These General Terms and Conditions (‘Conditions’) apply to all Agreements and Services of CBE in respect of the CBE Marketplace and shall prevail over any terms and conditions stipulated by the Company. By accessing the CBE Marketplace, you declare to have become acquainted with these Conditions and that you accept these Conditions. If you do not agree with these Conditions, you should not access the CBE Marketplace.
Article 1. Definitions
- Agreement: each agreement between CBE and Company in relation to the CBE Marketplace and/or Services, any amendment thereto and all (legal) acts in preparation of and for the performance of an agreement.
- Authorized User: anyone registered by Company with CBE as entitled and authorized to access and trade on the CBE Marketplace and use the Services. The maximum number of Authorized Users is mentioned in the Agreement.
- CBE Content: all information on the CBE Marketplace or contained in the CBE Tools.
- CBE Marketplace: a business-to-business marketplace (www.cbe-onlinexchange.com) in the after market of the ICT industry. The CBE Marketplace is a ‘closed user group’. Access is restricted to Companies whose main activity is the buying and selling of used Equipment.
- CBE Tools: the software (including URL), documentation, passwords and/or ID’s and information (if any) made available by CBE to Companies to enable access to and use of the CBE Marketplace.
- Company: a company who has entered into an Agreement with CBE for access to the CBE Marketplace and/or use of the Services.
- Company Registration: the Agreement as completed by the Company to access and trade on the CBE Marketplace.
- Company System: the computer and/or network equipment to be used by the Company in connection with the CBE Marketplace.
- Confidential Information:means in respect of both Parties any and all information of a confidential nature (whether or not expressly disclosed as such) including without limitation any and all know how, financial, sales and/or business information, technical, customer or personal data and the terms of an Agreement.
- Equipment: new and used ICT equipment, in the broadest sense.
- Fees: the charges due by Company for access to the CBE Marketplace and use of the Services and/or other fees.
- Intellectual Property Rights: all patents, trademarks, trade name rights, database rights, copyrights, model rights, design rights, know how and other intellectual property rights in the Netherlands or elsewhere, related to CBE.
- Listing: a line item representing a quantity of Equipment offered by a Company on the CBE Marketplace either for buying, selling or leasing.
- Parties: CBE and Companies.
- Services: the services to be provided by CBE in respect of the CBE Marketplace on the basis of an Agreement.
- Transactions: all transactions or engagements on the CBE Marketplace involving (i) the buying or selling of Equipment; or (ii) the exchange of information by way of the CBE Marketplace, all whether or not using CBE Content and/or the Services.
- Transaction Agreement: an individual agreement concluded between Companies as a result of Transactions among themselves.
Article 2. Object of the Agreement
- CBE offers to Companies access to the CBE Marketplace and/or the Services. Separate Fees apply to the provision of the Services.
- In order to access and trade on the CBE Marketplace, to view, search and post Listings, the Company must complete a Company Registration and adhere to the Conditions and any policies, rules or guidelines that CBE will issue from time to time.
- CBE reserves the right to decide whether or not it will accept the Company Registration and whether it will allow the applying Party to access and trade on the CBE Marketplace and to use the Services.
- CBE is entitled to unilaterally amend the terms of these Conditions upon reasonable written notice to the Company. If the Company does not agree to the amendments made by CBE, the Company will terminate the Agreement within thirty (30) days after having received notice of the amendments. After expiry of this term, the Company shall be considered to have agreed to the amendments.
- CBE is entitled to deny Authorized Users access to and/or the use of the CBE Marketplace or to terminate an Agreement, if the Company does not adhere to the Conditions and/or the policies, rules or guidelines issued by CBE.
- The provisions of these Conditions apply to all Transaction Agreements concluded during the term of this Agreement between Companies, insofar as the rights of CBE and the obligations of the Company under these Conditions are concerned.
- The CBE Marketplace and the Services are provided solely for the Company’s own use and the Company shall not attempt to resell this to any third party.
Article 3. Company Obligations
- Upon acceptance of the Company Registration by CBE, Company shall execute a written copy of the Company Registration and return it to CBE within five (5) days after receipt of confirmation.
- Upon payment of the Fees in accordance with Article 5, CBE shall provide to the Company the CBE Tools to facilitate access to the CBE Marketplace. The Agreement does not include the provision of telecommunications infrastructure or services to access the CBE marketplace.
- The Company must comply with the Terms and Conditions of a Transaction Agreement.
- The Company will adhere to the protocols and/or specifications desired by CBE with respect to the CBE Tools, CBE Content and the Company System, and to CBE’s instructions in that regard. The Company will ensure that all Authorized Users will comply with these protocols and/or specifications. The Company shall always be responsible for the correct implementation and use of the Company System.
- The Company must comply with all legislation applicable to doing business through the CBE marketplace.
- The Company represents and warrants that the content of Listings is correct and accurate, that it is not unlawful, and that it will provide adequate specifications regarding the Equipment offered through the Listing.
- The Company can engage in Transactions only if it provides Listings. The Company is solely responsible for the creation, maintenance and update of Listings. The Company shall always be responsible for all engagements and/or Transactions of Authorized Users.
Article 4. Term
- Upon payment of the first invoice of the Fees, the Company shall be granted access to the CBE Marketplace for a period of one (1) year. Unless the Company informs CBE in writing at least three (3) months before expiry of the one (1) year term, that it wishes to terminate the Agreement, the Agreement shall be automatically renewed for another one (1) year term.
- Termination of an Agreement does not entail dissolution of Transactions completed prior to the termination of the Agreement.
Article 5. Prices and Payment
- All of CBE’s prices and Fees are exclusive of VAT and other government levies.
- The Company is responsible for all taxes related to all prices and payments involved with the Transactions.
- CBE is entitled to amend the Fees and applicable prices and rates by means of a written notification subject to one (1) month’s written notice. If the Company does not accept CBE’s notification of the amendment to the applicable prices and rates, it will be entitled to terminate the Agreement in writing within ten (10) days effective as from the date on which the amendment to the price or rate would have become effective, as indicated in the notification from CBE.
- The Company will bear all costs related to the Company System. The Company will bear all costs related to the performance of Transactions.
- Once the Euro becomes legal tender, all Fees within the European Union will be deemed to be expressed in Euro, and the Company will pay in Euro.
- All Fees to be paid by Company to CBE related to the CBE Marketplace, Agreements and or Services will be specified in an Agreement, and will be settled in accordance with the invoices by CBE. The yearly Fees for access to the CBE Marketplace will be paid by the Company in advance. CBE will send the first invoice for the Fees to Company upon receipt of the Company Registration. The Company will pay such invoice within fourteen (14) days of receipt. All other invoices will be paid in accordance with the terms in such invoices.
- All amounts charged to the Company must be paid without any discount or deduction. The Company is not authorized to any set off or to suspend any payment obligation vis-à-vis CBE. In case the Company does not agree with a specific invoice, the Company will report this to CBE in writing within fourteen (14) days after receipt of such invoice.
- If the Company does not pay the amounts due within the agreed term, CBE is entitled to suspend access to the CBE Marketplace, and/or suspend the Services. The Company will owe default interest on the amount due, as from that date, equal to the applicable statutory interest in the Netherlands at that time, without any notice of default being required. If the Company fails to pay the debt after notice of default, the debt may be passed on for collection. In that event, in addition to the total amount due at that time, the Company will be obliged to fully reimburse CBE’s judicial and extrajudicial costs, including the costs charged by external experts in addition to the costs fixed by the court, and costs related to collection of the debt or other legal action, all of the above subject to a minimum of fifteen (15) percent of the total amount.
Article 6. Authorized Users.
- The Company warrants that all Authorized Users are entitled to represent and legally bind the Company.
- The Company is responsible for all acts and omission(s) of all Authorized Users in respect of the CBE marketplace, including failure to adhere to the Conditions.
- The Company indemnifies CBE from any claims, cost or damages related to the non-performance of Authorized Users specified in the Conditions, Agreements, protocols and/or other specifications by CBE.
- The CBE tools may not be transferred and are strictly personal.
Article 7. Confidentiality
- The Parties shall observe strict confidentiality with respect to all Confidential Information. The Company shall impose on the Authorized Users the duty to observe and comply with this confidentiality clause.
- Except with the prior written consent of the other Party, neither of the Parties shall make information and data carriers at its disposal available to third parties and Authorized Users other than as required for access to the CBE Marketplace and use of the Services.
- Neither of the Parties shall refer to an Agreement in publications or advertisements without the written consent of the other Party.
- If CBE makes access codes, identification codes or passwords available to the Company for data processing and/or the provision of Services, the Company will treat those codes as Confidential Information and will reveal them to Authorized Users only.
- Immediately after the termination or expiry of an Agreement, or earlier if CBE requests the Company, the Company will refrain from further use of the CBE Content and return all Confidential Information, including CBE Content to CBE.
- The disclosing Party shall promptly notify the other Party if it becomes aware of any breach of confidence by any person to whom the disclosing Party discloses all or any part of the Confidential Information, and shall give the other Party all reasonable assistance in connection with any proceedings which the other Party may institute against such person for breach of confidence.
Article 8. Security
- CBE will use reasonably commercial efforts to protect the security of the CBE Marketplace, in accordance with the state of the art with respect to a service provider exercising due care
- The Company is at all times responsible for the security and proper use of all CBE Tools and (other) access codes, identification codes or passwords or other security devices used in connection with the CBE marketplace and/or the Services.
- CBE accepts no liability for loss of data and software or for the Company’s inability to use the CBE Marketplace or the Services due to a defect in or failure to function of the Company System.
Article 9. Intellectual Property Rights
- The Intellectual Property Rights in the CBE Marketplace, the CBE Tools and the CBE Content, except as regards such parts as have been developed by suppliers or licensors of CBE – shall vest exclusively in CBE.
- The parties shall without delay inform one another in writing of any unlawful or unauthorized use of the CBE Marketplace and of any claim or announcement based on the allegation that (any part of) the CBE Marketplace is an infringement of any Intellectual Property Rights.
- CBE indemnifies Company from and holds Company harmless against any cost or damage arising from any claim from a third party that the use of the CBE Marketplace – or any product contained therein licensed by CBE, is an infringement of Intellectual Property Rights. Should the CBE Marketplace become, or in CBE’s opinion be likely to become, the subject of a claim of infringement of a third party right, CBE shall, at its own choice and expense, (i) procure for Company the right to continue to use of the CBE Marketplace, (ii) replace or modify the CBE Marketplace to make it non-infringing, or (iii) terminate this Agreement under reimbursement of outstanding Fees.
Article 10. Services
- CBE will use reasonable endeavors to provide access to the CBE marketplace and/or the Services by the agreed date, but will not be responsible for any failure to meet such date.
- In order for CBE to provide the Services in a timely manner, the Company must provide CBE all reasonably required information by CBE.
- CBE may from time to time, upon reasonable prior notice, change the specification of the CBE marketplace or temporarily suspend access for the provision of maintenance.
- CBE assumes no risk or liability for the correctness of the Listings and/or for the Equipment. All statements regarding the Listings and/or Equipment are the responsibility of the Company and Company indemnifies CBE for any cost and damage – including attorneys fees – arising from or in connection with the incorrect, incomplete or faulty provision of Listings or information on the CBE Marketplace.
- Nothing in this Agreement shall be taken to limit either Party’s liability for death, personal injury, gross negligence or willful intent.
- The CBE Marketplace, the Software and the Services are provided ‘as is’. The Company acknowledges that all Transactions and/or engagement or use of the CBE Marketplace are at its own risk and for its own account.
- CBE’s total liability for breach of the Agreement is limited to compensation of direct property damages up to a maximum of the amount of the Fees paid for one (1) year (exclusive of VAT). If the Agreement relates to the provision of services or is a continuing performance contract of more than one year, the stipulated price is set at the total of the fees (exclusive of VAT) stipulated in one year. In no event will the total compensation for direct material loss amount to more than two thousand five hundred Euro (EUR 2,500). Under no circumstance will CBE be liable for any other damages, including indirect or consequential damages such as loss of data, loss of profits or loss of income.
- CBE will be liable for breach of the Agreement only if the Company immediately and properly gives notice of default to CBE, at the same time giving a reasonable term to cure the breach, and if CBE’s breach in of its obligations continues after that term. The notice of default must contain as detailed a description of the breach as possible, so that CBE will be in a position to respond adequately.
- The Company indemnifies CBE against all liability vis-à-vis third parties due to product liability as a result of defects in the Equipment that the Company supplies to a third party.
- The Company indemnifies CBE against all liability claims, cost and damages made as a result of Transactions and/or Transaction Agreements.
Article 12. Force majeure
- If either Party is unable to comply with or is in breach of its obligations under this Agreement for a period of more than 60 (sixty) days on account of force majeure, the other Party shall have the right to terminate this Agreement extra-judicially with immediate effect by means of registered letter without thereby creating any right to compensation.
- For the purposes of an Agreement, force majeure is deemed to include industrial disputes, act of (local) government or authorities, electrical failure, faults or failure of telecommunications networks and infrastructure and telecommunication networks overload.
Article 13. Privacy
- The Company warrants that all statutory regulations in respect of the personal data to be processed by the Company, including in particular the regulations pursuant to the applicable Data Protection Act or comparable regulations, have been and will be strictly complied with and that all prescribed notifications have been made. The Company will immediately provide CBE with all information requested in that regard. CBE will arrange for adequate protection of the personal data to the extent possible based on current technical developments.
- The Company indemnifies CBE against all claims of third parties brought against the Company or CBE on account of violation of statutory regulations in respect of the processing of personal data, including the Dutch Personal Data Protection Act and/or statutory storage periods
Article 14. Termination by notice
- Both Parties are authorized to terminate this Agreement with immediate effect and without legal intervention by means of registered letter if:
1) the other Party petitions for or is granted a moratorium on payments;
2) the other Party applies for bankruptcy or is declared bankrupt;
3) the other Party suspends its activities and/or is liquidated;
4) the other Party’s continuity is no longer assured;
5) the other Party is seriously in breach of one or more of its obligations arising under this Agreement that the non-defaulting party can no longer be required to maintain this Agreement.
- If this Agreement is dissolved under paragraph 1 of this article, that dissolution shall not have any consequences for fees that have been paid or Services that have already been provided by CBE.
- Obligations that – by their nature – will persist after dissolution or termination of this Agreement shall continue to exist after such dissolution or termination of this Agreement. These obligations include, inter alia, obligations with respect to indemnity and secrecy as well as Intellectual Property Rights.
Article 15. Transfer of rights and duties
- The Company is not authorized to transfer rights and/or duties under this Agreement to another party without the express and written consent of CBE.
Article 16. Applicable law & Settlement of disputes
- This Agreement is subject to Dutch law. Any disputes arising from this Agreement shall be resolved by the competent Court in Amsterdam subject to the provisions in this article, unless the Parties agree on arbitration or to seek binding advice.
Article 17. General Provisions
- The general terms and conditions of Company or any other general or special terms shall not apply to this Agreement.
- Oral agreements, promises or undertakings shall not be binding on the Parties unless and in so far as confirmed in writing.
- If it should turn out that any part, condition or article of this Agreement is unlawful or not enforceable, this shall not detract from the validity and enforceability of the remainder of these agreements