must make it
clear that a more up to date version is available.
6.7. The Customer will give the Provider any assistance the
Provider may require to enable the Provider to obtain, defend and enforce the
proprietary and Intellectual Property Rights in the Data and the Services.
6.8. The Customer will effect and maintain adequate
security measures to safeguard the Data and the Services from access or use by
any unauthorised person. The Customer will notify the Provider immediately if
the Customer becomes aware of any unauthorised use of the Services by anyone or
of any actual or potential infringement of The Provider’s Intellectual Property
Rights in the Data or Services. The Customer will permit the Provider at any
time to check that the use of the Data and the Services is in accordance with
these Conditions.
7.1. The Customer shall make no other use of the (specific)
knowledge of The Provider and/or data and/or (other) information (to be)
supplied by The Provider in (connection with) an Offer and/or (a) quotation(s)
for modification, addition and/or extension of an Agreement, than for the
purpose of forming an opinion on the Offer or the quotation(s).
7.2. In the event that such has been agreed upon in writing
at the time of entering the Agreement, The Provider shall be committed to keep
confidential the name of the Customer and the fact the activities have been
carried out, such for a period of time which shall terminate two (2) years
after the date of the final invoice, unless otherwise agreed.
7.3. Unless otherwise agreed upon at the time of entering
the Agreement, The Provider shall be committed for a period of two (2) years
after the date of the final invoice to keep confidential the Services as made
available by The Provider to the Customer, except in so far as it concerns
(a(n)) (experimental) procedure(s), (experimental) model(s), equipment,
computing method(s) and/or computer software whose development was not directly
envisaged by the Agreement. In the event of tests, analyses, measurements or
literature search, the commitment to confidentiality shall be limited to the
findings of the test, analysis, measurement or literature research carried out
as such.
7.4. In the event misconceptions occur in consequence of
the making public by the Customer of the Services, The Provider is relieved of
the commitment to confidentiality to the extent reasonably required for The
Provider to give an explanation on the results to third parties.
7.5. The Provider shall be committed to keep confidential
information from the Customer received by The Provider in the execution of the
Services and explicitly labelled confidential by the Customer. The commitment
to confidentiality shall not apply to:
a)
information already in the possession of The
Provider at the moment the information is disclosed by the Customer to The
Provider;
b)
information which either was or has become
common knowledge, without this common knowledge being the result of any
omission on the part of The Provider;
c)
information, either lawfully acquired by The
Provider from a third party, and/or acquired by The Provider from its own
research, without any use of the information labelled confidential.
d)
information required by law or relevant
regulatory body to be disclosed.
7.6.
The Provider's obligation to confidentiality
shall not apply if and in so far as it is contrary to the public interest, nor
if and in so far as The Provider detects a serious danger to persons or goods.
In the latter case, The Provider shall confer with the Customer, if possible,
before reporting the danger to those whose person or good is being threatened
and/or the competent authorities.
7.7.
Unless otherwise agreed upon in writing The
Provider reserves the right to notify third parties or to issue publications on
the nature of the Agreement, its rough contents and the activities carried out
in the framework of the Agreement.
8.1. Notwithstanding anything else contained in these
Conditions, the Provider may, at the Provider’s option, suspend or terminate
the Services immediately on giving notice to the Customer if:
a)
the Customer fail to pay any amount that is due
for payment under these Conditions; or
b)
the Customer commit any other breach of any of
these Conditions and in the case of a breach which is not persistent and which
is capable of being remedied, have failed, within 7 days after the Provider
have requested the Customer in writing, to remedy the breach;
c)
the Customer has a receiver or administrative
receiver appointed over the Customer or over any part of the Customer’s
undertaking or assets, or the Customer pass a
resolution for winding-up (except for
the purpose of a bona fide scheme of solvent amalgamation or reconstruction),
or if a court of competent jurisdiction makes an order to that effect, or if
the Customer become insolvent or subject to an administration order, or if the
Customer enter into any voluntary arrangement with the Customer’s creditors, or
if any similar process to any of the above is begun, or if the Customer cease
or threaten to cease to carry on business.
8.2.
Any suspension of the Services on the Provider’s
part will not prejudice the Provider’s right to terminate the Services later,
for the same or a different reason.
8.3.
Should the Provider terminate the Services under
Condition 8.1, the Customer will remain liable to pay the Provider any portion
of the Price which remains unpaid in respect of the Services for the remainder
of the Term together with any expenses the Provider have incurred or have
agreed to incur in connection with any work done or to be done for the
Customer.
8.4.
The termination or expiry of the Services for
any reason:
a)
will not affect any accrued rights or
liabilities which either the Customer or the Provider have, nor will it affect
the coming into force or the continuance in force of any of these Conditions
which is expressly, or by implication, intended to come into or to continue in
force on or after termination; and/or
b)
will not entitle the Customer to any refund of
the Price.
8.5.
The Customer does not have a right of early
termination or cancellation of the Services unless the Provider agrees in its
sole discretion to the Customer’s request in writing and upon such terms as the
Provider may agree and in this event the Provider may, but shall not be obliged
to make a partial refund of the Price the Customer have paid, entirely at the
Provider’s discretion.
8.6.
The customer will delete or destroy the Data
supplied to the Customer following termination of the Services under Condition
8.1.
9.1. The Provider will not be liable for any delay in
performing or failure to perform the Services caused by circumstances beyond
the Provider’s control and the Provider will be granted a reasonable extension
of time for the performance of the Services.
10.1. The Provider will not be liable to the Customer for
loss of actual or anticipated profits or savings, loss of business, loss of
opportunity, loss or spoiling of data, loss of contracts, or for any indirect
or consequential loss, whether arising from negligence, or breach of Agreement,
or in any other way, even if the Provider were advised of, or knew of the
likelihood of, that loss or type of loss arising.
10.2. Without prejudice to Condition 5.1 and 10.1, the
Provider’s liability for direct loss
whether in agreement, or tort (including negligence) or arising in any other
way, will not exceed the amount the Customer has paid to the Provider or is
payable for that part of the Services from which the Customer’s claim for loss
arises. Remunerations paid by the Provider to third parties for the benefit of
the execution of the Agreement, shall not be included in the above amount.
10.3. If either Party is found liable to the other (whether
in contract, tort or otherwise), and the claiming Party and/or a Third Party
has contributed to the loss or damage, the liable Party shall only be liable to
the proportional extent of its own contribution.
10.4. The Customer will keep the Provider, its personnel
and subcontractors involved and/or called in by The Provider in the execution
of the Agreement fully and effectually indemnified against
all actions, claims, proceedings, costs
and/or damages together with all legal costs or expenses that the Provider and
such other parties incur as a result of entering an Agreement with the Customer (including any claims made
by third parties against the Customer or the Provider paid by the Customer to
compromise or settle any claim made by a third party based on the Customer’s
use of the Data).
10.5. The Provider, its personnel and subcontractors
involved and/or called in by The Provider in the execution of the Agreement
shall not be liable for damages suffered by the Customer and/or third parties
originating from the application and/or use of (part of) the results of The
Provider's activities, unless there is evil intent or gross negligence on the
part of The Provider, its personnel and/or on the part of the said
non-employees.
10.6. The Provider, its personnel and non-employees
involved and/or called in by The Provider in the execution of the Agreement
shall not be liable for damages to, or for the loss of, substances or objects
made available by the Customer to The Provider, if the nature of the Agreement
involves damages or loss, or the risk thereof.
10.7. The Customer shall be committed to notify The
Provider of properties of a substance or object made available by the Customer
to The Provider in connection with the Agreement, which are (might be)
hazardous and, if possible, to clearly mark the substance or object, or its packing,
as being dangerous. Failing which, the Customer shall be liable to fully
indemnify the Provider, its personnel and subcontractors involved and/or called
in by The Provider in the execution of the Agreement for damages originating
from such non-reported property of the substance or object and the Customer
shall safeguard The Provider, its personnel and the said subcontractors against
claims from third parties, unless the Customer proves that he had no knowledge
of the concerned property (properties) nor could have had knowledge thereof.
10.8. The Customer shall be liable for damages or injury
suffered by The Provider, its personnel and/or non-employees involved and/or
called in by The Provider in the execution of the
Agreement, or by The Provider’s property,
during the stay in connection with the Agreement on the site, in a car, on a
ship, in an airplane and/or in respectively on installations of the Customer.
The same arrangement shall apply to sites, cars, ships, airplanes and
installations of third parties, in so far as the stay there is required as a
result of instructions from, or the making available by, the Customer. The
provisions of this paragraph override all differently formulated provisions
agreed by personnel of The Provider and/or non-employees involved and/or called
in by The Provider in the execution of the Agreement, for example in connection
with obtaining access to the site.
10.9. The Provider, its personnel and subcontractors
involved and/or called in by The Provider in the execution of the Agreement
shall not be liable for damages or injury suffered by the Customer, his
personnel and/or his property during the stay on the site, in a car, on a ship,
in an airplane and/or on installations of The Provider, unless the damages or
injury (have) has been caused through negligence of The Provider, its personnel
and/or the said nonemployees.
10.10. The Provider, its personnel and subcontractors
involved and/or called in by The Provider in the execution of the Agreement
shall not be liable for damage to objects of the Customer held by The Provider
under its supervision in connection with the execution of the Agreement, unless
there is evil intent or gross negligence on the part of The Provider, its
personnel and/or on the part of the said non-employees.
10.11. Any liability of The Provider shall expire when
three (3) years have elapsed since the date on which the final invoice of The
Provider was sent.
10.12. In all cases in which the Customer suffers damages
for which The Provider is liable by virtue of the provisions in these Standard
Conditions, The Provider shall be authorized to restrict or rectify, or to have
restricted or rectified, the damages at its own expense.
11.1. No failure or delay by the Provider to exercise any right,
power or remedy will operate as a waiver of it nor will any partial exercise
preclude any further exercise of the same or some other right, power or
remedy.
11.2. These Conditions supersede all prior agreements,
arrangements and understandings between the Customer and the Provider and
constitute the entire agreement between the Customer and the Provider relating
to the Services. The Conditions shall prevail over any terms or Conditions that
the Customer seeks to introduce that are not expressly contained within these
Conditions. The Provider may vary these Conditions at any time for whatever
reason provided the Provider publish such varied Conditions on the Website or
otherwise notify the Customer of such change, and upon being published the
varied conditions shall apply to the Customer in place of these
Conditions.
11.3. The Customer may not assign, transfer, sub-contract
or sub-license the Customer rights or obligations under these Conditions or
sell-on or share any Data, whether in whole or in part, without first obtaining
the Provider’s written consent.
11.4. All notices to be given must be in writing and be
sent to the Provider at the Provider’s address set out at Condition 1 or be sent to the Customer at the
Customer’s registered office or Customer’s place of business or any contact
e-mail address the Customer gives the Provider from time to time.
11.5. The headings to these Conditions are for ease of
reference only, and do not affect the interpretation or construction of these
Conditions.
11.6. Time will
not be of the essence in respect of the Services provided subject to these
Conditions.
11.7. Should the Customer fail within two (2) months after
the date of the final invoice to make arrangements for the return of goods made
available to The Provider in connection with the Agreement, The Provider shall
be free to take appropriate measures for the return of such goods. Any expenses
associated with the above shall be for the account of the Customer.
11.8. Should either The Provider or the Customer fail to
meet any essential obligation stemming from the agreement, the other party
shall notify the breaching party accordingly in writing and during a reasonable
period of time shall give the breaching party the opportunity to comply as yet
with its obligations. In the event that the breaching party does not comply
with its obligations as yet within the time imposed, his rights stemming from
the agreement shall lapse forthwith and the other party shall no longer be
obliged to fulfil any of its obligations. The provisions of this paragraph are
without prejudice to all other rights and obligations of parties stemming from
the agreement.
11.9. If any of these Conditions are, for any reason, held
to be unenforceable, illegal or invalid, that unenforceability, illegality or
invalidity will not affect any other provisions which will continue in full
force and effect.
12.
GOVERNING
LAW AND DISPUTES
12.1.
These
Conditions shall be construed and enforced in accordance with the laws of the
Netherlands.
12.2.
The
governing law of the Agreement and Agreements stemming therefrom shall be the
laws of the Netherlands.
12.3.
Any
disputes arising from and/or in connection with the present Agreement and/or
Agreements stemming therefrom, shall be submitted to the jurisdiction of the
District Court of Central Netherlands, with its seat in Lelystad, The
Netherlands.
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