General Terms and Conditions

In these terms and conditions:

• Client: the party giving the assignment;
• Service Provider: Cobra DS B.V. (trading name Cobra Systems, hereinafter called Cobra Systems), located at (1506ZK) Zaandam, Vlierlandstraat 2 (tel. +31(0)854015850, email info@cobrasystems.nl)

All assignments are accepted and executed exclusively by Cobra Systems, setting aside articles 7:404 and 7:407 section 2 of the Dutch Civil Code.

These terms and conditions apply to all negotiations, offers and agreements between Cobra Systems and Client, relating to the (automation) projects carried out by Cobra Systems on behalf of Client, unless the parties have expressly agreed otherwise in writing.

The applicability of any purchase or other general terms and conditions of Client is expressly rejected.

These terms and conditions also apply to this agreement and all future agreements with Client relating to the performance of (automation) projects.

If any provision of these terms and conditions is null or void, the other provisions will remain fully in force and Cobra Systems and Client will consult to agree on new provisions to replace the null or void provision, taking into account as much as possible the purpose and scope of the null or void provision.

All offers, quotations and prices from Cobra Systems, wherever published and however made, are always without obligation, unless expressly agreed otherwise in writing.

Agreements are concluded at the moment the assignment confirmation signed by Cobra Systems and Client is received back by Cobra Systems. The confirmation is based on the information provided by Client to Cobra Systems at that time. The confirmation is deemed to accurately and completely reflect the agreement.

Agreements between Cobra Systems and Client are formed by the assignment confirmation mentioned in article 4 section 1, these terms and conditions and any additional terms agreed upon in writing, which together constitute the complete representation of the rights and obligations of the parties and supersede all previous written and oral proposals, communications and correspondence.

Agreements are entered into for a fixed term, unless the content, nature or scope of the assignment provided implies that it is entered into for an indefinite term.

Client will, both of its own initiative and at the request of Cobra Systems, provide all cooperation and provide all relevant data and documents that Cobra Systems reasonably needs to correctly execute the assignment, in a timely manner in the desired form and manner.

Client must ensure that Cobra Systems is informed immediately of any facts and circumstances that may be relevant to the correct execution of the assignment.

Client is responsible for the accuracy, completeness and reliability of the data and documents provided to Cobra Systems, even if these come from third parties, unless the nature of the assignment implies otherwise.

If and to the extent Client requests, the provided documents will be returned to Client after execution of the assignment.

Extra costs resulting from delays in the execution of the assignment, arising from the failure to provide, failure to provide in time or failure to properly provide the requested data and documents as mentioned in article 5 section 1, or from the failure to provide, failure to provide in time or failure to properly provide cooperation, including the provision of staff, are at the expense of Client.

Cobra Systems will endeavor to perform the work in accordance with the agreements and procedures agreed upon in writing with Client.

Cobra Systems determines how and by which person(s) the assignment is executed.

If it has been agreed that the work will take place in phases, Cobra Systems is entitled to postpone the start of the work belonging to a subsequent phase until Client has approved the results of the preceding phase in writing and has paid all due amounts.

If Cobra Systems performs work or other services at the request or with the prior consent of Client that fall outside the scope or extent of the agreed work, these services will be reimbursed by Client to Cobra Systems according to the usual rates of Cobra Systems.

Client accepts that work or services as described in article 6 section 4 may affect the agreed or expected completion date of the work and the mutual responsibilities of Client and Cobra Systems.

A party may only involve third parties in the execution of the assignment with the prior written consent of the other party.

Client must ensure that the employees of Cobra Systems are provided with adequate workspace and other facilities necessary to execute the assignment and that comply with all (legal) requirements.

The parties are obliged to keep confidential any information and/or data provided by or on behalf of the other party from third parties not involved in the execution of the assignment. This obligation does not apply insofar as the parties are required to disclose by law or a binding court ruling or government agency.

The parties are not entitled to use the information provided to them by Client for any purpose other than the purpose for which it was obtained. However, an exception is made if the parties act for themselves in civil or criminal proceedings where this information may be relevant.

Cobra Systems and Client will impose their obligations under this article on third parties they engage.

Cobra Systems reserves the right to use the name of Client for advertising and reference purposes.

Notwithstanding the provisions of other articles of these terms and conditions, Cobra Systems reserves the rights and powers granted to it under legislation such as the Patents and Copyrights Act.

All documents provided by Cobra Systems, such as reports, advice, designs, sketches, drawings, software, scripts, etc., are intended exclusively for use by Client and may not be reproduced, published or disclosed to third parties without prior consent of Cobra Systems.

Cobra Systems also reserves the right to use the knowledge gained from the execution of the work for other purposes, provided that no confidential information is disclosed to third parties.

All prices and rates are exclusive of VAT and any other levies imposed by the government and any costs, such as travel costs, transport and shipping costs, administrative costs and invoices from engaged third parties.

If after the conclusion of the agreement, but before the assignment is fully executed, wages and/or prices are adjusted, Cobra Systems is entitled to adjust the agreed rate accordingly, unless Client and Cobra Systems have agreed otherwise.

Work will be paid for by Client to Cobra Systems based on the number of hours spent executing the assignment and will be invoiced based on the current (hourly) rate, unless Client and Cobra Systems have agreed otherwise.

The rates and hourly rates used are stated in the assignment confirmation or partial agreement.

Cobra Systems is entitled to increase the rates for its services annually during the term of an agreement, effective January 1, in accordance with the price index of the previous calendar year, as published by the CBS (Consumer Price Index "All Households"), increased by a maximum of fifteen percent (15%). Cobra Systems is entitled to implement the cost increase at a later date if deemed administratively desirable.

Payment by Client must be made without deduction, discount or offset within the term stated in the invoice. Payment must be made in euros by transfer to a bank account designated by Cobra Systems.

If Client does not pay within the term mentioned in article 11 section 1, Cobra Systems is entitled, after sending Client at least one reminder to pay, without further notice of default and without prejudice to other rights of Cobra Systems, to charge Client statutory commercial interest from the due date until full payment.

All reasonable legal and extrajudicial collection costs incurred by Cobra Systems as a result of Client's failure to fulfill its payment obligations are borne by Client.

If the financial position or payment behavior of Client, in the opinion of Cobra Systems, provides grounds for this, Cobra Systems is entitled to require Client to immediately pay in full or in part in advance and/or provide (additional) security in a form to be determined by Cobra Systems. If Client fails to provide the requested security, Cobra Systems is entitled, without prejudice to its other rights, to immediately suspend further execution of the agreement and all amounts owed by Client to Cobra Systems for any reason are immediately due.

In case of a joint assignment, Clients are, insofar as the work is performed for the joint Clients, jointly and severally liable for payment of the invoice amount.

Cobra Systems has the right to retain products and services still in its possession if Client does not fulfill its payment obligation, until Client fulfills its payment obligation, regardless of whether the payment arrears relate to the Services still in possession of Cobra Systems.

Complaints regarding the work performed and/or the invoice amount must be reported in writing to Cobra Systems within 8 days of discovery, but no later than 14 days after completion of the relevant work.

Complaints as mentioned in article 12 section 1 do not suspend Client's payment obligation.

If a complaint is valid, Cobra Systems has the choice between adjusting the charged fee, free improvement or re-performance of the rejected work, or wholly or partially not (further) executing the assignment against reimbursement proportional to the amount already paid by Client.

If Client owes a prepayment or must provide information and/or materials required for execution, the term within which the work must be completed does not begin until the payment is fully received, or the information and/or materials are fully provided.

Terms within which the work must be completed are only considered a strict deadline if this has been expressly agreed.

The agreement cannot be terminated by Client for failure to meet deadlines unless Cobra Systems does not execute the agreement at all or not fully within a reasonable time set by Client in writing after the agreed delivery term has expired. Termination is then permitted in accordance with article 6:265 of the Dutch Civil Code.

Each party has the right to terminate the agreement only if the other party, after a proper and detailed written notice of default allowing a reasonable time for remedying the breach, fails to perform essential obligations under the agreement.

The parties may terminate the agreement without notice and without court intervention by written notice effective immediately, in whole or in part, if the other party is granted suspension of payment (temporary or otherwise), if bankruptcy is requested against the other party, or if its business is liquidated or terminated. The party terminating the agreement on one of these grounds will never be liable for any compensation due to this termination.

If Client has already received performance toward execution of the agreement at the time of termination as mentioned in article 14 section 1, this performance and the associated payment obligation will not be subject to reversal, unless Cobra Systems is in default regarding that performance. Amounts that Cobra Systems has invoiced prior to termination for what it has already performed or delivered in execution of the agreement remain fully due, subject to the provisions of the previous sentence, and become immediately due upon termination.

Cobra Systems will perform the work to the best of its ability and observe the diligence that can be expected. If an error is made because Client provided incorrect or incomplete information, Cobra Systems is not liable for the resulting damage. Cobra Systems can only be held liable if Client proves that it has suffered damage due to an error by Cobra Systems that would have been avoided with careful handling. This liability is limited to compensation of direct damage suffered by Client up to a maximum of the amount that Cobra Systems has received for its work in the context of the assignment, with the understanding that in case of continuing agreements the amount received will apply for a maximum of one year. Liability can never exceed the amount paid out by Cobra Systems' insurance in the specific case.

Cobra Systems' liability for indirect damage, including consequential damage, lost profit, missed savings and damage due to business interruption, is excluded.

Outside the cases mentioned in article 15 section 1, Cobra Systems bears no liability for compensation, regardless of the grounds on which an action for damages would be based.

Cobra Systems' liability for failure to perform an agreement only arises if Client immediately and properly notifies Cobra Systems in writing of default, setting a reasonable time for remedying the breach, and Cobra Systems remains in breach of its obligations even after that period. The notice of default must contain as detailed as possible a description of the breach so that Cobra Systems can respond adequately.

A prerequisite for any right to compensation is that Client reports the damage to Cobra Systems in writing as soon as possible after it arises.

Cobra Systems will exercise reasonable diligence in engaging third parties. However, the Service Provider is not liable for errors or shortcomings of these third parties. This does not apply to third parties acting as subcontractors under the responsibility of Cobra Systems.

In these terms and conditions, force majeure means, in addition to what is understood in this regard by law and jurisprudence, all external causes, foreseen or not foreseen, over which Cobra Systems has no influence, but which prevent Cobra Systems from fulfilling its obligations. Strikes in Cobra Systems' business are included.

Cobra Systems also has the right to invoke force majeure if the circumstance that prevents (further) performance occurs after Cobra Systems should have performed its obligation.

During force majeure, the obligations of Cobra Systems are suspended. If the period during which fulfillment of Cobra Systems' obligations is not possible due to force majeure lasts longer than 2 months, both parties are entitled to terminate the agreement without any obligation for compensation in that case.

If Cobra Systems has already partially fulfilled its obligations when force majeure occurs, it is entitled to invoice the already performed or performable part separately and Client is obliged to pay this invoice as if it were a separate agreement.

Client indemnifies Cobra Systems against all third-party claims arising from or related to the work performed for Client, unless the claims result from willful misconduct or gross negligence of Cobra Systems.

During the execution of the assignment and within 1 year after termination of the assignment, Client will not employ any (former) employees of Cobra Systems or otherwise – directly or indirectly – have them perform work for Client or negotiate with these (former) employees about this, except with prior express written consent of Cobra Systems.

Insofar as Cobra Systems has access to personal data held or maintained by Client, or the execution of the agreement involves the processing of such personal data, Cobra Systems acts exclusively as a Processor within the meaning of the General Data Protection Regulation (GDPR). Cobra Systems processes personal data exclusively on behalf of Client, with the agreement between the parties being regarded as that assignment.

Client warrants that it complies with all obligations that rest on it as a Controller under data protection laws and regulations. Cobra Systems complies with the obligations that rest on it as a Processor under this regulation in the execution of the agreement. Each party will inform the other party at its first request about how it fulfills those obligations.

Cobra Systems will take appropriate technical and organizational measures to protect personal data against loss or any form of unlawful processing (including unnecessary collection and further processing), as prescribed by Client. Extra costs resulting from these measures are borne by Client.

Client indemnifies Cobra Systems against all third-party claims, including claims by Client's employees, for violation of applicable data protection laws and regulations, except insofar as Client proves that the claim arises from Cobra Systems' failure to fulfill its obligations as a Processor.

All documents provided by Cobra Systems in the context of the (automation) projects, such as reports, advice, designs, sketches, drawings, software, scripts, etc., are and remain the sole property of Cobra Systems. These documents are intended exclusively for use by Client and may not be reproduced, published or disclosed to third parties without prior written consent of Cobra Systems.

Insofar as these terms and conditions do not provide otherwise, claims and other rights of Client against Cobra Systems relating to work performed by Cobra Systems expire in any case 12 months after the time when Client knew or could reasonably have known of the existence of these rights and rights.

Dutch law applies to all agreements between Client and Cobra Systems to which these General Terms and Conditions (terms and conditions) apply.

All disputes relating to agreements between Client and Cobra Systems to which these terms and conditions apply will be decided exclusively by the competent court in the district where Cobra Systems is located. The foregoing does not preclude the parties from agreeing on another method of dispute resolution.

Cobra Systems is entitled to unilaterally modify these General Terms and Conditions (terms and conditions). In that case, Cobra Systems will notify Client of the changes in a timely manner. Between this notification and the entry into force of the modified terms will be at least one month.