General terms and condtions of Infomatix (“terms”)
- Terms Applicable to all Transactions, Software and Services
“Agreement”: shall mean the agreement between the Customer and Infomatix for the use and/or delivery of Infomatix Software and/or Services.
“Customer(s)”: shall mean any natural person or business entity with whom Infomatix and its employees deal in the course of its business, including representative(s), agent(s), successor(s) and including visitors of the Infomatix website.
“Infomatix”: shall mean the Infomatix Group and its official partners, branches, agents, subcontractors, resellers, affiliates involved in the provision of Services.
“Party or Parties”: shall mean Infomatix and Customer, individually or collectively.
“Service(s)”: shall mean the full assortment of Infomatix’s services, including but not limited to consulting, research, software development, support and maintenance, application service provision, software as a service and/or other computer services.
“Software”: shall mean computer software, with accompanying documentation and specifications, including embedded software, non-final and/or uncompleted software and materials
“Website”: shall mean the Infomatix Website.
“Writing”: shall mean any kind of written communication such as mail, e-mail, fax and official Infomatix publications on the Website.
- These Terms apply to all offers of Infomatix and all agreements with Infomatix and any kind of relationship between Infomatix and the Customers. By using the Website and/or starting negotiations with Infomatix, the Customer automatically accepts these Terms.
- Infomatix reserves the right to amend these Terms at any time. New or amended general terms and conditions shall be applicable upon thirty (30) days written notice to Customer.
- In case of inconsistencies, the following order of precedence applies: (i) the terms in an Agreement; (ii) the Website Terms; and (iii) these Terms.
- Offers and Acceptance
- All offers of Infomatix are non-binding and may be revoked at any time, unless Infomatix stated otherwise in writing. Any amendments made by Infomatix in writing shall entail a new offer, automatically revoking the previous offer. Any amendments by Customer of an Infomatix offer will be deemed a new offer by Customer, which Infomatix may accept or reject in its sole discretion. Offers will only be deemed accepted by Infomatix if it does so in writing by an authorized representative of Infomatix.
- All information, data or undertakings provided verbally or in documentation, price lists or other material related to Software and/or Services, whether in electronic or any other form, are binding only to the extent that they are by reference expressly included and confirmed in writing in the Agreement with Infomatix.
- All offers are based on the information and documentation provided by Customer, and Infomatix may rely on the accuracy thereof. Customer warrants the accuracy, completeness and reliability of the information and documentation, even if it originates with or is acquired from third parties.
- Customer hereby understands and accepts that all samples, drawings, models, figures, designs, prototypes or any other specifications for Software and/or Services are estimates only, although Infomatix will use best efforts to ensure their accuracy.
- Use of the Infomatix Website
- All access and use of information, content and software available on or accessible through the Website are governed by these terms and the Website Terms, which can be found at www.infomatix.net.
- Prices and Taxes
- Configurations and prices of Software and/or Services are subject to change at any time with immediate effect, at Infomatix’s sole discretion, and Infomatix shall at all times be entitled to modify price lists, brochures, printed matter, quotations and other documents. Such decision of Infomatix shall not be applied retroactively. The up-to-date price lists and configurations shall be available on the Infomatix Website.
- All prices are exclusive of, and Customer shall pay, all taxes, duties, levies or fees, or other similar charges imposed on Infomatix or Customer by any taxing authority (other than taxes imposed on Infomatix’s income), related to Customer’s order, unless Customer has provided Infomatix with an appropriate resale or exemption certificate for the delivery location, which is the location where the Software is used or Services are performed. In case of changes in law such that a tax is levied that is or becomes irrecoverable with a consequent increase to the costs to Infomatix of delivering the Software and/or Services, whereby and to such an extent Infomatix is entitled to increase its prices accordingly and retro-actively.
- The prices or fees quoted are in U.S. dollars, or in another currency if stated by Infomatix in writing. Customer shall bear any exchange rate risk, unless otherwise agreement in writing.
- All Agreements for the delivery of Software and/or Services to Customer shall be treated as separate agreements.
- Unless otherwise agreed upon in writing by Infomatix, Customer agrees to pay, without the right to set-off any amount, all invoiced amounts within fourteen (14) days of the invoice date, unless stated otherwise in the Agreement or on the invoice. However, all amounts will be due immediately, in case Customer terminates or suspends all or a substantial portion of its business activities, becomes insolvent, admits its inability to pay its debts, or in case of the voluntary or involuntary filing of a petition for or adjudication of bankruptcy of Customer under any federal, state or municipal bankruptcy or insolvency act, the appointment of a receiver, trustee, custodian, or liquidator, or any act or action constituting a general assignment by Customer of its properties and/or interest for the benefit of creditors.x
- Where payment is not made within the terms set forth in this article, contractual interest shall be owed at a rate of 1.5% a month, or the highest rate allowed by law, if lower, with effect from the first day following expiration of the payment term referred to in this article; part of a month shall be considered a full month.
- Payments made by Customer shall always be used first to meet all the interest and costs owed and subsequently for the settlement of claims under the Agreement which have remained outstanding for the longest period of time, even when Customer specifies that the payment relates to another claim.
- Customer shall not be entitled to refuse to discharge or to suspend the discharge of its payment obligations on account of alleged disturbance of, defect or Error in the Products, Software and/or Services or on any other account whatsoever.
- If Infomatix believes that Customer’s financial position and/or payment performance justifies such action, Infomatix has the right to demand that Customer immediately furnish security in a form to be determined by Infomatix and/or make an advance payment. If Customer fails to furnish the desired security, Infomatix has the right without prejudice to its other rights, to immediately suspend the further execution of the Agreement, and that which Customer owes to Infomatix for whatever reason will become immediately due and payable.
- Customer shall be liable for amounts which Infomatix incurs to collect payment, including without limitation, collection agency fees, reasonable attorneys’ fees and arbitration or court costs.
- Proprietary Rights
- Customer acknowledges and agrees that Infomatix (or its licensors) own all legal right, title and interest in and to the Website, Software, and the Services, including any intellectual property rights, whether or not registered, and wherever in the world those rights may exist. Customer further acknowledges that the Software and/or the Services may contain information which is designated confidential by Infomatix and that the Customer shall not disclose such information without Infomatix’s prior written consent.
- Customer may not modify, reproduce, distribute, create derivative works of, publicly display or in any way exploit any of the Software, content and/or materials available on the Website in whole or in part, or available via, or created by use of, the Services, except as expressly provided in these Terms or the Website Terms, or otherwise provided by Infomatix in writing. Unless agreed in writing by Infomatix, nothing in the Terms gives Customer a right to use any of Infomatix’s current or future trade names, trademarks, service marks, logos, domain names, etc.
Unless agreed upon otherwise, Customer may terminate any Agreement upon ten (10) days written notice. Infomatix may terminate an Agreement, or may suspend performance thereunder at any time, including the use of any Software, (i) if Customer breaches these Terms, the Website Terms, and/or any other agreement with Infomatix; (ii) if Infomatix reasonably suspects that Customer is breaching the law or infringes third party rights; (iii) if Infomatix reasonably suspects that Customer is trying to unfairly exploit or misuse Infomatix’s policies; (iv) for a force majeure event that continues for more than ten (10) days upon notice; (vi) if Customer fails to pay any amounts due to Infomatix; (vii) if required due to change in laws/regulation by a regulator or authority with a lawful mandate; (viii) if Customer’s bankruptcy has been applied for; (ix) an attachment is levied on Customer’s goods; (x) Customer’s business is liquidated or discontinued; and/or (xi) Customer violates any applicable law or regulation.
The Infomatix Website, Software and Services are provided on an “as is” basis. Use of the Website, Information, and Services is at Customer’s own risk. Infomatix expressly disclaims any and all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, non-infringement, and any other warranty that might arise under any law. Without limiting the foregoing, Infomatix makes no representations or warranties: (i) that the Website, Software, and Services will be permitted in Customer’s jurisdiction; and (ii) that these will be uninterrupted or error-free.
- Liability, Limitation of Damages, and Indemnification
- INFOMATIX DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO THE WEBSITE, SOFTWARE, AND SERVICES. INFOMATIX, NOR ITS OFFICERS, EMPLOYEES, OR AFFILIATES MAY BE HELD LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER FORM OF LIABILITY FOR ANY CLAIM, DAMAGE, OR (DATA) LOSS, ARISING FROM OR RELATING TO ALL SUCH.
- CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR ALL DATA AND ACTIVITIES CONDUCTED THROUGH THE WEBSITE, THE SOFTWARE, OR THE SERVICES BY OR ON BEHALF OF CUSTOMER, EVEN IF SUCH ACTIVITIES WERE TO OCCUR WITHOUT CUSTOMER’S PERMISSION.
- IN NO EVENT SHALL INFOMATIX, ITS AFFILIATES OR ITS LICENSORS BE LIABLE, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, BUSINESS, SALES, PROFITS (WHETHER ACTUAL OR ANTICIPATED), LOSS OF OR CORRUPTION TO DATA, OR INTERRUPTION OF BUSINESS.
- NOTWITHSTANDING ANYTHING ELSE AGREED IN WRITING WITH CUSTOMER, INFOMATIX’S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND SHALL NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER TO INFOMATIX IN THE SIX (6) MONTH PERIOD, IMMEDIATELY PRECEEDING THE EVENT CAUSING THE DAMAGES.
- THE LIMITATIONS ON INFOMATIX’S LIABILITY ABOVE SHALL APPLY WHETHER OR NOT INFOMATIX, ITS EMPLOYEES, LICENSORS OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING.
- Notwithstanding any other provision herein or in the Agreement, Infomatix is never liable for: (i) any damage of whatever nature suffered by Customer due to the fact that the Website, the Software, or the Service are temporarily unavailable, or temporarily unavailable in its proper or complete form; (ii) any damage of whatever nature suffered by Customer in connection with Customer’s, Infomatix’s or third parties’ internet connections; (iii) damages resulting from data placed with Infomatix via the Service that has not been stored, sent or received in a proper, complete or timely manner.
- Liability on the part of the Infomatix with regard to attributable breaches of its obligations under these Terms, the Website Terms, or any other agreement with Customer will in all cases only exist if Infomatix has been given detailed written notice of the default, and this default not has been cured within two (2) weeks after receipt of such notice. The notice of default must contain an as complete and detailed description of the breach as possible, allowing the Infomatix to respond adequately.
- Any right to compensation becomes void in any case if Customer has neglected to take measures to (I) limit the damage immediately after it occurs; or (II) prevent any other or additional damage; or (III) if Customer fails to notify Infomatix of the damage as soon as reasonably possible and provide it with all relevant information.
- If any provision of these Terms or any other agreement between Customer and Infomatix is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original meaning of the terms or agreement in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions shall remain in full force and effect.
- Customer is not permitted to assign, delegate, subcontract, or otherwise transfer the Services, or any rights thereunder. Any such attempted assignment, delegation or transfer will be null and void. Infomatix is permitted at its sole discretion to assign any rights or obligations hereunder to any third party, without giving prior notice.
- The failure to exercise, or delay in exercising, a right, power or remedy shall not constitute a waiver of that right, power or remedy. If Infomatix waives a breach of any provision of these Terms, this shall not operate as a waiver of a subsequent breach of that provision or as a waiver of a breach of any other provision.
- These Terms, the Website Terms, and any agreement with Customer, are for Customer’s sole benefit, and except as otherwise contemplated therein, nothing therein expressed or implied shall give or be construed to give any person, other than Customer, any legal or equitable rights thereunder. Customer acknowledges and agrees that each member of the Infomatix group of companies shall be third party beneficiaries to the Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of the Terms which confers a benefit on (or rights in favor of) them.
- Customer acknowledges that Infomatix shall suffer irreparable injury in case of breach of the obligations under Sections 7.1. and 7.2. Accordingly, in the event of such breach, Customer acknowledges and agrees that Infomatix will be entitled to injunctive relief in any state or federal court of competent jurisdiction within the State of New York. Customer further submits to the personal jurisdiction of such courts for the purposes of any such action.
- All terms and conditions of these Terms, which are destined (whether expressed or not) to survive the duration or termination of this Agreement, shall so survive, which includes, but is not limited to articles 7 and 10 of these Terms.
- Applicable law and jurisdiction
Unless stated otherwise in writing, the Terms, the Software, and the Services and any and all agreements between all US and Canadian Customers and Infomatix, shall be governed by and construed in accordance with the laws of the state of New York, without giving effect to the United Nations Convention on the Contracts for the International Sale of Goods. All disputes between Customer and Infomatix shall be finally and bindingly resolved under the International Arbitration Rules of the American Arbitration Association in front of a sole arbitrator. The place of arbitration shall be New York, New York.
With regards to all non-US Customers relations other than the above, these shall be governed and construed in accordance with the laws of the Netherlands. All disputes between Customer and Infomatix shall be finally and bindingly resolved under the Arbitration Rules of the Dutch Chamber of Commerce, in front of a sole arbitrator. The place of arbitration shall be in Delft.
The language of the arbitration shall be English. Any award, verdict or settlement issued under such arbitration may be entered by any party for order of enforcement by any court of competent jurisdiction. ANY CAUSE OF ACTION AGAINST INFOMATIX, REGARDLESS WHETHER IN CONTRACT, TORT OR OTHERWISE, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.