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WW Health Technology B.V. trading under the name ‘The Vitality of Things’
Chamber of Commerce number 59393475
Article 1 – Definitions
1.1 “QEY” means: WW Health Technology B.V. trading under the name ‘The Vitality of Things’, having its place of business at Boompjes 40, 3011 XB, Dalem,Rotterdam the Netherlands.
1.2 “Purchaser” means: the natural person or legal entity, which has entered into an agreement with QEY in connection with the provision of services and/or goods by QEY.
1.3 “Parties” means: QEY and the Purchaser.
1.4 “Agreement” means any agreement between the Purchaser and QEY for the delivery by QEY of services and/or goods for the benefit of the Purchaser.
1.5 “Website” means: www.thevitalityofthings.com
Article 2 – Applicability
2.1 These conditions apply to all quotations from, orders to and agreements with QEY. All provisions of these conditions apply, unless agreed otherwise in writing.
2.2 These general terms and conditions can be made known by listing them on the letterhead (including overleaf), quotation, order confirmation, email, invoice and on the Website.
2.3 Any applicability of general terms and conditions used by the Purchaser is hereby expressly rejected.
2.4 With regard to goods that QEY has purchased from third parties, the contract and/or guarantee provisions applicable to the relevant transactions between QEY and its supplier will also apply to the Agreement between QEY and the Purchaser, if and insofar as QEY invokes this by providing the Purchaser with these provisions.
2.5 The possible voidability or invalidity of a provision of the Agreement and/or these general terms and conditions does not affect the validity of the remaining part of the Agreement and/or these general terms and conditions. Instead of the voided or invalid part, the closest thing to what the parties would have agreed in a legally permissible manner if they had known the nullity or voidability, will then be agreed.
Article 3 – Offers
3.1 All offers, quotations, cost estimates, etc. from QEY, made orally, in writing, by telephone, via internet, by email, app or in any other way, are entirely without obligation and can therefore be revoked by QEY, even immediately after the Purchaser has accepted the offer.
3.2 All information and/or specifications provided with an offer, quotation, etc. are always approximate and are only binding for QEY, if this has been expressly confirmed in writing with those words.
3.3 If a quotation from QEY has not been followed by a written unconditional acceptance within 30 days, or within another specified period, it will automatically lapse.
Article 4 – Agreements
4.1 An Agreement between the Parties is concluded when QEY confirms the order from the Purchaser in writing (or by email), or, if that is earlier, at the time when QEY makes a start on the performance of the Agreement.
4.2 If a (written) quotation has not been made by QEY, the delivery note/invoice will be deemed to accurately reflect the content of the Agreement. The Purchaser declares to agree in advance to the content of the aforementioned delivery note/invoice, unless the contrary is proven.
4.3 Agreements with subordinate members of staff or other intermediary or auxiliary persons of QEY do not bind QEY insofar as these agreements have not been confirmed in writing by QEY’s management.
4.4 Additional agreements or changes to the Agreement only bind QEY if confirmed in writing or by email.
4.5 The written confirmation or email from QEY is deemed to represent the Agreement correctly and completely, unless the contrary is proved.
4.6 QEY is not liable for misunderstandings, delays or improper transmission of data and communications as a result of the use of any means of communication between QEY and the Purchaser, or between QEY and third parties, insofar as these concern QEY and the Purchaser unless there is intent or gross negligence on the part of QEY.
4.7 If QEY enters into an Agreement with two or more persons or legal entities, each of these persons or entities will be jointly and severally liable for the fulfilment of the obligations arising for them from that Agreement towards QEY.
4.8 QEY reserves the right to cancel the Agreement in whole or in part without judicial intervention if the Purchaser applies for suspension of payments provisional or otherwise, or if the Purchaser’s bankruptcy is applied for, if the order cannot or no longer reasonably be completed, or if the Purchaser is negligent in providing information that QEY requires or needs from the Purchaser in the context of the concluded Agreement. If the Agreement is cancelled by QEY on one of the aforementioned grounds, the Purchaser will owe a fee to QEY for the costs incurred and loss of profit of 25% of the agreed fee with a minimum of EUR 500. In addition, the Purchaser will reimburse all other costs incurred by QEY in preparation for or in
performance of the services to be delivered by it, as well as all other loss suffered by QEY. Insofar as QEY (on the basis of one of the aforementioned grounds) dissolves the Agreement concluded between the Parties, it is not obliged to pay any compensation or damages to the Purchaser for any reason.
4.9 The Purchaser’s right to the performance of the Agreement is not transferable without QEY’s prior written permission.
Article 5 – Delivery and delivery time
5.1 The delivery times stated by QEY are based as much as possible on the circumstances prevailing at the time of the conclusion of the Agreement. However, they are never binding or deadlines. Additional agreements, changes or external circumstances over which QEY has no influence can lead to an extension of the time schedule agreed by the Parties.
5.2 If QEY exceeds the agreed delivery times this does not entitle the Purchaser to terminate the Agreement, unless QEY is in default for more than 60 days.
5.3 The Purchaser will purchase the goods and/or services as soon as QEY offers them. If the Purchaser does not fulfil the aforementioned obligation, notwithstanding its authority to demand compliance, QEY may terminate the Agreement.
5.4 The goods sold by QEY are delivered from QEY’s business or storage space. The goods are for the risk of the Purchaser as soon as the goods have left the business or storage space or as soon as the goods have been separated for the Purchaser’s benefit and notice has been given or sent that the purchased items are ready for delivery. The transport risk is for the Purchaser.
Article 6 – Prices
6.1 The agreed prices are exclusive of VAT and exclusive of any transport costs, shipping costs, insurance costs and all other costs to be incurred in connection with the delivery.
6.2 QEY reserves the right to make changes in reasonable cost-determining factors which QEY cannot reasonably influence, after the date of the offer or order confirmation, such as, for example, rises or increases in purchase prices, excise duties, social security charges, insurance proceeds, tolls, shipping/transport costs or sales tax, to be charged on to the Purchaser, even if a certain price has been agreed.
Article 7 – Payment
7.1 Payment must be made in advance, by transfer to the bank account specified by QEY.
7.2 Payments will be made in euros.
7.3 The Purchaser will not suspend or set off the payment to QEY.
7.4 The Purchaser is in default without the need for notice of default by the mere expiry of the payment term.
7.5 During the period of its default, the Purchaser owes a default interest of 1.5% per month or part of a month on the outstanding claims. Each time after the end of a year, the amount on which the default interest is calculated is increased by the interest due for that year.
7.6 For extrajudicial and judicial collection work, the Purchaser, in addition to the principal sum and the default interest, will owe the actual collection costs and legal costs incurred by QEY.
7.7 If the Purchaser is in default with any payment, QEY may suspend its performance or cancel the Agreement without judicial intervention.
Article 8 – Purchaser’s details
8.1 The Purchaser’s details will be included in QEY’s files. This data will only be used for the execution of the Purchaser’s order.
8.2 Insofar as personal data are processed in the context of performing the Agreement, these personal data will be processed in a proper and careful manner and in accordance with the General Data Protection Regulation.
8.3 The Purchaser can always view its data that is included in QEY’s files and request changes. Such a request can be submitted by email.
8.4 The Purchaser indemnifies QEY against any claim from and any action by third parties, by whatever name and for whatever reason, including but not limited to claims for payment of loss, costs and fines, related to the processing and/or storage and/or the use of personal data in the context of the performance of the Agreement.
Article 9 – Retention of title
9.1 QEY reserves the title of all items it has delivered to the Purchaser until the purchase price for all these items, including future ones, has been paid in full. Furthermore, the retention of title applies to the claims that QEY obtains from the Purchaser due to a failing on the part of the Purchaser in one or more of its other obligations towards QEY.
9.2 The Purchaser will keep the goods delivered under retention of title carefully and always as recognisable property of QEY. The Purchaser will insure the goods for the duration of the retention of title against all usual risks. The Purchaser herewith authorises QEY to make an undisclosed pledge to itself of all its claims against the insurers under the aforementioned insurances within the meaning of Section 3:239 of the Dutch Civil Code, as further security for QEY’s claims against the Purchaser.
9.3 If the Purchaser fails to fulfil its payment obligations towards QEY or QEY has good reason to fear that it will fail to fulfil its obligations, QEY may repossess the goods delivered under retention of title at any time (or have
them repossessed). Once the items have been repossessed, the Purchaser is credited their market value (based on purchase price), which will in no event exceed the original purchase price, less the repossession charges.
Article 10 – Permits and government measures
10.1 The Purchaser guarantees QEY the timely acquisition and maintenance of all permits (from the relevant authorities) that are required for the performance of this Agreement. The Purchaser also guarantees QEY that the applicable national and international legislation and regulations, standards and norms, guidelines and codes, including all applicable legislation and regulations, including with regard to international trade, such as embargoes, import and export restrictions and sanction lists, and including legislation and regulations relating to combating and preventing child labour, corruption, slavery, poor working conditions and terrorism, do not impede the implementation of the Agreement. The Purchaser indemnifies QEY against any claim and any action by third parties, by whatever name and for whatever reason, related to the foregoing.
10.2 The Purchaser will provide QEY with high-quality drawings and other data necessary for the proper performance of the Agreement.
10.3 All consequences, fines, loss and suchlike, as a result of or arising from the permits and data referred to in the first and second paragraphs of this article not being available or not being available on time are for the Purchaser’s account.
10.4 All reasonable consequences as a result of the non-performance by the Purchaser of the necessary actions enable QEY to perform this Agreement, such as but not limited to providing accurate and complete data, are for the Purchaser’s account.
Article 11 – Intellectual property rights
11.1 QEY retains the copyright, patents and all other intellectual property rights on the examples, calculations, models, designs, working methods, advice and products prepared and provided by QEY. These items remain QEY’s property and may not be copied, reproduced, shown to third parties or used in any other way without its express permission, regardless of whether the Purchaser has been charged costs for this. The Purchaser will return these items to QEY on first request.
11.2 QEY is permitted to take reasonable technical measures to protect the products it supplies. Without prior written permission from QEY, the Purchaser may not dismantle, decompile, reverse engineer or integrate the products supplied by QEY with other products, and shall not copy them or make variations or changes to it, except to the extent explicitly permitted by QEY in advance.
11.3 In the event of violation of the provisions in this article, the Purchaser forfeits a fine of EUR 10,000 for each violation and for each day that a violation lasts, including part of the day, notwithstanding the other rights that QEY may enforce, for example, requesting a prohibition of the violation and claiming compensation.
11.4 The Purchaser will indemnify QEY against any action based on the allegation that the products developed by QEY itself infringes a valid copyright of third parties. QEY does not grant any indemnification and is not obliged to pay any compensation for such claim.
Article 12 – Confidentiality
12.1 The Purchaser undertakes to observe confidentiality in relation to all information provided to it in the context of performing the Agreement (including but not confined to specifications of materials, models, drawings, diagrams, structures and suchlike). The Purchaser undertakes that it will only use such information in the context of performing the Agreement. The Purchaser shall not disclose such information to third parties, shall not copy it otherwise than as far as necessary for performance of the Agreement and shall make no commercial use of information.
12.2 The Purchaser shall ensure that all people working for it will comply with the obligation described in the foregoing paragraph.
12.3 The Purchaser shall not disclose the existence of and/or the consideration/results or performance of the Agreement to any third parties without written permission of QEY.
12.4 In the event of violation of the provisions of this article, the Purchaser forfeits a fine of EUR 10,000 for each violation and for each day that a violation lasts, including part of the day, notwithstanding the other rights that QEY may enforce, for example, requesting a prohibition of the violation and claiming compensation.
Article 13 – Investigation, complaints and guarantees
13.1 The Purchaser will immediately check the delivered goods upon delivery for any deviations from what was agreed.
13.2 Any complaints must be submitted to QEY at the latest within 30 days after the actual delivery, with an accurate statement of the facts to which these complaints relate, failing which the Purchaser is deemed to have irrevocably and unconditionally accepted the delivered product/performance.
13.3 Any right to complain lapses and any form of guarantee expires if and as soon as the Purchaser uses the delivered goods for a purpose other than that for which they are suitable according to objective standards or for a purpose
other than which QEY could reasonably assume that they would be used, or acts (or fails to act) in violation of the relevant user instructions.
13.4 QEY is only obliged to take note of submitted complaints if the Purchaser has fulfilled all its contractual obligations towards QEY, for any reason, and if the Purchaser, if QEY so requests, returns the delivered item (or part of it) at its own cost to QEY for inspection and investigation. The Purchaser will not be able to suspend or set off its obligations in connection with a complaint it has submitted.
13.5 If the complaints of the Purchaser, also in view of the above, are justified, after consultation with the Purchaser, QEY will ensure that a good (or part of it) or a service of the same or comparable type is delivered within a reasonable period of time. If requested, the Purchaser will hand over the replaced goods or parts, or documents provided in connection with the service to QEY or keep them for a reasonable period of time for inspection and investigation.
13.6 If the Purchaser’s complaints, also in view of the above, are justified, but it is not possible to deliver the good (or part of it) or service within a reasonable period of time, QEY is entitled to deliver a good or service that is most similar or apply a reasonable price reduction.
13.7 The goods delivered by QEY comply with the usual requirements and standards which can currently be made of delivery and which are intended for normal use.
13.8 If the guarantee provided by QEY concerns a good produced by a third party, then that guarantee is limited to the guarantee given by the manufacturer of the good unless otherwise stated. If calculations with regard to the delivered goods are based on a certain period, that period does not count as a guarantee period.
13.9 Any form of guarantee will lapse if a defect has arisen as a result of or ensues from improper use or misuse of the item, or improper storage of the good or improper maintenance by the Purchaser or third parties. This also applies if the Purchaser or third parties, without prior permission from QEY, have made or have attempted to make changes to the good, have affixed other goods to it that should not have been affixed to it or if the good has been processed or used other than in the prescribed manner.
Article 14 – Liability
14.1 QEY is not liable for business interruption loss, property damage, personal injury or any other loss whatsoever that has arisen directly or indirectly for the Purchaser and/or third parties, except in the event of its intent or gross negligence. QEY shall at most be obliged to deliver the goods or services again or, if delivery is no longer reasonably possible, to apply a reasonable price reduction.
14.2 Any liability of QEY is limited to the loss that was foreseeable as a possible consequence of the action requiring compensation, with a maximum of the amount that is paid out in the case concerned under the liability insurance it has taken out, plus the amount of the excess that according to the policy conditions is not charged to the insurer. If for whatever reason, no payment is made under the aforementioned insurance policy, any liability is limited to the net invoice amount invoiced by QEY for the relevant good or case in question.
14.3 Notwithstanding what is stipulated elsewhere in these general terms and conditions, QEY is never liable for goods and/or services that it has purchased from third parties beyond those insofar as these third parties are liable to QEY and offer recourse.
14.4 QEY is not liable (i) if the Purchaser has not reported the loss promptly and in writing to QEY within 30 days after it has discovered it or could have discovered it; or (ii) if the Purchaser has acted in violation of the user manual.
14.5 QEY stipulates all legal and contractual means of defence that it can invoke to defend its own liability towards the Purchaser, also for the benefit of its subordinates and non-subordinates for whose conduct it would be liable under the law.
14.6 Notwithstanding the other provisions of this article and these general terms and conditions, any legal claims or actions must be brought before the court at the latest one year after the goods or services are delivered.
Article 15 – Indemnification
15.1 The Purchaser will fully indemnify QEY against any form of liability that QEY might have vis-à-vis third parties with regard to goods delivered or services provided by QEY, to the extent that QEY does not have such liability under these terms and conditions.
Article 16 – Force majeure
16.1 Force majeure (non-attributable breach) is understood to mean: any circumstance, possibly unforeseeable, that is independent of the will of the Parties, as a result of which fulfilment of the Agreement cannot or no longer reasonably be expected from QEY by the Purchaser.
16.2 Force majeure of QEY is in any case understood to mean: work strike, excessive sickness absence of QEY’s staff, fire, sabotage, government measures, internet, computer and telephone disruptions at QEY, unusual price increases, problems at suppliers, transporters and involuntary disruptions or obstacles meaning the performance of the Agreement becomes more expensive and/or more inconvenient, such as storm damage and/or
other natural disasters, as well as non-performance (attributable breach) by auxiliary persons of QEY or the Purchaser, as a result of which QEY cannot or no longer fulfil its obligations towards the Purchaser or not on time.
16.3 If a force majeure situation occurs, QEY can suspend the performance of the Agreement or terminate the Agreement; the Purchaser can also do this but only after QEY has failed to fulfil its obligations 60 days after notice of default. In the event of cancellation in the event of force majeure, QEY will not owe any compensation.
Article 17 – Applicable law and disputes
17.1 All legal relationships between the Parties are exclusively subject to Dutch law. The provisions of the Vienna Convention on the Sale and Purchase of Goods are not applicable.
17.2 Disputes shall be settled exclusively by (the Preliminary Relief Judge of) the Rotterdam District Court.
