Terms of delivery

PFM Netherlands B.V., located in Alphen aan den Rijn (De Schans 23, 2405XX), registered in the Dutch Chamber of Commerce under number 28047569

1 – Applicability and Definitions

1. These general terms and conditions apply to all legal acts (offers, agreements, acceptances of orders) of PFM Netherlands B.V. (hereinafter “PFM”), as well as the resulting provisions and related activities. If the Client refers to its own purchase, tender, or other terms, these shall not be accepted by PFM and are expressly rejected.

2. These general terms also prevail over the Client’s conditions, even if PFM has not expressly rejected them.

3. Any deviations from these terms must be expressly agreed in writing. No rights may be derived for later engagements based on deviations.

4. In case of conflict between the provisions of the order confirmation or agreement between PFM and the Client and the text of these general terms, the provisions of the order confirmation or agreement will prevail.

5. PFM has the right at any time to amend or supplement PFM’s General Sales and Delivery Terms. The amended terms will apply unless a written objection is made within thirty (30) days after the date of notification of the change.

6. In these general terms, capitalized words carry the following meaning:

   a) Agreement: the agreement concluded between PFM and the Client as evidenced by the order confirmation or by performance if PFM has begun execution, including any follow-up agreement, variation, or supplement, as well as all legal acts preparing and executing that Agreement and relating Products and/or services.

   b) Client: the natural person or legal entity to whom PFM submits an offer, who places an order with PFM, and with whom PFM enters into an Agreement.

   c) Products: matters that are the subject of the Agreement, and all associated services, including maintenance, inspection, advice, collection and delivery of data, reporting of data or information derived from collected data on visitor numbers, results, conversions, or visitor movements relative to the Client. The data may be delivered in various forms and formats via hardware or software or a web-based platform.

   d) Order: any agreement between PFM and the Client to deliver Products and/or services.

   
   

2 – Offers

1. All offers and quotations by PFM are without obligation, even if they contain a time limit for acceptance.

2. The contents of documents provided by PFM, such as drawings, descriptions, or specifications, are as accurate as possible, but not binding.

3. The Client must treat the information in offer documents confidentially and may not use it for its own purposes or disclose it to third parties.

4. Every offer assumes that the Agreement with PFM will be executed under normal circumstances and during normal working hours.

   
   

3 – Formation of Agreements

1. An Agreement is concluded when PFM accepts the order in writing (including by email), or when PFM commences performance.

2. Offers or quotations are based on the information provided by the Client to PFM up to the date of the offer. The Client guarantees that all essential information for design and execution has been provided and is correct and complete.

3. PFM may, at any moment even after acceptance, terminate negotiations with the Client and withdraw offers and quotations without incurring any cost or liability.

4. Changes to the Agreement, including expansions of previously ordered work, bind PFM only if PFM confirms these in writing (including by email) or commences the changes.

5. Oral commitments or arrangements by PFM employees bind PFM only to the extent that they have been confirmed in writing by PFM.

6. PFM is entitled to engage third parties in performing the Order.

   
   

4 – Delivery and Delivery Times

1. The work is deemed delivered when:

   
   

   • PFM has notified the Client that the work is completed, tested, and operational, and the Client has approved or accepted it; or

   • Eight days have passed after PFM has declared in writing that the work is complete, tested, and ready, and the Client has failed to approve or accept it in that time; or

   • The Client puts the work into (early) use; in that case the used portion is deemed delivered.

   
   

2. Delivery of services (e.g. data, reports) by or via PFM is at the location(s) and time(s) the services are performed.

3. PFM will use its best efforts to meet any agreed delivery period. Times given are indicative only and not strict deadlines. If a delay threatens, PFM and the Client will consult to set a new timeframe.

   Delay by PFM does not constitute a breach and gives no right to terminate, rescind, or seek damages, unless in the case of willful intent or gross negligence by PFM.

4. Delivery times are based on conditions at the time the Agreement is made and timely delivery of required materials. If delays occur outside PFM’s control, delivery periods will be extended accordingly.

   If delays occur due to the Client not fulfilling its obligations, PFM may extend the delivery time.

5. PFM shall not be obliged to begin performance until all necessary information, data, or goods are in PFM’s possession and any agreed (advance) payments have been made, and the Client has made the necessary preparations for installation/implementation.

   PFM may start earlier unless otherwise agreed.

6. PFM is not in default in case of delay in supplying data or reports if due to malfunctions, incompatibility issues (e.g. combining equipment or software), or misapplication by the Client.

   This applies whether the malfunctions occur in PFM’s or the Client’s environment.

7. Minor defects that can be remedied within the warranty period and do not affect functioning do not prevent delivery.

8. If data is missing in delivery or reports due to malfunction, incorrect use, or incompatibility, PFM shall, where possible, supplement missing data based on historical indications, to the best of its knowledge and experience.

9. Upon delivery, risk transfers from PFM to the Client. Delivery relieves PFM of liability for defects the Client should reasonably have discovered at that time.

10. If delivery cannot take place in the agreed manner for reasons not attributable to PFM, PFM may charge the Client for costs incurred.

11. Additional costs incurred at the Client’s explicit request will be charged separately.

12. This article also applies to installation/implementation phases.

    
    

5 – Payment

1. PFM shall invoice amounts owed by the Client with proper specification immediately.

2. Unless otherwise agreed, where installation/implementation is involved, payment is in two installments:

   
   

   • 50% within 7 days after conclusion of the Agreement

   • 50% within 14 days after (completion of) delivery

     For Products or services delivered without installation/implementation or for additional work, a 30-day payment term applies.

   
   

3. Prices, unless otherwise agreed, exclude VAT and other government levies, but include all costs necessary for execution (transport, packaging, insurance).

4. Discounts are deemed to be granted once only.

5. All payments must be made without deduction or offset. The Client may not suspend obligations or set off claims.

6. If the Client fails to pay on time, it is in default by operation of law (no reminder needed). All claims on the Client become immediately due, and interest at statutory commercial rate + 3% applies from that moment. PFM may suspend further performance until full payment.

7. Payments by the Client reduce first interest and costs, then the oldest outstanding invoice, even if the Client states otherwise.

8. PFM may require full or partial advance payment or other security. PFM shall only deliver once the requested security is provided.

9. All judicial and extrajudicial costs incurred by PFM due to the Client’s non-performance are for the Client’s account. If the Client remains negligent, PFM may outsource debt collection. The Client is liable for at least 15% of the amount due (minimum €500) plus statutory interest and collection costs.

10. In case of dispute about the amount owed, PFM’s administrative records shall prevail unless the Client provides written counter-evidence.

11. Submission of a complaint does not relieve the Client of payment obligations.

    
    

6 – Additional Work (“Meerwerk”)

1. Additional work is anything performed or delivered beyond the quantities or tasks expressly laid down in the Agreement, quotation or order confirmation.

2. If changes to the Agreement result from the Client’s requests or circumstances attributable to the Client, PFM may invoice the additional work according to its customary rates as a separate or supplemental order.

3. Should cost-increasing circumstances arise, PFM shall notify the Client as soon as possible.

4. Cost increases not attributable to PFM are passed on as additional work.

5. Additional work will be invoiced with the next payment installment. If no installment schedule exists, after the extra work is completed.

6. Lack of a written order for additional work does not invalidate PFM’s right to be compensated.

   
   

7 – Obligations of PFM

1. PFM will endeavor to perform the work to the best of its ability; the scope of its obligations depends partly on the Client’s involvement and input.

2. PFM is obliged to act in accordance with what can be required by law, fairness, and custom.

3. PFM shall obtain necessary insurance as needed for its operations, but the Client and its agents are not co-insured.

4. PFM will stay informed of relevant laws, governmental regulations, and technical/industry standards.

5. PFM will repair damage to installations or parts thereof occurring during execution before delivery, unless unrelated to PFM or unreasonable to attribute to PFM, without prejudice to legal or contractual liability.

6. In case of malfunctions, PFM shall effect a solution or repair within 72 hours after notification or discovery.

   If a malfunction occurs at the Client side, the Client must report it in writing and grant PFM access/cooperation for repair.

7. PFM will endeavor to deliver data or reports completely and timely, and will attempt to restore or supplement missing data where feasible.

8. PFM will promptly provide instructions for commissioning and maintaining installations, though the Client remains responsible for operation and consequences of use.

9. PFM is obliged to treat the Client’s data confidentially and ensure its staff respect confidentiality.

8 – Obligations of the Client

1. The Client must at all times provide all reasonable cooperation to enable PFM to fulfill the Agreement.

2. The Client shall timely provide any goods (in proper condition) which under the Agreement are to be provided by or on behalf of the Client.

3. The Client shall provide PFM with all technical information, documents, data, decisions, and changes affecting execution. The Client is responsible for accuracy and completeness.

4. The Client indemnifies PFM from third-party claims related to information, data, decisions, changes, or goods provided.

5. The Client ensures that necessary permits or permissions for the works or installation are obtained in due time.

6. If PFM is to carry out installation/implementation, the Client is responsible for preparing the site and conditions required.

7. The Client shall ensure free, costless access to premises, network locations, safe conditions, and storage space.

8. The Client is responsible for the condition of buildings, network locations, and installations surrounding the work environment.

9. The Client must guarantee access to necessary utilities: electricity, water, gas, compressed air, (wireless) internet, telecom.

10. The Client is responsible for connecting the installation to public networks.

11. The Client must maintain working conditions to ensure PFM’s products and services can be delivered per Agreement (e.g. protecting equipment from cold, moisture, weather).

    Also included is providing functioning network connections and electricity when PFM works on Client networks or software.

12. If implementation is delayed by circumstances for which the Client is responsible, the Client shall compensate resulting damage or costs.

13. Damage and costs from failing to meet these conditions are the Client’s responsibility.

14. Decisions or actions based on PFM’s delivered data or reports are at the Client’s own risk and expense.

    
    

9 – Retention of Title and Risk

1. All goods delivered by PFM under any Agreement remain PFM’s property until the Client has fulfilled all obligations to PFM, including those arising from defaults. Until then, the Client holds the goods only for PFM.

   The Client may not transfer, deliver, pledge, or otherwise use the goods as security outside its business operations.

2. If the Client fails to meet obligations or there is serious doubt about compliance, PFM may repossess delivered Products from the Client or third parties holding them, with unhindered access.

3. Risk for all items delivered under the Agreement passes to the Client at delivery or completion, or when the Client defaults on its cooperation obligations. From that moment, the Client bears liability for any damage or loss (except for damage caused by willful intent or gross recklessness by PFM’s management).

10 – Force Majeure and Non-Attributable Default

1. The delivery period is extended by any period during which PFM is prevented from fulfilling its obligations due to force majeure or non-attributable default.

   “Force majeure” is broadly defined—any circumstance beyond PFM’s control that hinders performance, even if foreseeable (war, terrorism, fire, explosion, water damage, supplier default, staff shortage, transport issues, electricity or network failure, application errors, etc.).

2. If the force majeure situation is temporary, PFM shall try to propose a reasonable alternative. If not possible, PFM may suspend performance until the situation ends, without liability.

   PFM may demand payment for work performed before the force majeure event was known.

3. If the force majeure continues for more than six months, either party may terminate the Agreement by registered letter, without liability for damages.

4. In case of force majeure, PFM may still demand compensation for services already rendered.

   
   

11 – Inspection, Acceptance Testing, and Acceptance

1. The Client shall inspect the product within 14 days after delivery or, if installation is agreed, within 14 days after installation. If this period passes without a written, specified complaint, the product is deemed accepted.

2. If acceptance tests are agreed, after delivery or installation the Client must allow PFM to conduct tests and make improvements or changes as needed. The Client must supply the necessary facilities. Tests will be conducted promptly in PFM’s presence. If tests proceed without detailed complaint, or Client fails obligations, the product is deemed accepted.

3. Minor defects that do not significantly affect intended use are deemed accepted regardless; PFM will remedy them as soon as possible.

4. Once PFM indicates readiness for acceptance and the Client neither timely approves (with or without reservation) nor rejects with specification of defects, the product or work is deemed tacitly accepted.

5. The date of acceptance is the date of PFM’s notification in clause 4.

6. Acceptance excludes further claims by the Client for defects in performance, notwithstanding PFM’s warranty obligations.

12 – Warranty and Complaints

1. PFM has an obligation of best efforts to properly perform the Agreement. Subject to the limitations below, PFM warrants the quality of the Products (not being services) and materials, for non-detectable defects in inspection or acceptance tests, occurring within six months of delivery, if the Client proves they are due solely or chiefly to defects in design, workmanship, or materials by PFM.

2. The warranty in clause 1 also applies to defects in installation by PFM. If installation is done, the six-month warranty begins on the completion date, but in any event ends 12 months after delivery (or 18 months after last delivery for services).

3. Defects covered by warranty will be fixed by repair or replacement of the defective part, at PFM’s discretion, or by sending replacement parts.

   Additional costs beyond the core obligation—transport, travel, stay, disassembly, installation—are at the Client’s expense.

   Repaired or replaced parts have a new six-month warranty, but the warranty ends 12 months after original delivery or 18 months after the most recent delivery, depending on context.

4. For repair, revision, or maintenance work outside the warranty, PFM guarantees only the workmanship for six months, i.e. redoing deficient tasks.

   The same secondary-term rule applies. Warranty ends 12 months after the original work.

5. No warranty is given for inspections, consulting, malfunction services, data delivery, or similar services.

6. The warranty does not cover defects caused by:

   a. Failure to follow instructions for operation or maintenance, or non-standard use;

   b. Normal wear and tear;

   c. Installation, repair, modification by the Client or third parties;

   d. Network or internet failures necessary for product or service function;

   e. Parts supplied by third parties for which PFM has no warranty from that third party;

   f. Changes made without PFM’s written consent.

7. The warranty does not cover reconstructing or restoring damaged, lost, or missing files/data. PFM does not guarantee uninterrupted operation, fitness for all intended uses, or that the deliverables will achieve the Client’s desired result within or after the warranty period.

   Warranty rights expire if the Client modifies the Products without PFM’s consent.

8. If the Client believes PFM has failed to perform properly, the Client must notify PFM in writing within 14 days of discovering or reasonably being able to discover the defect, else the right is lost.

9. For errors (not conforming to functional specifications), the Client must lodge a complaint within three months from delivery for Products; within two months for Products that are services. Changes in information, data, or process descriptions by the Client after delivery are outside PFM’s responsibility. A statistically normal error tolerance in data processing by PFM is accepted by the Client.

10. The Client is presumed able to detect defects once the client has received or become acquainted with the performance. Litigation must commence within one year from timely notice, or rights are forfeited.

11. After expiration of the periods in clauses 8 and 9, no complaints will be processed, and all rights to defect remedies expire, unless agreed otherwise in writing.

12. The Client’s right to warranty does not exempt the Client from other obligations under the Agreement.

13. To invoke warranty, the Client must:

– promptly notify PFM in writing of defects;

– show that defects result from design flaws or PFM’s poor workmanship;

– fully cooperate in inspection and remediation within reasonable time.

14. If repair costs are disproportionate to Client’s interest in repair, the Client may demand compensation instead.

15. Defects must be demonstrable or reproducible.

16. Remedy will occur at a location designated by PFM. PFM may repair, modify, or replace at its discretion without the Client being entitled to compensation. PFM may also implement temporary or workaround solutions.

17. PFM may charge customary rates for repair, modification or replacement if defects are due to the Client, misuse, or causes not attributable to PFM.

13 – Equipment and/or Software Provided by PFM

1. Unless explicitly agreed otherwise, equipment or software PFM provides to the Client for performance remains PFM’s property or its licensors.

2. The Client may only modify such equipment or software with PFM’s written consent. Permission does not relieve the Client from the obligation to return the equipment/software in original condition upon termination of the Agreement.

3. Except for authorized operation in accordance with instructions, the Client may not alter, adjust, change, or add to the equipment or software. The Client shall not affix the equipment to real estate.

4. If PFM’s equipment/software is managed at the Client’s site, PFM staff have access to it during performance.

14 – Liability

1. If PFM fails to meet its obligation under article 12 §1, and the Client has met its obligations, and the defect is not remedied in due time, PFM is liable for direct damage caused by its shortcoming, provided that the damage is attributable to PFM (to be demonstrated by the Client).

   Liability for indirect or consequential damage (lost profit, missed savings, reputational damage, etc.) is excluded.

2. PFM’s liability is always limited to direct damage and capped at the invoice value of the relevant work or goods in the calendar year the damage occurred.

3. PFM is only liable if the damage is covered by its insurance. Compensation will be limited to the sum of the policy payment plus the insured party’s deductible.

4. Direct damage includes:

   a. reasonable costs to have PFM’s performance conform to the Agreement (unless the Agreement is terminated);

   b. costs incurred to determine cause and extent of damage;

   c. reasonable costs to prevent or limit damage, insofar as those costs are shown to reduce damage.

5. PFM is explicitly not liable for:

   
   

   • indirect or consequential damage (lost profit, missed savings, damage to or loss of data, delay, claims of third parties, etc.);

   • damage from delay or non-delivery of data/reports due to malfunctions or misuse;

   • business interruption;

   • third-party claims against the Client that fall under the Client’s responsibility.

   
   

6. PFM is not liable for damage caused by errors in data, reports, or data carriers supplied by PFM (including viruses).

7. The Client is responsible for delays or costs arising from conditions at the Client’s location not attributable to PFM.

8. PFM is not liable for delivery delays or failures due to malfunctions or misuse by the Client.

9. If PFM, without a formal order for installation, provides assistance, this is at the Client’s risk.

10. Unless otherwise stated, PFM has no liability outside this article. The limits do not apply in cases of willful intent or gross recklessness by PFM’s management.

11. PFM’s liability arises only if the Client promptly and properly sends a default notice, specifying the deficiency and allowing a reasonable cure period, and PFM remains deficient after that period.

12. PFM’s liability for damage caused by third-party products supplied to Client is limited in accordance with this article and to the liability such third party accepts toward PFM.

13. The Client indemnifies PFM for third-party claims for damages that, under these terms, are the Client’s responsibility (including intellectual property claims).

14. For other damage not covered above, PFM is never liable.

15. To claim compensation or repair, the Client must notify PFM in writing within sixty (60) days of damage occurrence, and take measures to limit damage.

16. Any claim for damage before or after delivery lapses if not made known by delivery or warranty expiry.

15 – Confidentiality

1. The Client is obliged to treat all (business) information of PFM or received from PFM in connection with the Agreement strictly confidential. The Client may use such information only for executing the Agreement and may not disclose or use it otherwise.

2. This confidentiality obligation does not apply if the Client is legally obliged to disclose information; in that case the Client shall inform PFM as soon as possible.

3. If the Client breaches this confidentiality obligation, the Client forfeits (per breach) an immediately payable, non-reducible penalty of €100,000, without prejudice to PFM’s right to claim damages.

16 – Intellectual Property

1. Data in catalogs, images, drawings, or other listings are binding only if expressly included in a signed contract or order confirmation.

2. Unless agreed otherwise, all intellectual property rights (including copyrights) on data and products provided by PFM remain with PFM. This includes software, data files, drawings, designs, analyses, models, tools, measurement equipment, and other business-unique data. These rights are not transferred to the Client even if costs were charged.

   Adapting data to the Client’s needs does not transfer intellectual property rights.

3. The Client receives only a personal, non-transferable license for use; rights do not extend to affiliated companies or institutions. The Client may not copy, reproduce, or publicly disclose the products beyond what is permitted in the Agreement.

   Use of data to build a database or directory is not allowed unless necessary for the agreed use.

4. The Client may only modify provided data, equipment, or software with PFM’s written consent, and must return equipment/software in original form upon termination.

5. The Client assures that such information is not copied, disclosed, or used otherwise than with PFM’s consent.

6. PFM is not liable for any infringement by the Client of third-party copyrights, intellectual property rights, image rights, licenses, or patents regarding materials provided (software, data, texts, reports, etc.). The Client bears full responsibility for payments to third parties.

7. In case of breach of any provision in this article, the Client forfeits (per breach) an immediate, non-reducible penalty of €100,000 plus €5,000 per day or part thereof the breach continues, without prejudice to PFM’s right to damages.

17 – Access to Secure Websites and PFM Network

1. If PFM offers a product or service requiring access to PFM-managed websites or networks, the following conditions apply.

2. Access to PFM’s secure networks is allowed only for employees preauthorized by the Client. Authorized employees receive a user account, password, and/or token. The Client shall authorize only those who require access for their function.

3. When PFM provides an account and credentials, the Client must not disclose them to third parties and must take all reasonable measures to prevent unauthorized usage. If misuse is suspected, PFM may refuse or block access.

4. The Client ensures that equipment used to access PFM’s secure networks is located in a secure, lockable and monitored room, and employs adequate security measures. Workstations should not be directly connected to the Internet.

5. PFM ensures network security. If PFM cannot maintain network security, PFM may restrict or disable access.

6. The Client indemnifies PFM against the consequences of loss or unauthorized use of accounts, tokens, access codes, or passwords, unless caused by PFM’s attributable fault.

18 – Use of Data Provided by PFM

1. If the Agreement involves provision of data by PFM to the Client for use, the following terms apply.

2. The Client obtains a right to use the data for internal purposes only; publication without PFM’s permission is prohibited. Resale to third parties is not allowed. Using data to provide advisory services to third parties is permitted.

3. The Client may not use data beyond the agreed purpose. Except where necessary to realize the agreed use, the Client may not reuse or exploit the data to build its own database or directory. Any enrichment or combination of Client data with PFM data is allowed only if it does not violate the scope of the granted license.

4. PFM is not responsible for the Client’s interpretation of data or decisions made by the Client based on data or reports from PFM or PFM’s software.

5. If the Client is allowed to provide PFM data to third parties, the Client must impose the same obligations on them as the Client has toward PFM.

6. PFM may add control data (e.g. addresses) to the data. If these show misuse by the Client, that constitutes conclusive evidence of a breach unless the Client rebuts it.

7. In case of breach of any provision here, the Client forfeits (per breach) an immediate, non-reducible penalty of €50,000 plus €5,000 per day or part thereof the breach continues, without prejudice to PFM’s rights to damages.

19 – Duration of the Agreement

1. The term of the Agreement is defined in the Agreement if it is long-term (e.g. a subscription), not a one-time delivery.

2. For subscriptions, the Client commits for at least 12 months. The renewal period is 12 months.

3. The subscription is tacitly renewed if the Client does not cancel in writing two months before expiry.

4. The Client may not terminate a subscription early unless otherwise agreed or unless PFM, after a reasonable cure period, fails to deliver over more than six months, unless force majeure applies.

5. The Client cannot terminate the Agreement due to non-delivery or delay by PFM if those issues derive from the Client’s failure to meet obligations or a force majeure event.

   Delays caused by network malfunctions, incorrect installation by the Client, or the Client failing to meet obligations do not justify termination.

20 – Suspension and Termination by PFM

1. If there is good reason to fear the Client will not meet its contractual obligations, in the event of bankruptcy, moratorium, winding up, or transfer of the Client’s business, PFM may demand adequate security and suspend performance pending such security. If not provided in time, PFM may (partially) terminate the Agreement.

2. If the Client fails to meet any obligation, PFM may suspend performance or (partially) terminate the Agreement.

3. In case of suspension, PFM may store materials, equipment, software, etc., at the Client’s cost and risk. In case of termination, PFM may choose to store, sell, or destroy them at the Client’s cost. In suspension, termination or cancellation, PFM is entitled to full compensation but is not liable for damages to the Client.

4. PFM may terminate early if a source supplier fails or if PFM decides to cease offering the service or product.

5. In case of termination or cancellation by PFM, all amounts the Client owes PFM become immediately due.

21 – Governing Law and Disputes

1. Dutch law applies to all agreements to which these terms wholly or partly apply. The applicability of the Vienna Sales Convention is excluded.

2. All disputes arising in connection with an agreement to which these terms apply shall be settled by the competent Dutch court. If the law does not provide for a Dutch court, the court of the district where PFM is located has jurisdiction.