1.1 ‘Customer’ means the customer placing an order for Goods with CYMATIC.
1.2 ‘Conditions’ means these Terms and Conditions of Trade
1.3 ‘Goods’ means all hardware, software or services which are subject to the Customer’s order which are to be supplied to the Customer by CYMATIC under these Conditions.
1.4 ‘Cymatic’ means Cymatic Technologies B.V., a company organized under Dutch law, (company number 59461861 / VAT number NL853500897B01), whose registered office is at Weegschaalstraat 3, 5632 CW Eindhoven, Netherlands.
2.1 There shall be no binding agreement between the Customer and CYMATIC until the Customer’s order has been accepted and confirmed by CYMATIC in accordance with these Conditions.
2.2 The Customer sending a purchase order or credit/debit card details to CYMATIC shall be considered an order. CYMATIC shall confirm receipt of order by issuing an invoice or taking payment. Please note that this does not mean that your order has been accepted. Your order constitutes an offer to us to buy Goods.
2.3 All orders are accepted subject to the availability of Goods and acceptance by us and we will confirm such acceptance to you by sending an invoice and request for payment for Goods available. The contract between us will only be formed upon receipt of payment or when shipping notification has been sent out to you. No terms or conditions put forward by the Customer shall be binding on CYMATIC.
2.4 The Customer accepts that these Conditions and any specific details stated on a quotation constitute the entire understanding between the parties and supersede any prior promise, representation, undertaking or understanding of any kind.
2.5 If the Customer requests a change or cancellation of an order CYMATIC reserves the right to reject the change or cancellation or accept it and charge a minimum 5% of the total order value with a minimum of EUR 50,-.
2.6 No cancellation will be accepted in respect of orders for items not normally stocked by CYMATIC. Any such items would be specifically ordered for the Customer and will be held by CYMATIC at the Customer’s risk and the Customer shall insure accordingly.
2.7 The Goods are only for sale to business customers (i.e. not to consumers). If you are not intending to use the Goods in the course of your business, trade or profession, you should not purchase them.
3.1 Unless otherwise expressly agreed in writing the Goods shall be sold and invoiced at CYMATIC’s current prices at the date of delivery or the date payment is taken by credit/debit card. Catalogues, price lists, videos and other advertising material are provided for illustrative purposes only.
3.2 Unless otherwise agreed in writing prices do not include taxes or duties (if any), carriage or delivery costs. CYMATIC shall invoice the customer for sales taxes, carriage and delivery costs in addition to the cost of the Goods and the Customer shall be responsible for paying any relevant import/export duties to the appropriate authorities.
3.3 Any prices detailed in a quotation are valid for a period of maximal 30 days and all quotations and prices are based on details provided by the Customer and do not apply where the Customer alters the details on which such quotations and prices are based. CYMATIC reserves the right to charge for any omission or additional cost arising from the provision of inaccurate or insufficient information by the Customer and to revise prices to take into account increases in any costs of providing the Goods which occur between the date of quotation and delivery.
4.1 Your order will be fulfilled by the delivery date set out in the Order confirmation or, if no delivery date is specified, then within a reasonable time of the date of the Order confirmation, unless there are exceptional circumstances.
4.2 Dates and times quoted by CYMATIC are estimates only and any delay in meeting delivery dates shall not give rise to a right to cancel the order or to claim damages.
4.3 CYMATIC reserves the right to make part deliveries. Any request by the Customer for CYMATIC to delay or split delivery may result in a stockholding charge and any additional cost incurred by CYMATIC being payable by and invoiced to the Customer. Any Goods so held shall be at the risk of the Customer that shall insure accordingly.
4.4 Subject to Clause 4.3, risk in the Goods shall pass on delivery or collection by the Customer or its agent, whichever is the earlier.
5.1 If the Customer has provided credit/debit card details to CYMATIC, CYMATIC shall take payment prior to delivery of Goods. All invoices are payable before delivery of the Goods.
5.2 If the Customer is an approved account customer all invoices are payable net within 10 days of the date of the invoice.
5.3 The Customer shall not be entitled to withhold payment of any amount due to CYMATIC in respect of any claim for damage to or defect in Goods or any alleged breach of contract by CYMATIC, nor shall the Customer be entitled to any right of set-off.
5.4 Without prejudice to CYMATIC’s other rights if the Customer fails to pay any amount on the due date;
5.4.1 CYMATIC shall have the right to refuse or cancel any order or contract made with the Customer and/or to suspend deliveries;
5.4.2 CYMATIC reserves the right to charge interest on a daily basis on overdue amounts at the rate of 4% above the base rate of the Nederlandse Bank, until payment in full;
5.5.3 the Customer shall indemnify CYMATIC and keep it indemnified in respect of all costs (including legal fees) reasonably incurred in attempting to recover such overdue amounts; and
5.5.4 the whole of the balance then outstanding to CYMATIC by the Customer on any account whatsoever shall become immediately due and payable.
5.6 CYMATIC reserves the right to require the Customer to pay for Goods in advance and to recharge or refuse discount if the Customer fails to maintain credit account arrangements satisfactory to CYMATIC.
6.1 CYMATIC shall retain full ownership of and title to all Goods delivered to the Customer or any part thereof unless and until the Customer has paid all sums owing to CYMATIC. CYMATIC transfers no title to or ownership in Goods comprising software, patents (or any other intellectual property) to the Customer or any third party.
6.2 While any amount remains outstanding to CYMATIC from the Customer;
6.2.1 the Customer shall keep the Goods as fiduciary bailee for CYMATIC and shall store the Goods separately from its other chattels and in a manner that clearly shows that CYMATIC owns them;
6.2.2 the Customer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods that remain the property of CYMATIC;
6.2.3 the Customer will deliver up or have delivered up to CYMATIC Goods upon demand and CYMATIC may without limiting any other rights or remedies available to it at law in equity or by statute seize repossess and/or resell Goods at its discretion and in the exercise of such rights CYMATIC may enter any premises in which it reasonably believes from time to time any Goods are located;
6.2.4 the Customer may only sell transfer or otherwise dispose of the Goods to its customers in the ordinary course of its business and in accordance with the provisions of these Conditions;
6.2.5 where the Customer is paid by or on behalf of any customer or shall receive the proceeds of any insurance claim in respect of any Goods it shall pay such proceeds to CYMATIC as soon as reasonably practicable to do so after receipt until CYMATIC is paid in full and shall hold the same as trustee for CYMATIC and keep a separate account of all such proceeds for such purpose;
6.2.6 the Customer shall take all due care (or ensure that all due care is taken) of the Goods and the Customer shall bear the sole liability for insurance of the Goods and shall indemnify CYMATIC for any loss whatsoever suffered or incurred by CYMATIC arising out of any failure to insure such Goods.
7.1 Hardware is warranted to be free from defects in materials and workmanship accordance with the Warranty Statements.
7.2 The Customer acknowledges that software products are by their very nature susceptible to imperfections in operation and subject to our Software Warranty Statement.
7.3 CYMATIC’s obligations and liabilities in respect of the Goods shall be limited to those set out expressly in our Warranty Statements.
7.4 The Customer shall ensure that any warranty and maintenance service performed on Goods is performed by a qualified representative authorised by CYMATIC to offer warranty and maintenance on those Goods.
7.5 CYMATIC makes no representation and gives no warranty in respect of the sources of origin of manufacture or production of the Goods or any part thereof.
8.1 All Goods shall be deemed accepted unless rejected by notice in writing to CYMATIC within 7 days of delivery or collection of the Goods.
9.1 All Goods and Specifications are subjects to change without notice.
TRADEMARKS, PATENTS AND COPYRIGHTS
10.1 The Customer recognises CYMATIC’s and its licensors’ ownership of and title to all trademarks, service marks, trade names, patents, copyright and other intellectual property rights comprised in the Goods and any accompanying materials.
10.2 The Customer will take no action to violate, obliterate, remove, alter, conceal or misuse any such marks, trade name or copyright notice.
10.3 The Customer will promptly notify CYMATIC if it becomes aware of any infringement of such intellectual property rights by any third party and shall provide its reasonable assistance to CYMATIC and/or the manufacturer in connection with any resultant proceedings.
11.1 CYMATIC may from time to time impart to the Customer certain confidential information of a commercially sensitive or technical nature and the Customer hereby agrees that it will use such information solely for the purpose of this Agreement and that it shall not disclose such information whether directly or indirectly to any third party.
12.1 In connection with any intellectual property rights in the Goods, CYMATIC shall grant to the Customer only such rights in such intellectual property rights as it shall be licensed to grant by its licensors or subject to CYMATIC’s standard licence terms, which shall be issued separately to these Conditions.
13.1 The Customer acknowledges that the Goods may be subject to US and local government export controls. Where these apply it is the Customer’s sole responsibility to obtain authorisation from the appropriate authorities before re-exporting the Goods from the country of purchase.
14.1 If and to the extent that any provision or any part of these Conditions is deemed to be illegal void or unenforceable for any reason then such provision or part thereof (as the case may be) shall be deemed to be severed from the remaining provisions or parts of the relevant provisions (as the case may be) all of which remaining provisions shall remain full force and effect;
14.1 In particular, should any limitation of CYMATIC’s liability contained in these Conditions be held to be illegal void or unenforceable under any applicable statute or rule of law it shall to that extent only be deemed severed here from, but, if CYMATIC thereby becomes liable for any loss or damage, such liability shall be subject to all other relevant limitations contained in these Conditions.
15.1 CYMATIC shall not be liable to the Customer on any account whatsoever in the event that CYMATIC is prevented from fulfilling its obligations hereunder due in whole or in part to an event of force majeure which expression shall mean:
15.1.1 act of God, fire, flood, storm, power failure, reduction of power supplies, mechanical failure or lack or shortage of materials or stock or any other circumstance beyond the reasonable control of CYMATIC; and
15.1.2 whether or not within CYMATIC’s control, strikes, lock-outs or industrial disputes in relation to CYMATIC or any other party or any action taken by CYMATIC in connection therewith or in consequence or furtherance thereof.
15.2 In such event CYMATIC may at its option either suspend performance or cancel the contract in question or so much of it as remains unperformed without liability for any loss and without prejudice to CYMATIC’s rights to receive payment of the price of all Goods previously delivered.
16.1 All Goods are manufactured for standard commercial uses and are not intended to be sold or licensed for use in critical safety/health systems or in nuclear facilities, other nuclear applications, mass transportation and aviation applications.
16.1 The Customer may not assign or transfer any of its rights, duties and obligations without the written consent of CYMATIC.
17.1 CYMATIC shall not in any circumstances whatsoever be liable for indirect or consequential loss including but not limited to loss of profits, revenue, business, contracts loss of data or use and shall have no liability for any claim based upon the combination operation or use of any Goods with equipment data or programming not supplied by CYMATIC or based upon a modification of the Goods.
17.1 Any action against CYMATIC must be brought no later than 6 months after the Customer becomes aware that a cause of action has arisen.
18.1 The relationship between the Customer and CYMATIC shall be as buyer and seller and nothing contained herein shall be deemed to create a partnership or agency.
19.1 These Conditions shall be construed according to the laws of the Netherlands. The Customer and CYMATIC submit to the non-exclusive jurisdiction of the Dutch Courts in connection with any dispute or proceedings arising out of any contract incorporating these Conditions.
Cymatic Technologies B.V., Eindhoven, January 2017