General Terms and Conditions Cloud Garden Electronics B.V. of Cloud Garden Electronics B.V., established and with offices in Zwolle, The Netherlands.
These General Terms and Conditions have been translated from Dutch into English as a ‘service’. Errors are therefore reserved. The Dutch General Terms and Conditions are the valid version.
Chapter 1: General part
Article 1 – Definitions
In these General Terms and Conditions, the following terms are used with the following meaning:
1. Subscription: a subscription in which Cloud Garden Electronics supplies Measuring Equipment and Services for which the Other Party pays periodic fees.
2. General Terms and Conditions: these General Terms and Conditions.
3. Application: online service whereby Cloud Garden Electronics makes it possible for the Counterparty to carry out measurements or observations remotely.
4. Cloud Garden Electronics: Cloud Garden Electronics BV, a private company with limited liability located at Baekelandstraat 3, 8013 ND, Zwolle, The Netherlands and registered with the Chamber of Commerce under number 77602986. Cloud Garden Electronics can be reached by email via info@cgelectronics.com, via the website www.cgelectronics.com and by telephone on + 31 (0) 38 7730075.
5. Correspondence address: the e-mail address at which the Counterparty has indicated that it wishes to receive all information relating to the Agreement.
6. Services: all services offered by Cloud Garden Electronics that are the subject of an offer, quotation, agreement or other legal act with regard to the Agreement between Cloud Garden Electronics and the Other Party, including but not limited to the data management and transport with regard to the Measuring equipment.
7. User: a natural person working in the organization of the Other Party, who, according to the Agreement or these Terms and Conditions, has the right to
access and use (parts of) Products and Services.
8. Login details: the username and password provided by Cloud Garden Electronics with which the Other Party and user (s) assigned by it itself can gain access to the Application.
9. Intellectual Property Rights: has the meaning as stated in Article 6.
10. Measuring equipment: all products that Cloud Garden Electronics makes available to the Other Party, including the Sensors, Software and the Application, possibly including a Subscription.
11. Agreement: the agreement to which these General Terms and conditions have been declared applicable, which also includes an order confirmation.
12. Parties: Cloud Garden Electronics and the Other Party.
13. Products: all products that Cloud Garden Electronics supplies to the Other Party under an Agreement, including but not limited to the Measuring Equipment.
14. In writing: by post or e-mail.
15. Sensors: the device that is placed by Cloud Garden Electronics on location at the Other Party and that performs the observations and measurements for the performance of the Agreement.
16. Software: the software developed by Cloud Garden Electronics for the operation of the Products.
17. Counterparty: any party that enters into an Agreement with Cloud Garden Electronics or requests a quotation from Cloud Garden Electronics.
Article 2 – Prices, fees and payment
1. All prices communicated by Cloud Garden Electronics are exclusive of VAT and in euros.
2. The Other Party pays the Measuring Equipment upon delivery, unless the total invoice amount is higher than € 5,000, in which case 35% of the invoice amount
will be paid by the Other Party to Cloud Garden Electronics prior to delivery and 65% upon delivery.
3. In the case of periodic payments, the Other Party pays the agreed fee in advance, prior to the next (periodic) payment period.
4. The Other Party will pay an invoice within fourteen (14) days after the invoice date.
5. Periodic payments can be made by direct debit (sepa). If Cloud Garden Electronics does not receive payment by direct debit in accordance with the Agreement, it is authorized to transfer the Other Party to another payment method. The associated costs will be borne by the Other Party.
6. Prices are exclusive of additional costs, such as but not limited to transport costs, travel and accommodation costs and installation costs. All additional costs are for the account of the Other Party. To avoid misunderstandings, if the Agreement only relates to Products and not to Services such as a Subscription, then the
agreed prices only relate to the Measuring Equipment and not to any related Services or a Subscription.
7. Cloud Garden Electronics is entitled to pass on price changes to the Other Party once per contract year. These price changes will be announced by e-mail as soon as possible. If the price change is a price increase of more than 10% of the most recently applicable price, the Other Party is entitled to terminate the Agreement from the effective date of the increase.
8. If payment of an invoice has not been made in full within the set term, the Other Party will immediately be in default by operation of law, without further notice of default being required. From that moment on, the Other Party owes the statutory commercial interest and collection costs. The collection costs are fixed at 15% of the amount due with a minimum of € 500.
9. Without prejudice to mandatory law provisions, the Other Party is not entitled to suspend its payment obligations towards Cloud Garden Electronics. The Counterparty is also not entitled to set off payment obligations towards Cloud Garden Electronics against payment obligations of Cloud Garden Electronics towards the Counterparty.
10. Cloud Garden Electronics is, on the basis of its assessment of the Counterparty’s creditworthiness, at all times entitled to demand security or full or partial advance payment for the fulfillment of due and non-due and due payment obligations. If and as long as the Other Party fails to provide the required security or full or partial advance payment, Cloud Garden Electronics is authorized to suspend its obligations under the Agreement.
Article 3 – Delivery
1. The agreed delivery terms are always indicative and cannot be regarded as deadlines.
2. Cloud Garden Electronics is entitled to deliver and carry out the work in parts, whereby each partial delivery or partial performance can be invoiced separately.
3. The risk for the Products that Cloud Garden Electronics delivers to the Other Party will transfer to the Other Party at the moment that the Products are removed from Cloud Garden Electronics’s warehouse for delivery (“Ex Works”, as included in the ICC Incoterms 2020). All Products are at all times transported at the risk of the Other Party. Unless the Other Party requests Cloud Garden Electronics in good time to insure the Products during the transport at the expense of the Other Party, Cloud Garden Electronics is entitled to transport the Products uninsured.
4. Export and import duties, clearance costs, taxes and any other government charges associated with the transport and delivery of Products by Cloud Garden Electronics, of whatever nature, are at the risk and expense of the Other Party.
5. Cloud Garden Electronics has fulfilled its obligation to deliver by making the Products available to the Other Party at the agreed time in its warehouse or the warehouse of a third party engaged by Cloud Garden Electronics. The delivery document and / or accompanying attachments of the carrier signed by or on behalf of the Other Party provides full proof of the delivery by Cloud Garden Electronics of the Products stated in the delivery document and / or accompanying attachments.
6. The offer by Cloud Garden Electronics to the Other Party for the delivery of ordered Products is equated with the delivery of these Products. If the Other Party refuses to receive the Products offered for delivery, Cloud Garden Electronics will store the Products in question for fifteen (15) working days after the date of the offer at a location to be determined by it. After the expiry of this period, Cloud Garden Electronics is no longer obliged to keep the Products ordered by the Counterparty available to the
Counterparty and is entitled to sell the Products to a third party or otherwise dispose of them. The Counterparty nevertheless remains obliged to fulfill the Agreement by purchasing the relevant Products at the first request from Cloud Garden Electronics at the agreed price, while the Counterparty is also obliged to compensate Cloud Garden Electronics for damage resulting from the previous refusal of the Counterparty to pay the relevant To receive products, including storage and transport costs.
7. If, due to a cause within the risk sphere of the Other Party, it proves impossible to perform the work and / or to deliver the Products to the Other Party, Cloud Garden Electronics is entitled to store the Products at the expense and risk of the Other Party.
8. If the Other Party fails to fulfill its obligations after expiry of the period stated in Article 3.6, it is immediately in default. Cloud Garden Electronics then has the right to dissolve or terminate the agreement with immediate effect, without judicial intervention, by means of a Written statement, in whole or in part, without any obligation for Cloud Garden Electronics to pay compensation for damage, costs and interest arising from this. The foregoing is without prejudice to the Other Party’s obligation to pay compensation for any storage costs, damage due to delay, loss of profit or other damage.
9. Installation of the Measuring Equipment is carried out by the Other Party, unless otherwise agreed.
10. In the event of suspension of obligations by Cloud Garden Electronics due to a shortcoming on the part of the Other Party, the delivery time will be extended by the duration of the suspension.
Article 4 – Complaints
1. As soon as possible and in any case within one week after delivery of the Products or Services and for the further processing or assembly of the Products, The Other Party is obliged to check the delivered Products and Services for any shortcomings.
2. Shortcomings that were not visible at the time of delivery must be received within eight (8) days after discovery or after they could reasonably be discovered, must be reported to Cloud Garden Electronics in Writing and with reasons by the Other Party.
3. If the Other Party fails to do so within the reasonable terms as stated in Articles 4.1 and 4.2 has reported any shortcoming in Writing and with reasons, then it is deemed that the Products delivered and Services performed have been accepted by the Other Party and comply with the Agreement.
4. It is not possible for the Other Party to institute a claim after one year has passed after the Services provided by Cloud Garden Electronics or the delivery of Products. A claim is considered time-barred at that time.
5. If a Product does not comply with the Agreement or contains a shortcoming attributable to Cloud Garden Electronics and the Other Party demands repair of the delivered Products, the Other Party will return the Product at its own expense to Cloud Garden to its registered address, so that Cloud Garden Electronics can repair the Product at its registered address. If the Other Party demands repair of a Service provided, the Other Party will do everything necessary at its own expense to give Cloud Garden Electronics the opportunity to restore the Services from its registered address. When it is practically impossible to restore Products or Services from Cloud Garden Electronics’s business address, Cloud Garden Electronics has the choice of either repairing the Product or Service or paying compensation. In order to avoid misunderstandings, Article 7 applies to this Article 4.
Article 5 – Retention of title
1. All delivered Products remain the exclusive property of Cloud Garden Electronics until the moment at which the Other Party has fulfilled all obligations arising from or in connection with an Agreement (s), including claims with regard to penalties, interest and costs.
2. In the event that the Products have been delivered to a territory other than the Netherlands, then – if and as soon as they are on the territory of the country concerned – a retention of title also applies under Dutch law in addition to the retention of title referred to in Article 5.1. mentioned in Article 5.1 under the law of the country concerned, on the understanding that with regard to the Agreement for the rest, Dutch law is exclusively applicable as stated in Article 11.
3. As long as the delivered Products are subject to retention of title, the Other Party may not encumber or alienate them.
4. If the Other Party is in default with regard to the payment of the delivered Products, Cloud Garden Electronics may at all times retrieve the delivered Products or request the Other Party to return the delivered Products. The other party is obliged to comply with the request of Cloud Garden Electronics.
Article 6 – Intellectual property rights
1. All (intellectual and industrial) property rights, including but not limited to copyrights and database rights, to all Products and Services or the results thereof, including but not limited to copy, models, drawings, designs, documentation, software, photographic recordings, films, information carriers, equipment and software (including object and source code), data and data files (including but not limited to the measurements and observations that are part of the Services), sensors, equipment, software, information carriers and other accessories that are the subject of and / or arising from and / or used in the fulfillment of the obligations under the agreement between Cloud Garden Electronics and the Other Party (the ‘Intellectual Property Rights’) are vested in Cloud Garden Electronics.
2. If the Intellectual Property Rights are not vested in Cloud Garden Electronics, they are hereby transferred by the Counterparty to Cloud Garden Electronics. The Other Party is obliged to cooperate in any way with the transfer of the relevant right to Cloud Garden Electronics upon first request.
Article 7 – Liability
1. If Cloud Garden Electronics is liable, Cloud Garden Electronics will only be liable for direct damage that has actually been suffered, paid or suffered by the Other Party due to a demonstrable failure of Cloud Garden Electronics in its obligations with regard to the Agreement.
2. Cloud Garden Electronics is never liable for indirect damage, including, but not limited to, trading loss, consequential loss or immaterial damage.
3. The liability of Cloud Garden Electronics is at all times maximized to the total amount that Cloud Garden Electronics has invoiced to the Other Party in the year prior to the event causing damage.
Article 8 – Duration
1. The Agreement is entered into for the period as set out in the Agreement.
2. If the Agreement ends and none of the Parties has terminated the agreement, the Agreement will be automatically renewed each time by one (1) year. Notice of termination is given at least two (2) months before the end of the term. Premature termination of the Agreement is not possible.
3. Notice of termination is given In Writing.
4. In the event of early termination during the agreed period, the Other Party will continue to owe the agreed amount (s) until the end of the term.
5. Upon termination, cancellation or dissolution of the Agreement for whatever reason, the Other Party will return all Measuring Equipment to Cloud Garden Electronics that it has received from Cloud Garden Electronics under the Agreement. If the Other Party does not do this within the set term, Cloud Garden Electronics is entitled to charge the replacement value of the Measuring Equipment to the Other Party.
Article 9 – Cancellation
1. Cloud Garden Electronics may prematurely terminate or dissolve the Agreement with immediate effect, without the need to send a notice of default, if:
a. The Other Party goes bankrupt or suspension of payment has been applied for for the Other Party;
b. The application of the Natural Persons Debt Restructuring Act has been requested for the Other Party;
c. The Counterparty is legally incapacitated, has been placed under administration or is no longer allowed to manage its money itself in any
other way;
d. The Other Party fails to fulfill an obligation under the Agreement;
e. The Other Party ceases its business;
f. A substantial part of the assets of the Other Party are seized; or
g. The Counterparty must no longer be deemed to be able to fulfill the obligations under the Agreement, such at the discretion of Cloud Garden Electronics.
2. In the situations referred to in the previous paragraph, all claims of Cloud Garden Electronics on the Other Party become immediately due and payable, without the sending of a notice of default being required.
Article 10 – Other
1. In addition to what qualifies as force majeure on the basis of laws and regulations, the following events also qualify as force majeure on the part of Cloud Garden Electronics: non-fulfillment of obligations by suppliers, (late) delivery by suppliers, illness of personnel of Cloud Garden Electronics itself or a third party engaged by it, abnormal weather conditions, disruptions in water and energy supplies, strikes, serious disruptions in the (IT) systems of Cloud Garden Electronics or its suppliers, fire, floods, natural disasters, riots, war or other domestic unrest.
2. Agreements between parties that by their nature are intended for this purpose, will continue to apply to the legal relationship between the parties after the end of an agreement, including but not limited to agreements regarding intellectual property rights (such as Article 6), confidentiality (such as Article 10 paragraph 4), choice of forum and choice of law (such as Article 11). The provision contained in the previous sentence applies to all ways in which the agreement could end, including but not limited to dissolution, cancellation and nullification.
3. Cloud Garden Electronics is entitled to transfer its rights and obligations to another company when (part of) the shares in Cloud Garden Electronics are transferred to a third party and to parties with which Cloud Garden Electronics forms a group as referred to in Article 2: 24b BW.
4. The parties are obliged to maintain the confidentiality of all confidential information that they have received from each other or from another source in the context of the Agreement. Information is considered confidential if this has been communicated by Cloud Garden Electronics or the Other Party or if this arises from the nature of the information.
5. By entering into an agreement with Cloud Garden Electronics, the Other Party declares that it has received instructions (verbal or in writing), including possibly a manual with regard to the use of the Measuring Equipment. The Other Party will use the Measuring Equipment in accordance with the instructions.
6. If a provision in a quotation or agreement between the Other Party and Cloud Garden Electronics deviates from these General Terms and Conditions, the provision in the quotation or agreement will prevail.
Article 11 – Applicable law
1. Dutch law applies to the legal relationship between Cloud Garden Electronics and the Other Party and the choice of forum from Article 11 paragraph 2 below.
2. All disputes that may arise between Cloud Garden Electronics and the Other Party will be settled in the first instance by the competent court of the Overijssel district, location Zwolle, The Netherlands.
Chapter 2: Data Subscription
This chapter applies to the Subscription.
Article 1 – Installation and use of the Products
1. When the Counterparty rents the Measuring Equipment from Cloud Garden Electronics, Cloud Garden Electronics grants the Counterparty on the basis of and during the term of the Agreement the non-exclusive and non-transferable right to use the Measuring Equipment, including the Software updates generally available by Cloud Garden Electronics, to be used in accordance with these Terms and Conditions. Only the Other Party and the User are entitled to use the Services and Measuring Equipment. All Measuring Equipment is and remains the property of Cloud Garden Electronics during and after the end of the Agreement.
2. The Other Party will provide and provide Cloud Garden Electronics with all access, assistance and materials that Cloud Garden Electronics needs to fulfill its obligations under the Agreement, including but not limited to installing, checking and maintaining the Measuring Equipment for the performance of the Services. If the Measuring Equipment cannot be delivered (on time) because the Counterparty has not or has not provided the cooperation necessary for the performance of the Agreement, the Counterparty is liable for the costs caused by the delay.
3. A connection is required to control the Sensors, any actuators and routers or other measuring equipment. The connection can be established in a digital and analog way.
4. For the use of the Measuring Equipment and Services, the Other Party must at all times provide its own power supply and – if applicable – an internet connection. The Other Party may not make changes to the power supply and – if applicable – the internet connection without the permission of Cloud Garden Electronics. The power supply and the internet connection may not be interrupted – in whole or in part – by the Other Party.
5. After installation of the Measuring Equipment, the observation starts. Cloud Garden Electronics grants the Other Party access to the measured data for a maximum period of twenty-four (24) months. The Other Party can request the data via the Application during the term of the Agreement.
6. The Other Party will handle the Measuring Equipment carefully. This means, among other things, that:
a. The Other Party will ensure that Measuring Equipment is not moved, rendered inoperative or damaged;
b. The Counterparty does not make any changes to the Measuring Equipment without the permission of Cloud Garden Electronics;
c. The Other Party will leave the housing / enclosure of the Measuring Equipment closed and will not get behind the protective cap of the Sensors;
d. The Other Party does not have the Measuring Equipment used by anyone other than the User or the Other Party itself; and
e. The Other Party will adequately insure and keep insured all Measuring Equipment.
7. Cloud Garden Electronics has the option to give the Counterparty instructions regarding the use of the Measuring Equipment and Services. The other party will comply with these instructions.
8. The risk of damage to the Measuring Equipment passes to the Counterparty at the moment that these are placed under the actual control of the Counterparty. Damage to the Measuring Equipment is at the expense of the Other Party, unless the damage is attributable to Cloud Garden Electronics.
Article 2 – Login details of the Counterparty
1. In relation to the Agreement, the User will receive log-in codes for the Application at its Correspondence Address.
2. The Other Party is responsible for keeping the Login Details confidential. The Login Details may not be shared by the User with others. The Other Party will not share the Login Details with third parties. As soon as the Other Party knows or has reason to suspect that its Login Details have fallen into the hands of unauthorized persons, it must immediately notify Cloud Garden Electronics of this, without prejudice to the Other Party’s own responsibility to take immediate and effective action, for example by changing Login Details.
3. The Other Party is at all times responsible and liable for the use of the Application by third parties via its Login Details.
Article 3 – GSM signal
1. For the Measuring Equipment to function properly, it may be necessary to work with a GSM signal, which is established via a SIM card. If that is the case, Cloud Garden Electronics will consult with the Other Party and Cloud Garden Electronics will provide a provider that provides this mobile service.
2. Cloud Garden Electronics is not liable for the proper functioning of the SIM card and the GSM signal. Cloud Garden Electronics does not guarantee fitness for any purpose other than the purpose for which the SIM card is intended.
Article 4 – Maintenance and updates
1. Cloud Garden Electronics makes every effort to ensure the proper functioning of the Measuring Equipment during the term of the Agreement. In case of disruptions or other malfunctions, it makes every effort to find an adequate solution, at the discretion of Cloud Garden Electronics.
2. The cooperation of the Other Party is required for any replacement and / or repair of Products. The Other Party will provide this cooperation.
3. Regular maintenance costs of the Measuring Equipment are performed by Cloud Garden Electronics and are included in the agreed fee.
4. Cloud Garden Electronics may determine to release new versions of the Software for the Measuring Equipment.
5. No additional costs will be charged by Cloud Garden Electronics for a new version or update of the generic Software for the Sensors or Application, unless otherwise agreed.
6. If maintenance is being carried out, the observations may need to be temporarily taken out of service. These disruptions will be kept to a minimum.
Article 5 – Malfunctions
1. The Other Party will inform Cloud Garden Electronics in a timely manner of possible disruptions.
2. In the event of a defect or malfunction of the Measuring Equipment, the Other Party must contact Cloud Garden Electronics as soon as possible and in any case within 24 hours. Cloud Garden Electronics will investigate the problem as soon as possible.
3. If Cloud Garden Electronics requires the cooperation of the Other Party in the fault investigation, it is obliged to cooperate.
4. The costs of a malfunction investigation and resolution of the malfunction will be paid by the Other Party, unless the malfunction is due to an act or omission by Cloud Garden Electronics or a third party.
5. If malfunctions or other malfunctions of the Measuring Equipment or Services are caused by the Counterparty or third party (ies) affiliated with, engaged by or falling under the responsibility of the Counterparty, Cloud Garden Electronics is entitled to charge the costs incurred for this to the Counterparty, such as but not limited to travel and accommodation costs and the costs for replacing Measuring Equipment.
Article 6 – Responsibility
1. The Other Party will follow all instructions given by Cloud Garden Electronics, including but not limited to the technical and functional requirements provided that are necessary to be able to use the Measuring Equipment and receive the Services. If the Other Party does not act in accordance with the instructions as referred to in the previous sentence, Cloud Garden Electronics is not liable for the consequences thereof.
2. The Other Party is responsible and liable for all use of the Measuring Equipment by Users and / or third parties and guarantees that Users and / or third parties will comply with the provisions of the Agreement and these terms and conditions.
3. The Other Party is responsible for the immediate notification of changes to the Correspondence Address to Cloud Garden Electronics.
4. Cloud Garden Electronics is not liable for damage caused by moving or removing the Measuring Equipment by the Other Party without permission.
5. Cloud Garden Electronics is not liable for damage if the Other Party has provided insufficient or incorrect information on the basis of which the Services provided by Cloud Garden Electronics have been recorded and performed. In addition, Cloud Garden Electronics is not liable if the damage is the result of the Counterparty acting contrary to any instruction provided by Cloud Garden Electronics and / or acting in contravention of the Agreement.
