General Terms and Conditions of Servilocker B.V.

1. Definitions

   In these General Terms and Conditions (“General Terms and Conditions”), the following terms will have the meaning as described below:

   Servilocker: the private company Servilocker B.V. and all companies affiliated with this company;

   Customer: any natural person, partnership, legal entity or other entity that buys products and/or services from Servilocker or with whom Servilocker concludes an agreement, or negotiates with Servilocker to issue an order or has issued an order;

   Agreement: any agreement concluded between Servilocker and the Customer, such as a “Purchase Agreement”, “License and Maintenance Agreement”, and/or any other order accepted by Servilocker in writing, which refers to these General Terms and Conditions, including amendments or additions thereto, as well as all (legal) acts in preparation for and in execution of that agreement;

   Offer: any written or oral offer or quotation made by or on behalf of Servilocker to the Customer;

   Product(s): a material item or parts thereof, including hardware, components, and or any other item, including software, which is supplied by Servilocker to the Customer for the fulfilment of the Agreement;

   Services: The services or work that Servilocker performs for the Customer for the fulfilment of the Agreement.

2. Applicability of the General Terms and Conditions

   1. These General Terms and Conditions apply to and form an integral part of all offers and quotations made by Servilocker, to all agreements between the Customer and Servilocker, and to all related (legal) acts of Servilocker and the Customer. In addition, the terms and conditions of the specific Agreement concluded between the Customer and Servilocker, which refers to these General Terms and Conditions, apply.

   2. General terms and conditions used by the Customer do not apply unless they have been expressly accepted in writing by Servilocker. Any terms and conditions mentioned in any document issued by the Customer before or after the issue of any document by Servilocker to the Customer setting out the terms and conditions used by the Customer (including (pre-printed) purchase conditions) or referring to these conditions of the Customer, are hereby expressly rejected and set aside by Servilocker. The general terms and conditions in question do not apply to any sale and delivery by Servilocker of Products and/or Services to the Customer and are therefore in no way binding on Servilocker.

3. Quotation and Conclusion of the Agreement

   1. An offer made by Servilocker is without obligation, unless explicitly indicated otherwise. A Quotation made by Servilocker may be accepted within the period indicated by Servilocker in the Quotation or, if no period is indicated, within thirty (30) days from the date of the Quotation. A Quotation may be withdrawn or revoked by Servilocker at any time prior to receipt by Servilocker of a written acceptance of the Quotation

      concerned by the Customer.

   2. Unless otherwise agreed in the Agreement, the rates included in a Quotation are exclusive of the external costs to be incurred by Servilocker.

   3. Any information provided by Servilocker in connection with a Quotation or during compliance or within the framework of the Agreement, such as but not limited to: brochures, product information, factory drawings, instructions, price lists, leaflet designs, drawings/images, technical descriptions, models, samples, databases, calculations, prototypes, films, electronic data carriers and all other information, whether or not confidential, only bind Servilocker to the extent that it is explicitly and unambiguously referred to in the Agreement.

   4. An Agreement is concluded at the moment Servilocker accepts an Order from the Customer by means of a written order confirmation or if Servilocker and the Customer have both signed an Agreement. The aforementioned order confirmation is deemed to reflect the Agreement correctly and completely and replaces all previous written and verbal offers, proposals, correspondence, agreements and communication. If neither Servilocker nor the Customer confirms a Quotation made in writing and Servilocker commences its execution in consultation with the Customer, the Order will be deemed to have been issued by the Customer to Servilocker in accordance with Servilocker’s Quotation.

   5. Amendments or additions to these General Terms and Conditions will only be effective if and in so far as they have been laid down in writing by Servilocker or have been explicitly agreed with the Customer in a specific Agreement.

4. Execution of the Agreement

   1. Unless expressly stipulated otherwise in writing, all obligations undertaken by Servilocker are deemed to be best efforts obligations.

   2. Delivery dates indicated or confirmed by Servilocker are only approximate and unless otherwise agreed in writing, agreed delivery dates are not deemed to be final dates and Servilocker will not be in default by exceeding these deadlines.

   3. Servilocker will endeavour within commercially reasonable limits to meet the delivery dates it has indicated or confirmed, provided that the Customer provides all the necessary order and delivery details within a reasonable period of time before the delivery date in question.

   4. If the delivery date is exceeded, the Customer will not be entitled to any compensation. In that case, the Customer is also not entitled to dissolve the Agreement, unless the delivery period has been exceeded to such an extent that the Customer cannot reasonably be required to maintain the relevant part of the Agreement.

   5. Servilocker is entitled, at its own choice and discretion, to engage third parties in the execution of the Agreement, regardless of where these third parties are established, and while maintaining Servilocker’s responsibilities.

   6. Additional work to be carried out on behalf of the Customer will be invoiced by Servilocker in accordance with the agreed rates, and in the absence thereof, at market rates. Additional work will include changes to the Agreement, even if the Customer does not understand that it concerns a change that leads to additional work, and regardless of whether a change has been made verbally or in writing.

   7. The Customer is obliged to take all necessary measures to enable Servilocker to fulfil the Agreement in a timely and correct manner, including the timely provision of the required and requested data, required materials, access to equipment and work areas and/or the timely provision of necessary facilities. Additional work or delay in the execution of the Agreement caused by the Customer’s failure to comply with these obligations may be charged by Servilocker as additional work. The Customer guarantees Servilocker the correctness and reliability of information and documents provided to Servilocker in execution of the Agreement. Servilocker is not liable for defects in/to the Products and/or Services provided by Servilocker as a result of the information provided by the Customer.

5. Rates and Payment

   1. The rates stated in a Quotation, confirmation or Agreement concluded between the Parties are in Euros, are based on delivery Ex-Works (INCOTERMS) from Servilocker’s production site or any other site to be designated by Servilocker, unless otherwise agreed in writing between the Customer and Servilocker. The rates are exclusive of taxes, duties, similar levies or other costs which are currently or at any future time under the law applicable to the Products and Services. Servilocker will increase the price by taxes, duties or similar levies if it is obliged by law or has the possibility to pay or collect these, and the Customer will pay these together with the price.

   2. If there is an increase in Servilocker’s costs over which Servilocker has no influence, Servilocker is entitled to increase the agreed rate unilaterally. In the event that such an increase amounts to more than 15% of the agreed rate, both Parties will be entitled to dissolve the Agreement and the Customer will be obliged to pay Servilocker that part of the order already executed. If the rate increase is the result of default on the part of the Customer or changes to the order, the Customer is obliged to pay the rate increase, regardless of the degree of the rate increase.

   3. Servilocker is in any case entitled to increase the rates for the Services, annually, as of 1 January of the following year, by at least the percentage equal to the index number of the CLA for Business Services (Zakelijke Dienstverlening CAO) wages per hour including special remunerations, as published by Statistics Netherlands (CBS) in September of the previous year, based on the index number 2010 = 100.

   4. In the event of a rate increase, Servilocker will inform the Customer of this in writing at least 2 months prior to the commencement date.

   5. The Customer must pay Servilocker’s invoices within 30 days of the invoice date, unless otherwise agreed in writing. The Customer is not entitled to set off or suspend a payment.

   6. Servilocker has at all times the right to invoice the Customer in the interim and/or on the basis of advance payments. If the Parties have not agreed a fixed rate but a rate on a time and material basis, Servilocker will invoice its activities monthly based on the activities carried out in the previous month, unless the Parties agree another way of invoicing. Servilocker is also at all times entitled to require security from the Customer for the payment of its invoices, for example in the form of a bank guarantee.

   7. If the Customer does not pay invoices within the agreed term of payment, they will be in default by operation of law without notice of default being required. If the Customer is in default of timely payment of Servilocker’s invoices, the Customer will owe an interest of 1% per month on the outstanding amount. In that case, the Customer will also owe collection costs, equal to the rate set by or pursuant to the Dutch Extrajudicial Collection Costs Act (Wet Incassokosten), without prior notice being required.

   8. If the Customer is in default of payment of any costs due, or is otherwise in default, Servilocker has the right to suspend the execution of the Agreement and/or the delivery of the Products and/or Services until the Customer has paid the amounts due, and Servilocker may suspend, postpone or terminate the delivery of the Products and/or Services or any other act or performance by Servilocker in the context of the Agreement. This is without prejudice to Servilocker’s other rights and remedies under the Agreement.

6. Ownership

   The risk of loss or damage with regards to the Products is transferred to the Customer or their representative appointed for this purpose upon physical delivery. Ownership of the Products is transferred to the Customer after full payment of the purchase price. With regard to software to be supplied, ownership will in no case be transferred to the Customer and the Customer will obtain a right of use in accordance with Servilocker’s licensing conditions, unless otherwise agreed in writing with the Customer.

7. Guarantee

   1. Servilocker guarantees that the Products, including the software, under normal use and in accordance with the accompanying user manual, for a period of 12 months from the date of delivery, substantially comply with the corresponding product specifications agreed in writing. Servilocker does not guarantee that the Products will operate without error or malfunction. With regard to Products purchased by Servilocker from third parties and delivered by Servilocker to the Customer, the guarantee of the third party in question applies.

   2. Servilocker will perform the Services, including maintenance in regards to the Products, to the best of its ability, in accordance with the specifications laid down in the applicable Agreement(s).

   3. Any defects in the execution of the Agreement must be notified to Servilocker in writing and substantiated within 10 working days after discovery of the defect, under penalty of forfeiture of all rights in relation to that defect.

   4. The sole and exclusive obligation that Servilocker has under the aforementioned guarantee and the sole and exclusive remedy that the Customer has in respect of claims under this guarantee is limited, at Servilocker’s option, to (1) repairing, or (2) ensuring replacement of the defective Product or Product not meeting the specifications, or (3) adequate compensation for the purchase price thereof. Servilocker will be allowed a reasonable time for such repair, replacement or compensation. Servilocker is entitled, at its discretion, to replace the defective Product or Product not meeting the specifications with a product with minor deviations in design and/or specifications that do not affect the functioning of the Product. Products that do not meet the specifications or are defective become the property of Servilocker as soon as they have been replaced or compensated. The Customer will be responsible for returning the defective Product to Servilocker, and Servilocker will bear the cost of sending repaired or replaced Products to the Customer.

   5. The aforementioned guarantee obligations of Servilocker do not apply in case of:

      • improper use, inadequate preparation of the site or its surroundings or other acts not in accordance with the applicable supporting documents;

      • modifications or inadequate system maintenance or calibration not carried out by Servilocker or without Servilocker’s consent;

      • defects and/or other limitations caused by non-Servilocker products which affect the operation of the systems for which Servilocker provides support or service;

      • malicious software (e.g. virus, worm, etc.) not introduced by Servilocker; or

      • misuse, negligence, accident, fire or water damage, power failures, transport by the Customer or other causes beyond the influence of Servilocker.

   6. To the extent permitted by law, Servilocker rejects all other guarantees not set out in these General Terms and Conditions.

8. Intellectual Property Rights

   1. Servilocker or its suppliers are entitled to all intellectual property rights on the Products to be delivered and delivered by Servilocker in the framework of an Agreement. With regard to Products specifically developed and delivered for the Customer, the Customer only acquires a right of use for internal use, unless otherwise agreed in writing.

   2. Source codes, working drawings, sketches, prototypes, films, electronic data carriers and the like always remain the property of Servilocker or its suppliers. Source codes will not be made available to the Customer, unless agreed otherwise in writing.

   3. The Customer is forbidden to remove any brands, marks, trade names and other indications and/or identification numbers, etc. that Servilocker may affix to the delivered Products.

   4. Unless explicitly agreed in the Agreement, no transfer of intellectual property rights will take place. The Customer grants Servilocker a non-exclusive, worldwide and royalty-free right and license to all intellectual property, which Servilocker and persons designated by it must have in order to perform the Services. The intellectual property rights relating to software and/or documentation, which is embedded in and inextricably linked to a Product to be delivered or provided by Servilocker, will remain solely with Servilocker, even after transfer of the Product to the Customer, and the Customer obtains a non-exclusive and non-transferable licence from Servilocker to use the relevant software and/or documentation in conjunction with the Product delivered to the Customer.

9. Infringement of Intellectual Property Rights

   Servilocker indemnifies the Customer against claims from third parties for infringement of an intellectual property right of third parties, on the understanding that this indemnity lapses if the Customer has not notified Servilocker in writing of a claim submitted to them by a third party within 14 days of receipt of the claim. Servilocker will defend itself against claims against the Customer and/or settle them if it is alleged that a Product and/or Service with the Servilocker trademark, delivered under an Agreement, infringes the intellectual property rights of third parties. The Customer is obliged, at their own expense and risk, to provide all cooperation and support to Servilocker to refute the third party’s claim, including providing the requested information and granting access to the Products delivered, and, if necessary, making them available to Servilocker free of charge. Servilocker may, at its own discretion, modify the Product or Service in such a way that it no longer infringes and is materially equivalent, or acquire a legally valid licence. If it is not possible, without infringing the intellectual property right of a third party, to modify or replace the Product in such a way that it still complies with the Agreement, the Customer and Servilocker are entitled to terminate the Agreement, where Servilocker will refund to the Customer the amount paid for the Product in question in the first year, or the value after depreciation, and any amount paid in advance in respect of the Product. Servilocker is not responsible for claims arising from any unauthorised use of the Products or Services bearing the Servilocker trademark. This provision will also apply to Products specifically developed for the Customer, on the understanding that Servilocker will not be liable for claims relating to Products developed on the basis of information and specifications provided by the Customer.

10. Personal Data

    Each of the Parties will comply with its respective obligations under the applicable General Data Protection Regulation (GDPR). Servilocker has no intention, when providing services, to have access to information that can be traced back to the Customer (“Personal Data”). In so far as Servilocker has access to Personal Data of the Customer that are stored on a system or device of the Customer, this access is likely to be incidental, and the Customer will at all times remain the holder of the Personal Data. Servilocker will use the Personal Data to which it has access exclusively for the purpose of providing the Services.

11. Compliance for the Purposes of International Trade

    Services and Products delivered in accordance with these General Terms and Conditions are exclusively intended for internal use by the Customer and not for resale. In the event that the Customer exports, imports or otherwise transfers Products delivered under an Agreement, the Customer will be solely responsible for complying with the applicable laws and regulations and for obtaining the required export or import licences. Servilocker may suspend the execution of the Agreement to the extent this is required under legislation applicable to one of the Parties.

12. Liability

    1. The total maximum liability of Servilocker under or on account of an Agreement, for damage suffered by the Customer as a result of Servilocker’s substantial attributable failure, is limited to the total amount of the Products and/or Services that constitute the object of the liability provided to the Customer, during the period of twelve (12) months immediately preceding the date on which Servilocker is held liable, but with a maximum of EUR 50,000.00. Neither the Customer nor Servilocker will be liable for loss of revenue or loss of profit, downtime costs, loss or damage to data, claims of third parties or other indirect, extraordinary or consequential damages or costs.

    2. Each of the Parties will be liable without limitation in the event of gross negligence or intent.

    3. Servilocker’s total liability for damage due to death or personal injury or for material damage to property will be limited to the amount payable under the Servilocker insurance and calculated over the entire Agreement concerned, where a series of related events will be regarded as a single event.

    4. Any claim for compensation must be submitted by the Customer within ninety (90) days of the date of the event on which the claim is based.

13. Confidentiality

    1. The Parties must maintain secrecy with regard to all information that comes to its knowledge prior to and during the execution of the Agreement and that is of a confidential nature. Without the written consent of the other Party, Servilocker and the Customer will not use the information made available to them within the framework of the execution of the Agreement for any purpose other than that for which it was obtained. The Customer will only share this information within their own organisation with their own employees and in so far as this is necessary for the conclusion or execution of the Agreement.

    2. The Customer acknowledges that all technical, commercial and financial information shared by Servilocker with the Customer is confidential information of Servilocker. This includes (information on) source codes, product information, factory drawings, instructions, price lists, leaflet designs, drawings/images, technical descriptions, models, samples, databases, calculations, prototypes, films, electronic data carriers and similar information, which have been shared by Servilocker with the Customer, including information of which the Customer could reasonably have understood that this information is confidential to Servilocker. The Customer is forbidden to share any of this confidential information with third parties, or to use it for any purpose other than the execution of the Agreement.

    3. Servilocker has the right to use the Agreement concluded with the Customer as a reference for the acquisition of new orders from third parties, unless explicitly agreed otherwise in writing.

    4. Without the prior written consent of Servilocker, the Customer is prohibited from doing business or entering into a relationship, directly or indirectly, with employees of Servilocker or third parties engaged by Servilocker for the execution of the Agreement, as well as with employees of these third parties, in the broadest sense of the word, with the intention that these persons or parties should, whether or not in employment, for payment or free of charge, perform similar work for or on behalf of the Customer. This prohibition also applies to all parties affiliated with the Customer. In the event of violation of this prohibition, the Customer will forfeit to Servilocker an immediately payable fine of EUR 100,000 (in words one hundred thousand Euros) per violation and of EUR 5,000 (in words five thousand Euros) per day or part of a day that the violation continues, without prejudice to Servilocker’s right to claim full damages.

14. Termination

    1. Cancellation. Only in the event and to the extent that an Agreement provides that the Parties have the right to cancel the Agreement in question, the Parties may cancel an Agreement and such cancellation will be subject to the General Terms and Conditions set out in the Agreement in question.

    2. Dissolution. Both Parties have the right to dissolve an Agreement by giving written notice if the other Party fails imputably in the performance of its essential obligations under that Agreement, where the defaulting Party has been given notice of default in writing, stating the nature of the failure and has been given a reasonable period for remedying the failure, and the failure has not been remedied within this period either.

    3. Each of the Parties may terminate the Agreement, in whole or in part, with immediate effect and without judicial intervention, in writing and cancel all obligations that have not yet been performed if:

       • the other Party is unable to pay its debts when due;

       • the other Party files for bankruptcy or is declared bankrupt;

       • the other Party applies for (provisional) suspension of payments or is granted a (provisional) suspension of payments;

       • if the other Party loses the power of disposal over its assets or a substantial part thereof as a result of an attachment or otherwise;

    4. In addition, Servilocker may terminate an Agreement, in whole or in part, with immediate effect and without judicial intervention, in writing, if Servilocker has reasonable grounds to assume that the Customer will not meet their obligations or will not meet them on time and/or will not be able to provide a security of payment requested by Servilocker on time.

    5. Termination of the Agreement is without prejudice to the Customer’s obligation to pay for the work carried out by Servilocker, and Servilocker’s claims against the Customer will become immediately due and payable. If the Parties have agreed a fixed rate, the Customer will be obliged to pay the full agreed price to Servilocker, notwithstanding dissolution. In addition, the Customer’s rights of use of the Products will lapse and the Customer will be obliged to return all Products delivered by Servilocker to Servilocker without delay, in so far as these have not yet been paid in full. The dissolution of the Agreement by Servilocker is also without prejudice to Servilocker’s right to claim damages.

15. Transfer and Settlement

    The Customer is not allowed to transfer any rights or obligations within the framework of an Agreement without the prior written consent of Servilocker. Servilocker is entitled to transfer all or part of its rights and obligations arising from the Agreement to third parties. Servilocker will inform the Customer of this in writing. The Customer is not entitled to withhold or reduce any payments or to set off existing and future claims against any payments due for Products and Services.

16. Force Majeure

    If a Party is unable to meet its obligations, whether or not temporarily, with the exception of payment obligations, and if this is not due to its fault, nor is it for its account under the law or generally accepted practice, the other Party will be entitled to dissolve the Agreement if this situation of force majeure lasts longer than 3 months, without the right to compensation for any damage relating to this dissolution. In that case, Servilocker is entitled to compensation of the costs incurred to execute the Agreement until the moment of dissolution of the Agreement.

17. Other Provisions

    1. Validity. If one or more of the articles of these General Terms and Conditions are declared by a court to be wholly or partly inapplicable, the other provisions shall remain in full force and effect. The Parties undertake to replace a non-binding article with an article that is binding and that deviates as little as possible from the non-binding article.

    2. Applicable law and disputes. These General Terms and Conditions and the Agreement are governed by Dutch law. The applicability of the Vienna Sales Convention (CISG) is excluded. Disputes arising from or in connection with these General Terms and Conditions and the Agreement will be submitted exclusively to the competent Court in Leeuwarden.

    3. General. Should any provision of these General Terms and Conditions and/or an Agreement prove to be invalid or unenforceable, the remaining part of these General Terms and Conditions and/or that Agreement will remain enforceable and will not be affected. Amendments to the Agreement can only be made by means of a written amendment signed by both Parties. All General Terms and Conditions of an Agreement which by their nature continue after the end of the Agreement shall remain in force until they are fulfilled and will also apply to the respective legal successors of both Parties and its successors. Any termination under this provision will be without prejudice to the rights and remedies of the terminating Party, including injunctions and other equitable remedies.