BMS
Documentation: any user documentation necessary, both on paper and in electronic format, pertaining to BMS Products.
Customers: shall mean buyers in the B2B or B2C market of the BMS product who shall obtain the BMS product from Distributor.
Insufficiency: a defect that does not negatively influence the operational performance of the BMS Products.
Workdays: calendar days, except weekends and national holidays, on which the activities agreed will be performed.
Article 2. Support
2.1 BMS shall provide support to customer, but not to end users, in troubleshooting BMS Products operations.
2.2 Customer may consult any related problems with BMS either by telephone or in writing, but preferably by email.
2.3 In case of any urgent questions by telephone or email, BMS shall as soon as possible, but not later than 48 hours, respond either by telephone or in writing. In any other cases, BMS shall respond in writing within 1 week upon receipt of the question(s).
2.4 BMS shall provide support on Workdays from 9:00 am to 5:00 pm (CET) and Customer shall submit any requests hereto by telephone or email. Customer shall confirm a defect incidence in writing, if requested by BMS.
Article 3. Defect solving
3.1 BMS shall take concrete action to solve any reported defect as soon as possible, but not later than eight hours after reporting.
3.2 BMS shall solve the reported defect within 10 days upon reporting.
3.3 BMS shall assist Customer in solving the reported defect without any reservation.
3.4 If a reported incidence is later found not to be attributable to the supplier, BMS is entitled to present Customer with an invoice for the corresponding activities performed.
Article 4. Costs Troubleshooting and Maintenance
4.1 BMS shall solve any defects reported after expiration of the warranty period free of charge. In the event that no maintenance has been agreed with Customer, the corresponding maintenance charges shall be charged retroactively.
Article 5. Warranty
5.1 Parties guarantee that all obligations under this Agreement shall be met.
5.2 BMS guarantees the accurate and professional performance of the activities to be performed by him.
5.3 The warranty period is determined at three months or 90 days upon signature of the agreement.
Article 6. Guarantees
6.1 BMS guarantees that the BMS Products to be delivered shall not contain any security measures and/or functions other than those mentioned in the Documentation.
Article 7. Invoice Payment
7.1 Customer shall pay invoices issued by BMS regarding the execution of this Agreement and submitted in accordance with this Agreement.
7.2 Late payment entitles BMS to charge a percentage with a maximum of 1% per month over any outstanding amounts of which payment period has been exceeded by more than 15 days.
7.3 BMS shall never waive any earnest moneys nor refund these moneys if they are due because of late notice or when notice is given during the contract year.
Article 8. Liability and Indemnification
8.1 If one of the parties fails to meet any of the obligations under this Agreement, the other party shall serve notice of default on the corresponding party.
8.2 Notification hereof shall be given in writing indicating a reasonable term for the defaulting party in which to meet the corresponding obligations. This term will be the final term.
8.3 Parties are liable for professional errors made by their staff or any third parties contracted by them.
8.4 The party who defaults on his obligations is liable for payment to the other party for any damage or any future damage suffered, maximally equalling the year amount in case of any earnest money paid.
8.5 The damage meant under 8.4 is limited to direct damage. Indirect damage will not be indemnified. Direct damage consists of:
1. Damage to products, equipment, and data files of the aggrieved party;
2. Reasonable costs incurred in avoiding or reducing direct costs;
3. Reasonable costs incurred in assessing direct damage.
8.6 Any damage claim shall be filed with the other party within 3 months after the damage occurred. Any claims submitted after this period can be rejected. After notification, the liable party shall be granted a period of 30 days to perform the necessary repair activities.
8.7 BMSs liability is limited to the amount paid by its insurance company.
Article 9. Proprietary Rights and User Rights
9.1 All rights regarding property, copyrights, patents and others pertaining to BMS Products, customized products and art work rest with BMS, barring the agreed user right.
9.2 Subcontracting to any third party by the Customer is not allowed, unless agreed and approved in written in the international distribution agreement.
Article 10. Safeguarding
10.1 Parties safeguard each other against any claims from third parties regarding infringement of any rights of property, copyrights, user rights, or any other third party rights, with respect to the products used and or produced under this Agreement, such as products, products documentation, datasheets, drawings, schemes, functional and technical designs, and any other documentation, when the defaulting party is promptly served notice in writing of any such claims by the other party.
10.2 If it is determined, both judicially and extra judicially, that use of one of the products described under 10.1 infringes on any right, through which Customer's user right will be withdrawn, BMS shall for his account and to his discretion either:
1. Obtain the corresponding right for Customer to continue using the products;
2. Substitute the infringing products with others that do not infringe;
3. Modify the products to such extent that they no longer infringe;
4. Accept return shipment of the infringing products on terms to be agreed by parties.
Modification or substitution cannot lead to any restriction in the usage of the products by Customer, unless Customer agrees with such restrictions. Customer shall not reject such agreement on unreasonable grounds.
10.3 BMS will not accept any liability or claims regarding infringement of any rights caused by the use of the products in a fashion for which it has not been developed.
10.4 Safeguarding as meant under 10.1 applies under the reservation that the aggrieved party does not give any written or oral statement, any promises, recognize any rights or facts, bind or commit himself to such arrangements towards the third party, claiming the infringement, without the prior written permission of the BMS. The aforementioned does not apply to statements that should be submitted by or on behalf of a party as a witness in legal proceedings.
10.5 Customer acknowledges its sole responsibility for any content that is uploaded onto and / or distributed via BMS Products in the course of its exercise of rights under this Agreement. Customer fully indemnifies BMS against any and all claims, costs, proceedings, demands, losses, damages, expenses (including legal and other professional expenses) and/or liabilities whatsoever arising directly and/or indirectly from its use of the BMS Products, including, without limitation, any breach or alleged breach of copyrights and/or infringement of device marks, trademarks, domain names, images and/or any other intellectual property and interests owned and/or represented by third parties.
10.6 Customer fully indemnifies BMS against any and all claims, costs, proceedings, demands, losses, damages, expenses (including legal and other professional expenses) and/or liabilities whatsoever arising directly and/or indirectly from its use of the BMS Customer acknowledges its sole responsibility to regularly ensure the due performance of BMS Products.
Article 11. Transfer of Rights and Obligations
11.1 Parties are not allowed to transfer any rights and obligations derived from this Agreement to third parties, barring prior written consent of the other party, which cannot be rejected on unreasonable grounds.
Article 12. Force Majeure
12.1 In the event of force majeure, compliance by the corresponding party with the obligations derived from this Agreement shall partially or fully be suspended for the duration of such force majeure, without either party being held to any indemnification. In case of any occurrance of force majeure, the other party shall be notified hereof and presented with the necessary documentation evidencing the occurrence.
12.2 Force majeure does not include non-compliance or late compliance by a third party with the obligations held by this third party towards one of the parties, unless this has been agreed otherwise or unless the corresponding party is able to prove that non-compliance or late compliance with the obligation is due to force majeure.
12.3 Force majeure does in no event refer to: staff shortage, strikes, sick leaves, late supplies or defective material, any Shortcomings on the part of a third party contracted by one of the parties, or insolvency.
12.4 In case of force majeure, the final delivery date of the BMS Products shall be extended with the duration of the force majeure.
Article 13. Secrecy
13.1 Parties declare to keep confidential all information that has come to their knowledge before and during execution of the agreements and that has been declared of a confidential or secret nature or information that parties should have known to be confidential or secret.
13.2 Customer shall maintain strict secrecy regarding any information of the BMS Products.
13.3 Barring prior written permission by the other party, neither party shall divulge any information that has emerged during the execution of this Agreement to any third parties.
Article 14. Termination
14.1 Either party is entitled to dissolve this Agreement extra judicially by means of a registered notification if the defaulting party fails to meet his obligations under this Agreement even after the reasonable term specified in Article 8 following the notification of default.
14.2 arties are entitled, without any further notice, to dissolve this Agreement extra judicially by means of a registered notification if the other party has been granted (provisional) suspension of payment, files for bankruptcy, or is declared bankrupt, the business of the other party is wound up or suspended, a substantial part of the assets is garnished, or any other reasons why the party is no longer considered able to meet the obligations under this Agreement.
14.3 Customer is entitled without any further notifies to dissolve this Agreement extra judicially by means of a registered letter if BMS severely defaults on his obligations.
14.4 Each of the parties is entitled to dissolve this Agreement extra judicially by means of a registered letter if the other party appeals to force majeure and the corresponding term has exceeded a period of one month, or if it is determined that this term will exceed the period of one month.
14.5 Termination does not have retroactive effect.
Article 15. General
15.1 Customer's General Purchase and Payment Conditions as well as any other general or specific conditions are not applicable if not agreed otherwise.
15.2 Modifications or amendments to this Agreement are only applicable if such is agreed in writing.
15.3 The Agreement, including the annexes mentioned in the Agreement, is the only true representation of the agreement between both parties regarding the purchase of BMS Products.
15.4 Customer agrees to comply to any national and international regulatory requirement including privacy regulations.
15.5 This Agreement, to which these Terms apply, is subject to the laws of the
Article 16. Governing Law and Disputes
16.1 These service & level general terms shall be governed and interpreted in accordance with the law of the Netherlands
16.2 Parties may agree that a dispute as understood in the previous Section may be subject to arbitration in accordance with a special agreement between the parties or that a binding advice herein should be requested.
16.3 A dispute exists if one of the parties has notified the other party in writing that a dispute has occurred, accompanied with a summary account of the disputes and their reasons.
