Marlyn – Atmos UAV
- Article 1. General terms
- These terms and conditions apply to any quotation, offer and agreement between Topo4D bv., registered in the Belgian Chambers of Commerce under BE0738.832.271, hereafter named “Topo4D”, and a person or company who buys or agrees to buy goods or services from Topo4D, hereafter named “Buyer”, whereupon Topo4D has put these conditions in practice, unless both parties agreed to diverge from these conditions in mutual consent and writing.
- These conditions also apply to any agreement with Topo4D, whereof for its execution Topo4D needs to involve third parties.
- These general conditions have been written as well for Topo4D’s employees and its management
- Any applicability of a Buyer’s own purchasing or other conditions is declined explicitly
- If the explanation of any of the provisions of these general conditions would be unclear, then the Buyer is responsible to request further explanation before the final agreement.
Article 2. Offers and Quotations
- All offers and quotations from Topo4D are free of obligations, unless the quotation includes a period for acceptance.
- An offer or quotation expires whenever the product that is referred to in the offer or quotation becomes unavailable in the meantime.
- Topo4D shall not be kept to its offers or quotations if Buyer can understand in fairness that the offer or quotations, or any part thereof, include an apparent mistake or writing error.
- All prices mentioned in an offer or quotations are excluding any “belastingen over toegevoegde waarde”, hereafter “btw”, and other governmental taxations, costs related to the agreement, among them travel- & accommodation-, shipping and administration costs, unless specified otherwise.
- If Buyer’s acceptation differs from that in the quotation recorded offer, then Topo4D is not bound to it. The agreement shall not come into being according to this differing acceptation, unless Topo4D decides otherwise.
- A compound quotation is in to be seen as an indivisible whole and shall not obligate Topo4D to partially execute the order for a corresponding part of the specified price.
- Quotations or offers shall not automatically apply for future orders.
Article 3. Contract duration and terms of delivery and execution
- Topo4D and Buyer are entering the agreement for indefinite time, unless deriving otherwise from the nature of the agreement.
- If for completion of certain activities or for delivery of particular goods a term has been agreed or stated, then this term cannot be a basis for cancellation of any order. Upon exceeding a term, Buyer shall notice Topo4D in written form. Buyer shall then offer Topo4D a reasonable term for executing the agreement.
- If Topo4D requires information from Buyer for the execution of the agreement, then the term for completion or delivery shall not begin earlier than after Buyer has put this information correctly and completely to Topo4D’ disposal.
- Topo4D is entitled to execute the agreement in several phases and/or to deliver this and/or to separately invoice the thus executed and/or partially delivered.
- If executing and/or delivering the agreement in phases, Topo4D is entitled to postpone the execution of those parts that belong to a subsequent phase until Buyer has approved the results of the thereto- preceding phase in writing.
- If delivered, The delivery Point is at Atmos UAV’ domicile. Buyer shall accept delivery of the ordered goods at the moment Atmos UAV is making these available for Buyer. If Buyer refuses receipt of goods or is negligent in providing information or instruction necessary for delivery, Atmos UAV is entitled to stock up these goods at Buyers expense and risk.
- Point 19 only applies when it is not negotiated that the Buyer will be responsible for the delivery of his ordered goods. In the first phrase Topo4D will let the buyer know when he can schedulte the delivery and training at Atmos UAV’s home adres.
- Topo4D is entitled to subcontract certain activities by third parties.
- If Buyer fails to correctly fulfil its obligations to Topo4D , Buyer shall be liable for all consequential damage (thereto cost included) resulted for Atmos directly or indirectly.
- If Topo4D has agreed with Buyer a fixed price, then Topo4D is nevertheless entitled at all times to increase this price without this entitling Buyer to cancel the agreement, if the price increase results from a jurisdiction or obligation under law or is caused by a price increase of raw materials, wages, or due to other causes in fairness unforeseeable when parties entered into the agreement.
Article 4. Suspending, terminating and early terminating of the agreement
- Topo4D is entitled to suspend execution of the obligations of or terminate the agreement, if:
a) Buyer is not, is not fully, or is not timely fulfilling the obligations of the agreement;
b) after closing the agreement, Topo4D has received information about circumstances giving cause to concern that Buyer will not fulfil his obligations;
c) Topo4D has requested Buyer at the same time when closing the agreement to provide security for settlement of his obligations according to the agreement and this security fails to appear or is insufficient; and/or
d) due to delay caused by Buyer, Topo4D no longer can be obliged to fulfil the agreement according to the originally agreed conditions.
- Further, Topo4D is entitled to terminate the agreement if circumstances arise of such nature that fulfilment of the agreement is impossible or if otherwise circumstances occur of such nature that unchanged preserving of the agreement cannot be demanded from Topo4D in fairness.
- Termination of the agreement entitles Topo4D to immediately recover his claims from Buyer. If Topo4D postpones observance of the obligations, he preserves his claims by law and by the agreement.
- If Topo4D decides to suspend or terminate the agreement, Topo4D shall never be bound whatsoever to any compensation of damage and cost thereby arising.
- If Buyer is accountable for the termination, Topo4D is entitled to compensation for damage, including cost, thereby arising directly or indirectly.
- If Buyer is not fulfilling his obligations resulting from the agreement and this non-observance justifies termination, Topo4D is entitled to terminate the agreement immediately, taking effect at once, without any obligation on his part to paying any compensation or indemnification, while Buyer, by reason of default, does have the obligation to compensate or indemnify.
- In the case of liquidation, of (application for) suspension of payment or bankruptcy, of sequestration – if and as far as the sequestration has not been lifted within three months – at the expense of Buyer, of debt repayment or another circumstance depriving Buyer of the right to have free disposal of his equity capital, Topo4D is entitled to terminate the agreement immediately, taking effect at once, as well as cancel the order or agreement, without any obligation on his part to paying any compensation or indemnification. In this case, Topo4D’ receivables and entitlements on Buyer are immediately claimable.
- If Buyer cancels a placed order in full or partially, Topo4D will invoice therefore purchased or finished goods or services, increased with possible cost for supply, transport or delivery thereof and the labour time reserved for the execution of the agreement, integrally to Buyer.
Article 5. Force majeure
- Topo4D cannot be bound to fulfil any obligations due to causes beyond its reasonable control, provided that such party promptly notifies the other in writing of such occurrence and makes its best efforts to promptly eliminate the effect thereof.
- Force majeure means in these general terms and conditions, besides anything according to the law and jurisprudence, all externally induced causes, foreseen or not foreseen, to which Topo4D could not have any influence, yet by which Topo4D was not able to fulfil its obligations. Work strikes at Topo4D and Atmos UAV’ company, or at a third party’s thereof included. Atmos is also entitled to appeal to force majeure if the circumstance that impedes (further) fulfilment of the agreement occurs after Topo4D and/or Atmos UAV should have fulfilled his obligation.
- Atmos UAV and Topo4D is entitled during the period that the force majeure continues, to suspend the obligations from the agreement. If this period continues for a longer time than three months, each of the parties is entitled to cancel the agreement, without obligation to compensate damage to the other party.
Article 6. Payment and cost of account collection
- Payment shall occur within 14 days after the invoice date, using a method indicated by Topo4D in the invoiced currency, unless Topo4D has indicated differently in writing. Topo4D is entitled to invoice periodically. Topo4D reserves the right to deliver cash on delivery (COD) or require full or partial payment before shipment. Buyer shall pay all costs involved related to and depending on payment settlement.
- If Buyer remains in arrears in the on time payment of an invoice, then Buyer is legally in default. Thus, Buyer is due interest of 1% per month, unless the legal interest percentage is higher, in which case the legal interest is due. The interest over the due amount shall be calculated from the moment Buyer is in default until the moment the full due amount has been paid. An extra one- time service charge of 65 euro will be charged.
- Topo4D reserves the right to assign Buyer’s payments first to decreasing the due amount of cost, thereafter to decreasing the amount of interest and at last to decreasing the principal amount and the current interest.
- Topo4D can, without getting in default, refuse a payment offer, if Buyer points towards another sequence for assignment of the payment. Topo4D can refuse full payment of the principal amount, if not at the same time the outstanding- and current interest and cost of debt collection are paid.
- Buyer is never entitled to settle what he is indebted to Topo4D.
- If Buyer is in default for the timely observance of his obligations, then all reasonable extrajudicial cost for receiving the payment will be for Buyer’s account. If, however Topo4D has made more cost for accounts collection, which was necessary in fairness, the actually made cost shall be subject to reimbursement. The eventually made judicial- and execution cost will be recovered from Buyer as well. Buyer is also bound to pay interest on the due cost for account collection.
Article 7. Right of ownership
- The right of ownership and property of all goods and/or services delivered by Topo4D and/ or Atmos UAV as part of the agreement shall remain vested with Topo4D / Atmos UAV until Buyer has correctly fulfilled all his obligations from the agreement(s) closed with Topo4D.
- Goods and/or services delivered by Topo4D and/or Atmos UAV falling under the right of ownership in accordance with Paragraph 1 of this Article shall not be resold nor used as tender at any time. Buyer is not authorized to pawn or encumber in whatever manner any goods falling under the right of ownership.
- Buyer shall accomplish at all times anything that can be expected from him in fairness to guarantee Topo4D / Atmos UAV’ rights of ownership.
- In the event of sequestration or assertion of rights of delivered goods falling under Atmos UAV / Topo4D’ right of ownership by a third party, it is Buyer’s obligation to immediately inform Topo4D thereof.
- Buyer commits himself to insuring and keeping insured delivered goods falling under Atmos UAV / Topo4D’ right of ownership against damage by fire, explosion and water as well as against theft and shall offer the policy for inspection to Topo4D & Atmos UAV at his first request. Topo4D & Atmos UAV shall be entitled to any recovery payment from this insurance. For as much as necessary, Buyer commits himself to Topo4D in advance to assist with anything whatsoever that is or appears necessary or desirable as part of that.
- Topo4D only takes responsibility for the distribution of the product, and not for the intended quality. This will be passed on to Atmos UAV in consultation with the buyer.
- Should Topo4D wish to exercise his right of ownership as specified in this Article, Buyer gives to Topo4D and any third party to be appointed by Topo4D his unconditional and irrevocable permission.
- Article 8. Warranties, inspection and complaints, term of limitation
- Goods delivered by Atmos UAV meet the common requirements and standards that can be expected in fairness at the moment of delivery and when being used in a manner considered normal use in The Netherlands. The warranty mentioned in this Article applies to goods delivered in The Netherlands. For use outside The Netherlands, Buyer should verify himself whether the goods are suitable for use there and meet his local requirements. In this case, Atmos UAV can offer different warranty- and other conditions for the delivered goods or executed services.
- The warranty as mentioned in Paragraph 1 of this Article applies for a period of 12 months after delivery, unless otherwise results from the nature of the delivered or parties have agreed different. If the warranty provided by Atmos UAV concerns goods produced by a third party, then the warranty is limited to the warranty provided by the producer, unless stated otherwise.
- Any form of warranty expires if a defect is due to or resulting from injudicious or improper use thereof, from installation that makes it impossible to uninstall the item without damage, from injudicious or improper installation or electrical connection, from incorrect storage or maintenance thereto by Buyer and/or by a third party, if, without Atmos UAV and Topo4D’s written permission, Buyer or a third party have made, or have tried to make changes to the item, have attached other items to it that should not be attached to it or if these were processed or treated in a manner different from the method prescribed by Atmos UAV. Buyer neither can have a claim for warranty if the defect is due to circumstances Atmos UAV cannot have any influence on, including weather conditions and etcetera.
- Buyer is bound to (let) inspect the delivered goods, immediately at the moment that the goods are being put at his disposal and/or the relevant work has been carried out. With that, Buyer shall inspect whether the quality and/or quantity of the delivery is in agreement with what has been agreed and meets the requirements that the parties have agreed to. Any visible defects must be reported to Topo4D in writing within 7 days after delivery. Invisible defects must be reported immediately after discovery, yet anyhow within 14 days ultimately, after discovery thereof, in writing to Atmos UAV and Topo4D. The report must contain a description of the defect as detailed as possible, to enable Topo4D effective reacting. Buyer shall provide the opportunity to Topo4D and Atmos UAV to (let) investigate a complaint.
- If Buyer complains in time, this does not suspend his obligation to pay. In this case, Buyer remains bound to accept and pay for the remaining ordered goods and/or services.
- If reporting a defect too late, Buyer has no right of repair, replacement or compensation anymore.
- If it is certain that an item is defective and that with respect to that the complaint has been submitted in time, then Topo4D and Atmos UAV will either replace or take care for repair of or offer a reimbursement to Buyer for the defective item within a reasonable time after receipt of its return. Replacement is possible only after Buyer having returned the defective item to Topo4D or Atmos UAV and after having provided the ownership to Atmos UAV or Topo4D , unless Atmos UAV or Topo4D decides otherwise.
- If Topo4D or Atmos UAV finds that a complaint is unfounded, then Buyer will have to pay all cost arisen thereby, cost for inspection at Topo4D or Atmos UAV’ side included.
- After expiration of the warranty period, all cost for repair or replacement, including administration, shipment and callout charges, will be invoiced to Buyer.
- As a deviation from the legal terms of limitation, the term of limitation for all claims and pleas against Atmos UAV / Topo4D and by Atmos UAV / Topo4D involved third parties for the execution of the agreement, is one year.
Article 9. Liability
- Should Atmos UAV / Topo4D be liable, this liability is limited to that which is regulated in this Article.
- Topo4D and Atmos UAV is not liable for damage, of whatever nature, arisen because Topo4D / Atmos UAV has assumed incorrect or incomplete information provided to him by or on behalf of Buyer.
- Should Topo4D / Atmos UAV be liable for any damage, then Atmos UAV / Topo4D ’ liability is limited to the value of the invoice for the order at the most, however only to that part of the order the liability refers to.
- Atmos UAV / Topo4D’ liability is in each case always limited to the amount of the recovery payment from his insurance company in an occurring case.
- Atmos UAV / Topo4D is only liable for direct damage.
- Direct damage only includes the reasonable cost for determining the cause and the extend of the damage, as far as the determining applies to damage in the sense of these conditions, any reasonable cost to making Atmos UAV / Topo4D’ inadequate performance meet the agreement, for as much this can be accounted to Atmos UAV / Topo4D and reasonable cost, made to avoid or limit damage, for as much as Buyer proves that these costs did indeed limit direct damage as meant in these general terms and conditions.
- Atmos UAV / Topo4D is never liable for indirect damage; this includes consequential damage, loss of profit, etcetera.
- The liability limitations mentioned in this Article do not apply if the damage is caused by Atmos UAV or its managing subordinates’ negligence.
Article 10. Passing of risk
- The risk of loss, damage or value decrease passes to Buyer at the moment items are being transferred to Buyer’s control.
Article 11. Protection
- Buyer shall protect Atmos UAV & Topo4D for any claims from third parties, who suffer damage with reference to the execution of the agreement and whereof the cause is accountable to others than Atmos UAV & Topo4D.
- Should Atmos UAV & Topo4D for this reason be approached by a third party, then Buyer shall support Atmos UAV & Topo4D both judicially and extra judicially and shall undertake immediately all that can be expected from him in this case. Should Buyer remain in default for undertaking adequate action, then Atmos UAV / Topo4D is entitled to proceed himself, without proof of default. All cost and damage to Topo4D & Atmos UAV and third parties arisen thereby, shall come for the account and risk of Buyer.
Article 12. Intellectual property
- Atmos UAV reserves the rights and authority he is entitled for in accordance with intellectual property laws. Atmos UAV is entitled to use knowledge at his side enhanced from executing an agreement, for other purposes as well, as far as he is not bringing strictly confidential information from Buyer to the knowledge of third parties.
Article 13. Applicable law and disputes
- Dutch law shall apply to all judicial relations whereby Atmos is acting as a party, also if an agreement is being executed in a foreign country in full or in part or if any party involved in the judicial relation has its domicile at that place. The application of the Vienna Convention is excluded.
- The judge in Atmos’ domicile is exclusively competent to arbitrate in disputes, unless the law enforces differently. Nevertheless, Atmos UAV reserves the exclusive right to bring a dispute before the court in Buyer’s domicile, either in The Netherlands or outside, and begin at that place a lawsuit or take possession of goods and take or have taken other provisional measures at those places and at those courts that appear necessary to Atmos UAV.
- Belgian law shall apply to all judicial relations whereby Topo4D is acting as a party, also if an agreement is being executed in a foreign country in full or in part or if any party involved in the judicial relation has its domicile at that place. The application of the Vienna Convention is excluded.
- The judge in Topo4D’s domicile is exclusively competent to arbitrate in disputes, unless the law enforces differently. Nevertheless, Topo4D reserves the exclusive right to bring a dispute before the court in Buyer’s domicile, either in Belgium or outside, and begin at that place a lawsuit or take possession of goods and take or have taken other provisional measures at those places and at those courts that appear necessary to Topo4D.
- Parties shall only then appeal to the court after having made every effort to settle a dispute among themselves.
Article 14. Location and change of conditions
- The last registered version or the version in place at the moment the agreement with Topo4D was entered shall always apply.