GENERAL SALES TERMS AND CONDITIONS FLEX IT DISTRIBUTION
“Authority”the independent and public Data Protection Authority established by a Member State on the basis of Article 51 GDPR;
“Controller”the entity that determines the purposes and means of the processing of Personal Data;
“Customer”the other party with whom Flex IT Distribution concludes any agreements and/or orders
“Data Breach”a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed;
“Data Subject”the individual to whom Personal Data relates;
“Direct Loss”a material damage directly caused by the action or omission of Flex IT Distribution, including the reasonable and demonstrable costs incurred by the Customer in preventing or minimising such damage. Explicitly excluded is any liability of Flex IT Distribution for indirect damages, such as but not limited to, consequential loss, reputational damages and loss of business opportunities and customers.
“Drop Shipment”the situation when the Customer (re-)sells the goods to third parties and the Customer requests Flex IT Distribution to deliver the goods directly to a third party in the name and on behalf of the Customer
“Flex IT Distribution”Flex IT Distribution, trade name of Xeptor B.V., registered with the Dutch Chamber of Commerce under number 70449740 and having its registered address at Zaalbergweg 9, 2314 XS Leiden, the Netherlands, and/or its affiliated subsidiaries/companies as described in the Netherlands Civil Code, Book 2, Articles 24a up to and including 24b
“GDPR” the General Data Protection Regulation, in full: Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC;
“License”an explicit written license from Flex IT Distribution to the Customer
“Personal Data”any information relating to an identified or identifiable natural person (‘Data Subject’);
“Processing” any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;
“Processor” the entity which processes Personal Data on behalf of the Controller;
“Sub-processor” any entity engaged by the Processor that processes Personal Data;
“RMA”Return Material Authorization
“Third Party”a natural or legal person, public authority, agency or body other than the Data Subject, Controller, Processor and persons who, under the direct authority of the Controller or Processor, are authorized to process Personal Data.
- a.These terms and conditions are applicable to every offer, sale and lease of goods (both material and non-material in nature), services and supplies, as well as those purchases of goods made by Flex IT Distribution to third parties, and to all work undertaken on behalf of the Customer, as well as to all agreements in the broadest sense of the word entered into with third parties by Flex IT Distribution, with explicit exclusion of any general terms and conditions of the Customer.
- b.These terms and conditions apply within and outside of the Netherlands, irrespective of the residence or domicile of the parties to any agreement and irrespective of the place where the agreement is formed or should be enforced.
- c.These terms and conditions may be invoked also by Flex IT Distribution’s directors, employees, agents and subcontractors. These terms and conditions apply also to non-contractual claims.
- 3.Offers, orders and agreements
- a.Flex IT Distribution shall provide all offers, quotations and cost estimates with due care and to the best of its knowledge. However, any errors and/or omissions cannot always be excluded and shall not be binding for Flex IT Distribution nor can Flex IT Distribution be held liable for such. Upon discovery of any errors and/or omissions by Flex IT Distribution, the Customer shall inform Flex IT Distribution about this as soon as practically possible.
- b.Unless explicitly agreed otherwise, all offers and quotations shall be excluding VAT and freight costs.
- c.Unless explicitly agreed otherwise in writing, all offers and/or orders from the Customer shall be considered final. The orders and/or agreements and/or changes thereto shall become binding for Flex IT Distribution upon written confirmation by Flex IT Distribution.
- d.Only the managing directors and/or explicitly authorised proxyholders can validly conclude agreements on behalf of Flex IT Distribution. Flex IT Distribution shall therefore not be bound by any agreements signed on its behalf by non-authorized personnel. This does not prejudice the authorisation of Flex IT Distribution’s sales team to send quotations and/or order confirmations in the regular course of business, insofar these general sales terms and conditions remain applicable thereto.
- e.Flex IT Distribution shall be entitled to sell, assign, encumber and/or subcontract any of its rights and obligations deriving from the agreement(s) with the Customer.
- f.The Customer shall only be entitled to sell, assign, encumber and/or subcontract any of its rights and obligations deriving from the agreement(s) with Flex IT Distribution after Flex IT Distribution’s prior written approval, which approval shall not be unreasonably withheld. Flex IT Distribution’s approval for such request shall, amongst others but not exclusively, be dependent on the credit worthiness and business reputation of the acquiring party.
- 4.Invoices and payment term
- a.Flex IT Distribution shall issue a separate invoice to the Customer for each order. In case of partial deliveries, Flex IT Distribution shall be authorised to also issue partial invoices. Unless agreed otherwise, the invoice shall in any case specify the goods, the price in euros and the payment term. Unless parties agree otherwise, the standard payment term shall be fourteen (14) days.
- b.If the Flex IT Distribution invoices are not paid within the applicable payment term, the Customer shall be in default by operation of law, without a further notice of default being required. Flex IT Distribution shall charge to the Customer a statutory commercial interest (wettelijke handelsrente) as referred to in article 6:119a of the Dutch Civil Code (Burgerlijk Wetboek) as from the moment the invoices fall overdue. If the invoices remain unpaid, Flex IT Distribution reserves the right to claim reasonable extrajudicial costs and damages as from the moment that the Customer is in breach, to be calculated according to the Dutch scheme of extrajudicial debt collection costs (Staffel Buitengerechtelijke Incassokosten), pursuant to the Dutch debt collection compensation regulation (Besluit vergoeding voor buitengerechtelijke incassokosten), in force as per 1 July 2012.
- c.As long as the Customer is in default regarding its payment obligations or any other obligations as set out in these general terms and conditions and/or any other agreement between the parties, Flex IT Distribution shall be entitled to suspend any of its delivery and/or transport obligations until the obligations of the Customer have been fully met.
- d.The title to the goods shall pass to the Customer after the invoice from Flex IT Distribution for the respective order has been fully paid. This however does not prejudice the Customer’s right to re-sell the goods to end users in the normal course of business.
- e.If the Customer’s credit history gives rise thereto, Flex IT Distribution has the right, at its sole discretion, to request an advance payment for the orders or additional security for the Customer’s payment obligations.
- f.Flex IT Distribution is authorized to offset any amounts due from the Customer or its affiliated companies.
- g.The Customer shall not offset any amounts on the due invoices. Any claims from the Customer shall be directed in writing to Flex IT Distribution. If Flex IT Distribution, in its sole discretion, approves the submitted claim, it shall provide the Customer with a credit note within fourteen (14) days.
- h.Any invoices issued by the Customer to Flex IT Distribution (for example pursuant to rebate agreements, agreed discounts, (re)purchase of goods, transport orders, provided services or similar) shall be sent to Flex IT Distribution no later than six (6) months after the date of occurrence or delivery. After expiry on this period, Flex IT Distribution shall no longer accept the invoice and the Customer’s right to payment shall elapse.
- 5.Transport and delivery
- a.Unless explicitly agreed otherwise, Flex IT Distribution shall determine the means of transport and packaging.
- b.Flex IT Distribution does not deliver goods to residential addresses. It is the responsibility of the Customer to ensure that Flex IT Distribution is provided with an address of the business premises of the Customer and/or its end-customer(s).
- c.The Customer shall ensure to collect and/or accept the goods at the agreed time and place of delivery and ensure a proper accessibility of the place where the goods should be delivered. If the Customer fails to do so, it shall bear the additional cost for a new delivery and the storage costs.
- d.The risk to the goods shall pass to the Customer at the moment of delivery. A delivery note from the carrier shall serve as a proof of delivery.
- e.The Customer shall inspect the goods at the moment of delivery and notify the carrier, i.e. state it explicitly and detailed on the delivery note if any goods arrived damaged.
- f.The provisions in this chapter also apply to Drop Shipment.
- 6.Product classification, warranties and returns
- a.The classification of delivered products shall be stated on the offer and/or the invoice. The overview of all product classifications and the corresponding warranty periods offered by Flex IT Distribution can be viewed through this link: https://www.flexitdistribution.nl/cms/html/product-conditions
- b.The goods shall be considered to be delivered in a good condition and meet the applicable standards according to the relevant product class, unless the Customer notifies Flex IT Distribution about any (transport) damages promptly, and in any case within five (5) days after delivery by submitting a RMA request, accompanied by a signed delivery note stating the damages upon arrival.
- c.In case of a product defect which falls within the warranty conditions as further described in detail in Annex 1, the Customer can also submit a RMA request within the applicable Flex IT Distribution warranty period. Unless agreed otherwise in writing, if the goods are covered by a manufacturer warranty, any claims related thereto must be submitted directly to the manufacturer and not to Flex IT Distribution.
- d.In deviation to the previous article, manufacturer defects on new products (DoA) must be reported to Flex IT Distribution within thirty (30) days after delivery, accompanied by manufacturer’s written approval.
- e.If the Customer wishes to return any goods on other grounds or outside the applicable maximum warranty period, restocking conditions as set out in Annex 2 shall be applicable. Notwithstanding the foregoing, RMA requests based on this paragraph shall be submitted by the Customer no later than two (2) months after delivery, after which the products can no longer be returned and/or reimbursed.
- f.The RMA request from the Customer shall in any case include the following details and/or documents:
- 1.Order number;
- 2.Serial number;
- 3.If already issued, a copy of the corresponding invoice;
- 5.Pick-up address;
- 6.Reason for return;
- 7.In case of return due to (transport) damages, a signed delivery note specifying damages upon arrival (as referred to in article 6.2); and
- 8.In case of DoA (dead-on-arrival) of new products, manufacturer’s approval.
- g.If the RMA formalities have been met and are correct and complete, Flex IT Distribution shall provide the Customer with a return label which the Customer can use to return the goods at Flex IT Distribution’s expense. This shall however in no case be considered as recognition of the validity of the underlying claim, as the returned goods and the claim itself shall only be examined to Flex IT Distribution upon receipt of the returned products.
- h.The Customer shall ensure to remove any private account details or security locks (such as passwords or iCloud) from the returned products. Flex IT Distribution shall not accept any returned products with any private account details or security locks on it.
- i.Upon receipt of the returned goods, Flex IT Distribution shall examine the underlying claim pursuant to the RMA request. If, in Flex IT Distribution’s sole opinion, the claim proves to be valid, Flex IT Distribution shall – at its own discretion - provide the Customer with (i) the repaired product(s) OR (ii) a replacement product which is equal or equivalent to the specifications in the purchase order, OR (iii) a credit note, such within ten (10) working days after receipt of the returned goods by Flex IT Distribution.
- j.In case the claim, in Flex IT Distribution’s sole opinion, proves to be invalid (for example, but not limited to, in cases when the product is not defect, or the defect is not covered by the warranty conditions, the claimed non-conformity to the agreed standards is not applicable or passwords and/or iCloud have not been removed), Flex IT Distribution shall return the product to the Customer and charge the Customer all transport and research costs.
- 7.Flex IT Distribution’s Liability
- a.Apart from its delivery and warranty obligations, Flex IT Distribution shall not be liable towards the Customer other than in case of gross negligence, in which case Flex IT Distribution’s liability for the Customer’s direct damages per event or a series of related events with the same or similar cause, irrespective the legal base of such claim(s), shall be limited to the amount of the respective invoice, but shall in no case exceed an amount of EUR 25.000.
- b.The Customer’s right to claim damages shall elapse after one (1) year after the respective delivery and/or performance of the agreement by Flex IT Distribution.
- c.Flex IT Distribution can only be liable for Direct Loss.
- d.In no event Flex IT Distribution shall be liable for any damages suffered by third parties. The Customer hereby indemnifies and holds Flex IT Distribution harmless, its affiliated companies, and its respective directors, representatives, agents, employees and subcontractors for any and all claims from third parties (whether directed to the Customer or Flex IT Distribution) in connection with the performance of the agreement by Flex IT Distribution or the delivered goods.
- e.In case of a force majeure situation, Flex IT Distribution can, at its own discretion, suspend and/or cancel its obligations towards the Customer, without this resulting in any liability for Flex IT Distribution. In case of cancellation due to force majeure circumstances at the side of Flex IT Distribution, Flex IT Distribution shall reimburse the (pre)paid amounts to the Customer.
A force majeure situation is for example (but not limited to) acts of God, war, war risk, terror attacks, riots, disturbances; delays in the supply of materials or dispatch of a finished product; sickness of a number of employees such that compliance is reasonably not possible; strikes, industrial conflicts, lockout or similar actions within or against Flex IT Distribution, its suppliers or non-employees; other problems with production or supply on the part of Flex IT Distribution or its suppliers and/or problems with transport by Flex IT Distribution or by third parties, such as, but not limited to operational breakdowns, delayed deliveries/shipments on the part of Flex IT Distribution’s suppliers (including intra-group suppliers), shortages of energy supplies or materials, and traffic disruptions to the extent that the events were unforeseeable, as well as strikes, legal blockades/seizures/arrests, government orders, default of supplies or inability to obtain materials and all instances of force majeure; damage to the production due to fire, storm or any other extreme unforeseen cause; any action taken by a national or international person in authority.
- 8.Cancellation, Suspension and Termination
- a.Flex IT Distribution shall have the right – at its own discretion – to immediately cancel, suspend or terminate its obligations deriving from the order(s) and/or agreement(s) without being liable towards the Customer, if:
- 1.Despite having received a notice of default from Flex IT Distribution, the Customer remains in breach to fulfil any of its obligations towards Flex IT Distribution, whether or not connected to the respective order(s) and/or agreement(s);
- 2.the Customer has been declared bankrupt or filed for a suspension of payments (sursèance van betaling);
- 3.in Flex IT Distribution’s opinion, the Customer has suffered a material adverse change;
- 4.the Customer has suffered any change in its direct or indirect ownership or control within the meaning of the SEC’s Merger Code 2015 (SER Fusiegedragsregeles 2015);
- 5.the Customer has breached any of its representations or warranties, and/or has issued any false statements, and/or has in any other way acted fraudulent and/or grossly negligent, and/or has in any other way been linked to misconduct in such way that continuing to do business with this Customer could result in a breach of Flex IT Distribution’s regulatory obligations or harm Flex IT Distribution’s reputation.
- b.If Flex IT Distribution exercises its cancellation/suspension/termination right under paragraph 8.1, all due invoices from Flex IT Distribution shall become immediately due and payable.
- c.If Flex IT Distribution cancels, suspends and/or terminates any order(s) and/or agreement(s) due to circumstances as described in article 8.1(a) or 8.1(e), the Customer shall be fully liable for any damages suffered by Flex IT Distribution.
- d.Unless agreed otherwise in writing, in cases other than described in article 8.1, Flex IT Distribution shall have the right to terminate any agreement(s) with thirty (30) days prior written notice without being liable towards the Customer.
- e.Any agreements concluded with the Customer shall state the applicable minimum period. If such period is not included, the agreement shall be deemed to be concluded for a period of one (1) year (separate orders excluded). The Customer shall be entitled to terminate the agreement by giving Flex IT Distribution at least sixty (60) days’ prior written notice before the end date. If the Customer has not terminated the agreement in accordance with this paragraph, it shall automatically be extended for the same period as the initial term. For the avoidance of doubt, if the Customer terminates the agreement, Flex IT Distribution shall not be held to pay any compensation whatsoever for this.
- 9.Intellectual Property
- a.Any and all intellectual property and related rights (including knowhow) owned by or licensed to Flex IT Distribution, such as, but not limited to, trademarks, copyright (for example into software), designs and image rights, shall be and remain the sole property of Flex IT Distribution. The Customer has no right to use these intellectual property and/or related rights in any way, unless Flex IT Distribution has granted a License to the Customer.,
- b.Any and all intellectual property rights granted by Flex IT Distribution to the Customer in writing, shall also remain the sole property of Flex IT Distribution and/or its suppliers (as applicable). Unless otherwise agreed in writing, the Licenses granted to the Customer shall be non-exclusive, non-transferrable, non-pledgeable and may not be sub-licensed.
- c.Flex IT Distribution sources its new retail products which are designated by the trademark owner for use and/or sale exclusively within the European Economic Area (“EEA”), within the EEA.
- d.Flex IT Distribution does not warrant that the original manufacturer of the software shall continue to produce and/or make available the original software for any purchased hardware. Flex IT Distribution shall not be liable for any claims from third parties relating to (intellectual) property rights and/or infringements and/or for any discontinued manufacturing.
- e.The Customer acknowledges and agrees that the products may contain intellectual property rights of third parties, whether or not these intellectual property rights have been (sub)licensed to Flex IT Distribution. The Customer warrants and guarantees that it shall respect Flex IT Distribution’s and its suppliers’ and any third parties’ intellectual property rights. This means, amongst others, that the Customer shall not grant, transfer and/or (sub)license any of its user rights (Licenses, if any) to third parties and shall not infringe the European Regulation 207/2009 and the European Trademarks Directive 2008/95/EC, as repealed and amended from time to time, and/or violate any other national and/or international regulations and/or contractual obligations in agreements with Flex IT Distribution and/or its affiliates regarding these intellectual property and related rights. The Customer indemnifies and holds Flex IT Distribution and/or its suppliers harmless for any claims due to Customer infringement of intellectual property rights in connection with the other parties’ use of the products and/or related rights as granted by Flex IT Distribution.
- f.The Customer acknowledges and agrees that, for the purpose of compliance with this article, Flex IT Distribution may share the sales information (such as transaction date, details of the Customer and serial numbers of the hardware) relating to the order(s) placed by the Customer with its suppliers. To the extent that such sales information contains any personal data, disclosure of such personal data shall be treated in accordance with chapter 10 of these terms and conditions.
- 10.Data Protection
- a.In its performance under the agreement, Flex IT Distribution may process Personal Data of Data Subjects in its capacity as a Processor, or in its capacity as a Controller. Flex IT Distribution may process Personal Data of the Customer or Third Parties for the purpose of conclusion and execution of agreements inter alia for the processing of orders, arranging for shipments, licensing software, debt collection, administration, customer satisfaction surveys, marketing or any other purpose agreed between the Parties.
- b.Both Flex IT Distribution and the Customer shall comply with and have their own responsibilities under the applicable data protection laws (GDPR and applicable national laws and regulations). The parties’ rights and obligations with respect to processing of Personal Data shall be construed and interpreted in accordance with these data protection laws.
- c.If Flex IT Distribution receives Personal Data from the Customer in the context of the agreement, not being Personal Data from Third Parties, Flex IT Distribution shall qualify as the Controller of the Personal Data. This could be, for example, Personal Data of an employee or director of the Customer.
- 1.The processing of Personal Data by Flex IT Distribution shall be carried out in accordance with the written instructions as provided by the Customer. The Customer shall only provide categories of Personal Data to Flex IT Distribution as strictly necessary for the purpose and shall ensure that this disclosure shall be in accordance with the applicable data protection laws.
- 2.Flex IT Distribution shall take technical and organisational measures, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons. These measures are aimed to prevent the unnecessary collection, disclosure and any further processing of Personal Data. Flex IT Distribution shall adjust the technical and organizational measures from time to time when necessary for these purposes.
- 3.Flex IT Distribution shall only be authorized to process Personal Data outside the European Economic Area (“EEA”) if all legal requirements in this respect have been met.
- 4.Flex IT Distribution shall ensure that only its employees shall have access to the data as reasonably necessary for the purpose. Such employees shall be bound by written confidentiality obligations.
- 5.Flex IT Distribution shall not share the Personal Data with Third Parties, unless it is required to do so by virtue of mandatory rules, a binding decision from a government agency or an order to do so by a competent court.
- 6.In the event of a Data Breach, Flex IT Distribution shall inform the Customer within 48 hours from notice. Flex IT Distribution shall take all reasonable measures at reasonable costs to minimize the impact of the Data Breach. All reasonable costs shall be shared equally between the parties, taking into account their respective share in the cause of the Data Breach. The Customer shall be the sole responsible party for notifying the Authority and Data Subjects. Flex IT Distribution shall provide reasonable assistance to the Customer in relation to (the review and notification of) the Data Breach if requested.
- 7.The Customer hereby gives Flex IT Distribution permission to engage Sub-processors in the processing of Personal Data, with due observance of the applicable privacy legislation. Upon request, Flex IT Distribution will inform the Customer of the Sub-processors engaged. The Customer has the right to object to any Sub-processor proposed or engaged by Flex IT Distribution. If the Customer objects to third parties engaged by the Flex IT Distribution, the Parties will consult in order to reach a reasonable solution.
- 8.Flex IT Distribution will in any case ensure that such Sub-processors accept in writing the same obligations as were agreed herein with regard to the processing of Personal Data, inter alia regarding safety measures. Flex IT Distribution shall be and remain responsible for the data processing towards the Customer.
- 9.If Flex IT Distribution receives a request or objection from a Data Subject based on articles 15 to 21 GDPR, Flex IT Distribution shall forward this request immediately to the Customer, which shall take care of the response. Flex IT Distribution shall assist the Customer to fulfil its obligations in this respect.
- 10.The Customer has the right to ask and receive information regarding the processing of the Personal Data by Flex IT Distribution, as reasonable for monitoring and compliance purposes and to enable the conduct of audits, performed by an independent EDP auditor. The costs of such audit shall be borne by the Customer. Flex IT Distribution shall also assist the Customer, to a reasonable extent, in its conduct of data privacy impact assessments.
- 11.Each party will be liable for their own Processing activities, unless otherwise agreed herein.
- 12.Flex IT Distribution’s liability for loss suffered by the Customer is limited to intentional acts, gross negligence and/or wilful recklessness of Flex IT Distribution. In any case, Flex IT Distribution’s liability is limited to the compensation for Direct Loss and to a maximum amount of the respective invoice corresponding with the order, but shall in no case exceed an amount of EUR 25.000 (twenty-five thousand euros) per event, with a series of consecutive events counting as a single event.
- 13.Flex IT Distribution is explicitly not liable for the loss suffered by the Customer as a result of a fine being imposed on it by (one of) the Authorities. This applies unless the (or any part of the) fine has been imposed on the Customer in connection with an intentional act, gross negligence or wilful recklessness on the part of Flex IT Distribution in the performance of its obligations hereunder that can only and solely be attributed to Flex IT Distribution, for that part, and provided that the Customer has done everything in their power to prevent or reduce the fine.
- 14.Unless performance by Flex IT Distribution is permanently impossible, and subject to the limitations herein, Flex IT Distribution shall only be liable in connection with the performance of its obligations hereunder if the Customer gives Flex IT Distribution written notice of default without delay and grants Flex IT Distribution a reasonable term in which to remedy the failure, and Flex IT Distribution continues to attributably fail to comply with its obligations even after this term has lapsed. The notice of default must describe the failure as comprehensively and in as much detail as possible in order to give Flex IT Distribution the opportunity to respond adequately. Explicitly excluded is any liability of Flex IT Distribution for any damage or claims caused by any circumstances beyond Flex IT Distribution’s reasonable control.
- 15.Any claim for compensation by the Customer against Flex IT Distribution that is not specified and explicitly stated shall be barred by the mere expiry of twelve (12) months following the inception of the claim. The Customer indemnifies and holds Flex IT Distribution harmless for any damage or claim caused by or attributable to the Customer, including claims by Data Subjects. This indemnification includes fines imposed on Flex IT Distribution by any Authority, which are based on non-compliance with the data protection laws caused by or attributable to the Customer (at least, for that part).
- 16.Flex IT Distribution shall process the Personal Data as long as necessary for the purposes indicated above, or longer to comply with its legal obligations such as (statutory) retention periods (and for that term). After termination of the Agreement, or expiry of an applicable retention period, Flex IT Distribution shall destroy the Personal Data received (including copies thereof) from the Customer without delay.
- e.In case the Customer would receive any Personal Data from Flex IT Distribution, for example of its directors or employees, the Customer shall comply with all applicable privacy laws and parties shall conclude further agreements if necessary.
- 11. Taxes and Duties
- a.Flex IT Distribution may charge and the Customer shall pay any applicable national or local sales, use or value added taxes which Flex IT Distribution is legally obliged to charge. The Customer shall provide Flex IT Distribution with any forms, documents, or certifications as may be required by Flex IT Distribution to satisfy its information reporting or withholding tax obligations.
- b. Unless otherwise agreed, the Customer shall be responsible for any applicable import and/or custom or similar duties.
- c. The Customer hereby acknowledges and agrees that in cases where the Customer wishes to have the delivery of the products to another member state of the European Union than where the Customer is VAT-registered, Flex IT Distribution (as party ‘A’) shall invoice the Customer (as party ‘B’) in conformation with a simplified A-B-C supply chain transaction, in accordance with article 141 paragraph 1 of the VAT Directive 2006/112/EC.
- 12. Confidentiality, Non- Solicitation
- a.The Customer shall ensure that all confidential information provided by Flex IT Distribution (such as financial information, business development plans and stock feeds), remains confidential. Without Flex IT Distribution’s prior written approval, the Customer shall not share the confidential information with third parties. If the Customer is required to share Flex IT Distribution’s confidential information by law, court order or governmental authority, the Customer shall inform Flex IT Distribution immediately about such obligation. The confidentiality obligation shall also apply to the Customer’s employees and/or subcontractors.
- b.During the term of the agreement and/or business relationship between Flex IT Distribution and the Customer, and for a period of one year thereafter, the Customer shall not, without Flex IT Distribution’s prior written approval, employ, agreement or otherwise enter into any business relationship with any of Flex IT Distribution’s personnel, staff or contractors, whether or not via third parties.
- c.The Customer acknowledges that money damages may not be a sufficient remedy for any breach of this article and that Flex IT Distribution shall be entitled to equitable relief, including but not limited to injunctive relief and specific performance, as a remedy for such breach. This does not prejudice Flex IT Distribution’s right to claim full damages.
- 13. Severability
- a.If Flex IT Distribution fails or delays in enforcing any of the Customer’s obligations, or existing right or remedy, such does not constitute a waiver of that obligation, right or remedy.
- b.If any provision in these terms and conditions or in any agreement between the parties is in conflict with law, this shall not affect the other articles. The parties shall replace the void articles by provisions which are as close as possible to the initially intended purpose.
- 14.Governing law and disputes
- a.The relationship between Flex IT Distribution and the Customer shall be governed by Dutch law. United Nations Convention on Agreements for the International Sale of Goods (CISG) is not applicable to these terms and conditions or any agreement concluded between Flex IT Distribution and the Customer.
- b.All disputes shall be subject to the judgement of the competent court in The Hague, the Netherlands.
Annex 1 – warranty conditions
- a.This Annex specifies the warranty conditions, i.e. warranty coverage for the product defects.
- b.For the goods covered by a manufacturer warranty, the conditions of such manufacturer warranty shall be applicable within the specified warranty period. The manufacturer will determine whether the warranty conditions are met.
- c.For the goods covered by a Flex IT Distribution warranty the following coverage conditions shall be applicable during the specified warranty period:
- a.Product failure /defect other than exempted below.
- a.Improper use or inadequate preparation of the site where the goods should be installed;
- b.Changes or inadequate system maintenance (unless carried out by/with approval of Flex IT Distribution);
- c.Defects and/or other limitations caused by non-Flex IT Distribution products that affect the functioning of the systems for which Flex IT Distribution provides support or service;
- d.Data loss or downtime of systems;
- e.Malicious software (virus, worm, etc.) which has not been introduced by Flex IT Distribution or against which the Customer has not taken the reasonably expected protection measures, for example in the form of up-to-date virus protection and firewall software;
- f.Misuse, negligence, accident, fire, water or dust damage, power failures, transport by the Customer or other causes beyond the influence of Flex IT Distribution;
- g.Batteries and software.
Annex 2 – restocking conditions
- a.This Annex specifies restocking conditions for product returns pursuant to article 6.5 of these terms and conditions, i.e. in cases when the RMA is not based on non-conformity with the purchase order, product defects or (transport) damage, but (for example) on the changed business circumstances or an error on the side of the Customer.
- b.Any goods bought back-to-back by Flex IT Distribution specifically to fulfil a purchase order placed by the Customer, cannot be returned. Flex IT Distribution will advise the Customer whether this is the case upon receipt of the purchase order.
- c.The standard restocking fee amounts to EUR 250 (or local currency equivalent), excluding transport costs which will be born by the Customer, provided that the goods are returned in original, not opened packaging.
- d.If the goods are returned in opened, but undamaged boxes and in complete state (i.e. including all packaging, manuals, accessories etc.), the restocking fee shall amount to 20% of the value of the returned products, with a minimum of EUR 250 (or local currency equivalent), excluding transport costs which will be born by the Customer.
- e.Goods may not be returned pursuant to this section if the products, accessories, manuals and/or packaging is damaged, missing or not complete.
- f.Activated software or software in opened box may not be returned.