Article 1 Legal regulations
All offers, quotations, agreements and other legal acts of Embedded are governed by the laws of the Netherlands, regardless of the place where the order is actually performed. The Vienna Sales Convention is expressly excluded.
Article 2 Definitions
In these Terms and Conditions, the following definitions are used, both singular and plural.
2.1. General Conditions: the present general conditions, regardless of the form in which they are made known on paper or electronically, for example through the website of Embedded Fitness B.V.
2.2. Embedded Fitness B.V. : trade name of the company registered as such in the trade register under number 17214841 (Chamber of Commerce Eindhoven), as well as its affiliates.
2.3. principal: the party to whom the offer of Embedded Fitness B.V. is directed with whom Embedded Fitness B.V. has concluded the agreement or on whose behalf the legal act is/will be performed, pursuant to which products or services are delivered to such party.
2.4. Interactive items: all goods, computers, software, which are the subject of any negotiation, offer, quotation, agreement or other legal act in the relationship between Embedded Fitness B.V. and the client.
2.5. Services: all activities such as training, rotation system, installation and other activities that are the subject of any negotiation, offer, quotation, agreement or other legal act in the relationship between Embedded Fitness B.V. and the client. Installation services include the work of installing and operating the interactive items excluding construction work (E,W) that may result from the installation.
Article 3 Applicability of General Terms and Conditions
3.1. The General Terms and Conditions apply to and form part of all negotiations, offers, quotations, agreements and other legal acts, whether oral, written, electronic or in any other form, concerning delivery by Embedded Fitness B.V of products and/or services to or for the benefit of the client.
3.2. The general terms and conditions also apply to products and/or services which Embedded Fitness B.V. has sourced in whole or in part from third parties and redelivers, whether or not processed, to the client, as well as to products and/or services delivered to the client by a third party in execution of the offer, quotation, agreement or other legal act on behalf of Embedded Fitness B.V..
3.3. Deviations from the general terms and conditions as well as from the agreements concluded between Embedded Fitness B.V. and the principal are valid only if expressly agreed in writing by Embedded Fitness B.V. and the principal.
3.4. Embedded Fitness B.V. expressly rejects the applicability of any general (purchase) conditions of the client.
3.5. If and to the extent that any provision of the general terms and conditions is declared null and void or annulled, the remaining provisions of the general terms and conditions shall remain in full force and effect. Embedded Fitness B.V. and the client will consult with each other regarding a new provision to replace the void/terminated provision, taking into account as much as possible the scope of the void/terminated provision.
3.6. If any provision of the agreements concluded between Embedded Fitness B.V. and the client and the General Terms and Conditions of Embedded Fitness B.V. overlap, the terms of the agreements concluded shall prevail.
Article 4 Offers, quotation and agreement
4.1. All offers of Embedded Fitness B.V. are without obligation, unless otherwise expressly stated in writing.
4.2. Quotes from Embedded Fitness B.V. are valid for the period specified in the quote. If no deadline is specified, the quotation is valid for two (2) months from the date the quotation is issued.
4.3. Agreements are concluded either by Embedded Fitness B.V. accepting in writing the assignment provided by the client, or at the time Embedded Fitness B.V. proceeds to perform the assignment.
Article 5 Prices and rates
5.1. All prices and rates quoted are in Euros unless expressly stated otherwise in writing.
5.2. All prices and rates quoted are exclusive of sales tax (VAT) and any other government-imposed levies, as well as exclusive of travel and accommodation expenses, construction work for placement and installation interactive items and additional work, unless expressly stated otherwise in writing.
All prices and rates quoted are exclusive of sales tax (VAT) and any other government-imposed levies, as well as exclusive of travel and accommodation expenses, construction work for placement and installation interactive items and additional work, unless expressly stated otherwise in writing.
5.4. agreed rates shall in any case be changed annually by Embedded Fitness B.V. in accordance with the CPI index figure “all households”.
5.5. only if the price or rate increase exceeds 10%, the client is entitled to dissolve the agreement with Embedded Fitness B.V..
5.6 If client has not paid within the agreed period, he shall be in default by operation of law. In such case, the principal will owe, without further summons or notice of default, on the invoiced amount from that moment until the date of payment in full, an interest of 1% per month (whereby a part of a month will be counted as a whole month) or the statutory interest if this is higher, all this without prejudice to any further rights that Embedded Fitness B.V. has.
5.7. The client shall, if Embedded Fitness B.V. proceeds to collection, in addition to the amount owed, also be liable for full compensation of extrajudicial and judicial costs, related to the collection of this claim or for the preservation of its rights otherwise, the amount of which is set at a minimum of 15% of the total amount, plus the VAT due.
Article 6 Changes to the commission or additional and less work
6.1. Client accepts that the time schedule of the assignment may be affected if the parties agree in the interim to expand or change the approach, method or scope of the assignment and/or the resulting work.
6.2. If, in consultation with the client, the original agreement between Embedded Fitness B.V and the client is deviated from, the resulting costs for additional work will be charged to the client at the prices and/or rates applicable at the time of performance.
Article 7 risk and liability
7.1. The risk of loss of or damage to the items or services that are the subject of the agreement shall pass to the client at the time they are placed in the actual control of the client or an auxiliary used by the client.
7.2. If the client has interactive exercise items moved to another location, the client is required to notify Embedded Fitness B.V. in advance. If a defect arises in interactive items immediately after relocation, such defect shall be deemed to have arisen from the relocation, unless client proves otherwise.
7.3. The client is responsible and liable for the use and commissioning of use as well as the application in his organization of, among other things, the interactive motion items, other equipment, tools, software, processing of score data and for services to be provided by the client himself as well as for control and security procedures and adequate system management. Embedded Fitness B.V. shall never be liable and the client indemnifies Embedded Fitness B.V. for any accidents and/or damages resulting from the improper and/or careless use of the interactive exercise items. Client is therefore responsible for training and supervising the persons using the interactive movement items (or having them trained).
7.4. The Client is required to immediately report in writing to Embedded Fitness B.V. any incidents, in the broadest sense of the word, relating to (the use of) the interactive movement items.
7.5. Embedded Fitness B.V. shall never be liable for any indirect damages of the customer or third parties, including consequential damages (such as damages for loss of profit, additional use of personnel, damages for delay, damages for loss or inability to use data, etc.), intangible or consequential damages.
7.6. Embedded Fitness B.V.’s liability to the client for any reason whatsoever is limited to the contract sum excluding VAT received by Embedded Fitness B.V. from the client in connection with the software and/or hardware that caused the damage, or the services performed that caused the damage. In any event, liability is limited to the amount paid out by the liability insurance of Embedded Fitness B.V. in such case, increased by the applicable risk.
7.7. Except in the event of gross negligence or willful misconduct by Embedded Fitness B.V., the client shall indemnify Embedded Fitness B.V. against any and all claims by third parties, on any basis whatsoever, for compensation for damages, costs or interest related to the use of the interactive motion items.
Article 8 Intellectual and/or industrial property rights
8.1. All intellectual or industrial property rights to all software, equipment or other materials developed or made available under the agreement such as analyses, designs, documentation, reports, quotations, as well as preparatory materials thereof, are vested exclusively in Embedded Fitness B.V. or its licensors. Client shall acquire only the rights of use and powers expressly granted by these terms and conditions or otherwise and Client shall not otherwise reproduce or make copies of the software or other materials.
8.2. Client shall not be permitted to remove or change any designation concerning copyrights, trademarks, trade names or other intellectual or industrial property rights from the software, equipment or materials, including any indications concerning the confidential nature and secrecy of the software.
8.3. Embedded Fitness B.V. is permitted to take technical measures to protect the software. If Embedded fitness B.V. has secured the software by means of technical protection, the client is not permitted to remove or evade this security. The security measures are intended, among other things, to prevent the client from being able to make a backup copy of the software.
8.4. Embedded Fitness B.V. is permitted to have the software it provides store data of operations, performance and other use that can be used for, among other things, improvement of the system.
8.5. Embedded Fitness B.V. will indemnify the client against any legal action against the client which is based on the allegation that software, equipment or materials developed by Embedded Fitness B.V. itself infringes any intellectual or industrial property right applicable in the Netherlands, on the condition that the client promptly informs Embedded Fitness B.V. in writing of the existence and content of the legal action and leaves the handling of the case, including the conclusion of any settlements, entirely to Embedded Fitness B.V. . To this end, the Client shall provide Embedded fitness B.V. with the necessary powers of attorney, information and cooperation, so that Embedded Fitness B.V. may defend itself, if necessary in the name of the Client, against such legal forms.
8.6. This obligation to indemnify shall lapse if and insofar as the breach in question is related to changes which the Client has made or caused to be made to the software, equipment or materials on behalf of third parties, notwithstanding that this is not permitted. If it is irrevocably established in law that the software, equipment or materials developed by Embedded Fitness B.V. infringe any intellectual or industrial property right belonging to a third party, or if in the opinion of Embedded Fitness B.V. there is a reasonable chance that such an infringement may occur, Embedded Fitness B.V. will take back the delivered goods against crediting of acquisition costs minus a reasonable user fee, or ensure that the client uses the delivered goods, or functionally equivalent other software, equipment or materials.V. take back the goods delivered against crediting of the acquisition costs less a reasonable user fee, or ensure that the customer can continue to use the goods delivered, or functionally equivalent other software, equipment or materials, undisturbed.
Article 9 Inspection and complaints
9.1. Client shall check all delivered products and services for possible defects or other deficiencies immediately upon delivery.
9.2. If the client is of the opinion that a product or service delivered by Embedded Fitness B.V. does not comply with what the parties have agreed on, the client must notify Embedded Fitness B.V. in writing within 8 days after delivery, or 5 days after the time at which the client could reasonably be aware of the shortcoming alleged by him.
9.3. Any objections by the client to an invoice of Embedded Fitness B.V. or an amount automatically collected by Embedded Fitness B.V. must be notified in writing to Embedded Fitness B.V. within 8 days of the invoice date or date of the automatic collection, after which the invoiced or collected amount shall be deemed to be acknowledged by the client
Article 10 Confidentiality (secrecy)
10.1. The parties undertake to maintain confidentiality regarding all confidential information received about the other party’s business. The Client is aware that the software, equipment and other materials provided may contain confidential information and trade secrets of Embedded Fitness B.V. or its licensors. Client undertakes to keep such software, equipment and materials confidential, not to disclose or give them into use to third parties and to use them only for the purpose for which they were made available to it. The parties shall also impose this obligation on their employees as well as third parties engaged by them in execution of the agreement between the parties.
10.2. information is considered confidential unless information has been designated by either party as not confidential and/or was already in the public domain in some way before either party disclosed the information.
10.3. Embedded Fitness B.V. will be permitted to use the name of the client in its statements to third parties, unless the client indicates in writing that it does not wish to do so.
Article 11 Force Majeure
11.1. there is no question of an attributable failure of Embedded Fitness B.V. if there is force majeure, which includes computer failures, power failure, illness of personnel , and all external causes, foreseen or unforeseen, on which Embedded Fitness B.V. can not exert influence.
11.2. If the period of force majeure has lasted for more than 60 (sixty) consecutive days, the client has the right to dissolve the agreement out of court, without Embedded fitness B.V. being held to any compensation for the damage suffered by the client as a result of such dissolution. Embedded Fitness B.V. is entitled to payment by the client of all products and/or services delivered to the client up to the time of dissolution.
Article 12 interim Termination
12.1. Embedded fitness B.V. is entitled to prematurely terminate the agreements concluded between Embedded Fitness B.V. and the client. This must be done in writing. Termination must be given reasonable notice of at least three (3) months.
12.2. Each party is entitled to dissolve the agreements entered into between Embedded Fitness B.V. and the client out of court if the other party fails imputably in the performance of its obligations under the agreements and fails to remedy such failure within a reasonable period of time, after having been given proper written notice of default. Dissolution does not release the client from any payment obligation with respect to products and/or services already delivered by Embedded Fitness B.V., unless Embedded Fitness B.V. is in default with respect to that particular product and/or service.
12.3. Embedded Fitness B.V. has the right to immediately terminate the agreements concluded with the client without notice of default and without judicial intervention in any of the following cases, among others:
a. Client fails to pay to Embedded Fitness B.V. any installment of the amount due pursuant to the agreements entered into between Embedded Fitness B.V. and the Client, in a timely manner on the due date, whether or not the Client has been given notice of default;
b. Client fails to perform any obligation under the agreements entered into between the client and Embedded Fitness B.V. in full, in a timely manner or properly, or performs any act inconsistent therewith;
c. Client, being a natural person, dies under, is placed under guardianship or otherwise loses free control of Client’s assets;
d. client applies for (provisional) suspension of payment or bankruptcy, or is declared bankrupt;
e. Client, being a legal entity or company decides to liquidate the legal entity or company, discontinues all or part of the company or moves the company to a country other than where the client is located according to the agreement entered into with Embedded Fitness B.V. at the time of signing thereof, or the client makes a decision to such discontinuation or relocation;
f. Client, leaving the country of residence or establishment of the Client at the time of entering into the agreement concluded with Embedded Fitness B.V., or at least there is good reason and/or fear that the Client will do so;
g. A substantial part of the client’s assets c.q. charges are attached, or these acitva are threatened with attachment or other legal measures;
h. The Client, in entering into the agreements concluded with Embedded Fitness B.V., has provided inaccurate information, or has failed to notify Embedded Fitness B.V. of facts or circumstances of which, in the opinion of Embedded Fitness B.V., the significance is such that Embedded Fitness B.V. would not have entered into the agreements concluded with the Client, or would not have entered into them under the same conditions had Embedded Fitness B.V. known the correct state of affairs;
i. The articles of association or regulations of the client, being a legal entity are amended or if a change occurs in respect of the directors, supervisory directors, shareholders or actual managing persons of the client, to the extent that these circumstances, in the reasonable opinion of Embedded Fitness B.V., involve a significant aggravation of risks for Embedded Fitness B.V;
j. The insurance of the products is cancelled by insurers, or the insurance policy is cancelled, or an existing insurance policy is not renewed and adequate coverage cannot, in the opinion of Embedded Fitness B.V. , be obtained from other insurance companies;
k. damage is caused to the object, which is not covered by insurance or in respect of which insurers do not otherwise pay compensation to Embedded fitness B.V;
l. In the event of loss (including theft and embezzlement) of the products which Embedded Fitness B.V. has made available to the client, complete destruction of the products, or if the products become wholly or partially out of the control of the client for any other reason;
m. Any other circumstance occurs as a result of which the rights of Embedded Fitness B.V. with respect to the products may be jeopardized, or such fear exists that the continuity of the client is no longer guaranteed.
12.4. Interim termination pursuant to paragraphs 1 and 3 of this article as well as dissolution pursuant to paragraph 2 of this article does not relieve the client of any payment obligation in respect of products and/or services already delivered by Embedded Fitness B.V., unless Embedded fitness B.V. is in default in respect of that particular product and/or that particular service. Client is obliged to immediately fulfill his payment obligation with compensation both judicial and extrajudicial costs, damages and interest.
12.5. Immediately after termination of the agreements concluded between Embedded fitness B.V. and the client, for whatever reason, the client shall lose the right of use of products made available, all copies of documentation and other materials made available to the client in the context of the agreements, in good and original condition by return to Embedded Fitness B.V. immediately.
12.6. All costs related to returns as referred to in paragraph 5 of this article shall be borne by the client.
Article 13 Joint and several liability
If the agreements are concluded by Embedded Fitness B.V. with more persons and/or legal entities as principal, then all such persons and/or legal entities are jointly and severally liable for all obligations arising from the agreements.
Article 14 Transfer to third parties
14.1. Embedded Fitness B.V. is at all times entitled to transfer ownership of the products to third parties, or to establish a limited right to them, without prejudice to its obligations under the agreements concluded with the client and without prior notification to the client. The principal is not permitted to assign rights and/or obligations under these agreements to third parties, without the prior written consent of Embedded Fitness B.V..
14.2. Embedded fitness B.V. shall at all times be entitled to transfer the rights and obligations under the agreements concluded with the client in whole or in part to a third party.
Article 15 Other provisions
15.1. If the client acts in violation of his obligations under the provisions of these general terms and conditions and/or agreement(s), he shall forfeit to Embedded Fitness B.V., without any notice of default being required, for each violation a penalty of €50,000,- as well as a penalty of €5,000,- for each day that the violation continues, without prejudice to the right of Embedded Fitness B.V. to claim instead full damages plus costs interest to the extent that the actual damages suffered exceed the stipulated penalty.
15.2. Embedded Fitness B.V. is entitled to replace and/or modify (parts of) the interactive items during maintenance, repair, renewal or in other cases, provided Embedded Fitness B.V. delivers comparable quality and/or function functionality to the client
15.3. Disputes between Embedded Fitness B.V. and the client arising out of or relating to negotiations, offers, quotations, agreements and other legal acts concerning delivery by Embedded Fitness B.V. of products and/or services, shall be submitted exclusively to the competent court in the actual place of business of Embedded Fitness B.V.