These general terms and conditions of sale (“TC”) shall govern and form an integral part of all agreements entered into and for all offers or quotations offered by ATO-gear as well as to your purchase orders to us and our order confirmations to you (“Customer”).
Acceptance of our offer or quotation includes acceptance of these TC’s and no other terms and conditions (whether contained in any purchase order or otherwise) shall be binding on us unless they are explicitly agreed to in writing. Our offer or quotation is open for acceptance within the period stated therein or, when no period is stated, within thirty (30) days from the date of the offer or quotation, but any offer or quotation may be withdrawn or revoked by us at any time prior to the receipt by us of Customer’s acceptance related thereto. Any order or quotation will only be binding after our written order confirmation which may be given by post, fax or e-mail.
Unsolicited and Deviating Orders. If we receive any order from Customer for the performance of Services or the supply of (parts of) Deliverables and such order is not in response to an offer or quotation by us, or if we receive an order or acceptance by Customer which deviates from our offer or quotation, such order or acceptance, respectively, shall be deemed to be a request for an offer or quotation only.
Except as otherwise explicitly agreed to in writing, the following terms shall have the meanings set out below:
“Affiliates”: a person or entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, a party.
“Agreement” means a contract formed between the Customer and ATO-gear comprising our offers or quotations to you, any other relevant document agreed to, your purchase orders to us and our order confirmations to you together with these General Terms and Conditions.
“ATO-gear”: ATO-gear B.V., ATO-gear Ltd and/or Affiliate(s) of ATO-gear B.V.
“Confidential Information” means any and all information relating to our products, services, software, research, development, trade secrets, marketing and business plans, strategies, customers, management and personnel that is 1) marked as confidential, or 2) which the parties to the Agreement should reasonably understand to be regarded as confidential.
“Customer” shall mean the person or company addressed in any relevant offer or quotation or identified as such in the Agreement.
“Deliverable(s)” shall mean the deliverable(s) to be provided by ATO-gear as defined in our offers or quotations to you or otherwise in the Agreement including, but not limited to Documentary Deliverable(s), Hardware Deliverable(s), Process Deliverable(s) and/or Software Deliverable(s).
“Development Services” shall mean our design and/or development efforts for a Deliverable which meets the Specifications as set out in our quotation.
“Documentary Deliverable(s)” shall mean any Deliverable(s) in the form of reports or other documentation (excluding Software Deliverables) submitted to you pursuant to the Agreement.
“Hardware Deliverable(s)” shall mean any Deliverable(s) in the form of three-dimensional objects (excluding Documentary Deliverables) submitted to you pursuant to the Agreement, such as but not limited to printed circuit boards, or other electronic equipment or any part(s) thereof, but excluding any Software Deliverables, even if embedded.
“Intellectual Property Rights” shall mean patents, utility models, registered and unregistered designs, copyrights, database rights, trademarks, trade secrets, know-how, proprietary rights, and all registrations, applications, renewals, extensions, combinations, divisions, continuations or reissues of the foregoing.
“Open Source Software” shall mean any software that is licensed under Open License Terms.
“Open License Terms” shall mean terms in any license that require as a condition of use, modification and/or distribution of a work:
- the making available of source code or other materials preferred for modification, or
- the granting of permission for creating derivative works, or
- the reproduction of certain notices or license terms in derivative works or accompanying documentation, or
- the granting of a royalty-free license to any party under Intellectual Property Rights regarding the work and/or any work that contains, is combined with, requires or otherwise is based on work.
“Process Deliverable(s)” shall mean any deliverable(s), explicitly described in our offer or quotation, in the form of operating principles or concepts for manufacturing or testing, such as without limitation physical, chemical, mechanical or organizational principles or concepts created by us for you pursuant to the Agreement including any modifications of existing manufacturing processes or existing testing methods as well as related instructions, explanations, methodologies therefore, and demonstrations thereof.
“Services” shall mean the services, including Development Services, to be provided by ATO-gear as defined in our offers or quotations to you or the Agreement.
“Software Deliverable(s)” shall mean any Deliverable(s), explicitly described in our offer or quotation, in the form of computer software, including but not limited to object code and source code, submitted to you pursuant to the Agreement.
“Specifications” shall mean the mutually agreed specifications, hardware, material, functional and other requirements as well as acceptance criteria and packaging specifications with regard to the Deliverables as specified in the Annexes to the Agreement per Deliverable.
”us,” “we” and “our(s)” shall refer to ATO-gear unless otherwise clearly required by the context.
“Work Product(s)” shall mean, by way of example but without limitation, all software, firmware, mask works, reports, documents, memoranda, manuals, materials, photographic slides, artwork, graphics, ideas, concepts and other work products created or developed by us in the course of providing Services and/or Deliverables hereunder, but excluding the Services and Deliverables themselves.
“you” and “your(s)” shall refer to Customer unless otherwise clearly required by the context.
3. Prices and Payment
3.1 Currency. All prices are in Euros or in the currency set forth in our offer or quotation and subsequent order confirmation. All prices are exclusive of any applicable value-added tax (VAT), sales tax or like kind taxes, fees, levies, imposts, duties, assessments, charges, customs duties or withholdings of whatever nature.
3.2 Net Prices. Prices apply to the Services and/or Deliverables offered or agreed to. Customer will pay us a net price, as specified in the offer or quotation or relevant annex.
3.3 Invoices. Invoices shall be submitted in accordance with our quotation or, if not specified, not more often than monthly and Customer will pay all invoices in accordance with our quotation or, if not specified, within thirty days after the date of invoice.
3.4 Payment Default and Interest. If Customer does not pay the amount due within the stipulated term, Customer will be automatically, without our notification being required, in default, and will owe interest over the outstanding balance at the EURIBOR 3-month rate, quoted on the due date, plus minimum 4 percent per year. If Customer’s ability to pay is impaired in the reasonable opinion of ATO-gear, Customer shall immediately upon ATO-gear’s request provide security for payment in the form requested by and satisfactory to ATO-gear. The costs for providing security will be born entirely by the supplier. Furthermore, Customer agrees to pay any costs, fees and expenses incurred in connection with the collection of the debt together with applicable interest. If Customer is in default, we will be entitled to suspend our Services and/or supply of Deliverables immediately, without prejudice to any other rights we may have. If we incur any exchange rate loss due to Customer’s failure to pay when payments are due, we shall be entitled to full compensation from Customer for such losses.
3.5 Non-Recurring Expenses. Payment by Customer of non-recurring expenses, as may be made to us for special design, engineering or production materials required for our performance on orders deviating from our established activities, shall not convey title to either the design or special materials, and title shall remain in us.
3.6 No Set-off Customers. Customer shall not set off, withhold or reduce any payment(s) by it to us.
3.7 Set-off ATO-gear and affiliates. Customer hereby unconditionally accepts that ATO-gear and any of its Affiliates shall at all times have the right to set-off any amounts that any ATO-gear Affiliate owes to Customer or its Affiliates under this Agreement with any amounts that Customers or its affiliates owes to any Affiliate of ATO-gear under the Agreement or any other agreement.
4. Retention of Title
4.1 Intellectual property. Except for our Intellectual Property Rights and our Work Products, which shall remain ours at all times, Customer explicitly accepts that we shall retain title to the Deliverables until full payment has been received by us of all amounts due in accordance with the Agreement(s) between Customer and us under which the Deliverables are delivered to Customer and Customer agrees not to resell the Deliverables and shall take all measures to protect the Deliverables and to ensure that our title to the Deliverables is in no way prejudiced. Risk of damage, loss or destruction of the Deliverables shall pass to Customer upon our delivery of the Deliverables to Customer in accordance with the Ex-Works delivery condition. Customer shall be obliged to insure the Deliverables at its own expense for the time they remain our property. If Customer fails to make any payments to us when due, Customer shall, upon our first notice, return to us, at Customer’s risk and expense, any Deliverables to which we have retained title as aforesaid.
4.2 Advertisement. Customer shall not, without ATO-gear’s prior written consent, publicly make any reference to ATO-gear, whether in press releases, advertisements, sales literature or otherwise.
5. Delivery and Acceptance
5.1. Delivery. Delivery dates communicated or acknowledged by us are approximate only and we shall not be liable for, nor shall we be in breach of our obligations to Customer because of any delivery made within a reasonable time before or after the stated delivery date (“Delivery Date”). We agree to use commercially reasonable efforts to meet the delivery dates communicated or acknowledged by us on the condition that Customer provides all necessary order and forwarding information sufficiently prior to the requested delivery date. If however we are unable to deliver within the Delivery Date, and after being given a reasonable period of time, with a minimum of (30) days, to cure, Customer’s sole and exclusive remedy is to cancel the affected and undelivered portions of the Agreement, provided that such cancellation is justifiable under the circumstances.
5.2. Acceptance. In case any specific acceptance procedure has been agreed, Customer agrees to execute such acceptance procedure with respect to the relevant Services and/or Deliverables within the period agreed or, if not specified, within a period of thirty (30) days after delivery thereof. Services and/or Deliverables will be deemed accepted unless rejected in writing within the said period.
6. Co-operation of Customer
6.1 Customer Provided Information and Assistance. The quotation and the description of the Services and/or Deliverables are based on information provided by Customer. Customer undertakes that all elements (e.g. documents, tools, test beds and information data et cetera) necessary for us to provide the Services and/or Deliverables will be made available to us free of charge in a timely and appropriate fashion. Customer will make available such competent employees of its organization as are necessary to assist us in fulfilling our obligations under the Agreement. Customer will obtain if required by law or otherwise, all necessary approvals of the applicable consultative body(ies) in connection with the providing of Services and/or Deliverables. In case any or all of the above conditions are not, not properly or not timely complied with, or if we have to suspend Services and/or delay the delivery of Deliverables for reasons not attributable to our gross negligence or willful misconduct, the period of completion set forth in the Agreement shall be automatically extended for such additional time as shall be necessary to deliver the Services and/or Deliverables and any and all additional costs resulting thereof shall be for Customer’s account.
6.2 Customer Provided Supplies. If parts and/or equipment (“Supplies”) are made available by Customer, such Supplies shall be delivered for risk and account of Customer in good time and in the required numbers. Return shipments of Supplies to Customer, if any, will be made in the same manner as the Deliverables. Customer remains responsible for these supplies and indemnifies ATO-gear from and against any claims and demands relating thereto.
6.3 Insurance for Customer Provided Supplies. Any such Supplies shall be insured by Customer to cover risk of loss and possible damage to the health of our personnel and/or of our property. We will administer and care for the Supplies with the same level of care as with our own similar property. On the first request of ATO-gear Customer is obliged to demonstrate within three (3) days after the request that a sufficient insurance is effected by Customer.
6.4 Customer Personnel. Any employees of Customer involved in the delivery of Services and/or Deliverables by us shall be reliable, adequately trained, experienced and skilled, and shall be made available in sufficient number and within the timetable set forth in the Agreement and shall perform their undertakings at our facilities at Customer’s own risk and expense. If, at the sole discretion of ATO-gear, an employee of Customer does not meet the above requirements, Customer must arrange for suitable replacement, within five (5) days after the first request of ATO-gear.
7.1 Services Warranty and Remedy. We will perform Services with the degree of care and skill ordinarily exercised by employees of our profession. In case of Development Services we will use commercially reasonable efforts to develop a Deliverable in a professional manner in accordance with our quotation or offer; however, Customer acknowledges that the results of Development Services to be performed are experimental in nature and therefore uncertain and cannot be warranted by us.
In case of our non-compliance with the warranty set forth above, at the sole discretion of ATO-gear, we shall perform the Services once more without charging for the costs. The foregoing states Customer’s sole and exclusive remedy. We shall in no circumstance be bound by any further obligation, such as liability for damages, loss of raw materials or previously delivered Hardware Deliverables put at our disposal for processing, or dissolution of the Agreement.
7.2 Hardware Deliverables Warranty. Unless otherwise stated in our quotation, we warrant that at the time of delivery to Customer the Hardware Deliverables supplied shall meet the Specifications, and we warrant the good quality of Hardware Deliverables supplied for a period of six (6) months as from the date of delivery to Customer against defects which appear therein under proper use, which arise from faulty materials or workmanship, it being understood that this warranty does not cover:
- any defects sustained by normal wear and tear, at the sole discretion of ATO-gear;
- any defects arising in consequence of negligence or improper handling or use of the Hardware Deliverables or parts thereof by Customer or Customer’s agents (including use outside its Specifications);
- any defects arising of maintenance by unauthorized persons or third parties;
- any defects due to improper storage in the event of the Hardware Deliverables wholly or partly being stored by the Customer prior to installation, use or resale to ultimate buyers;
- any defects arising in consequence of external influences, environmental or stress testing or unilateral adjustments to the Specifications by Customer on the use of the Hardware Deliverables or products incorporating the Hardware Deliverables, at the sole discretion of ATO-gear;
- any defects arising from combination of the Hardware Deliverable with other hardware or software.
7.3 Hardware Deliverables Remedy. Our liability, and Customer’s sole and exclusive remedy, with respect to Hardware Deliverables under this warranty shall be to supply to Customer free of charge, replacements of such parts of the Hardware Deliverables as have proved to have such defects as set out here above or, at our option, repair such parts or have them repaired at our order, provided that we are informed by Customer in writing within thirty days after the defects have revealed themselves and the defective Hardware Deliverables have been placed at our disposal; the defective parts shall become our property as soon as they have been replaced.
7.4 Software Deliverables, Process Deliverables and Documentary Deliverables Warranty. The Software Deliverables, Process Deliverables and Documentary Deliverables provided by us are delivered to Customer on an “AS IS” basis, without warranty of any kind. Unless otherwise explicitly agreed to in writing, we do not warrant that any Software Deliverables or Work Products in the form of software supplied pursuant to the Agreement does not contain any Open Source Software.
7.5 Deliverable License. Deliverables provided by us shall be subject to a license as set forth in Article 8.2.1 or Article 8.2.2, as the case may be.
7.6 Warranty for non-infringement. We will not, and therefore it is Customer’s sole responsibility to, assess whether the Deliverable infringes third party Intellectual Property Rights, and the Customer explicitly accepts that, we will have no liability in this respect even if advised of the possibility of such infringement, or even if we have performed an Intellectual Property Rights scan on Customer’s request.
7.7 Subject to the exclusions and limitations set forth in Section 10 of the Terms and Conditions, the foregoing states ATO-gear.’S entire liability and obligation to CUSTOMER OR ITS MEDIATE OR IMMEDIATE CUSTOMERS and CUSTOMER’S sole AND ExCLUSIVE remedy with respect to breach of any warranty.
8. Intellectual Property Rights and License
8.1 Intellectual Property Rights
8.1.1 Customer Intellectual Property Rights. Customer retains sole and exclusive ownership of any of its Intellectual Property Rights.
8.1.2 ATO-gear Intellectual Property Rights. ATO-gear retains sole and exclusive ownership of any of its Intellectual Property Rights. Customer acknowledges that ATO-gear Intellectual Property Rights are and shall remain vested in ATO-gear.
8.1.3 New Intellectual Property Rights. All Intellectual Property Rights generated as a result of creating the Work Products and/or the Deliverables and/or providing the Services ATO-gearand possible new Intellectual Property Rights and/or newly developed knowhow that are a result of the use or further development of the Work Products and/or the Deliverables and/or providing the Services by the Customer (hereinafter referred to as: “New Intellectual Property Rights”), will vest in ATO-gear. The Customer thus hereby assigns all New Intellectual Property Rights and future New Intellectual Property Rights to ATO-gear, as well as any and all rights of claims regarding those New Intellectual Property Rights and ATO-gear hereby accepts the assignments. Customer agrees to take no action inconsistent with such ownership. The Customer undertakes to perform all acts upon ATO-gear’s first request that may be additionally necessary to finalize the assignment or any future assignment of (future) New Intellectual Property Rights. The Customer will take all action and execute all documents as ATO-gear may reasonably request to effectuate the transfer of New Intellectual Property Rights and the vesting of complete and exclusive ownership of the New Intellectual Property Rights in ATO-gear.
8.2.1 License for Work Products and Deliverables excluding Hardware Deliverables. Any license agreements are subject to Customer’s fulfillment of all of its obligations under the Agreement and subject to any prior commitments to third parties. If no license agreement is in place, subject to Customer’s fulfillment of all of its obligations under the Agreement and subject to any prior commitments to third parties, from the date of delivery confirmed in writing by ATO-gear, Customer shall have for a period of 1 month a non-exclusive, world-wide, non-transferable, royalty-free license under ATO-gear’s Intellectual Property Rights to only use Work Products, Process Deliverables, Software Deliverables and Documentary Deliverables in Customer’s business. Customer may not reproduce, assign, transfer, lease or sublicense any licensed rights to any third party without our prior written consent. Customer is not allowed to market, distribute and otherwise dispose the Work Products and Deliverables excluding Hardware Deliverables and is not allowed to copy and/or adapt, test, operate, demonstrate, evaluate, install, customize, redesign, modify and/or maintain the Work Products and Deliverables, excluding Hardware Deliverables.
8.2.2 License for Hardware Deliverables. Subject to Customer’s fulfillment of all of its obligations under the Agreement and subject to any prior commitments to third parties as well as to what is stipulated in Article 8.2.3 hereof, from the date of delivery confirmed in writing by ATO-gear, Customer shall have for a period of 1 month a non-exclusive, world-wide, non-transferable, royalty-free license under ATO-gear’s Intellectual Property Rights to use, lease, sell or otherwise dispose of Hardware Deliverables.
8.2.3 No other Licenses in relation to Work Products and Deliverables. The licenses granted to Customer pursuant to Articles 8.2.1 and 8.2.2 here above do not include a license, immunity or other right under any of ATO-gear’s Intellectual Property Rights, either directly or by implication, estoppel, operation of law or otherwise, for any other purposes, including without limitation for (i) products manufactured by using Process Deliverables or manufactured by means of Hardware Deliverables if and to the extent such products infringe other ATO-gear’s Intellectual Property Rights than those infringed by respectively said Process Deliverables or said Hardware Deliverables, (ii) processes or methods used in or with Hardware Deliverables or contained in Work Products, unless such processes or methods have been specifically defined as Process Deliverables in our offer or quotation, or (iii) software used in or with Hardware Deliverables, even if embedded, or contained in Work Products, unless such software has been specifically defined as Software Deliverable in our offer or quotation.
8.2.4 Open Source Limitation on all Licenses. Customer warrants that it shall not perform any actions with regard to any software licensed by us to you in a manner that would require the licensed software or any derivative work thereof to be licensed under Open License Terms. These actions include but are not limited to:
i) combining the Licensed Software or a derivative work thereof with Open Source Software, by means of incorporation or linking or otherwise; or
(ii) using Open Source Software to create a derivative work of the Licensed Software.
8.2.5 Customer’s Covenant Concerning Software. Customer shall in no event, except as pursuant to the above mentioned license or unless and only to the extent permitted by mandatory law applicable to the Agreement: (a) modify, adapt, alter, translate, or create derivative works from, any software provided by us; (b) assign, sublicense, lease, rent, loan, transfer, disclose, or otherwise make available such software; (c) merge or incorporate such software with or into any other software; or (d) reverse assemble, decompile, disassemble, or otherwise attempt to derive the source code for such software without written authorization from us. Customer shall reproduce, without any amendments or changes thereto, any proprietary rights legends of us and/or our Affiliates or our third party suppliers in any software or documentation provided by us.
8.2.6 No sale of software, and no license to source code. Any software provided hereunder and any compilation or derivative thereof is the proprietary information of ATO-gear and/or its Affiliates and is confidential in nature. The software provided hereunder is not sold and no ownership or assignment of any Intellectual Property Rights is intended nor shall be implied. No rights or licenses with respect to any software source code are granted by us to Customer.
Customer shall indemnify and hold us, ATO-gear, its Affiliates, agents or employees harmless against all suites, actions, legal or administrative proceedings, claims, demands, judgements, liabilities, interest, attorneys’ fees, fines, losses, damages, costs and expenses of whatsoever kind or nature (including but not limited to special, indirect, incidental, consequential damages), whether directly or indirectly arising from a claim brought by a third party against us in connection with Customer’s breach of any of its warranties, our performance under the Agreement, the supply of the Deliverable or the infringement of third party intellectual property rights, except where such third party claim arises from our gross negligence or wilful misconduct, together with the actual costs and expenses incurred by us in connection with such a claim by such third party, provided that we will give Customer full authority to, at the option of Customer, settle or defend such claim, suit or proceeding and all reasonable co-operation and assistance in case Customer decides to defend such a claim, suit or proceeding and provided further that we will refrain from any activity that can jeopardize or harm the defense of any such claim made by a third party.
10. Disclaimer, claims and Limitation of Liability
10.1 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND TO THE FULLEST EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL OTHER CONDITIONS, REPRESENTATIONS OR WARRANTIES EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS ARISING FROM THE SERVICES AND/OR SUPPLY OF DELIVERABLES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ATO-GEAR, ITS AFFILIATES, DISTRIBUTORS, DEALERS, AGENTS OR ITS OR THEIR EMPLOYEES, SHALL CREATE ANY WARRANTY. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THESE TC’S.
10.2 Consequential and other Special Damages Excluded. IN NO EVENT SHALL ATO-GEARBE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHICH INCLUDES WITHOUT LIMITATION LOSS OF PROFIT, LOSS OF TURNOVER, LOSS OF GOODWILL, LOSS OF REPUTATION, BY EITHER YOU OR ANY OF YOUR CUSTOMERS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. These limitations are separate, essential terms of this Agreement and effective upon the failure of any remedy, exclusive or not. In the event this limitation of damages, or any part thereof, is held unenforceable, then the parties agree that by reason of the difficulty in foreseeing the amount of possible damages of the nature sought to be limited above, all our liability to Customer for such damages shall be limited to a maximum of twenty five per cent (25%) of the total price of the Services performed or Deliverables supplied under the Agreement during the preceding twelve months period, as liquidated damages and not as a penalty.
10.3 General Limitation. No claim or recovery of any kind of loss or damage brought against us under the Agreement shall in the aggregate be greater in amount than the total price of the Services performed or Deliverables supplied under the Agreement during the preceding twelve months period. Customer shall indemnify us for any claims or recoveries of any kind of loss or damage over and above said total price.
11. Confidential Information
11.1 Use of Confidential Information. Customer shall not use or disclose Confidential Information received from ATO-gear or generated by Customer for ATO-gear under the Agreement, whether orally, in writing, by demonstration or otherwise, except as is necessary to implement the Agreement, unless the Customer can prove by written record that:
(a) it already had knowledge of such information prior to disclosure; or
(b) the information was already or becomes publicly known through no fault of the receiving party; or
(c) information identical to the disclosed information was already in its possession or was subsequently lawfully obtained without restrictions to the use from a third party who is free to disclose the same; or
(d) is subsequently independently developed by the receiving party without the use of the disclosed information.
11.2 Care and property. Customer shall protect ATO-gear’ information using not less than the same degree of care with which it treats its own confidential information, but at all times shall use at least reasonable care. All such information shall remain the property of ATO-gear and Customer shall, upon ATO-gear’ demand, promptly return to ATO-gear all such information and shall not retain a copy thereof.
11.3 Mandatory Disclosure. In the event the receiving party receives a court order to disclose any Confidential Information, the receiving party shall deliver prompt written notice to the disclosing party and shall cooperate with the disclosing party in its attempts to obtain a protective order or other similar protection for the Confidential Information.
11.4 The Agreement. The existence and the contents of the Agreement shall be treated as confidential by Customer.
11.5 Term. The provisions of this Article 11 shall retroactively be in full force and effect from the date first contacts were established with respect to the subject matter of the Agreement and shall remain in full force and effect during the duration of the Agreement and five (5) years thereafter.
12.1 Term and Termination. The Agreement will remain in force until the completion of the Services and/or Deliverables or for the term as specified in the Agreement, if any. If the Agreement has been entered into for an indefinite period, we may terminate the Agreement by giving three months written notice to Customer, unless otherwise explicitly agreed to in writing. In the event of such termination or expiration, we will not owe you any compensation.
12.2 Termination for Default. Any party may terminate the Agreement, after having sent a written notice of default that is reasonably adequately and sufficiently detailed as to identify the nature of the default and that sets a reasonable time period with a minimum of fourteen (14) days by which the default must be remedied, if the other party fails to comply with its material obligations under the Agreement without adequate excuse.
12.3 Termination for Bankruptcy. ATO-gear may give the other party written notification of the immediate termination of the Agreement, wholly or partly, without the requirement for notice of default or intervention of the Court, in the event of the following:
(a) if Customer has been granted suspension of payments, whether provisionally or not;
(b) if a petition for bankruptcy has been filed with respect to Customer and the petition has not been revoked within seven days;
(c) if Customer files for bankruptcy itself; or
(d) if Customer enterprise is dissolved or terminated, except for the purpose of a merger with or absorption by another company.
12.4 Termination for Convenience. Upon our approval, Customer may terminate the Agreement for convenience and we shall stop as soon as reasonably possible the execution of the Agreement. Upon termination for convenience Customer shall pay us:
(a) all outstanding invoices for Services and/or Deliverables provided until the termination; and
(b) costs incurred by us due to the early termination by Customer; and
(c) 10 (ten) % of the remaining part of the amount Customer would have been invoiced if the Agreement would have been executed in full.
13. Effects of Termination
13.1 Partial Performance. If at the time of the termination or expiration of the Agreement, Customer has received the benefit of any part of the performance of the Agreement, Customer will not be entitled to undo the performance and to not comply with the relevant payment obligations, except where we may be in default with respect to the performance. We shall be entitled to issue prorated invoices for partial performance where appropriate. Amounts invoiced by us for Services and/or Deliverables delivered or carried out under the Agreement before the termination or expiration will remain due and in full effect, subject to the stipulations described in the previous sentence, and will become immediately payable upon termination or expiration.
13.2 Suspension of Work. If we may reasonably make the assumption that Customer has failed, will fail, enters in a position in which it is likely that it will fail to comply with its payment obligations, we will be entitled to suspend our obligations and to set further requirements as security for the amount that it is due and future payment obligations.
13.3 Return of Confidential Information. Immediately following the termination or expiration of the Agreement, upon request either party will return all media containing Confidential Information and will make no further use thereof.
13.4 Survival. In the event of cancellation, termination or expiration of any Agreement the terms and conditions destined to survive such cancellation, termination or expiration, which shall include without limitation Articles 6, 7,8, 9, 10, 12,13, and 16 shall survive.
14. Force Majeure
14.1 Performance Prevented. Neither party will be bound to comply with any obligation if the party is prevented from doing so through Force Majeure. The expression “Force Majeure” shall mean and include any circumstances or occurrences beyond our reasonable control – whether or not foreseeable at the time of the offer or quotation, confirmation or agreement – as a result of which we cannot reasonably be required to execute our obligations. Such circumstances or occurrences include but are not restricted to: acts of God, war, civil war, insurrections, strikes, fires, floods, earthquakes, labor disputes, epidemics, governmental regulations and/or similar acts, freight embargoes, non-availability of any permits, licenses and/or authorizations required, defaults or delays of suppliers or subcontractors and/or inability or impracticability to secure transportation, facilities, fuel, energy, labor, materials or components.
14.2 Termination Option. If the force majeure has lasted for more than sixty days, either party will be entitled to terminate the Agreement in whole or in part by written notification, without prejudice to our right to compensation for what has already been performed under the Agreement.
Customer acknowledges and agrees that we may delegate and/or formally assign all or part of our rights and obligations pursuant to the Agreement to any other ATO-gear’ Affiliate world-wide, to ATO-gear or any other ATO-gear subsidiary, or to any third party to which it has outsourced the performance of its activities in whole or in part.
16. Export Control
16.1 Export Control. If the delivery of a Deliverable or Service under the Agreement is subject to the granting of an export or import license by a government and/or any governmental authority under any applicable law or regulation, or otherwise restricted or prohibited due to export or import control laws or regulations, we may suspend our obligations and Customer’s rights regarding such delivery until such license is granted or for the duration of such restriction and/or prohibition, respectively, and we may even terminate the Agreement, without incurring any liability towards Customer.
Furthermore, if an end-user statement is required, we shall inform Customer immediately thereof and Customer shall provide us with such document upon our first written request; if an import license is required, Customer shall inform us immediately thereof and Customer shall provide us with such document as soon as it is available.
Customer warrants that it will not deal with the Deliverables in violation of any applicable export or import control laws and regulations.
16.2 Indemnification. Costumer agrees to indemnify and hold ATO-gear harmless from any claims, liabilities, penalties, forfeitures, and associated costs and expenses (including attorney’s fees), which ATO-gear may incur due to Customers non-compliance with applicable laws, rules and regulations. Customer agrees to notify ATO-gear promptly of Customers receipt of any such notice of a violation of any export control related law, rule or regulations, which may affect ATO-gear.
17.1 No Agency Agreement. ATO-gear shall provide goods and services herunder as an independent contractor and not as an agent of Customer and nothing contained in the Agreement is intended to create a partnership, joint venture or employment relationship between the parties irrespective of the extent of economic dependency of ATO-gear on Customer.
17.2 Transfer or pledged. Customer shall not transfer, pledge or assign any of its rights or obligations under the Agreement without the prior written consent of ATO-gear.
18. Applicable Law and Dispute Resolution
18.1 Choice of Law. The laws of The Netherlands govern these TC’s and the Agreement. The United Nations Convention on Contracts for the International Sale of Goods does apply when applicable.
18.2 Competent Court. Customer and ATO-gear each consent to the exclusive jurisdiction of the competent court in the Netherlands, district Oost-Brabant, unless the competence of the aforementioned court is contrary to a mandatory legal provision.
18.3 Invalidity. If any of the conditions in these TC’s are null and void or become nullified, the remaining conditions will remain in full force. In this event, Customer agrees to commence consultations upon our request and to agree to new conditions which reform and replace the null and void or nullified conditions which have as nearly as possible the same meaning and objective as the null and void or nullified conditions.