General Terms and Conditions
Last updated: 08 July 2021
Article 1. General
- IXON B.V. is a Dutch company with its principal place of business at the Vierlingsbeekseweg 52a, 5825 AX, in Overloon, the Netherlands, and registered with the Dutch Chamber of Commerce under file number 62729918. Words like IXON, we, us or our in these General Terms and Conditions, shall refer to IXON B.V. as the case may be.
- We offer cloud-based services on our IXON Cloud platform for remote access to, as well as monitoring of, machines and systems connected to the internet. For connecting to the IXON Cloud, we offer gateways, like the IXrouter and peripherals (hardware). For the purpose of these General Terms and Conditions, the term hardware shall mean any physical goods offered by or provided by us.
- Words like you and your in these General Terms and Conditions shall refer to you, the legal entity or natural person acting in the exercise of a profession (or business) that has received an offer from us or has concluded an agreement with us for the purchase of our hardware.
- You acknowledge and agree that our hardware is solely tailored to, and should exclusively be used by, industry professionals.
- We are entitled to change our General Terms and Conditions with your consent. Consent to such a change shall be deemed to have been given if we notify you of the amendment in writing (which includes email) and you do not object to the amendment within four weeks of receiving the amendment notification.
- Unless we expressly agree to their validity in writing, your deviating, conflicting or supplementary general terms and conditions shall not become part of any agreement between you and IXON, even if we do not expressly object to their inclusion.
Article 2. Agreement
- An offer can be requested from IXON through online and offline channels, including our website. If we determine that we are able to provide the requested hardware, then we will provide you with an offer or quotation specifying the hardware, pricing and other terms. Offers are obligation free and valid for 30 days.
- An agreement is deemed to have come into effect on the date and time when: (i) the parties both (digitally) sign a written offer; or (ii) when you accept our offer, and we confirm in writing (via email) your acceptance of the offer; or (iii) when you otherwise actively or passively accept that we start with the execution of the agreement. The word agreement in these General Terms and Conditions shall mean our offer, including these applicable General Terms and Conditions and any other documents stated to be applicable in our offer.
- The following ranking will apply in the event of inconsistencies between the provisions of the offer, these General Terms and Conditions and any other applicable documents:
- the offer;
- these General Terms and Conditions;
- any other applicable documents.
Article 3. Hardware
- We will use our best efforts to execute the agreement in accordance with the offer, taking into account your reasonable wishes and professional market standards. You will do and/or omit all that is reasonably necessary and desirable to enable timely and correct performance of the agreement.
- The use of our hardware is at your own expense and risk. You shall properly install and use the hardware in accordance with the applicable manuals. Furthermore, you are responsible for meeting the technical and functional requirements for use, such as proper electronic communication facilities. The hardware is not suited for use in situations or environments where inaccuracies, delay or failure could lead to death, personal injury, environmental damage or severe monetary damages.
Article 4. Warranty
- Our hardware is covered by a warranty against defects in material and workmanship under normal use and service and we shall repair or replace any defective hardware, subject to the terms hereunder. The aforementioned warranty shall apply for two years following the date of delivery of the hardware to you.
- The aforementioned warranty does not cover minor imperfections that do not have an impact on the functionality of the hardware. The warranty ceases to apply if the hardware was not properly installed and/or used in accordance with the (installation) manual(s) available on our website. Furthermore, defects caused by your actions or the actions of your employees, contractors, etc. are also not covered under the aforementioned warranty.
- Our warranty service shall not be provided on your location. To make use of the warranty, you must follow the RMA procedure as described on our website (https://www.ixon.cloud/rma-procedure).
- If you send hardware to us in relation to a warranty claim, you shall bear all costs of shipping and handling, including any applicable customs, duties or taxes. In case the warranty claim is valid, we send you the new or repaired hardware in accordance with article 9.5. The party sending the hardware is responsible for ensuring that the concerning hardware is properly packaged and will bear the risk of loss or damage.
Article 5. Retention of title
- Any hardware or other goods delivered by us remain our property until you have fulfilled all your payment obligations towards us. The hardware shall not be transferred, resold, pledged or encumbered in any other way until you have fulfilled all your payment obligations under the relevant agreement.
- Until you have fulfilled all your payment obligations towards us, you are prohibited from handling the hardware in such a way that they become a constituent part of an installation by accession.
Article 6. Intellectual property
- Nothing in the agreement shall be interpreted or construed so as to transfer any right, title, or interest in any intellectual property rights of a party to the other Party. Intellectual property rights shall mean to include all intellectual property rights wherever in the world, whether registrable or non-registrable, registered or unregistered, including any application or right of application for such rights (including copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trademarks, patents, utility models, semi-conductor topography rights and rights in designs).
- We, our licensors and/or our suppliers retain all intellectual property rights to or in the hardware, including any software or code that may form a part of the hardware. You will not perform any act that could infringe upon our intellectual property rights or the rights of our licensors.
Article 7. Privacy
- If you purchase our hardware, then we shall process your personal data in accordance with applicable data protection laws and regulations. More information regarding the processing of your personal data can be found in the privacy statement on our website.
Article 8. Prices, ordering, payment and shipping
- Unless otherwise stated in a quotation, all prices communicated by us are in euros (EUR) and are exclusive of value added tax (VAT) and other applicable taxes or levies imposed by the government.
- Purchase orders can be sent per e-mail to firstname.lastname@example.org. Please always mention the IXON article numbers, your company details and VAT number on purchase orders. Purchase orders are confirmed by email within 2 business days.
- We may send any invoices electronically, including through email. The standard payment term for our invoices is thirty days after the date stated thereon.
- If you do not pay an invoice within the stated or agreed upon payment term, then you shall be in default by operation of law without any notification of default being required. If an amount due is not paid within the payment term, the legal interest for commercial transactions shall be due on the outstanding invoice amount without any further notification of default being required.
- If you fail to pay the amount due after a demand for payment or a notice of default has been issued, we are entitled to refer the debt for collection, in which case you must reimburse us for all judicial and extrajudicial costs incurred in connection with the collection of the amounts due. The foregoing shall be without prejudice to any of our other legal and contractual rights.
- Unless otherwise agreed upon in writing in the offer, hardware shall be shipped by us in accordance with the INCOTERMS 2020 DAP (Delivery At Place).
Article 9. Liability
- Our liability towards you for any sustained damages on any grounds whatsoever is limited per event (whereby a series of related events counts as one event) to compensation of only the direct damages with a maximum amount equal to the fees paid by you to IXON in the twelve months preceding the event that caused the damage. In any event, our liability towards you is limited to an absolute maximum of EUR 100.000,- on a yearly basis.
- Our liability for any indirect, consequential, incidental, punitive, special or other similar damages (including, but not limited to loss of profits, loss of revenues, loss of savings, etc.) is excluded.
- Any limitations of liability will not be applicable insofar the liability cannot be limited or excluded by applicable law.
- We shall only be liable due to an attributable failure in the performance of an agreement if you declare us to be in default in writing without delay and grant us a reasonable term to remedy the failure, and we culpably fail to remedy the failure within the reasonable term. The notice of default must describe the breach as comprehensively and in as much detail as possible in order to give us the opportunity to respond adequately.
- For there to be any right to compensation, you must always report the damages to us in writing as soon as possible after the loss has occurred. Any claim for compensation by you to IXON shall be barred by the mere expiry of a period of six months following the damage causing event.
- We shall not be liable whatsoever if we are prevented from or delayed in performing our obligations under the agreement, or from carrying on our business, by acts, events, omissions or accidents beyond its reasonable control, i.e. by force majeure. On the part of IXON, this includes, among other things: force majeure on the part of our suppliers, the failure to properly fulfil obligations on the part of suppliers that were prescribed by you, defects in equipment or software of third parties, government measures, power failures, internet, data network or telecommunication facilities failures, hacker or network attacks (e.g. denial of service attacks), pandemics, changes to the law and war.
Article 10. Confidentiality
- Parties commit that they will observe confidentiality concerning all confidential information they receive from the other party, including the contents of the agreement. Information is considered confidential in any event if it has been designated as such by one of the parties.
- The obligations of confidentiality hereunder shall not apply to the extent that the party under the relevant obligation can demonstrate that the relevant information is required to be disclosed by: (i) law; (ii) any regulatory authority to which the relevant party is subject; or (iii) any court of competent jurisdiction.
- The obligation to treat confidential information as confidential will not be applicable if the recipient of such information can prove that this information:
- was obtained from sources available to the general public such as newspapers, patent databases or informative websites;
- was already in possession of the recipient prior to the date on which it was issued or made available by the other party;
- is available from a third party without this party being in default towards either party arising from a confidentiality clause by distributing the information to the recipient.
Article 11. Miscellaneous
- The agreement is governed by Dutch law, excluding any conflict of law provisions contained in Dutch law.
- To the extent not otherwise provided for in mandatory law, all disputes related to the agreement will be submitted to the competent Dutch court in the jurisdiction where we have our registered office.
- If any provision of the agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of the agreement is invalid or unenforceable, but that by limiting such provision, it will become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited. If a court finds that any provision of the agreement is invalid or unenforceable, the parties shall turn to each other for the purpose of agreeing on a new provision to replace the invalid or unenforceable provision. This new provision shall be as similar to the invalid or unenforceable provision as is legally possible.
- Changes to management or legal form will not affect the agreement. We may transfer the agreement or any rights and obligations resulting from the agreement to third parties.