Terms and conditions
These Joaneo Terms and Conditions (“JTC”) are applicable to all radio frequency identification products and/or any other products sold through the Joaneo brand (“Products”) provided by Victor Buck Services (“VBS” or “Seller”) to its customers (“Customer”) via notably acceptance of an offer, order confirmation by Customer or acceptance of a purchase order by Seller (“Order”). The contract between Seller and Customer is formed by these JTC and, as the case may be, the provisions of the relevant Order (“Contract”) unless the Seller and the Customer have agreed otherwise in a separate agreement (“Agreement”). In case of conflict, the Contract or the Agreement prevails on the JTC. Contradictory terms and Customer’s conditions are in no event binding upon Seller.
2. PRICE AND PAYMENT TERMS
2.1. Unless otherwise provided, the total net price (hereinafter, the “Purchase Price”), as well as any other price indication under the Contract, excludes any taxes, custom duties and other expenses that will have to be paid by the Customer.
2.2. The Seller may, by giving notice to the Customer, at any time up to seven (7) days before the Delivery Date, increase the Purchase Price to reflect any increase in the cost of the Products that is due to (a) any factor beyond the Seller’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); (b) any request by the Customer to change the Delivery Date, quantities or types of Products ordered, or the specifications; (c) any delay caused by any instructions of the Customer or failure of the Customer to provide the Seller with the Customer Provided Material , adequate or accurate information or instructions; (d) any increase in the Luxembourg Consumer Price Index since the order acceptance date.
2.3. The Customer shall pay invoices in full in EUR within thirty (30) calendar days of receipt, and in any case no later than the day before the Delivery Date.
2.4. In the event of non-payment within thirty (30) calendar days of receipt of the invoice, legal interest for payment delay as defined by the Luxembourg Law of 18 April 2004, as amended, are due to the Seller by the Customer without the need of serving any notice to the Customer. In addition, the Customer shall pay an indemnity to the Seller amounting to 15% of the outstanding amount with a minimum amount of EUR 40, without the need of serving any notice to the Customer. If the invoice is disputed, this must be notified to the Seller within 15 days from the invoice’s receipt. Any dispute of the invoice outside this period will not be considered and the invoice will be deemed accepted.
2.5. Orders are firm and cannot be cancelled.
3. TIME AND TERMS OF DELIVERY
3.1. The Products, once attached to the Customer Provided Materials, are sold Ex-works (as defined by Incoterms 2020) VBS Foetz Facilities, Luxembourg.
3.2. The Products shall be available for shipment by the delivery date indicated on the purchase order (the “Delivery Date”).
3.3. The Seller, in its sole discretion, may suspend shipment of the Products or/and change the shipment schedule of the Products if the conditions of Clause 2 are not fulfilled. The Seller will promptly notify the Customer of any changes to the shipment schedule of the Products.
3.4. Partial deliveries of the Products are permitted under the Contract, unless agreed otherwise by the Parties, at the sole discretion of the Seller and without any right of the Customer hereto.
3.5. The Seller shall use commercially reasonable efforts to deliver the Products on the Delivery Date in due time and during the Seller’s usual business hours. Delays in the delivery of the Products shall not entitle the Customer to refuse to take delivery of the Products, claim damages or terminate the Contract.
3.6. If the Customer fails to take delivery of the Products when due, the Seller may, at its sole discretion, charge reasonable costs of storage from the Delivery Date until the Products are collected by the Customer or another person appointed by the Customer or dispose of the Products. Such right of the Seller is without prejudice to and does not limit any other rights or remedies available to the Seller.
3.7 It is the obligation of Customer to inspect all Products upon delivery. To the extent Seller has issued testing guidelines applicable for a Product, such testing must be performed by the Customer pursuant to such testing guidelines as set forth by Seller.
4. TITLE AND RISK
4.1. The risk of damage to or loss of the Products shall pass to the Customer in accordance with the applicable Incoterm. Seller will not insure shipments.
4.2. The title to the Products shall pass to the Customer only on payment in full of the Purchase Price.
5. TERMINATION BY SELLER
5.1. Without limiting its other rights or remedies, the Seller may terminate the Contract with immediate effect by giving written notice to the Customer if (a) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; (b) fails to pay any amount due under the Contract on the due date for payment; or (c) fails to comply with Clause 14.
6.1. Within the course of the preparation or execution of the Contract, either Party (“Disclosing Party”) may disclose to the other Party (“Receiving Party”), information of technical, financial, commercial or personal nature, which shall be considered as Confidential Information. The terms of the Contract and the preparatory documents, records of meetings and correspondence between the Parties thereto are also considered as Confidential Information
6.2. Confidential Information shall not be disclosed to third parties by the Receiving Party without Disclosing Party’s prior written consent. No Party shall use any other Party’s Confidential Information for any purpose other than to perform its obligations under the Contract. These obligations shall survive the Contract’s termination.
7. INTELLECTUAL PROPERTY
7.1. Subject to Customer‘s compliance with the terms of this Agreement, Seller grants to Customer and Customer accepts a nontransferable, nonexclusive license, without the right to sublicense, to use the Product in the ordinary and normal operation of its business or of the Customer Provided Material on which it is installed or with which it is intended to be used under this license.
7.2. Save as otherwise set out in these JTC or as otherwise expressly agreed in writing by the Parties, no Party shall receive any rights in respect of any intellectual property rights of another Party. No license or right, either directly or by implication, is granted to Customer or its staff to use any intellectual property of Seller, including, but not limited to, Seller’s name, trademark or any of Seller’s logos and designs for advertising, promotional or other purpose without the prior written permission of Seller.
7.3. Seller may provide Products under one or more third party licenses and Seller shall pass through to Customer and Customer’s customers such rights as are permitted under those licenses to allow Customer and its downstream customers to use the Products as contemplated by the sale of Products.
7.4.Except as expressly permitted under these JTC or by law, the Customer shall not decode, reverse engineer, disassemble, decompile or otherwise translate or convert the Products or any parts thereof.
7.5. Customer hereby grants a royalty-free, non-exclusive, and non-transferable licence to Seller to use Customer’s intellectual property rights to the extent necessary for the performance of Seller’s contractual obligations under the Contract and warrants, in case Customer is not the owner of such intellectual property rights, that it has all required authorization or licence from the owner to grant a royalty-free, non-exclusive, and non-transferable sub-licence to Seller for the scope of the Contract.
7.6. In the event Products are developed and created by Seller with significant contributions by Customer (hereinafter “Jointly Developed Products”), such Products shall be the property of Seller. Customer undertakes to use ist best effort to register the relevant intellectual property rights for each Jointly Developed Product. If not (or until) registered, any Jointly Developed Products shall remain a specific trade secret/know-how between the Parties and shall not be disclosed to any third party in accordance with Clause 6. Customer hereby grants Seller an exclusive, perpetual, worldwide, royalty free, irrevocable, with the right to sublicense to its affiliates, licensees and customers, under all relevant intellectual property rights, to use, publish, disclose, display, perform, copy, make, have made, use, sell, and otherwise dispose such Jointly Developped Products in any manner and via any media Seller chooses, without reference to the source.
8. CUSTOMER PROVIDED MATERIAL
8.1 The Customer Provided Material shall remain the sole property of the Customer.
8.2. Subject to Clause 12.3, the Seller shall not be liable and the Customer is and remains solely responsible with respect to the quantity or quality of the Customer Provided Material. Damages or defects of the Customer Provided Material are exclusively the Customer’s responsibility unless the Customer proves such damages or defects are caused by negligence or fault of the Seller.
8.3. Customer represents and warrants that the Customer Provided Material shall not contain (a) controlled data requiring any export or other license; (b) classified information or information deemed to be a state secret; (c) malware or other instruction intended to disrupt, harm, interfere with or otherwise adversely affect any software or hardware; (d) any content which violates any applicable law; (e) any error, omission and/or inaccuracy; or (f) any content that infringes any patent, copyright, registered design, design, trade mark or other industrial or intellectual property rights of any third party.
8.4. The Customer acknowledges to have been fully informed of the technical specifications of the Products, including their effective radiated power and assumes any and all responsibility for the specific use of the Products and their compatibility with any Customer Provided Material or the content thereof. VBS does not assume any liability in connection with or arising out of the Customer’s use of the Products, including in relation to the compatibility of the Products with any Customer Provided Material or the content thereof.
8.5. Customer, at its expense, will indemnify, defend and hold harmless VBS and its parent company, their respective parents and affiliates and the assignees of each, and their respective directors, officers, employees and agents from any and all claims and liabilities (including claims by third parties), and costs and expenses (including attorneys’ fees) arising out of or in any way relating to (i) Customer Provided Material, including but not limited to any claims for injury to or death of any person or persons, including employees of Customer but not employees of VBS, or for loss of or damage to any property or (ii) Customer’s breach of its representations and warranties set forth in Clause 8.3 and 8.4 above.
9. CUSTOMER DATA
9.1. For the purposes of this Clause 9, “Customer Data” means all information, instructions and any data specific to Customer or Customer’s business which is supplied by it to Seller and which the Parties use in connection with the performance of the Contract, including, without limitation, specifications, models or designs provided to Seller, personal data, whether or not Confidential Information (and all data and information derived from such data).
9.2. The Customer shall provide Seller with clear and correct instructions in relation to the Products’ attachment to the Customer Provided Material as well as the subsequent labelling and packaging of the end products. Subject to Clause 12.3, the Seller shall not be liable for any late, inadequate or inaccurate information or instructions from the Customer.
9.3. Customer represents and warrants that (i) it is authorized to provide Customer Data and (ii) the Customer Data will not contain (a) controlled data requiring any export or other license; (b) classified information or information deemed to be a state secret; (c) malware or other instruction intended to disrupt, harm, interfere with or otherwise adversely affect any software or hardware; (d) any content which violates any applicable law; (e) any error, omission and/or inaccuracy; or (f) any content that infringes any patent, copyright, registered design, design, trade mark or other industrial or intellectual property rights of any third party.
9.4. In the event Customer becomes aware that any Customer Data provided to VBS is in breach of the representations and warranties set forth in the foregoing Clause 9.3., Customer will notify VBS immediately, in writing, to the extent permitted by law and immediately remove such Customer Data until Customer has obtained all licenses, approvals and consents necessary for VBS to lawfully access and use the Customer Data as required to support Customer under the Contract.
9.5. Customer is solely responsible for the design, adequacy, accuracy, reliability, safety, conformance with government standards or regulations, and content of the Customer Data, including fitness and suitability for its intended purpose.
9.6. Customer, at its expense, will indemnify, defend and hold harmless VBS and its parent company, their respective parents and affiliates and the assignees of each, and their respective directors, officers, employees and agents from any and all claims and liabilities (including claims by third parties), and costs and expenses (including attorneys’ fees) arising out of or in any way relating to (i) Customer Data or Seller’s use of Customer Data, including but not limited to any claims for injury to or death of any persons, including employees of Customer but not employees of VBS, or for loss of or damage to any property, and (ii) Customer’s breach of its representations and warranties set forth in Clause 9.3. above.
10. DATA PROTECTION
10.1. To the extent that a Party processes personal data in the context of or connection with the Contract, each Party agrees and acknowledges that it shall act as independent data controller within the meaning of the European General Data Protection Regulation (“GDPR”) and commit to comply with the provisions of the GDPR and other applicable data protection laws.
10.2. Seller’s privacy terms are available on Victor Buck Services’ website: https://www.victorbuckservices.com/Information-Pages/Privacy-statement. To the extent that Customer shares personal data with Seller in the context of or in connection with the Contract, it shall inform the relevant data subjects of Seller’s privacy terms.
11. ACCEPTANCE AND WARRANTY
11.1 The Products supplied to the Customer by the Seller under the Contract shall (a) conform in all material respects with the description and requirements specified in the purchase order; (b) be of satisfactory quality; and (c) be free from defects in design, material and workmanship and remain so for 6 months after Delivery Date.
11.2. The Customer may reject any Products delivered to it that do not comply with Clause 11.1, provided that (a) a written notice of rejection is given to the Seller within five (5) business days of delivery for apparent defects or, for hidden defects within a reasonable time of the hidden defect having become apparent, without prejudice to Clause 11.6; and (b) the Customer can prove that none of the events listed in Clause 11.4 apply.
11.3. The Seller shall not be liable for a Product’s failure to comply with the warranty set out in Clause 11.1 in any of the following events: (a) the Customer makes any further use of the Products after giving notice in accordance with Clause 11.2; (b) the defect arises because the Customer failed to follow the Seller’s published storage guidelines or other oral or written instructions for the storage, commissioning, installation, use and maintenance of the Products or (if there are none) good trade practice regarding the same; (c) the defect arises as a result of the Seller following any drawing, design, specification or instruction supplied by the Customer; (d) the Customer alters or repairs the Products without the written consent of the Seller; (e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or (f) the Products differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
11.4. If the Customer fails to give notice of rejection in accordance with Clause 11.3, it shall be deemed to have accepted the Products delivered to it.
11.5. Except as set forth in this Clause 11, VBS makes no additional warranties, whether express or implied and disclaims any warranty for merchantability, fitness or suitability for a particular purpose. Any warranty for hidden defects that Seller was not aware of is explicitly excluded to the maximum extent permitted by law.
12.1. Subject to Clause 12.3, the Seller shall in no event be liable to the Customer (i) for any indirect or consequential loss or damage, (ii) for loss (whether direct or indirect) of profits, revenue, business, opportunity or anticipated savings (even when such loss or damages were foreseen, foreseeable or known) or (iii) for loss of any data held on Customer Provided Materials or Products.
12.2. Subject to Clause 12.3, the maximum aggregate liability of the Seller in contract, tort or otherwise for any default or series of related defaults of the Seller (including of its directors, officers, employees, contractors, affiliates or agents) shall not exceed an amounts equal to one thousand (1000) times the Purchase Price of the defective, non-conforming, damaged or undelivered Product which give rise to such liability, or an amount equal to fifty per cent (50%) of the total price paid by the Customer under the relevant Order, whichever is lower.
12.3. Nothing in these JTC shall exclude, restrict (or prevent a claim being brought in respect of) any liability arising from death or personal injury, fraud, wilful misconduct or gross negligence or other liabilities which cannot lawfully be limited or excluded.
12.4. The Customer shall indemnify Seller against any and all loss, damages, and expenses including attorneys’ fees and other costs that Seller may sustain in defending any action based upon any claim of negligence, breach of implied warranty, or similar claim arising directly or indirectly from the act, omission, or negligence of the Customer in connection with or arising out of the use, operation, replacement, or repair of any Product.
12.5. Seller shall have no obligation or liability to Customer for claims made after a period of one (1) year from the date of delivery of the Product to Customer.
12.6 This Clause 12 shall survive the Contract’s termination.
13. FORCE MAJEURE
13.1. Neither Party shall in any circumstances be liable to the other for any loss of any kind whatsoever to the extent resulting from a force majeure event, as defined by Luxembourg courts.
13.2. If either of the Parties shall become aware of circumstances of force majeure which (are likely to) give rise to any such failure or delay on its part, it shall forthwith notify in writing the other and specify in such notification the estimated time such failure or delay shall continue. If the force majeure event continues for more than 10 working days after the day on which the force majeure event starts, the party which is not the affected party may terminate the relevant Order by giving not less than five 5 days’ written notice to the affected party.
14. CUSTOMER’S COMPLIANCE WITH LAWS AND REGULATIONS
14.1. In performing its obligations under the Contract, the Customer shall and, if applicable, shall procure that each member of its group, complies with all applicable laws, statutes and regulations from time to time in force that are applicable to Customer.
14.2. Customer acknowledges that it is responsible for the recycling of any packaging.
15. GOVERNING LAW AND JURISDICTION
15.1. The Contract shall be governed by and construed in accordance with Luxembourg law, with the exclusion of (i) its conflict-of-laws rules and (ii) the UN Convention on the Sale of Goods.
15.2. Any dispute arising out of or in connection with the Contract shall be submitted to the exclusive jurisdiction of the courts of the district of Luxembourg-City.
16.1 The Contract, together with these JTC, shall form jointly the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
16.2 Any amendment or addendum to or waiver of any right under the Contract is valid and effective only in writing and signed by both Parties.
16.3. If any provision of the Contract is held to be invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if the Contract had been executed without the invalid, illegal or unenforceable provision.