Terms and conditions

 

General Terms for the Supply of Hardware and Software Products and services by Thimeo

Thimeo Audio Technology B.V.

(Dutch Chamber of Commerce nr. 63077949)

 

1. General Provisions

1. These General Terms apply to all offers and agreements for which Thimeo delivers hardware and software products and services to the Client. “Client” as used in these general terms shall mean the legal entity which is the contractual partner acting in the course of a business or profession, with whom Thimeo enters into an agreement for the supply of hardware and/or software products and services.

2. Possible general terms of the Client shall not apply, unless Thimeo has expressly agreed to their applicability.

 

2. Offers

1. All offers of Thimeo are without obligation, unless Thimeo has indicated otherwise in writing.

 

3. Prices and Terms of Payment

1. Invoicing shall be based on the list prices valid at the time of delivery, plus statutory value added tax (“VAT”), as mentioned on the website www.thimeo.com (“the Website”).

2. VAT is not invoiced in cases meeting the pre-conditions for tax exemption of export deliveries, provided that suitable documentation is provided by the Client. In the case of a tax-free intra-community delivery within the EU, the Client shall provide Thimeo with the evidences required by the tax authorities, in accordance with the requirements of the national legislation of the country in which the shipment was taken over, within a period of ten days. If the evidence is not made available within the deadline, Thimeo reserves the right to charge the respective national statutory value-added tax.

3. In case of a digital supplied software product the license fee does not include value added tax (VAT). Licensee is liable for VAT. Therefore, invoices of licensor must not contain VAT, but the indication: “Licensee is liable for VAT (Reverse Charge)” In case local VAT and/or other local tax are applicable in the territory of licensee, licensee must bear this tax.

4. In case the remuneration for the license/for the services is subject to a withholding tax deduction according to the local laws of the country where the Client has its seat, the Client shall withhold such tax from the remunerations payable and remit it to the competent tax authorities. In case a reduction of or exemption from the withholding tax is possible, e.g. due to the current Double Taxation Treaty between the country where the Client has its seat and the country where Thimeo has its seat, the parties shall see to it that the application for such reduction or exemption is processed in accordance with the established rules. The Client is obligated to present Thimeo with a withholding tax certificate for the tax withheld.

5. Unless otherwise agreed upon in writing, prices and delivery shall be “DAP (Delivered At Place)”, Incoterms 2020, with packaging included.

6. Thimeo reserves the right to modify its prices appropriately if costs rise after an agreement has been entered into, particular due to changes in wage costs, e.g. in response to collective bargaining agreements, or to changes in the price of materials, provided an interval of more than three months elapses between the date of agreement signing and delivery. Thimeo shall provide proof of such changes to the Client upon request.

7. Except in case of ordering via the Website or as otherwise agreed upon in writing, invoices shall be due upon the date of the invoice. In case of purchase of software products via the Website, the Client shall pay immediately according to the payment procedure indicated on the Website. In other cases, payment shall be effected within 30 days of the invoice date without deduction. In the case of late payment, Thimeo shall be entitled to charge default interest at the statutory commercial rate according to the Dutch law (12,5% on 1 January 2024). The right of Thimeo to claim additional damages shall remain unaffected.

8. Thimeo shall be entitled to make the delivery dependent upon concurrent payment or advance payment.

9. The Client is not entitled to hold back payments or offset with counterclaims, except to the extent that its counterclaims are undisputed or recognized by final and binding judgment.

10. If, after the agreement has been entered into, Thimeo becomes aware of circumstances may result in claims of Thimeo appear to be in jeopardy due to Client’s inadequate ability to pay, Thimeo shall have the right to perform outstanding deliveries only against pre-payment or against the provision of security and, following the expiry of a deadline set to this effect, to terminate or rescind from the agreement.

 

4. Software Licenses

1. Thimeo grants to the Client a non-exclusive license for an unlimited time period to use the software product worldwide subject to the terms and conditions set out in these General Conditions and/or the agreement between the Client and Thimeo.

2. A license for a software product can only be installed and used on one device, unless otherwise indicated for specific software products on the Website by Thimeo.

3. Unless otherwise agreed upon in writing, the Client may only use the software product in and for the benefit of its own business or organization.

4. Thimeo is always entitled to take technical measures to protect the software product against unlawful use and/or against use in a different way or for different purposes than agreed between Thimeo and the Client.

5. The license does not give access to the source code or a right to a copy of the software product of Thimeo or its licensors, unless Thimeo and the Client have agreed otherwise in writing.

6. Software products provided by Thimeo to the Client may contain software of one or more third parties, including so-called open-source software. Any third party software provided pursuant to the delivery of the software product is provided solely for use in connection with the software products, which are the subject of the license.

7. The Client shall not be entitled to modify, copy/reproduce, reverse engineer, translate or fragment parts of the software provided by Thimeo.

8. Unless explicitly agreed upon in writing, the Client shall not have the right to adapt the software.

9. The Client shall ensure that, in case of a transfer of the license to a third party, this does not allow for any kind of multiple use. The Client shall be responsible for the deletion of the software products from any system remaining in its possession, such deletion to be confirmed by Client vis-à-vis Thimeo in writing. The Client must reach a written agreement with the third party in which the said party accepts the provisions of these General Terms. The Client shall present a copy of the relevant parts of the agreement upon request.

10. Unless otherwise explicitly provided for in the agreement, the Client is not allowed to make the software products of Thimeo or any of its functionalities available to third parties (e.g., as service provider) through communication systems like the internet, e.g., as cloud application.

11. If the Client has acquired the software products together with a hardware product, the Client may only transfer the software products together with the same hardware product for use by a third party.

12. If within the scope of warranty and/or software maintenance services a new software version is provided to the Client, such version shall be subject to the above-mentioned license conditions.

 

5. Software Maintenance

1. The Client shall only be entitled to the software maintenance services described in this article. The software maintenance services are provided for the latest program version of licensed software only.

2. Software maintenance shall comprise the following services:

1. delivery of generally available program updates, new program versions, which may include defect corrections, functional enhancements and/or adaptations to technical frameworks;

2. delivery of patches and fixes to remedy and/or bypass critical errors;

3. provision of information regarding restrictions, error correction and/or error avoidance.

3. Software maintenance does not include support for

1. new features created by Thimeo;

2. the integration of the software and any influences such integration may have on third party products;

3. the design and development of applications, using the software products,

4. Client’s use of the software products in other than the agreed/specified operating environment;

5. problems and errors caused by products which have not been delivered by Thimeo.

4. The agreement regarding the provision of software maintenance does not result in any commitment of Thimeo regarding availability and/or fail-safe stability of a system.

5. The agreed software maintenance services will only be provided in favor of the Client. Client may not transfer software maintenance to third parties.

6. To the extent required for the provision of the software maintenance, the Client shall provide additional information such as program code, configurations, protocol data etc. as well as necessary resources and shall enable (remote) access to its systems.

 

6. Compliance Verification

1. Unless it is not possible because of safety reasons or otherwise agreed upon, Thimeo shall have the right to verify the contractually authorized use of the software products by the Client, and thus Client’s adherence to the agreed licensing conditions, at all sites and for all environments in which an installation is made and/or used by the Client. Thimeo shall have the right to delegate such verification to associated companies and/or independent auditors, provided that they have been bound to observe confidentiality based on a written confidentiality agreement.

2. The Client undertakes to create, retain, and make available to Thimeo or our auditors records, system outputs and other system data sufficient to provide auditable proof for a contractually agreed installation and utilization of the supplied software products. If the verification identifies discrepancies and/or indications that the Client is failing to adhere to his obligations, Thimeo will inform the Client thereof without delay.

 

7. Delivery

1. A delivery date given by Thimeo shall never be regarded as a strict deadline, unless agreed otherwise in writing. If Thimeo is unable to fulfil its delivery obligations on time, Thimeo will inform the Client as soon as possible, stating a term within which Thimeo expects to be able to fulfil.

2. In the event that non-compliance with delivery deadlines is resulting from force majeure and other disturbances for which Thimeo cannot be held liable, such as war or similar conflicts, terrorist attacks, epidemic/pandemic, import and export restrictions, including events of the same nature that affect its suppliers and subcontractors, the delivery dates agreed upon shall be extended for the period of such hindrance. The same applies to labor disputes, which Thimeo or our suppliers may be concerned with.

3. Claims made by the Client for compensation due to delayed delivery shall be governed by Article 11.

4. The Client shall not have the right to refuse acceptance of a delivery due to minor defects.

 

8. Complaints

1. The Client shall serve written notice of recognizable quality defects immediately, however no later than 15 days after receipt of the hardware products or no later than 60 days after receipt of the software products.

2. If a complaint is unjustified, Thimeo shall have the right to demand compensation for incurred expenses from the Client.

3. Claims for quality defects shall be excluded if the notice of defect is not received by Thimeo within the time period stipulated above.

4. Claims for transport damages shall be made within the applicable legal and contractual limitations.

 

9. Quality Defects

1. The limitation period for claims on account of quality defects shall be 24 months after delivery of the hardware products, and two months after delivery of the software products.

2. If a quality defect arises within the limitation period, the cause of which already existed at the time of the passing of risk, Thimeo may at its discretion elect to render subsequent performance either by repairing the defect or delivering a defect-free product. With software products, the warranty claim shall be conditional upon the error being reproducible and that it occurs in the last revision level accepted or adopted by the Client.

3. The limitation period does not begin anew by virtue of subsequent performance.

4. If subsequent performance fails, the Client may – without prejudice to possible claims for damages – rescind from the agreement or reduce the remuneration in accordance with statutory provisions.

5. Claims for subsequent performance shall be excluded in case of a minor deviation from the quality agreed upon or in case of a minor impairment in usability. Further rights and claims shall remain unaffected.

6. The following shall not be deemed to constitute a defect as to quality:

1. natural wear and tear;

2. characteristics of the product or damages caused after the passing of risk due to improper handling, operation, storage or assembly, non-compliance with installation or handling instructions, and excessive strain or use;

3. characteristics of the product or damage caused due to force majeure, special external influences which are not foreseen under the terms of the agreement or which arise due to the use of the product in a manner not presupposed in the agreement or not in accordance with normal use;

4. non-reproducible errors in hardware or software products.

7. Thimeo shall in no way be liable for compatibility or interoperability of the software products with Client’s data processing environment, in particular with the software products and hardware products implemented by the Client.

8. The Client shall undertake all action which is necessary and may be reasonably expected to prevent or limit the consequences of damage resulting from quality defects in the software products; in particular, the Client shall ensure that backups of all programs and data shall be conducted on a reasonable and regular basis.

 

10. Copyright and Related Protective Rights

1. All copyrights and any other intellectual or industrial property rights, including rights to protect databases, information and presentations, on the hardware and software products belong exclusively to Thimeo and/or its licensors.

2. Nothing shall entail a (full or partial) transfer by Thimeo of these rights, unless the Parties have expressly agreed otherwise in writing.

3. The use of the software products of the licensors of Thimeo may be subject to separate copyrights and license conditions. Thimeo shall not grant more rights than Thimeo itself has obtained for the use of this software products. At the Client's first request, Thimeo shall provide, to the extent reasonably possible and required of Thimeo, the license conditions of these third parties.

 

11. Liability

1. The total liability of Thimeo on account of an accountable failure in the performance of the agreement or for any other reason shall be limited to compensation for direct damage up to the amount of the price stipulated for the delivered hardware or software products, at least that part to which the liability relates, except in cases of deliberate acts or gross negligence or in the event of liability due to fatal or physical injury or damage to health or due to the assumption of a quality guarantee.

2. The liability of Thimeo shall at all times be limited to a maximum of the amount paid by the Client for the product in question, and if that is not applicable, the amount paid by the insurer of Thimeo in the relevant case.

3. Thimeo shall never be liable for indirect damage, including consequential damage, loss of profit, missed savings, reduced goodwill and damage due to business interruption.

4. The Client may only invoke the consequences of an accountable failure to perform the agreement after the Client has given Thimeo written notice of default and Thimeo continues to fail to perform even after the expiry of the reasonable term set thereby.

 

12. Termination

1. Thimeo shall be entitled to withdraw from or terminate the agreement,

   1. in case the Client does not comply with its contractual duties, e.g. in case of default of payment, after expiration of a reasonable grace period. Any other right given by agreement or law shall remain unaffected;

   2. immediately (without any grace period), if the Client suspends payment, or insolvency or similar proceedings for the purpose of dept relief have been filed;

   3. without providing a grace period, if an impairment of the Client’s financial situation occurs or is threatening to occur and if as a result thereof Client’s ability to fulfill its payment obligations toward Thimeo be at risk, or the Client should become insolvent;

   4. if the fulfillment of the agreement was no longer permissible due to legal and/or regulatory changes after the signature of the agreement.

2. Immediately after Client’s receipt of the declaration of Thimeo to withdraw from or terminate the agreement, the Client shall be obliged to provide Thimeo with access to the products to which Thimeo has reserved title and shall render them to Thimeo or any designated representative. Upon advance notice Thimeo shall be entitled to take possession of the products to which Thimeo retained title for purposes of recovery of our due claims.

3. The rights mentioned in this Article 13 shall be in addition to any statutory right, which shall not be affected thereof.

 

13. Confidentiality

1. All of the business and technical information of Thimeo (including the purchase price of the products, characteristics which can be derived from any items or software which may be delivered, and other knowledge or experiences) shall be kept secret with regard to third parties as long and insofar as it is not provably public knowledge; in the Client’s own operation such information may only be made available to those persons in the Client’s own enterprise who must necessarily be involved for its deployment and who are also subject to a confidentiality obligation; the subject business and technical information shall remain our exclusive property. Without our prior written consent, such information may not be duplicated or used commercially. At our request, all the information originating with Thimeo (including any copies and recordings made, if any) and property on loan must be returned to Thimeo immediately and completely, or destroyed.

 

 14. Miscellaneous

1. In case any provision of these General Terms should be null and void or is annulled the other provisions of these General Terms remain fully applicable an effective. In that case Thimeo and the Client discuss as to agree upon new provisions which have the same content as much as possible, and those will replace the provisions that are null and void or that have been annulled.

 

15. Applicable law, competent court

1. All legal relationships between Thimeo and the Client shall be exclusively bound by the laws of the Netherlands, to the exclusion of the provisions of the conflict of laws and the Convention on the International Sale of Goods (CISG) of the United Nations.

2. The courts of Oost-Brabant in ‘s-Hertogenbosch, the Netherlands, shall have jurisdiction and venue.