1. General / Applicability
These terms and conditions are applicable to all offers and agreements regarding the sales and delivery of goods and services by Omnicloud, located at Rotsheide 17 (3069 LG) Rotterdam, registered at the chamber of commerce with the number 70226091, henceforth known as the supplier.
In all the conditions from supplier, the customer is regarded as the business user or the private user who has ordered the delivery of goods and or services or who has otherwise come to an agreement with supplier. The customer is regarded as accepting these terms and conditions by the mere fact that customer placed an order at the supplier or requested a service from the supplier.
The applicability of purchase conditions or any other terms and conditions from customer are explicitly rejected.
If any provision of these general terms and conditions is null and void or is nullified, the other provisions of these general terms and conditions will remain in full force. In the event that a provision would be invalid on this ground, the arrangement that is most favorable to the supplier applies.
Deviations from and additions to these general terms and conditions are only valid if they have been agreed in writing between the parties. Where these terms and conditions refer to the term “in writing”, this will also include e-mail.
If and insofar as the supplier delivers goods from third parties to the customer, provided this has been communicated to the customer in writing by the supplier, the terms and conditions of those third parties apply to those goods. The provisions in these general terms and conditions of the supplier also apply to this, insofar as they do not deviate from the terms and conditions of the aforementioned third parties. The client accepts the intended conditions of third parties. The conditions of third parties are available for inspection by the customer at the supplier and the supplier will send them to the customer at his request.
2. Quotations / Formation of agreements
All offers from the supplier are without obligation and serve as an invitation.
The customer guarantees the correctness and completeness of the information provided by or on behalf of him to the supplier on which the supplier bases its offer. The customer bears the risk of the selection, use, application and management of the purchased items in his organization. The supplier does not guarantee that the goods are suitable for the use intended by the customer.
All preliminary calculations and budgets issued by the supplier are only indicative. The customer can never derive rights or expectations from a cost estimate or budget issued by the supplier. An available budget made known to the supplier by the customer never applies as a (fixed) price agreed between the parties for the performances to be performed by the supplier.
An agreement is only concluded after an order or assignment has been confirmed in writing or through another token of acceptance by the supplier. Additions, changes and further agreements with regard to placed orders and assignments only apply if they have been confirmed in writing by the supplier.
With a view to the continuous technical improvements of computer products, the Supplier reserves the right to make changes to the execution or configuration compared to the statements communicated in writing, as long as the value of the offered does not decrease as a result. This also applies to changes that benefit the availability of offers.
The supplier has the right to revoke the agreement (order) at any time up to 30 days after the conclusion of the order, without giving any reason.
In the case of a composite quotation, there is no obligation on the part of the supplier to deliver part of the goods included in the offer against a corresponding part of the stated price, nor does the offer of the supplier automatically apply to repeat orders.
When several customers are party to an agreement, they are all jointly and severally bound by the fulfillment of the obligations towards the supplier.
The supplier is entitled to rely entirely on the content and form of electronic orders placed using a customer’s user code. The supplier is therefore also entitled to deliver to the customer whose user code was used, to invoice and to be paid by this customer with regard to the orders placed with his user code. The customer is fully and solely responsible for the use and confidentiality of the user code assigned to him by the supplier. In the event of loss or misuse of the user code as a result of which damage is suffered by the supplier, the customer is obliged to compensate the supplier for this. The customer must provide security measures and procedures that guarantee that the user code assigned to him is used only by authorized personnel and for authorized purposes. In particular, in the event of loss, misuse or attempted misuse of the user code, the customer must inform the supplier immediately after the customer has or should have become aware of this and take all necessary measures to prevent the consequences thereof. to limit the extreme.
Rights and obligations arising from the purchase agreement are not transferable without the express written consent of the supplier.
3. Prices and Payments
Unless explicitly stated otherwise, the prices quoted by the supplier apply exclusively to the goods themselves and:
– in Euro;
– exclusive of VAT (and other levies that are or will be imposed by the government);
– exclusive of shipping or transport costs; and
– ex-warehouse / company.
Prices as stated on the supplier’s website are subject to typing errors or (not yet implemented) price changes.
The supplier is at all times entitled to adjust its prices on the basis of such circumstances that had this supplier known at the time of the conclusion of the agreement, it would have applied a different price level.
The supplier is at all times entitled to demand payment in advance or security before proceeding to deliver the orders placed or to continue with that delivery. If the customer fails to make the required advance payment or security, the supplier’s obligation to perform will lapse, without prejudice to the right of the supplier to compensation for all damage, costs and interest by the customer.
Payment of the agreed price must be made in cash on delivery, by (electronic) advance payment, unless explicitly deviated from by us in written confirmation. Payments are only considered successful when the supplier has access to the credit.
The customer is not entitled to suspend any payment or to set off amounts owed.
If the customer does not pay the amounts due or does not pay them on time, the customer owes statutory commercial interest on the outstanding amount, without any reminder or notice of default being required. If the customer fails to pay the claim after a reminder or notice of default, the supplier can hand over the claim, in which case, in addition to the total amount owed, the customer is also obliged to pay all judicial and extrajudicial costs, including all costs charged by external parties or experts.
Payments always serve primarily to settle the costs owed, then to settle interest and then to settle due and payable invoices in the order of their age, even if the customer indicates that his payment relates to other invoices and / or debts .
In those cases in which the customer does not take delivery of the goods sold by the supplier, the supplier is entitled to demand purchase or to charge a fee of 15% of the purchase price as estimated damage and loss of value. The Supplier reserves the right to claim a higher compensation in the event of demonstrably higher damage. For the duration of the delay in the acceptance of the goods by the customer, the supplier is entitled to store the goods at the expense and risk of the customer in its own warehouse or at a forwarder or other external storage space.
The goods sold by the supplier to the customer will be delivered to the customer ex warehouse. Only if this has been agreed in writing, the supplier will deliver the goods sold to the customer or have them delivered to a place to be designated by the customer.
Interim (delivery) dates stated by the supplier or agreed between the parties are always target dates, are not binding for the supplier and are always only indicative in nature. The mere exceeding of a (delivery) term or (delivery) date stated by the supplier or agreed between the parties, whether or not final, does not put the supplier in default. In all cases – therefore also in the event that the parties have explicitly agreed in writing on a final (delivery) term or (completion) date – the supplier will only be in default due to a time limit after the buyer has given the supplier written notice of default. The notice of default must contain a description of the shortcoming that is as complete and detailed as possible, so that the supplier is given the opportunity to respond adequately.
The delivery time stated by the supplier does not commence until all necessary information is in its possession.
The supplier will package the goods in accordance with its usual standards. If the customer requires a special method of packaging, the associated additional costs will be borne by the customer.
The shipping method and the transport company charged with the shipment can be determined by the supplier at its own discretion, as long as the customer does not explicitly indicate that he has certain preferences. Costs associated with any specific preference of the customer are entirely at the expense of the customer.
If the parties have agreed this in writing, the supplier will install the goods, have them configured and / or have them connected. Any obligation to install and / or configure equipment by the supplier does not include the performance of data conversion and the installation of software. All services of the supplier are performed on the basis of a best efforts obligation.
The supplier is always entitled to execute the agreement in partial deliveries.
5. Exchange or return
Exchange or return will only take place in case of demonstrable incorrect delivery. An exchange out of leniency will only take place after written confirmation from the supplier, whereby 15% of the goods value will be charged. This also applies in those cases in which the supplier has given an order to collect the goods in order to assess the required return. The exchange or taking back of products with opened or damaged original packaging is excluded.
Due to licensing rights, exchange or return of all software is excluded. The supplier can only deal with a warranty claim for defective or illegible data carrier (s) or products. By opening the original packaging or the plastic seal of the software, the customer acknowledges – in addition to the general terms and conditions of the supplier – the copyright protection, the separate license and other (warranty) conditions of the software manufacturer. Original packaging is all packaging of the supplier and its suppliers.
6. Retention of title, specification and right of pledge
All goods delivered to the client remain the property of the supplier until all amounts that the client owes the supplier on the basis of the agreement between the parties have been paid in full to the supplier. If the client forms a new item (partly) from goods delivered by the supplier, the client forms that item only for the supplier and the client holds the newly formed item for the supplier until the client has paid all amounts owed on the basis of the agreement; In that case, the supplier remains the owner of the newly formed item until the moment of full satisfaction by the client.
As long as he has not paid all claims, the customer is not entitled to establish a right of pledge or a non-possessory pledge on the goods delivered by the supplier and undertakes to declare to third parties who wish to establish such a right thereon, at the supplier’s first request that he is not authorized to establish a right of pledge or non-possessory pledge.
The supplier guarantees for 12 months after the delivery date that the delivered goods function according to the relevant state of the art free of errors, unless otherwise agreed in writing. Not worth mentioning deviations in color, size and / or other quality characteristics do not give the customer any rights, in particular not with regard to warranty. Used goods are always sold without warranty.
The customer is only entitled to a guarantee towards the supplier if the customer has fulfilled all payment obligations towards the supplier.
Any warranty obligation lapses if the customer itself carries out changes or repairs to the delivered goods or has them carried out, or if damage is not the result of normal use.
In the event that the supplier accepts a repair order after the expiry of the warranty period, the customer cannot claim a reduction or dissolution of the agreement or fulfillment thereof. In these cases, the supplier will only send the goods to its supplier on behalf of the customer in order to make it possible to claim a possible longer manufacturer’s warranty.
In those cases in which there is a defect attributable to the supplier, the supplier is entitled to repair the defect or to deliver a new product. Exchange for a better product must also be accepted as a solution to the defect. Further rights, in particular termination of the agreement, can only be exercised if an appropriate term for performance has been adhered to or if attempts to perform the agreement were unsuccessful twice. From one year after the delivery date, the warranty claim is limited to repairing the defect or taking back the product at the then current current value at the choice of the supplier. The customer is obliged to make a backup of any data before offering a product for warranty.
No new warranty period will come into effect when a product is exchanged as a result of the warranty.
The supplier is only liable to the customer for damage caused by intent or deliberate recklessness on the part of the supplier or its subordinates. For damage as a result of defects in delivered goods, only the liability as regulated in article “Guarantee” of these conditions applies.
The liability of the supplier is at all times limited to the amount that any insurer of the supplier pays out to the supplier as appropriate.
If in any case the insurance does not provide cover or does not pay out, and the supplier is liable, the liability of the supplier is limited to no more than the invoice value of the transaction, at least that part of the transaction to which the liability relates.
Under no circumstances is the supplier liable for indirect damage, consequential damage, loss of profit, lost savings, reduced goodwill, damage due to business interruption, or damage as a result of claims from customers of the customer. The supplier is explicitly not liable for damage that customers could have prevented by making one or more backups of files, the software package and / or other software.
A condition for the existence of any right to compensation is always that the customer reports the damage in writing to the supplier as soon as possible after it has arisen. Any claim for compensation against the supplier lapses by the mere lapse of 24 months after the claim arose.
The customer indemnifies the supplier against all claims from third parties due to product liability as a result of a defect in a product or system that has been delivered by the customer to a third party and that also consisted of goods delivered by the supplier.
An agreement between the parties can in any case be immediately dissolved by the supplier, without further notice of default, in the following cases:
– if the customer does not correctly fulfill his obligations;
– if after the conclusion of the agreement the supplier becomes aware of circumstances that give the supplier good grounds to fear that the buyer will not meet his obligations;
– if the supplier has asked the other party to provide security for compliance during or after the conclusion of the agreement and this security is not forthcoming or is insufficient despite a summons. In the aforementioned cases, the supplier is entitled to suspend the further execution of the agreement or to proceed to dissolution of the agreement, all this without prejudice to the right of the supplier to claim compensation.
In the event of dissolution by the supplier, the customer is liable to pay compensation to the supplier, whereby the damage is set at at least 30% of the transaction value, as well as interest and costs thereon, without prejudice to the right of the supplier to claim compensation for higher or actual damage.
10. Returns and Complaints
Complaints with regard to visible and easily detectable invisible defects must be submitted to the supplier in writing within 3 working days after delivery of the item.
Complaints regarding invisible defects that are not easily detectable must be submitted in writing within 5 working days after discovery of the defect and in any case within the manufacturer’s warranty period.
The customer loses all rights and powers that were available to him on the basis of deficiencies if he has not made a complaint within the above-mentioned warranty period and / or if he has not offered the supplier the opportunity to repair the defects.
In the event of a well-founded complaint proven by the customer, the supplier can, at his discretion, replace the articles or parts thereof to which the complaint relates or have them replaced or reimburse the customer. Other claims, in particular for damages, are excluded.
The delivered goods can only be returned after the prior written approval of the supplier. A condition is that the return request takes place within 5 working days after purchase. Return requests must be made stating the number of the invoice / order confirmation and provided with a clear description of item numbers, quantities and the reason for the return request. The Supplier expressly reserves the right not to honor requests. If the supplier agrees to the return of goods, the supplier’s service department will assign an RMA number to the buyer. The RMA number is valid for a period of 5 working days from the date of issue. The goods must be delivered to the distribution center of the supplier within the aforementioned period of 5 days. When returning the goods, the RMA number must be clearly visible on the enclosed packaging documents and on the outer packaging. Only items that are complete, in unopened and undamaged condition and in their original packaging, without printed adhesive tape and without written text on this packaging, can be returned and accepted. The customer bears all responsibility for the items that are returned. Except in the event of a clear mistake on the part of the supplier, the costs for return shipment are at the expense of the customer and the supplier has the right to charge a fee for handling the returned goods.
Complaints about invoices must be submitted in writing within 7 days of the invoice date. After the expiry of this term, the customer is deemed to have approved the invoice.
11. Force majeure
Force majeure is understood to mean – in addition to what is understood in this regard in law and case law – all external causes, foreseen or unforeseen, on which the supplier cannot exert any influence, but as a result of which the supplier is unable to fulfill its obligations, delay in the including delivery by suppliers of the supplier and strikes in the company of the supplier.
During force majeure, the delivery and other obligations of the supplier are suspended. During force majeure, the supplier always has the right to terminate the agreement, without there being any obligation for the supplier to pay compensation in that case.
If the force majeure situation continues for more than 4 months after the time at which the supplier should have fulfilled its obligations, the customer – with due observance of Article 4.2 – has the right to dissolve the agreement, without there being an obligation to pay compensation in that case.
If the supplier has already partially fulfilled its obligations when the force majeure commences, or can only partially fulfill its obligations, it is entitled to invoice the already delivered or the deliverable part separately and the customer is obliged to pay this invoice as if it were a separate contract. . However, this does not apply if the already delivered or deliverable part has no independent value.
12. Applicable law and competent court
Dutch law applies to all agreements and the legal relationship between supplier and customer.
Disputes that may arise from or are related to an agreement will in the first instance only be submitted to the competent court in Rotterdam.
Last modified: Monday, 12 April 2021, 12:36 AM