General Terms & Conditions: 

Article 1 - General

1.1 These general terms and conditions of sale and delivery (hereinafter ‘the General Terms & Conditions’) apply to all offers, quotations, tenders and agreements relating both to deliveries and to the execution of work by EnGenius Technologies Europe for customers, buyers and commissioning clients (hereinafter ‘the Client’).

1.2 Departures from, or amendments to, the General Terms & Conditions require EnGenius Technologies Europe’s advance permission in writing.

1.3 Supplementary or diverging conditions applied by a Client or third parties, including purchasing terms, are non-binding on EnGenius Technologies Europe, unless such terms have been accepted by EnGenius Technologies Europe in writing.

1.4 In case of conflict between the General Terms & Conditions and the terms of any Client or third party, the General Terms & Conditions prevail.

1.5 If any of the terms in these General Terms & Conditions are deemed null and void or otherwise non-binding by a competent court, the other conditions of these General Terms & Conditions will remain in force undiminished.

Article 2 - Orders, tenders and agreements

2.1 Any offers, tenders and quotations are without engagement, unless expressly stated otherwise. Tenders, offers or quotations in case of a possible request are based on the Client’s data and drawings, which EnGenius Technologies Europe may assume to be correct.

2.2 Agreements between EnGenius Technologies Europe and the Client shall only be concluded if and in so far as tenders, offers or orders have been accepted by EnGenius Technologies Europe, or are deemed to have been concluded if EnGenius Technologies Europe has started carrying out the work. If a sale takes place from warehouse stock, the relevant invoice may replace written confirmation of the corresponding order.

2.3 Although descriptions included in orders, tenders and/or quotations shall be as accurate as possible, they are non-binding on EnGenius Technologies Europe. EnGenius Technologies Europe reserves the right to effect technical changes.

2.4 EnGenius Technologies Europe is entitled, if the order for the supply of a product or the execution of services fails to lead to an agreement, to charge to the Client’s account all the expenses EnGenius Technologies Europe had to incur in making the offer.

2.5 Any changes or supplements to any condition in an agreement, order or the General Terms & Conditions shall be exclusively agreed in writing and only apply as changes or supplements to the relevant agreement or order. EnGenius Technologies Europe is entitled to charge to the Client’s account any additional expenses incurred in relation to changes or supplements and, where necessary, to adjust prices and/or delivery periods.

Article 3 - Deliveries and delivery periods

3.1 All delivery periods stated by EnGenius Technologies Europe are approximate and shall never be regarded as deadlines unless expressly agreed otherwise. In case of overdue delivery EnGenius Technologies Europe must be given written notice of default.

3.2 EnGenius Technologies Europe is entitled to suspend delivery as long as the Client has not fulfilled all its obligations vis-à-vis EnGenius Technologies Europe. Such suspension applies until the moment the Client has belatedly fulfilled its obligations.

3.3 Deliveries are made ex warehouse, workshop, factory or shop at EnGenius Technologies Europe’s discretion.

3.4 The products to be delivered by EnGenius Technologies Europe are transported at the Client’s risk. The manner of transport is decided by EnGenius Technologies Europe. The transported products are not insured, unless the Client expressly desires otherwise; in such cases expenses shall be for the Client’s account. EnGenius Technologies Europe may only be held liable for any loss resulting from overdue delivery if the Client has given notice of default. In case of such notice the Client shall grant EnGenius Technologies Europe a period comprising at least half of the originally agreed delivery period, in order to allow EnGenius Technologies Europe to fulfil its obligations after all. Exceeding of the period of delivery may in principle only lead to compensation if such compensation has been agreed in writing.

3.5 Unless expressly agreed otherwise, expenses involving import and export duties, stamp duties, station charges, clearance charges, taxes etc. shall be for the Client’s account.

3.6 EnGenius Technologies Europe reserves the right to make partial deliveries and to send partial invoices.

Article 4 – Prices

4.1 The prices stated by EnGenius Technologies Europe are based on the prices that apply on the day of delivery ex workshop, factory, warehouse or shop, are exclusive of Dutch VAT and, unless expressly stated otherwise, are exclusive of packaging and shipment charges.

4.2 EnGenius Technologies Europe is entitled to charge to the Client’s account any price-raising factors – including increases in cost and tariffs for materials, wage costs, social insurance contributions, taxes, transport costs, suppliers’ (manufacturing) prices, as well as changes in exchange rates – which arise after an offer or tender has been submitted, or after the conclusion of the agreement. The Client is entitled, after having been notified of the increase, to dissolve the agreement within eight days after notification.

Article 5 – Payment

5.1 Unless expressly agreed otherwise in writing, payment shall take place within 8 days of the invoicing date, without deduction of any discounts. The term of payment is to be regarded as a deadline. Compensations, deductions or set-offs are not permitted.

5.2 Prior to deliveries, EnGenius Technologies Europe shall at all times be entitled to demand, at its discretion, sufficient security regarding the Client’s fulfilment of its payment obligations. This condition also applies to credit stipulations. Any refusal by the Client to provide security entitles EnGenius Technologies Europe to regard the agreement as having been dissolved, without prejudice to EnGenius Technologies Europe’s right to claim compensation for expenses or loss of profit.

5.3 In cases of overdue payment, the Client owes EnGenius Technologies Europe 1% interest above the Nederlandse Bank N.V.’s discount rate for promissory notes on all overdue payments from the due date of the invoice, to a minimum of 1.5% per month. In addition, the Client owes the extrajudicial collection charges, to a minimum of 15% of the overdue payments.

Article 6 - Retention of title

6.1 EnGenius Technologies Europe retains ownership of all matters supplied to the Client, as long as the Client has not fulfilled all its payment obligations, including claims regarding penalties, interest payments and costs.

6.2 Supplementary too the above-mentioned retention of title the Client undertakes, at EnGenius Technologies Europe’s first request, to establish, for any reason whatever, a non-possessory pledge on all goods supplied to the Client by EnGenius Technologies Europe.

6.3 As long as it is certain that ownership of the goods supplied has not been transferred to the Client, the Client shall not resell, nor in any other way dispose of, the products supplied, without EnGenius Technologies Europe’s express approval in writing.

Article 7 – Complaints

7.1 The Client shall report to EnGenius Technologies Europe any complaints concerning the goods or services supplied within eight days after delivery took place or the services were executed.

7.2 In case of a complaint considered well-founded by EnGenius Technologies Europe, EnGenius Technologies Europe is entitled to remedy the failure or replace the products. EnGenius Technologies Europe shall not be liable for compensation of any damage or loss, except in case such damage or loss is due to gross negligence or intention on EnGenius Technologies Europe’s part.

Article 8 - EnGenius Technologies Europe’s rights

8.1 Copyright, as well as any other rights to intellectual or industrial property regarding software programs or equipment supplied or in any way whatever made available to the Client by EnGenius Technologies Europe, rest exclusively with EnGenius Technologies Europe or its licensors, unless the parties have expressly agreed otherwise in writing. For that purpose the Client receives user rights exclusively on the basis of applicable licence terms.

8.2 The Client shall not remove or change any indications regarding copyright, brands, trademarks or any other rights to intellectual or industrial property arising from the software programs, equipment or materials, including indications regarding the confidential nature of, or secrecy in relation to, software programs.

8.3 EnGenius Technologies Europe has the right to take technical measures for the protection of its equipment.

8.4 The Client shall not, without EnGenius Technologies Europe’s written permission, entirely or in part dismantle software programs, or decompile, apply reverse engineering to, integrate or combine with other software, copy, translate, adjust, vary or change software programs, except insofar as permitted by applicable licence terms or statutory provisions.

8.5 EnGenius Technologies Europe shall indemnify the Client against any legal action based on the assertion that one or more software programs developed by EnGenius Technologies Europe violate a third party’s copyright as applicable in the Netherlands. EnGenius Technologies Europe does not indemnify the Client against, and is not liable for, any claims to damages relating to any change in the software programs.

8.6 If the parties, in a separate written agreement, agree that EnGenius Technologies Europe, on the Client’s instructions, is to develop software, EnGenius Technologies Europe acquires, in relation to all the software developed on the instructions of, and for the benefit of the Client, the non-exclusive right to unlimited use of that software in its own company; unless the parties agree otherwise expressly and exclusively in writing. The software source code is only to be made available to the Client, and the Client is only to be entitled to make changes to the software, if expressly agreed in writing.

Article 9 - After-sales service and maintenance work

9.1 EnGenius Technologies Europe provides after-sales service and carries out maintenance work in accordance with written agreements with the Client.

9.2 All appliances, software programs and other materials used by EnGenius Technologies Europe for after-sales services and maintenance will remain the property of EnGenius Technologies Europe unless the Client pays EnGenius Technologies Europe a fee for their development or acquisition.

9.3 EnGenius Technologies Europe may make changes to the scope or nature of its after-sales services. If such changes result in any change(s) to the Client’s procedures, EnGenius Technologies Europe shall inform the Client to such an effect, and the costs of such a change shall be for the Client’s account.

Article 10 – Force majeure

10.1 Force majeure on EnGenius Technologies Europe’s part, without prejudice to the cases provided for in law, occurs if EnGenius Technologies Europe is prevented from fulfilling its obligations as a consequence of circumstances beyond its control, including but not restricted to, the non-fulfilment of obligations on the part of EnGenius Technologies Europe’s suppliers.

Article 11 - Guarantee

11.1 With regard to appliances purchased by EnGenius Technologies Europe from a supplier, the supplier’s guarantee conditions, if any, exclusively apply to such appliances.

11.2 Without prejudice to the provision of Article 11.1, EnGenius Technologies Europe provides, for a period of three months after the delivery date, guarantees against mechanical or manufacturing defects in appliances delivered, provided such appliances have not been purchased from a supplier. Such a guarantee exclusively implies that EnGenius Technologies Europe will, for its own account, remedy the defect to the best of its ability. All parts replaced will become the property of EnGenius Technologies Europe.

11.3 Any claim to the guarantee becomes ineffective if, without EnGenius Technologies Europe’s written permission, changes are made to the appliances which, in EnGenius Technologies Europe’s opinion, might affect their normal performance or reliability. The same stipulation applies if, during the guarantee period, the appliance has been fitted with components other than components supplied by EnGenius Technologies Europe, or repairs have been carried out in relation to the product without EnGenius Technologies Europe’s permission.

11.4 Industrial damage, consequential damage or other forms of indirect damage not referred to here are excluded from the guarantee, since the guarantee applies to defects exclusively caused by manufacturing, construction or material defects. The guarantee does not apply to cases of normal wear and tear or damage resulting from accidents, or damage resulting from changes made by the Client or third parties to the material or construction, or from negligence or inexpert treatment; nor does the guarantee apply to damage whose cause cannot be established with certainty.

11.5 The costs and risks of transport to and from EnGenius Technologies Europe’s workshop are for the Client’s account.

11.6 EnGenius Technologies Europe does not issue any guarantee in relation to the software programs made available or supplied to the Client. EnGenius Technologies Europe does not, either expressly or tacitly, guarantee the quality, performance, saleability or suitability of any specific software program. All software programs are supplied under licence and sold in their condition at the time of purchase. Any risks regarding the quality and performance of the software are borne by the Client. If, and in so far, the software is purchased by EnGenius Technologies Europe from a supplier, the supplier’s guarantee conditions, if any, exclusively apply.

11.7 Every second-hand EnGenius Technologies Europe appliance is provided with a guarantee sticker, indicating the commencement of a guarantee period (stated on the stickers and based on the invoice date). If such a sticker is broken, damaged or absent from the appliance, the given guarantee period terminates instantly.

11.8 EnGenius Technologies Europe is not obliged to carry out repairs in relation to used appliances. EnGenius Technologies Europe reserves the right to refund the purchasing sum.

11.9 EnGenius Technologies Europe is not obliged to issue long-term guarantees (exceeding three months) on used appliances that fall into the category of ‘bargain’. The pricing for such products is so low that no claims can be based on it.

Article 12 – Liability

12.1 Without prejudice to the terms relating to guarantees, EnGenius Technologies Europe expressly excludes any further liability, arising for whatever reason, including any direct or indirect loss such as consequential or industrial damage caused, inter alia, by the improper functioning of the products supplied, including software programs and appliances or services relating to their use, or the temporary impossibility of use, or damage due to loss of data, files or software programs, including costs regarding the repair or reproduction of such programs, save for its liability for damage caused by gross negligence or intention on the part of EnGenius Technologies Europe.

12.2 If and insofar as EnGenius Technologies Europe is liable for any damage or loss, such liability shall never exceed an amount in excess of the value of the delivered product that caused direct or indirect damage or is directly or indirectly involved in the damage; which value shall be determined on the basis of the invoice for the delivered product, on the understanding, however, that EnGenius Technologies Europe, in case of damage relating neither directly nor indirectly to the delivered product, can be held liable exclusively for direct damage caused by gross negligence or intention on EnGenius Technologies Europe’s part, and provided that EnGenius Technologies Europe’s total liability never exceeds the sum of € 50,000 for each case of damage or connected series of cases.

12.3 Claims for damages arising from the foregoing shall be reported in writing to EnGenius Technologies Europe within four weeks after the damage occurred.

12.4 The Client indemnifies EnGenius Technologies Europe against all claims by third parties for damages arising from, or related to, appliances or software programs delivered or supplied under licence by EnGenius Technologies Europe.

Article 13 Dissolution

13.1 If the Client does not, or not in time or entirely, fulfil its obligations to pay, EnGenius Technologies Europe is entitled, without further notice of default or judicial intervention and without being liable to pay any damage, to dissolve the relevant agreement with immediate effect or to suspend delivery by means of a written statement, without prejudice to EnGenius Technologies Europe’s right to claim full compensation.

13.2 EnGenius Technologies Europe may, in addition to the rights to which it is entitled, without further notice of default or judicial intervention and without liability for damages vis-à-vis the Client, dissolve the agreement with the Client with immediate effect by means of a written notification of the Client if the Client is not able to meet, or fails to pay, its due debts, or becomes insolvent, or enters into a scheme of private composition with its creditors, or calls a meeting of its creditors, or if during a meeting of the Client’s shareholders a decision is taken to dissolve or wind up the Client’s company, or if a liquidator or administrator or a person with a similar mandate is appointed to manage the Client’s assets or estate or part thereof, or if the Client on account of debts takes, or is subjected to, a similar measure, or if the Client or a third party files for bankruptcy of the Client, or if the Client, whether provisionally or not, is granted suspension of payment, or if the Client discontinues its activities or is served with a writ of attachment on account of substantial debts and such attachment is maintained for at least one month.

Article 14 - Applicable law and disputes

14.1 Dutch law exclusively applies to the General Terms & Conditions and all transactions and agreements between EnGenius Technologies Europe and the Client.

14.2 If any disputes arising from the foregoing come within the jurisdiction of a district court, the Utrecht District Court is competent to take cognizance of such disputes.