1.1. RMA Hydromet: integrated part of the private company RMA (hereinafter RMA), located at Erve Nijenhorst 8, 7447 MA in Hellendoorn, registered in the trade register of the Chamber of Commerce under number 01137173 and is legally represented by Mr. Raatjes.
1.2. Client: the party that instructs RMA.
1.3. Parties: RMA and the client together.
1.4. Subordinates: employees and associates of RMA who have no power of attorney.
1.5. Assignment: the activities performed by RMA to the client, services provided or to be provided or products installed or to be delivered.
1.6. Software: all computer software or parts thereof, including relevant updates, extensions, improvements or modifications.
1.7. Hardware: all computer equipment with peripheral equipment shielded all measuring equipment, including, but not limited to, soil sensors and weather stations.
1.8. License: the granted right to use, repair and improve versions of the software by RMA to the client.
2.1. These general terms and conditions apply to all price offers, agreements, assignments and/or quotations between RMA and the client.
2.2. It is not possible to deviate from these general terms and conditions, unless explicitly agreed by both parties in writing.
2.3. Parties conclude the applicability of additional and/or deviating general terms and conditions from clients or third parties.
3. Offers and quotations
3.1. All price offers and/or quotations from RMA are without obligation, unless explicitly stated otherwise.
3.2. An offer or quotation is valid for maximum of 30 days, unless a different acceptance period is stated on the offer or quotation.
3.3. If the client does not accept the offer or quotation within the applicable term of 30 days, the offer or quotation will lapse.
3.4. RMA may refuse orders without giving any reason.
4.1. An assignment is concluded as soon as the acceptance of the offer has reached RMA or when the client has concluded a license online.
4.2. Upon acceptance of the offer or quotation by the client, RMA reserves the right to withdraw the offer or quotation within 5 working days after receipt of the acceptance, without the client being able to derive any right from this.
4.3. Changes to an accepted assignment can only be made with the written approval of both parties. Any additional costs as a result of a change will be borne by the client. RMA informs the client as soon as possible about any additional costs.
4.4. With every request to change the assignment by the client, RMA has the right to agree or not to agree.
Agreements and/or commitments by subordinates of RMA are not binding, as far as they have not been confirmed in writing by RMA.
6. Prices and payment
6.1. All prices used by RMA are in euros, excluding VAT and excluding any other costs such as administration costs, travel, shipping or transport costs, unless explicitly stated otherwise or otherwise agreed.
6.2. All agreements are always concluded on the basis of the prices applicable at the time of conclusion.
6.3. The prices stated in the offer or quotation are only valid during the period of validity of the offer or quotation. If delivery takes place more than three months after the quotation date, RMA is entitled to pass on interim price increases.
6.4. RMA is entitled to demand a deposit of up to a maximum of 50% at the start of the agreement. The deposit is deducted from the final invoice.
6.5. If the agreement is dissolved due to a culpable deficiency in the performance on the part of RMA, the client has the right to repayment of the down payment including statutory interest.
6.6. If parties have agreed a total amount for an assignment by RMA, this is always a target price.
6.7. RMA is entitled to deviate from the target price by 10%, in which the client has the right to dissolve the agreement in writing within one week after notification of the price change.
6.8. Unless explicitly agreed otherwise in writing, payment must be made within 14 days of the invoice date. This is a strict deadline.
6.9. The client has no right to settle or suspend payment.
6.10. If the assignment has been provided by more than one client, all clients are severally liable for the fulfillment of the obligations, regardless of the name of the declaration.
7. Consequences of late payment
7.1. If the payment term of 14 days is exceeded, the client is legally in default and the client owes RMA statutory interest.
7.2. Payment must be made without discount or settlement. Payments made by the client always firstly serve to settle all interest or costs owed and secondly the longest outstanding payable invoices, even if the client states that the payment relates to a later invoice.
7.3. If, in the event of late payment, even after a reminder no payment follows, RMA is entitled to take all measures to recover the claim(s) form the client.
7.4. All judicial and extrajudicial costs to be incurred, shall be charged to the client.
7.5. If the client does not pay on time, RMA is entitled to suspend its obligations until the client has fulfilled its payment obligation.
7.6. In the event of liquidation, bankruptcy, attachment or suspension of payment on the part of the client, RMA’s claims against the client shall be forthwith due and payable.
8. Force majeure
8.1. In addition to the provisions of Article 6:75 of the Dutch Civil Code, a shortcoming by RMA in the fulfillment of any obligations towards the client cannot be attributed to RMA in a situation that is independent of RMA's will, so that compliance of the obligations vis-à-vis the client is prevented in whole or in part or as a result of which the fulfillment of the obligations cannot reasonably be expected from RMA.
8.2. The force majeure situations referred to in paragraph 1 also include, but are not limited to: illness of employees/associates, storm damage and other natural disasters, obstacles by third parties, obstacles in transport in general, strikes in whole or in part, riot, war or danger of war, loss or damage to goods during transport to RMA or the client, non-delivery or late delivery of goods by suppliers of RMA, export and import bans, total or partial mobilization, obstructive measures from the government, malfunctions and accidents in the company or in the resources of transport of RMA, or in the means of transport of third parties, the imposition of levies or other government measures that entail a change in the actual circumstances, unexpected power-, electricity, - Internet-, computer- and telecom failures, computer viruses, water damage and bad weather conditions.
8.3. If a force majeure situation arises that prevents RMA from fulfilling one or more obligations to the client, RMA is entitled to cancel, suspend or change its obligations, whereby the client is obliged to pay for any delivered performances and services.
8.4. From the moment that the force majeure situation has lasted three months, both parties may (partially) dissolve the agreement in writing.
8.5. RMA will not owe any (damage) compensation in a force majeure situation, mot even if there is any advantage as a result of the force majeure situation.
9.1. RMA is only liable for any damage that the client suffers if and insofar as this damage is caused by intent or deliberate recklessness.
9.2. If RMA is liable for any damage, RMA is only liable for direct damage resulting from or related to the execution of the agreement.
9.3. The liability of RMA is limited to the amount that is paid out under the relevant insurance of RMA and in the absence of (full) payment by the insurance company of the damage amount, the liability is limited to the (part of the) invoice amount to which the liability relates with a maximum of € 10.000,-.
9.4. RMA is never liable for indirect damage, such as consequential damage, lost profit, missed savings or damage due to business interruption.
9.5. RMA is never liable for damage, of whatever nature imposed, arising from incorrect and/or incomplete information provided by or on behalf of the clients.
9.6. RMA is never liable for damage, of whatever nature imposed, that the client suffers as a result of actions or decisions taken following advice given by RMA.
10. Expiry period
Any right of the client to compensation from RMA will in any case lapse after 12 months after the event from which liability directly or indirectly arises. This does not exclude the provisions of Article 6:89 of the Civil Code.
11. Right to termination
11.1. The client has the right to dissolve the agreement if RMA culpably fails to fulfill its obligations, unless this shortcoming, due to its special nature or minor significance, does not justify termination.
11.2. In the event of an attributable shortcoming that is not permanently or temporarily impossible, RMA must first be given written notice of default with a reasonable period to still fulfill its obligations, or to repair any errors or to limit or eliminate damage.
11.3. It is the responsibility of the client that a notice of default actually reaches RMA on time.
11.4. RMA has the right to dissolve the agreement with the client, if the client does not fully or timely fulfill its obligations under the agreement, or if RMA has taken note of circumstances that give good reason to fear that the client will not be able to properly fulfill its obligations.
The client indemnifies RMA against all third-party claims related to the services and/or products provided by RMA.
13. Retention of title
The goods delivered by RMA remain the property of RMA until all amounts owed by the client have been paid.
14.1. The agreed delivery times are not firm deadlines, unless agreed otherwise in writing.
14.2. The software is deemed to have been delivered as soon as the access rights have been made available to the client.
14.3. Exceeding the delivery period does not entitle the client to cancel the delivery or to refuse payment and/or to claim compensation.
14.4. The client must declare RMA to be in default and give a reasonable period to still comply, without the client having the right to dissolve or the right to compensation.
14.5. RMA has fulfilled its delivery obligation by offering the goods once to the client at the agreed time. The offer of delivery is equated with delivery.
14.6. If the client refuses to receive the goods, RMA will store them (or have them stored) up to 30 days after the offer, in which case the costs of (return) freight, storage and other necessary costs will be for the client's account.
14.7. RMA will then notify the client in writing that these items must be purchased within thirty days, which is a strict deadline. After 30 days, RMA is entitled to sell or otherwise dispose of the goods to a third party.
14.8. From the moment of delivery, the risk with regard to the delivered goods is transferred to the client.
If the client cancels the assignment given to RMA in whole or in part, the client is obliged to reimburse to RMA all costs and expenses reasonably incurred with a view to the performance of the agreement, without prejudice to RMA's right to compensation for loss of profit and the other damage and costs resulting from the deliberate cancellation.
16. Right of complaint
16.1. The client is obliged to notify RMA in writing of defects in the performance on the part of RMA within 14 days after the end of the agreement. If the client does not notify RMA of defects within 14 days, any right to complain will lapse.
16.2. Invoices are considered undisputed and accepted if the client has not protested to the invoice to RMA in writing within 14 days after invoice date.
16.3. RMA should be able to audit any submitted deficiencies. In case of agreement, a written statement will be drawn up to be signed by both parties.
16.4. If, in the opinion of RMA, the defects in the performance are correct, RMA will either pay fair compensation not exceeding the invoice value, or resolve the defects in the performance free of charge.
17.1. RMA grants the client a non-exclusive and non-transferable license to use the software and documentation. The client accepts this license.
17.2. The license is granted for a minimum of 12 months from the date the license was made available to the client.
17.3. The license is tacitly renewed for a period of 12 months.
17.4. Parties can cancel or change a license at any time in writing. When the license is changed, a new license period also starts for the duration of 12 months. The outstanding amount is settled as a discount.
17.5. In advance, the client owes a periodic fee to RMA. The license fee is charged annually through an invoice.
17.6. RMA is entitled to increase the price of the license. RMA will inform the client of the price increase in advance.
17.7. The Client is not entitled to use the software other than for its own business purposes. The client may not make the software available to third parties, or have it copied, reverse engineered, modified, extended or decompiled, without the prior written permission of RMA.
17.8. In the event of a violation of paragraph 7 of this article, the client forfeits an immediately payable penalty of € 10,000 and € 1,000 for every calendar day that the violation continues, for the benefit of RMA and without judicial intervention, without prejudice to RMA's right to a claim full compensation.
17.9. Upon termination of the license, the client is obliged to remove the software from all processing units present in his company.
17.10. RMA reserves the right to restrict or withdraw access to accounts at any time.
18.1. RMA delivers the hardware to the client as described in the agreed agreement.
18.2. Loss or damage to the hardware is at the risk of the client from the time of delivery.
18.3. The client gives RMA the opportunity to perform installation and/or mounting. The client provides RMA with all necessary conditions and facilities to enable the installation and/or mounting. RMA is not liable for delays in installation and/or mounting as a result of lack thereof.
18.4. If the start or progress of the installation and/or mounting is delayed by circumstances as referred to in the previous paragraph, the client must compensate RMA for the related damage and costs if these circumstances can be attributed to him.
18.5. Installation and/or mounting of hardware counts as delivered at the time of commissioning the hardware or when RMA has demonstrated the hardware in working order to the client.
19.1. RMA guarantees the hardware twelve months after delivery. Defects that occur during this period and that are not the result of incorrect or careless use or other causes that cannot be attributed to RMA will be repaired by RMA free of charge.
19.2. For products that are not produced by RMA, the manufacturer's warranty period is used. All parts that have been replaced become the property of RMA.
19.3. The return procedure (Article 20) determines whether a product is covered by the warranty.
19.4. Parties can agree in writing that the warranty conditions, as stated in this article, do not apply to the agreement.
20. Return procedure
20.1. RMA has 2 types of returns, namely warranty processing and repair.
20.2. Warranty processing applies to all products that have become defective within the warranty period and that are not the result of incorrect or careless use or otherwise due to the client.
20.3. After receiving the defective product, RMA will check the damage or other defects, RMA will assess whether there is a warranty and how it will be repaired.
20.4. Costs for sending warranty goods are for the account of RMA.
20.5. The client pays € 75, - for examination and transport costs if the product shows no defect or the right to warranty has expired.
20.6. Repair applies to products that have become defective outside the warranty period and are offered for repair. If no repair order follows, € 75 worth of examination and transport costs will be charged.
20.7. Products are returned at the risk of the client. The client is liable for any damage and/or loss during transport to RMA.
20.8. Costs for sending repair goods are for the account of the client.
21. Service and advice
21.1. The services and advices provided to the client by RMA serve to support the client's activities. RMA endeavors to pursue carefully established services and advices at all times.
21.2. RMA has a best efforts obligation towards the performance of the services and advices and cannot be held accountable from a result obligation. RMA does not guarantee the correctness of the services and advice and is therefore not liable for damage, direct or indirect, that may ensue from these services and advice.
22.1. Parties are mutually obliged to maintain confidentiality with regard to all company information and data that they become aware of when executing the agreement, insofar as this does not prevent the proper execution of the agreed agreement.
22.2 The parties are obliged to impose the confidentiality obligation on their employees as well.
22.3. The Client never makes RMA’s advices available to third parties, except after explicit permission.
23. Outsourcing third parties
RMA has the right to have the agreed agreement (partially) performed by third parties.
24. Change of general terms and conditions
24.1 RMA has the right to change or supplement these general terms and conditions.
24.2. Changes of minor importance can be made at any time.
24.3. RMA will discuss major substantive changes in advance with the client as much as possible.
25. Consequences of nullity or voidability
25.1. If one or more provisions of these general terms and conditions prove to be void or voidable, this does not affect the other provisions of these general terms and conditions.
25.2. In that case, a provision that is void or voidable is replaced by a provision that comes closest to what RMA had in mind when drawing up these general terms and conditions.
26. Applicable law
26.1. Dutch law applies to all offers, orders and agreements to which these general terms and conditions apply.
26.2. The Dutch court in the district where RMA is located has exclusive jurisdiction to hear any disputes between parties.