Terms and Conditions
Amsterdam, January 1, 2021
Please read these Terms and Conditions (the ”Terms and Conditions”) very carefully as they apply to your use of or purchases of any products and/or services provided by obenan V.O.F.
1.1. “Agreement” means every agreement, including its annexes and amendments (if any) as well as any offers, quotations, order forms, insertion orders or statements of work regarding the use, provision, purchase, order, or delivery of products and/or services between obenan VOF and the Customer
1.2.“Customer” means the natural person or legal entity entering into an Agreement with obenan V.O.F.
1.3. “obenan” means obenan V.O.F.incorporated under the laws of the Netherlands, with corporate seat in Amsterdam and its principal offices in (1072 CH) Amsterdam, the Netherlands Saenredamstraat 32, or any company that is a subsidiary or affiliate of obenan V.O.F..
2.1. The Terms and Conditions shall apply to all offers, quotations and Agreements of Obenan V.O.F., and all provisions of Services and/or Products of and/or by Obenan V.O.F..
2.2. The Terms and Conditions shall also apply to any Agreements with Obenan V.O.F. for which Obenan V.O.F. has to involve third parties, and the Terms and Conditions are drawn up by the employees and board of directors of Obenan V.O.F..
2.3. The applicability of any general, purchase, delivery and/or other conditions of the Customer and/or a third party is explicitly rejected.
2.4. In the event that one or more provisions of the Agreement and/or the Terms and Conditions appear to be wholly or partly void or voidable at any moment, the parties will continue to be bound by the other provisions of the above-mentioned Agreement and/or Terms and Conditions. In that case, Obenan V.O.F. and the Customer will hold consultations to agree on new provisions to replace the void or voided provisions, which are as close as possible to the object and purpose of the original provisions.
2.5. If any lack of clarity exists about the interpretation of one or more provisions of the Agreement and/or the Terms and Conditions, this provision or these provisions will have to be interpreted ‘in the spirit’ of this provision or these provisions.
2.6. If a situation occurs between the parties which is not provided for in the Agreement and/or the Terms and Conditions, this situation will have to be interpreted in the spirit of the Agreement and the Terms and Conditions.
2.7. If Obenan V.O.F. does not require strict compliance with the Terms and Conditions at all times, it will not mean that its provisions are not applicable or that Obenan V.O.F. would to any extent forfeit its right to require strict compliance with the provisions of the Terms and Conditions in any other case.
- Offers, Quotations and Orders
3.1. All offers and/or quotations by obenan V.O.F. are subject to the signing of an Agreement and therefore not binding to Obenan V.O.F.. They constitute an invitation to the Customer to enter into negotiations, unless set out differently by Obenan V.O.F. expressly and in writing. If no term of acceptance is fixed, no rights can be derived from the offer or quotation in any way.
3.2. Obenan V.O.F. will not be obliged to abide by any offer and/or quotation if the other party can reasonably understand that such an offer or quotation or any part of it contains a manifest mistake or clerical error.
3.3. Orders to Obenan V.O.F. are only considered accepted if acceptance is done in writing by Obenan V.O.F.. If acceptance varies from the order, the Agreement will come into effect in accordance with the varied acceptance, unless the Customer indicates otherwise.
3.4. Offers and/or quotations will not automatically apply to future orders.
3.5. Obenan V.O.F. is entitled to refuse orders without specifying any reasons.
- Terms of Delivery
4.1. All terms (of delivery) specified by Obenan V.O.F. or agreed with Obenan V.O.F. are but guidelines and never deadlines whose non-observance constitute default for Obenan V.O.F..
4.2. If it is likely that a deadline is not going to be met, Obenan V.O.F. and the Customer will seek consultation as soon as possible.
4.3. In case Obenan V.O.F. fails to meet a deadline, the Customer shall give notice of default to Obenan V.O.F. in writing. Obenan V.O.F. shall be given a reasonable term to perform the Agreement at a later date. During this reasonable term the Customer cannot claim any compensation for any loss incurred and the Customer does not have the right to terminate the Agreement without full compensation to Obenan V.O.F..
4.4. If Obenan V.O.F. depends on information and/or data of the Customer in the performance of an Agreement, the term (of delivery) will be extended with a period equal to the term the Customer failed to supply this information and/or data, increased by two months.
4.5. If delivery takes place at the Customer’s company, the Customer is obliged to accept delivery of the products at the time they are put at his disposal. If the Customer refuses to accept delivery or is negligent in providing the information or instructions necessary for delivery, Obenan V.O.F. is entitled to store the products for the account and at the risk of the Customer.
4.6. Obenan V.O.F. has the right to have certain activities executed by third parties. If any activities within the framework of the Agreement are executed by Obenan V.O.F. or by a third party engaged by Obenan V.O.F. at the location of the Customer or at a location designated by the Customer, the Customer will see to any facilities reasonably desired by these parties free of charge.
4.7. Obenan V.O.F. is entitled to perform the Agreement in several stages and to invoice the full Agreement in advance, unless expressly agreed otherwise and confirmed in writing by Obenan V.O.F..
4.8. If the Customer defaults proper performance of that which he is bound to according to Obenan V.O.F., the Customer will be liable for any loss or damage (including costs) directly or indirectly incurred and/or to be incurred by Obenan V.O.F..
5.1. All prices quoted by, agreed with or in any other way indicated by Obenan V.O.F. will be exclusive of VAT and any other government levies and/or taxes, any costs incurred within the framework of the Agreement, including travel and subsistence expenses, dispatch and administrative costs.
5.2. Obenan V.O.F. may periodically alter its prices unilaterally to reflect inflationary, general economic, political or organizational developments. Such developments will also give Obenan V.O.F. the right to alter its prices of an Agreement in force.
5.3. All prices are subject to programming and typographical errors. For the consequences of such errors no liability shall be accepted.
6.1. Obenan V.O.F. may ask the Customer for an advance payment and is entitled to postpone or pause the execution of the Agreement until said advance payment is paid, without notice of default or judicial intervention, and without this resulting in any right to compensation for damages on the part of Customer.
6.2. Payments shall be made by the Customer in accordance with the payment conditions that have been agreed or mentioned in the Agreement. In the absence of a specific arrangement on payment terms, payment will be made by direct debit collection. If payment is not possible on the basis of a direct debit collection, a term of payment of fourteen (14) days will apply from the date of invoice, unless expressly agreed otherwise and confirmed in writing by Obenan V.O.F..
6.3. Unless otherwise agreed, all prices are in euros and the Customer should make all payments in euros.
6.4. Payment shall be made into a bank account to be specified by Obenan V.O.F. in the applicable invoice, and all associated (bank or currency conversion) payment costs shall be fully and independently assumed by the Customer.
6.5. Disputed invoices should be notified in writing as soon as reasonably possible but no later than seven (7) calendar days after the relevant invoice date, identifying clearly the disputed part of an invoice and the reasons why it is challenged. Seven (7) calendar days after the relevant invoice date, invoices will be deemed as correct and form no basis for complaint. A timely objection lodged by the Customer does not release the Customer from its obligation to pay the invoice in time and in full.
6.6. If the Customer has failed to meet his payment obligations in full within the term of payment, for reason of a failed direct debit collection or otherwise, the Customer will be in default by operation of law and Obenan V.O.F. will be entitled to suspend its services to the Customer and/or to terminate the Agreement with the Customer. The latter, however, will not be executed until after payment has been demanded of the Customer and the Customer has failed to fulfil its payment obligation in full during a period of fourteen (14) days after the demand for payment.
6.7. If the Customer has still not fully fulfilled his payment obligation after the expiry of the fourteen (14) days payment term, the Customer will owe the statutory commercial interest over the outstanding amount, without prior notice of default being required.
6.8. If Obenan V.O.F. provides the Customer with a service for which multiple payments are required under the duration of the Agreement, in the event of default of one of these payments, all remaining payments until maturity of the Agreement will immediately be due in full.
6.9. Regardless of any other directions given by the Customer, each payment by the Customer will primarily serve to settle any extrajudicial collection costs and/or any judicial costs the Customer owes Obenan V.O.F. and will subsequently serve to settle any interest due by the Customer to Obenan V.O.F. and only then to settle the oldest outstanding claim(s).
7.1. Obenan V.O.F. will make every effort to be of service to the Customer. Technically it is impossible for Obenan V.O.F. to provide a completely (100%) error-free service, now that Obenan V.O.F. also depends on third parties within the framework of the services in question. Obenan V.O.F. expressly does not guarantee a fully (100%) error-free service.
7.2. Obenan V.O.F. can change the product and/or service from time to time. If this change should result in a (temporary) reduction and/or failure of the availability of the products and/or services, Obenan V.O.F. will inform the Customer about this promptly in advance.
7.3. To solve any problems which could occur during our service, the Customer may contact the Obenan V.O.F. help desk by telephone, website or email. Our contact details can be found on www.obenan.com
8.1. Obenan V.O.F. may provide the Customer with a premium WIFI access point that enables part of the service “Equipment”. All Equipment supplied by Obenan V.O.F. within the framework of the Agreement continues to be the property of Obenan V.O.F..
8.2. All Equipment supplied by Obenan V.O.F. shall not be resold and shall never be used as payment instruments. The Customer is not authorized to pledge or encumber any of the Equipment.
8.3. The Customer shall always do everything that can reasonably be expected to secure the property rights of Obenan V.O.F..
8.4. If third parties attach the Equipment or want to create or exercise a right on the Equipment, the Customer will be obliged to inform Obenan V.O.F. immediately to that effect.
8.5. The Customer is obliged to insure the Equipment against fire, explosion and water damage as well as theft, to keep the Equipment thus insured and to submit the policy documents of these insurances for inspection at the first request of Obenan V.O.F.. In case of any benefit from insurance Obenan V.O.F. will be entitled to this amount. In so far as necessary the Customer pledges to Obenan V.O.F., in advance, to cooperate in all that is or turns out to be necessary or desirable in this context.
8.6. In case Obenan V.O.F. wishes to exercise its property rights referred to in this Article, the Customer gives his unconditional and irrevocable consent to Obenan V.O.F. and to a third party to be designated by Obenan V.O.F. to enter into all the places where the property of Obenan V.O.F. is and to repossess the Equipment.
8.7. The Customer may use the Equipment on its premises as indicated by Obenan V.O.F. and in compliance with the instructions for use in order to guarantee a service provision which is as efficient as possible.
8.8. The Customer may return the Equipment in the same condition as the Equipment was when it was provided it to the Customer
8.9. The Customer is obliged to investigate the Equipment delivered or services provided immediately at the time the Equipment is made available to him or the work in question is executed respectively. The Customer shall then investigate if the quality and/or the quantity of the Equipment delivered and the service provided corresponds with the requirements the parties have agreed on. Any visible defects shall be reported to Obenan V.O.F. in Writing within seven (7) days of delivery. Any invisible defects shall immediately, but in any case within fourteen (14) days after their discovery, be reported to Obenan V.O.F. in writing. The report shall comprise a description as detailed as possible of the defect, in order to enable Obenan V.O.F. to react adequately.
8.10 If the Device becomes damaged or malfunctions at a later stage, the Customer shall contact Obenan V.O.F. to resolve the issue. If necessary, the Customer can be provided with a replacement Equipment as soon as possible for €395 (plus any sales tax). If the damage or malfunction is covered under a warranty, then the Customer will be refunded their €395 (plus any sales tax).
8.11. If the Equipment is stolen or lost, then the Customer is responsible for replacing the Equipment at a cost of €395 (plus any sales tax).
8.12. Upon termination of the Agreement, the Customer must return the Equipment within fourteen (14) days. If the Equipment is not returned within fourteen (14) days of the termination of the Agreement, the Customer authorises Obenan V.O.F. to charge €395 (plus any sales tax) and the Customer will be given ownership of the Equipment once payment of this charge has been received.
- Processing Personal Data
9.1. During the usage of Obenan V.O.F.’s product and/or services Users may share Personal Data. Obenan V.O.F., as controller, shall be responsible for this Personal Data as defined the General Data Protection Regulations (GDPR) and Customer as processor declare to comply with all the obligations arising from GDPR. In certain cases, it is possible that Obenan V.O.F. and the Customer are considered joint-controllers.
9.2. The Customer shall not disclose the Personal Data to any third party, with the exception of parties which have previously been authorized in writing by Obenan V.O.F..
9.3. The Customer shall process the Personal Data exclusively for the provisioning of Obenan V.O.F.’s products and/or services and will not be able to use the Personal Data or apply it for any different purpose other than the specific purpose for which the User has provided their consent
9.4. The Customer indemnifies Obenan V.O.F. against any damages and costs incurred as a result of and/or related to any claims of Users in relation to any use in conflict with the Terms and Conditions and/or the Agreement and/or in conflict with the law by the Customer.
10.1. Obenan V.O.F. excludes any liability, in so far as it is not liable and obliged to compensate for the damage in question by virtue of mandatory law.
10.2. If and in so far as Obenan V.O.F. is bound to compensate for the damage, the total liability of Obenan V.O.F. because of any attributable failure to perform the Agreement or because of any other reason, will be limited to the direct damage to at the most the lowest of (i) the total amount quoted in the Agreement with the Customer or (ii) the total Invoice amount with regard to the Agreement in question with the Customer during the two months directly preceding the cause of the liability that came about. Under no circumstances will the total liability for the direct damage, for whatever reason, amount to more than the amount of the claim for the case in question under the liability insurance Obenan V.O.F. took out, plus the amount of any excess which will be for the account of Obenan V.O.F. under the provisions of the insurance in the case in question.
10.3. Obenan V.O.F. excludes any liability for indirect and consequential damage, including but not limited to loss of profit, lost savings, reduced goodwill, loss due to business interruption, loss as a result of claims by the Customer’s customers, loss or damage in connection with the goods, materials or software of third parties the Customer required Obenan V.O.F. to use.
10.4 .Obenan V.O.F. cannot be held liable for any wrongful acts, careless behaviour, negligence and recklessness of Obenan V.O.F. employees or contractors.
10.5. Without prejudice to the other provisions of this Article, unless performance by Obenan V.O.F. is permanently impossible, Obenan V.O.F. will only be liable on account of attributable failure to perform an Agreement if the Customer has promptly given Obenan V.O.F. notice of default by registered letter stating a reasonable term for curing the non-performance, and Obenan V.O.F. continues to fail to perform its obligations even after expiry of the term. The notice of default shall comprise a description as complete and detailed as possible of the breach, in order to enable Obenan V.O.F. to react adequately.
10.6. A condition for any right to claim compensation for damage will each time be that the Customer reports the damage as soon as possible after its inception to Obenan V.O.F. in Writing. Each claim against Obenan V.O.F. will lapse by the mere expiry of twelve (12) months after the start of the claim.
10.7. Exclusions and limitations referred to in this Article will become void if and in so far as the damage is the result of intent or recklessness by Obenan V.O.F. or its directors.
11.1. The Customer indemnifies Obenan V.O.F. for any claims of third parties sustaining a loss in connection with the performance of the Agreement.
11.2. If Obenan V.O.F. is to be held liable by any third party for this reason, the Customer will be obliged to assist Obenan V.O.F. in law and otherwise and to perform all acts promptly that may be expected from it. Should the Customer fail to take adequate measures, Obenan V.O.F. will be entitled to take such measures itself without notice of default. Any costs and loss thus incurred by Obenan V.O.F. and the third party will fully be for the account and at the risk of the Customer.
- Force Majeure
12.1. If Obenan V.O.F. cannot fulfil its obligations to the Customer as a result of circumstances beyond its control, the obligations will be suspended for the duration of the force majeure.
12.2. Force majeure of Obenan V.O.F. will mean any circumstance independent on Obenan V.O.F.’s will, which partly or wholly prevents the fulfilment of its obligations towards the Customer or which reasonably renders the requirement to fulfil such obligations impossible, regardless if such circumstance could have been anticipated. Force majeure includes in any case: emergency situations (including extreme weather conditions, fire and lightning strike), restrictions and/or amended rules and regulations by governments or government agencies, (work) strike, war, riot, power failure, unanticipated failure of computer hardware and other facilities.
12.3. In case of force majeure the Customer will not have any right to compensation.
- Agreement Termination
13.1. Both the Customer and Obenan V.O.F. may terminate an Agreement in writing with due observance of a notice period of three (3) calendar months prior to the end of the agreement period, unless explicitly agreed otherwise in writing.
13.2. Obenan V.O.F. is entitled to terminate any Agreement before the term in such cases as specified in these terms and conditions as well as, with due observance of a notice period of fourteen (14) days, if the Customer does not fulfil one or more provisions of an Agreement concluded with Obenan V.O.F. and/or the applicable special provisions and/or the Terms and Conditions.
13.3. If the Customer terminates an Agreement, Obenan V.O.F. will never be obliged to refund any amounts already paid.
13.4. If the Customer has been granted a moratorium or has applied for a moratorium, is bankrupt or a bankruptcy order has been filed for the Customer, or has presented a composition with creditors to its creditors, has decided to be liquidated or in any other way to discontinue its business activities, or the Customer’s assets have been attached resulting in the Customer no longer being able to fulfil its obligations arising from the Agreement, Obenan V.O.F. will be entitled to terminate the Agreement with immediate effect, without prejudice to its right to payment of the Services and/or Products provided as well as compensation of any damage.
13.5. The Customer may unilaterally terminate the Agreement before the maturity date, paying as a penalty the amount corresponding to the payments which would have been due until the maturity date of the Agreement.
- Applicable Law, Competent Court
14.1. All offers of Obenan V.O.F. and Agreements between Obenan V.O.F. and its Customers are exclusively governed by Dutch law.
14.2. The District Court of Amsterdam has exclusive jurisdiction to hear all disputes arising from or in connection with offers, agreements and deliveries of and/or by and/or to Obenan V.O.F..