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Terms & conditions

1. General
These standard terms and conditions of sale ('Standard Terms') shall apply to any purchase by a Customer ('Customer') of any Service (a 'service') of Hoolmans Projects & Coaching. ('HPC').

2. Agreement
The agreement ('Agreement') between HPC and Customer shall consist of these Standard Terms, the Order Confirmation, and the specification for the Service that may be supplied by HPC ('Specification') or the preliminary specification for the Service prototype that may be supplied by HPC ('Preliminary Specification'). Where applicable, Service-specific terms and conditions ('Specific Terms') may be mutually agreed upon by the parties in writing and may be incorporated into the Agreement. In the event the Specific Terms conflict with these Standard Terms, the Specific Terms shall prevail. This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes any and all prior or simultaneous representations, discussions, negotiations and agreements, whether written or oral.

3. Orders and Prices
At Customer’s request, HPC shall provide a written quotation ('Quotation') for the sale and delivery of Services. A Quotation shall be valid for the period indicated in the Quotation. Customer shall accept the Quotation by providing HPC an order in writing ('Order'). If HPC accepts the Order, HPC will confirm the Order in writing ('Order Confirmation') within ten (10) days after receipt of the Order. In the event HPC does not provide an Order Confirmation within the aforementioned period, the Order shall be deemed rejected. These Standard Terms shall supersede any inconsistent or additional terms of Customer, whether included on an Order or another document (except for Specific Terms mutually agreed upon in writing) submitted to HPC and any such inconsistent or additional terms are hereby rejected.

4. Cancellation, Order Changes
When HPC sends an Order Confirmation to Customer, the Order becomes final and binding. Thereafter, Customer may cancel an Order or a line item of an Order in writing ('Order Cancellation') only upon payment of a cancellation fee. The Order Cancellation fee equals 25% of the Quotation price if the Services had not been started by HPC at the date of the Order Confirmation. The Order Cancellation fee equals 75% of the Quotation price if the Services had been started by HPC at the date of the Order Confirmation. The Order Cancellation fee equals 100% of the Quotation price if the order applies to customer-specific final Services. Customer acknowledges and agrees that the foregoing fees constitute reasonable liquidated damages for cancellations and are not a penalty.

5. Delivery and Shipping
The Service shall be supplied at Customer’s premises (INCOTERMS 2000). unless otherwise agreed upon. HPC shall not be liable for damage or penalty for delay in supply or for failure to give notice of any delay. Customer will be deemed to have irrevocably accepted all Services upon delivery.

6. Terms of Payment
HPC will invoice Customer for the sale of the Service on a monthly basis. Customer shall pay the invoiced amount within thirty (30) days of the invoice date. All prices are exclusive of taxes, transport charges, duties, insurance, and all other costs, which shall be the sole and exclusive responsibility of Customer. HPC may pay such amounts on Customer’s behalf and Customer agrees to pay HPC any such amounts upon invoice. All payments due hereunder shall be in the currency indicated on the Order Confirmation. Customer may not offset or withhold any payments invoiced by HPC. Without limiting any other remedy available to it, HPC reserves the right to charge Customer a late payment fee on any past due amounts at the rate of one and a half percent (1.5%) per month or the maximum amount permitted by law, whichever is less.

7. Retention of Title
HPC shall retain ownership title to the Service until all Service invoices and related claims of HPC have been fully settled.

8. Limited Service Warranty and Disclaimer
(a) HPC warrants to Customer that the Services as delivered will conform in all material respects to the Service Specifications in effect at the time of supply. Customer shall notify HPC within a period of thirty (30) days from the date of supply in writing of any non-conformance. HPC reserves the right to examine any allegedly non-conforming Service and perform a failure analysis to determine if the alleged non-conformance is a result of workmanship (in which case the remedies set forth in this Section 8 shall apply), or does not exist or was caused by improper use while in the control of Customer (in which case Customer shall have no right to any remedies hereunder. HPC shall, at its option, either (i) r replace nonconforming Services, at HPC’s cost, or (ii) credit Customer for any such non-conforming Services. The foregoing sets forth HPC’ sole and exclusive obligation and Customer’s sole and exclusive remedy for any breach of the foregoing warranty.
(b) Customer acknowledges and agrees that any warranty pursuant to these Standard Terms may be asserted by Customer only, and not by Customer’s customers. Customer shall indemnify HPC and hold it harmless from and against any and all liabilities, losses, damages, costs and expenses, including without limitation reasonable attorneys’ fees, incurred by HPC resulting from any representation or warranty Customer offers to its customers. In the event a Service is a sample or prototype offered under a Preliminary Specification, such Service is supplied to Customer 'as is' without any warranties of any kind. (c) THE WARRANTY AND REMEDIES SET FORTH ABOVE ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, AND HPC HEREBY EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS TO THE FULLEST EXTENT PERMITTED BY LAW.

9. Intellectual Property Rights
Any and all registered and unregistered intellectual property rights contained in and/or used in the course of manufacturing and developing the Service, including but not limited to patent rights, design rights, copyrights (including software), trademark rights, database rights, know-how, technical information, trade secrets and research, manufacturing and business methods whether now known or hereafter recognized in any jurisdiction (collectively “Intellectual Property Rights”), shall remain the exclusive property of HPC and, where applicable, its licensors. Except for the right to use the Services contemplated by this Agreement, the delivery and sale of the Services to Customer (a) does not convey to Customer or any third party any Intellectual Property Rights in or to the Services or any components of the Services, and (b) does not grant to Customer or any third party any license under any patents or HPC Standard Terms and Conditions of Sale – page 1 / 2 Version 021210 patent applications of HPC except for the right to use the Service in accordance with the terms and conditions of the Agreement. All other rights are reserved.

10. Term; Termination
The Agreement applies in each instance to the Services purchased under a specific Order. The Agreement may be terminated by a party for cause effective upon written notice (which notice shall describe the alleged breach in reasonable detail) to the other if the other party violates any covenant, agreement, representation or warranty contained herein in any material respect or defaults or fails to perform any of its obligations or agreements hereunder in any material respect, which violation, default or failure is not cured within thirty (30) days after notice thereof from the non-defaulting party stating its intention to terminate this Agreement by reason thereof. Sections 6, 7, 8, 10, 11, 13, 14, and 16 shall survive any expiration or termination of the Agreement.

11. Export restrictions
If at any time during the Agreement an export license is required to lawfully export the Service, then the issuance of such license shall be a condition precedent for the supply of such Service. Customer warrants that it shall at all times comply with all applicable export laws, regulations and orders from the Netherlands, the European Union, the United States or other applicable countries.

12. Limitation of Liability
IN NO EVENT SHALL HPC BE LIABLE TO CUSTOMER, OR ANYONE CLAIMING THROUGH OR UNDER CUSTOMER, FOR ANY LOST PROFITS, LOST SAVINGS, SERVICE DOWNTIME, OR FOR LOST DATA OR FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES OF ANY KIND ARISING FROM OR RELATING TO THE SERVICES OR THE AGREEMENT, EVEN IF HPC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY OF ITS ESSENTIAL PURPOSE, THE TOTAL CUMULATIVE LIABILITY OF HPC TO CUSTOMER FOR ANY CLAIMS OR CAUSES OF ACTION ARISING FROM OR RELATING TO THE SERVICES OR THIS AGREEMENT, WHETHER IN CONTRACT, IN TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE LESSER OF TEN THOUSAND DOLLARS ($10,000) OR THE AGGREGATE AMOUNT PAID TO HPC UNDER ANY AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. Customer acknowledges and agrees that HPC’ pricing and the other terms of this Agreement of predicated on the limitations of HPC’ liability set forth in above and acknowledges that HPC would not enter into this Agreement without such limitations.

13. Confidentiality
Customer agrees and acknowledges that the Service, the Quotation, its documentation and the Intellectual Property Rights specified in Section 9 hereof (the “Confidential Information”) are of a confidential nature. Customer shall not disclose the Confidential Information to any third party, nor shall Customer disclose to any third party its possession or use of the Confidential Information.

14. Force Majeur
Any delays in or failure of performance by either party under the Agreement will not be considered a breach of the Agreement if and to the extent that such delay or failure is caused by occurrences beyond the reasonable control of that party including, but not limited to acts of God; acts, regulations and laws of any government; strikes or other concerted acts of workers; fire; floods; explosions; riots; wars; rebellion; and sabotage; and any time for performance hereunder will be extended by the actual time of delay caused by any such occurrence.

15. Miscellaneous
If any of the provisions of the Agreement are or become invalid, or are ruled illegal by any court of competent jurisdiction, or are deemed unenforceable under the current applicable law from time to time in effect during the period of the Agreement, it is the parties’ intention that the remainder of the Agreement will not be affected thereby provided that the parties’ rights under the Agreement are not materially altered. No failure or delay by either party in exercising any right or remedy under the Agreement shall operate as a waiver of such right or remedy nor shall any single or partial exercise or waiver of any such right or remedy preclude its further exercise or the exercise of any other right or remedy. Any amendment to the Agreement can only be made in writing between the parties. This Agreement will be governed by and construed in accordance with the laws of the Netherlands. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded from application to this Agreement. Customer agrees that upon HPC’ request, all disputes arising out of this Agreement shall in first instance be brought before the competent court in Amsterdam, the Netherlands and Customer hereby agrees to consent to the personal jurisdiction of such court.