Effective date: February 12th, 2019
In these General Terms and Conditions, the following terms have the following specific meaning:
General Terms and Conditions: these terms and conditions of Ecomatters
Background: all IP Rights, as well as knowledge (including know how), experience and other information to which a party is entitled and which was not developed or created in the context of the Agreement. These include objects mutually made available by the parties in the context of the Assignment, including but not limited to auxiliary and/or test materials, samples, prototypes, information carriers and/or computer software;
Findings: The outcome(s) of the Assignment as definitively reported by Ecomatters to the Client;
Ecomatters: Ecomatters B.V., having its registered office at the Museumlaan 2, 3581 HK in Utrecht, registered with the Chamber of Commerce under number 54739640.
IP rights: all intellectual property rights, including but not limited to copy-, database-, trade names-, plant breeders-, model-, trademark- and patents rights and rights regarding topographies of semiconductors and domain names;
Quotation: An offer from Ecomatters, in whatever form, for the (intended) execution of work, including any adjustments before the Offer in accordance with art. 3.1 has been accepted;
Assignment: The work to be performed by Ecomatters as specified in the Agreement;
Client: The provider of the Assignment to Ecomatters. For art. 4.4, art. 13.2 and Art. 13.4 of the General Terms and Conditions these also include third parties engaged by the Client;
Agreement: The agreement between the Client and Ecomatters to perform activities as referred to in art. 3.1;
Foreground: all IP Rights, as well as knowledge (including know how), experience and other information developed or created in the context of the Agreement. These include objects, including but not limited to auxiliary- and/or test materials, samples, prototypes, information carriers and/or computer software;
2.1. These General Terms and Conditions apply to all Quotations and Agreements. unless expressly agreed otherwise in writing.
2.2. General purchase- or other conditions of the Client are not applicable to the legal relationship between the Client and Ecomatters and are hereby declined.
2.3. If one or more stipulations in these General Terms and Conditions are at any time wholly or partially invalid or void, then the other provisions of these General Terms and Conditions remain fully applicable. Ecomatters and the Client will then consult with each other in order to agree on new provisions to replace the null and void or nullified provisions, whereby as much as possible the purpose and intent of the original provisions will be observed.
2.4. The General Terms and Conditions can be found at www.ecomatters.nl At the request of the Client, a physical copy can be sent free of charge.
2.5. Dutch law is always applicable to all Offers and Agreements and these General Terms and Conditions.
3. QUOTATION AND AGREEMENT
3.1. All quotations and offers from Ecomatters are two months valid, unless Ecomatters stipulates another term in the Quotation. Upon acceptance of the Quotation, the Agreement is concluded. In the event of a request for the execution of (any part of) the Assignment by the Client, the Client accepts the Quotation.
3.2. The intended area of application of the Assignment is specified in the Agreement. Once the Agreement (including all annexes) is concluded, this contains all agreements that Ecomatters has made with the Client concerning the Assignment. Modifications, amendments or deviations to the Agreement are only binding when entered into in writing.
3.3. If the acceptance (whether or not parts) deviates from the offer included in the Quotation or offer Ecomatters is not bound to this.
3.4. The Client will only use the Quotation (including changes, additions or deviations) to determine whether Ecomatters will be awarded the Assignment. If no Agreement is concluded, Ecomatters retains all rights with regard to the contents of the Quotation, with the exception of the information that is processed from the Client.
3.5. All prices stated in an Quotation, Agreement and other offers are exclusive of VAT.
3.6. Quotations, Agreements and other offers or offers do not automatically apply to future Quotations, Agreements and other offers.
4. THE ASSIGNMENT
4.1. Ecomatters executes the Assignment within the agreed (estimated) term. If this term is exceeded, the parties will consult to determine a new term. Ecomatters will only be in default after the Client has instructed Ecomatters in writing to comply with one or more of its obligations under the Agreement within a reasonable period of time and that period has expired unused.
4.2. Ecomatters commits to no more than an effort commitment in executing the Assignment, whereby any guarantees for an intended result are not given.
4.3. Ecomatters is not obliged to commence execution of the Assignment before Ecomatters has received all necessary information and supplies to be delivered by the Client. If Ecomatters receives these supplies and information later than agreed, the (estimated) term stated in the Agreement will be extended for the execution of the Assignment, in any case for the duration of this delay. Ecomatters can also charge the Client for the additional costs arising from the delay according to the usual rates.
4.4. If and insofar as a proper execution of the Assignment so requires, Ecomatters has the right to have certain work carried out by third parties.
4.5. If the Client and/or Ecomatters choose to carry out (parts of) the Assignment at the location of the Client, Ecomatters will be provided (free of charge) with an adequate workspace and communication facilities.
4.6. The Client guarantees the correctness, completeness and reliability of the information and documents made available to Ecomatters, also if these come from third parties.4.7. If and insofar as the Client requests this, the documents made available to Ecomatters will be returned.
5. CONFIDENTIALITY, CONFIDENTIALITY & PRIVACY
5.1. Ecomatters will keep secret:
a. all data that it receives in the context of the Quotation or the Assignment of the (prospective-) Client or gets to know it in any other way, and of which the confidentiality is established or reasonably recognized by Ecomatters.
b. The confidentiality obligation applies, without prejudice to the provisions of Article 10, not for Findings which:
i. are general, i.e. not specifically related to the organizations own operations and/or activities of the Client, or;
ii. are or become public or data that is included in the public domain and Ecomatters cannot be faulted;
iii. Are already in the possession of Ecomatters;
iv. Ecomatters has lawfully received from a third party or by its own investigation without any use of data from the Client;
v. in consultation with Client is considered as non-confidential.
vi. findings of Ecomatters in a form that cannot be traced back to the Client or the Assignment.
5.2. Ecomatters is no longer obliged to confidentiality if:
a. this is necessary to correct misunderstandings that have arisen because the Client discloses any outcome of the Assignment;
b. Ecomatters detects serious danger to persons or objects;
c. Ecomatters is obliged to provide information pursuant to a decision by a court or public supervisory body. If reasonably possible, in that case Ecomatters will enter into consultation with the Client before Ecomatters provides such information.
5.3. The Client will keep confidential information about Ecomatters, whose confidentiality is established or should reasonably be recognized by the Client.
5.4. When processing personal data by Ecomatters on behalf of the Client (and/or visa versa), a processor agreement must be drawn up.
5.5. Ecomatters is entitled to mention work performed or assignment to potential clients of Ecomatters only to illustrate the experience of Ecomatters.
5.6. Ecomatters will impose the obligations of this article onto third parties engaged with the Assignment.
6.1. All rights that the Client possesses or obtains with regard to Background of the Client remain vested with the Client. All rights that Ecomatters owns or obtains with respect to Background to Ecomatters remain vested with Ecomatters. Ecomatters may at any time use its Background itself, have it used by third parties or use on behalf of third parties.
6.2. Ecomatters obtains the right to use Background of the Client insofar as necessary for the execution of the Assignment.
6.3. Commercial use of the Background owned by Ecomatters (even if this is part of any outcome of the Assignment) the prior, express and written consent of Ecomatters is required. Such consent may be subject to further conditions.
7.1. If the Client itself has established (parts of) Foreground within the framework of the Assignment with Ecomatters, the IP rights thereto will vest by the Client. The written documentation relating to the Assignment, is determinative for the scope of the IP Rights of the Client (or the exclusive right to establish them). Foreground created by or on behalf of Ecomatters (irrespective of whether this concerns an intended or unintended outcome of the Assignment or used and / or developed methods and techniques for any outcome of the Assignment) shall belong to Ecomatters.
7.2. Copyrights on a preliminary, intermediate and Findings, will always fully vest in Ecomatters.
8. PROTECTION OF FOREGROUND
8.1. The party that has the right to protect (part of) the Foreground by means of one or more IP Rights, will inform the other party about its exercise of that right and the specific contents thereof. Ecomatters and the Client will provide each other with all co-operation reasonably required to vest one or more IP Rights.
8.2. If the Client has the right to protect (part of) the Foreground and refrains from doing so, the Client will inform Ecomatters and will give Ecomatters the opportunity to protect the (or that part of the) Foreground or to continue such protection, in which respect it is noted that all other reciprocal rights arising from the Agreement (including rights of use) will be maintained.
8.3. In the event the Client discovers an infringement on Foreground of Ecomatters and/or Background of Ecomatters, the Client must notify Ecomatters as quickly as possible.
9. USE OF FOREGROUND
9.1. The Client acquires the right to use that part of the Foreground vested in Ecomatters within the area of application of the Assignment, subject to the limitations laid down in article 9. For two years from the date of delivery of the Findings, this right of use is exclusive, except with regard to any incorporated Background of Ecomatters.
9.2. Ecomatters is entitled at all times to use Foreground developed by Ecomatters, the development of which was not intended as an outcome of the Assignment, or methods and techniques used and/or developed by Ecomatters for any outcome(s) of the Assignment itself, have it used by third parties or use on behalf of third parties.
9.3. Ecomatters is entitled at all times to use the Foreground (as background knowledge for other research) and after the term of exclusivity meant in clause 9.1 has expired by third parties or on behalf of third parties.
9.4. Ecomatters will not investigate the existence of third party IP Rights to the Foreground
10. USE OF FINDINGS
10.1. Findings, as well as a (possible) preliminary or intermediate Findings or reports or any later subsequent explanatory notes to the Findings, is intended solely for the Client’s own use. Any other use requires Ecomatters prior written consent, including for:
a. reproduction or disclosure by means of print, photocopy, in electronic form or in any other way, or storage in a searchable information file;
b. making available to anyone other than parties with an immediate interest, including use by or on behalf of third parties;
c. use or allowing the use, in whole or in part, with the intent to lodge claims or to conduct legal proceedings;
d. use or allowing the use, in whole or in part, for advertising or anti-advertising purposes or for soliciting sales or services in a more general sense.
Such prior consent of Ecomatters may be subject to further conditions. In all cases, anyone to whom a Findings is made available on the basis of Clause 10, must be able to assess the full Findings.
11. PRICE AND PAYMENT
11.1. A ‘guide price’ listed in the Quotation or agreed to in the Agreement is a non-binding indication of the price for the Assignment, excluding the expenses incurred by Ecomatters (in consultation with the Client). The final price for the Assignment (also in the case there is no ‘guide price’) will be determined and invoiced on the basis of a subsequent calculation. Ecomatters is entitled to index that part of the price for the Assignment not yet invoiced, in accordance with the annual adjustment of the rates used by Ecomatters.
11.2. If in the Agreement a ‘fixed price’ is agreed, this will be the price for the Assignment, excluding the expenses incurred by Ecomatters (in consultation with the Client). If the Assignment is changed or expanded. in agreement with the Client. or in case Ecomatters had to perform additional work because the Client did not upon entering into the Agreement inform Ecomatters partly or fully about its wishes, demands or preconditions, Ecomatters will determine and invoice the Client for the additional costs incurred on the basis of a subsequent calculation and the Client is obligated to pay these additional costs.
11.3. Ecomatters may at any time require the Client to make an advance or interim payment.
11.4. All amounts quoted in the Quotation and/or the Agreement are exclusive of VAT, unless stated otherwise.
11.5. The Client is required to pay a Ecomatters-invoice within thirty (30) days of the invoice date. Setting off the invoice against amounts owed by Ecomatters to the Client is not allowed. If the Client fails to pay the invoice in time, the Client also will owe Ecomatters the statutory interest applicable to commercial transactions, as well as all reasonable costs incurred by Ecomatters to obtain payment of its invoice. Ecomatters retains ownership of any goods delivered or to be delivered to the Client, until the relevant Ecomatters-invoice (and possible statutory interest and cost incurred to obtain payment) has been paid in full. The Client will not
12.1. If a non-performing party of a material obligation under the Agreement after a demand to perform this obligation within a reasonable term, still has not performed after this term has expired, than the other party, subject to the conditions of Clause 14.1, no longer is obligated to perform its (remaining) obligations under the Agreement and may terminate the Agreement.
12.2. The Client needs to file any claims against Ecomatters by means of a written and express notice to Ecomatters as soon as possible, but in any case before the first anniversary of the date of delivery of the Findings. Claims lodged after that date, will automatically lapse.
13.1. Ecomatters is only liable for damages which are the direct result of a failure attributable to Ecomatters to perform its obligations under the Agreement. The total aggregate liability under any and all legal grounds, is (cumulatively) limited to the amount of the price that the Client has to pay under Clause 11.
13.2. Ecomatters is further not liable for any damages or loss of the Client:
a. arising as a result of the application or use of any outcome of the Assignment , other than in the event of wilful intent or gross negligence of Ecomatters;
b. arising as a result of the fact that any outcome of the Assignment cannot be protected by means of one or more IP Rights or because application or use of any outcome of the Assignment infringes third party rights;
c. resulting from defects in goods supplied to Ecomatters, including software, that are supplied by Ecomatters to the Client, unless and in so far as Ecomatters can recover such damages or loss from Supplier.
d. resulting from incorrect and / or incomplete data provided by the Client.
13.3. The Client will fully indemnify Ecomatters against any claims of third parties for damages or loss which result from application or use of any outcome of the Assignment by the Client or by any third party to whom the Client has made such outcome of the Assignment available, unless such outcome was the result of wilful intent or gross negligence of Ecomatters.
13.4. Ecomatters will not be bound to any restrictions of the Client (resulting from the Agreement or otherwise) that serve to limit the liability of the Client wholly or partly.
14. TERM AND TERMINATION
14.1. The Agreement will continue for an indefinite period and terminates upon delivery of the Findings and full payment of the price as meant in Clause 11. The Agreement will terminate by law and without obligation of Ecomatters to pay damages, if:
a. the Client is declared bankrupt;
b. the Client is granted (temporary) suspension of payment;
c. the Client’s business is liquidated or wound up, or;
d. prejudgment or executory attachment is levied on substantial part of the Client’s tangible and/or intangible assets or other goods. In case the Agreement is terminated by means of this Clause 14.1 or by means of Clause 12.1 and the Findings is not delivered, the date of termination of the Agreement is deemed the date of delivery of the Findings.
14.2. In case the Agreement is terminated prematurely, the Client is not entitled to use any preliminary or interim outcome of the Assignment, neither by itself nor by third parties or on behalf of third parties. If Ecomatters and the Client nevertheless expressly agree in writing that the Client will acquire IP Rights in any preliminary or interim outcome of the Assignment, the acquisition of these IP Rights is subject to payment by the Client of that part of the price as meant in Clause 11, to be reasonably determined by Ecomatters.
14.3. When the Agreement terminates, the provisions of the Agreement that are intended to continue to apply in full after the end of the Agreement, will continue to apply in full, such as the provisions in respect of liability, right of use, confidentiality, choice of law and choice of forum.
14.4. If any provision of the General Terms and Conditions is deemed void or not valid, that will not affect the validity of the entire General Terms and Conditions.
14.5. In the case of a dispute between Ecomatters and the Client concerning the Quotation or the Agreement (or related agreements) that cannot be resolved amicably between the parties, this will be exclusively settled by the competent court in Utrecht, the Netherlands.