Terms and Conditions
Article 1. Definitions
In these general terms and conditions, the terms below are defined as follows:
- Mind Media USA Inc.: the private company with limited liability Mind Media USA Inc. located at the 2169 Francisco Blvd E Suite F, San Rafael CA 94901.
- Client: the natural person or legal entity who instructs Mind Media USA Inc. to carry out work, to provide services or who purchases goods from Mind Media USA Inc.
- Parties: Mind Media USA Inc. and the Client jointly.
- In writing: “In writing” for the purposes of these general terms and conditions shall also include communication by e-mail, fax or digital (for example via an online interface), provided that the identity and integrity of the content are duly established.
- Works: all products manufactured by Mind Media USA Inc. or her Mother company Mind Media BV. in the fields of literature, science or art, whether or not produced on behalf of the Client.
Article 2. Applicability
- The present general terms and conditions are applicable to any and all proposals, offers, agreements and deliveries of Mind Media USA Inc., of whatever nature, unless this applicability is fully or partly expressly excluded in writing and/or unless expressly stipulated otherwise.
- Any general terms and conditions of the Client, by any name whatsoever, are expressly rejected. Deviations from and additions to these terms and conditions shall only be applicable if and to the extent that they have expressly been accepted by Mind Media USA Inc. in writing.
- Should Mind Media USA Inc. have permitted deviations from the present general terms and conditions for a short or a longer period of time, whether or not implicitly, then this shall not affect its right to demand direct and strict compliance with these terms and conditions as yet. The Client cannot derive any rights from the manner in which Mind Media USA Inc. applies the present terms and conditions.
- The present terms and conditions are equally applicable to all agreements concluded with Mind Media USA Inc. for the implementation of which third parties must be relied on.
- If the Client consists of multiple (legal) persons then they shall jointly and severally be obliged to comply with any and all obligations on account of the agreement concluded with Mind Media USA Inc.
- Should one or more provisions of the present terms and conditions or of any other agreement concluded with Mind Media USA Inc. be in breach of a mandatory statutory provision or any applicable legal provision then the relevant provision shall expire and shall be replaced by a new, legally permissible and comparable provision to be established by Mind Media USA Inc..
- Mind Media USA Inc. reserves the right to change the present terms and conditions at any time. The applicability of these general terms and conditions means that the applicability of all previous (versions of) general terms and conditions lapses.
Article 3. Proposals and offers
- Any and all proposals and offers of Mind Media USA Inc. are revocable and are made subject to contract, unless indicated otherwise in writing.
- The Client guarantees the correctness and completeness of dimensions, requirements and specifications of the performance supplied to Mind Media USA Inc. by or on behalf of the same and of other data on which Mind Media USA Inc. bases its proposal.
- Errors or clerical errors in the proposal of Mind Media USA Inc. shall not bind Mind Media USA Inc..
- A complex quotation shall not oblige Mind Media USA Inc. to perform a part of the activities included in the proposal at a corresponding part of the price quoted.
- The prices in the proposals and offers of Mind Media USA Inc. shall be exclusive of VAT and other official duties and exclusive of any costs that may be incurred within the context of the contract, including shipping and service costs, unless indicated otherwise.
Article 4. Conclusion of the agreement
- Barring the provisions set forth below an agreement with Mind Media USA Inc. shall only be concluded after Mind Media USA Inc. has accepted respectively confirmed a contract in writing. The order confirmation is deemed to correctly and completely represent the agreement, unless the Client immediately objects to the same in writing.
- The content of the delivery shall exclusively be determined by the description of the delivery and/or contract specified in the offer and order confirmation.
- Additional arrangements agreed on or changes made later shall only have binding effect on Mind Media USA Inc. if they have been confirmed in writing by Mind Media USA Inc. within fourteen (14) days and the Client did not object to the same in writing within three (3) working days.
- The invoice shall be deemed to correctly and completely represent the agreement for agreements, activities or transactions for which, due to their nature and scope, no written offer or order confirmation is sent, barring written objections submitted within seven (7) working days after the date of the invoice.
- Each and every agreement shall be concluded by Mind Media USA Inc. on the suspensive condition that Mind Media USA Inc. shall be authorised to check the creditworthiness of the Client, the latter in connection with the financial compliance with the agreement. Should Mind Media USA Inc. be of the opinion, on reasonable grounds, that the Client is not (sufficiently) creditworthy then Mind Media USA Inc. shall be entitled to temporarily suspend its obligations. Should there be question of this kind of suspension then Mind Media USA Inc. shall forthwith inform the Client accordingly in writing and give the Client the opportunity to provide security.
- Mind Media USA Inc. has the right, upon concluding the agreement or thereafter and before (further) performance, to demand that the client provides security that both the payment obligations and the other obligations will be complied with.
Article 5. Delivery and delivery times
- Unless agreed otherwise, delivery takes place ex works at the place of business of Mind Media USA Inc.. The Client shall be obliged to take receipt of the purchased goods at the moment that the same are made available to it or are offered for receipt to the Client.
- If the client refuses to take delivery or is negligent in providing information or instructions that are necessary for the delivery, the goods to be delivered will be stored for the risk and account of the client. The client will owe additional costs in such situations.
- If Mind Media USA Inc. requires data from the client within the context of the performance of the agreement, the delivery time commences after the client has made all required data available to Mind Media USA Inc..
- If Mind Media USA Inc. has indicated a time for the delivery or the implementation of the agreement then this shall only be approximate. A specified delivery time can therefore never be qualified as a fatal deadline. In the event that a delivery date is exceeded, the Client should, therefore, give Mind Media USA Inc. written notice of default. Mind Media USA Inc. must then be granted a reasonable time limit to implement the agreement as yet.
- Mind Media USA Inc. reserves the right to suspend delivery depending on the delivery situation in the market.
- Mind Media USA Inc. reserves the right to engage third parties not employed by it in the performance of (parts of) the assignment for its account.
- Drawings, technical descriptions, images, colours, sizes and indications of materials used shall be stated by Mind Media USA Inc. in good faith and as precise as possible. However, these informative data shall not be binding. Deviations occurring within the margins that are customary in the industry must be accepted and shall not give the Client a right to complain, replacement, compensation of damage or any other right, unless the agreement expressly provides for a smaller margin in respect of deviations.
Article 6. Invoicing and payment
- Mind Media USA Inc. shall be authorized, prior to the implementation of the agreement, to desire an advance or full prepayment from the Client. Advances must be paid immediately and shall be deducted from the last invoice.
- The payment of invoices must take place within fourteen (14) days after the date of the invoice, in a manner to be indicated by Mind Media USA Inc. in the currency of the invoice and without setoff, discount and/or suspension.
- After the expiry of fourteen (14) days after the date of invoice the Client shall be in default by operation of law without any further notice of default being required.
- As from the moment of default the Client shall be liable to pay interest on the due and payable amount equal to 1% per month, unless the statutory commercial interest is higher in which instance the statutory commercial interest shall apply. As from that moment any and all judicial and extrajudicial costs that Mind Media USA Inc. incurs in order to obtain satisfaction – both in and out of court – shall be at the expense of the Client. In that case the Client shall be liable to pay compensation equal to at least 15% of the outstanding amount with a minimum of € 150.00. Should the costs actually incurred and to be incurred by Mind Media USA Inc. exceed the aforementioned amount then these costs shall equally qualify for compensation.
- In case of liquidation, insolvency, debt management or suspension of payment of the Client or a relevant application or petition the claims of Mind Media USA Inc. and the obligations of the Client vis-à-vis Mind Media USA Inc. shall immediately fall due.
- Payments made by the Client are first applied to payable interest and costs and then to the oldest due and payable invoices, even if the Client specifies that the payment is related to a later invoice.
- Mind Media USA Inc. shall be authorised to reject full repayment of the principal amount if the accrued interest and accruals as well as the costs are not also paid.
Article 7. Intellectual property rights and user rights
- Works created by Mind Media USA Inc. may not be edited, processed or used in any other way than what for which the work was originally created, unless with the express permission of Mind Media USA Inc..
- All intellectual or industrial property rights arising from the execution of the contract are vested in Mind Media USA Inc. or its licensors. To the extent that such a right can only be obtained by deposit or registration, then only Mind Media USA Inc. is authorized to do so.
- Client acquires only those user rights which are expressly granted by these conditions and the law. The Client is excluded from any other or more extensive right to reproduce or publish the Work. A right of use that belongs to Client is non-exclusive and non-transferable. Any right to change the Work exists only if expressly attributed to the Client in writing.
- The Client obtains the aforementioned rights of use only when he has complied with all his obligations vis-à-vis Mind Media USA Inc..
- Mind Media USA Inc. reserves an unrestricted and perpetual license to use the Works and its components in its operations and to supply these rights to third parties, if any intellectual property right concerning the Work is transferred to the Client. Mind Media USA Inc. will only extradite these Works in parts to third parties.
- Mind Media USA Inc. at all times reserves the right to use the knowledge that has increased due to the execution of the agreement for other clients, insofar as no confidential information from the Client will be disclosed to third parties.
- The Client is not entitles to remove or alter any indications of copyright, trademarks, trade names or other intellectual property rights from the Works, including statements concerning the confidential nature and secrecy of the Works.
- Mind Media USA Inc. has the right to take technical measures to protect the Works. The Client is not permitted to remove or avoid this protection.
- Any use, reproduction or disclosure of the Works outside the agreed use, shall be regarded as a violation of the copyright of Mind Media USA Inc.. Per infringing act the Client owes Mind Media USA Inc. an immediate and payable in full penalty of ten (10) times the invoice amount Client owes regarding the provision of the Works, without prejudice to the right of Mind Media USA Inc. in damages and notwithstanding the right of Mind Media USA Inc. to take (additional) legal measures to (do) end the copyright infringement.
- Unless the Work is not suitable for that purpose, Mind Media USA Inc. is at all a time entitled to (make) mention or delete her name at or with the Work and the Client is not allowed, unless otherwise agreed, to publish or reproduce the Work without mentioning the name of Mind Media USA Inc. without prior written permission.
Article 8. Reservation of title
- Any and all goods delivered or to be delivered by Mind Media USA Inc. shall remain the property of Mind Media USA Inc. up to the moment that the Client has complied in full with all its payment obligations vis-à-vis Mind Media USA Inc. on account of any agreement concluded with Mind Media USA Inc. for the delivery of goods, the performance of activities or the supply of services, including claims in connection with a failure to comply with this kind of agreement.
- A Client who acts as a reseller shall only be authorised to sell and deliver the goods that are subject to the reservation of title of Mind Media USA Inc. to the extent that this falls within the framework of the normal business operations of its company.
- If the Client (also) forms a new good from the goods delivered by Mind Media USA Inc. then the Client shall only form this good for Mind Media USA Inc. and the Client shall hold the newly formed good for Mind Media USA Inc. until the Client has paid any and all amounts payable on account of the agreement; up to the moment of satisfaction in full by the Client Mind Media USA Inc. shall in that case be entitled to any and all ownership rights with regard to the newly formed good.
- Rights are granted or transferred to the Client under the condition that the Client promptly and in full pays the agreed fees.
- The Client shall not be allowed to establish limited rights on goods that are subject to the reservation of title of Mind Media USA Inc.. If third parties (wish to) establish (limited) rights on the goods subject to the reservation of title then the Client shall forthwith inform Mind Media USA Inc. accordingly.
- Mind Media USA Inc. hereby already reserves an undisclosed pledge on delivered goods of which the title has transferred to the Client due to payment and which are still in possession of Mind Media USA Inc., by way of additional security for claims, other than within the meaning of article 3:92 paragraph 2 of the Dutch Civil Code, which Mind Media USA Inc. may still have vis-à-vis the Client on any account whatsoever.
- The Client is obliged to keep (have kept) the delivered goods subject to the reservation of title separate from other goods, with the required diligence and recognisable as property of Mind Media USA Inc..
- The Client is obliged to insure the goods against fire, explosion and water damage as also against theft during the period of the reservation of title and to on demand provide Mind Media USA Inc. insight into the policies of said insurances. Any and all claims of the Client vis-à-vis insurers of the goods on account of the aforementioned insurances shall, if so desired by Mind Media USA Inc., be pledged to Mind Media USA Inc. in an undisclosed manner by way of additional security for the claims of Mind Media USA Inc. vis-à-vis the Client.
Article 9. Suspension and dissolution
- If the Client fails to comply with its obligations under the agreement, then Mind Media USA Inc. shall, without prejudice to the relevant provisions set forth in the agreement, be entitled to dissolve the agreement out of court by means of a registered letter. The dissolution shall only take place after the Client has been given written notice of default and has been offered a reasonable time limit to remedy the shortcoming.
- Mind Media USA Inc. shall, without any demand or notice of default being required, moreover be authorised to dissolve the agreement, either in whole or in part, out of court by means of a registered letter and with immediate effect if:
- the Client applies for (provisional) suspension of payment or if the Client is granted (provisional) suspension of payment;
- the Client files a winding-up petition or is declared insolvent;
- the company of the Client is liquidated;
- an important part of the company of the Client is taken over;
- the Client discontinues its current company;
- an attachment is, through no fault of Mind Media USA Inc., imposed on a considerable part of the assets of the Client or if the Client should otherwise no longer be deemed able to comply with the obligations on account of the agreement.
- If the Client has already received performances for the implementation of the agreement at the time of dissolution then the Client can only partly dissolve the agreement and such exclusively for the part that has not been implemented yet by or on behalf of Mind Media USA Inc..
- Amounts that have been invoiced by Mind Media USA Inc. to the Client prior to the dissolution in connection with that which Mind Media USA Inc. has already performed for the implementation of the agreement shall remain payable by the Client to Mind Media USA Inc. and shall immediately fall due at the time of dissolution.
- If the Client, after having been given notice of default in connection therewith, fails to comply, fails to comply in full or fails to comply in time with any obligation on account of the agreement, Mind Media USA Inc. shall be entitled to suspend its obligations vis-à-vis the Client without being liable to pay any compensation to the Client in that respect. Mind Media USA Inc. shall also be entitled to this in the circumstances as intended in paragraph 2 of this article.
Article 10. Warranties
- Unless otherwise agreed in writing, Mind Media USA Inc. will guaranty a one (1) year limited warranty on sensors and accessories (including all components that can be connected to the encoder) and two (2) years on the encoders itself. Excluded are items that are subject to wear, if this is customary, or items intended for single (or limited) use, such as snap connections and electrodes. Warranty on these items is limited to manufacturing defects.
- If the Client, within three (3) months after delivery of the faulty item, invokes the guarantee clause ex paragraph 1 of this article, Mind Media USA Inc. will charge no cost for repair or delivery of the faulty item to Mind Media USA Inc. After the expiry of the aforementioned term, the costs of shipping the defective item shall be borne by the Client. All shipping charges for items not covered under warranty, shall be borne by the Client.
- Warranty on repaired (or replaced) items will be limited to three (3) months after receipt of the repaired or replaced item by the Client, without prejudice to the original warranty ex paragraph 1 of this article. This (extended) warranty applies only to the repaired or replaced item.
- Any warranty is void if a defect is attributable to careless or improper use of the item.
Article 11. Complaints
- Mind Media USA Inc. reserves the right to refuse items that are not returned in accordance with the applicable return procedure. Before a Client returns an item to Mind Media USA Inc., the Client must contact the support department of Mind Media USA Inc.
- Provided that the item is being returned under warranty, Mind Media USA Inc. will repair or (temporarily) replace the faulty item within five (5) working days, provided that the defective item was returned under the applicable return procedure.
- Notwithstanding paragraph 2 of this article, if a (complaint regarding a) defective encoder is reported and returned to Mind Media USA Inc. within six (6) months after delivery of the encoder, Mind Media USA Inc. endeavors to repair or (temporarily) replace the returned, defective encoder within twenty (20) working days.
- The assessment of whether a faulty item is eligible for repair lies entirely with Mind Media USA Inc. Mind Media USA Inc. has the right to replace the item if repair turns out to not be (or no longer be) possible.
- Items that have been repaired or replaced by Mind Media USA Inc., will be returned to the address of the company which purchased the item, unless otherwise expressly agreed.
- Additional shipping costs for shipment to an address other than specified in paragraph 5 of this Article, will be borne by the Client, depending on the destination, the item and the method of shipment, unless otherwise expressly agreed.
- Items that are returned to Mind Media USA Inc., but which are not eligible for repair or replacement, will only be returned to the Client on Client’s request and at the Client’s expense.
Article 12. Repair out of warranty
- When the Client returns a faulty item, out of warranty, to Mind Media USA Inc. for repair, the Client agrees to take on the cost of assessing the defective item (research costs).
- When the Client returns a faulty item, out of warranty, to Mind Media USA Inc. for repair, the Client agrees to take on the costs of repair with a ceiling of the amount communicated to the Client concerning repair of the faulty item.
- If the (expected) cost of repair exceeds the maximum amount communicated to the Client, Mind Media USA Inc. will send the Client a price quote and will only proceed to repair the item after Client’s consent.
Article 13. Replacement
Mind Media USA Inc. is entitled to replace a faulty item with a full functional (revised) copy of equal or better quality than the original type and quality, without charging the Client for more than the maximum costs of repair ex Article 12 of these conditions.
Article 14. Liability
- NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT OR OTHERWISE, MIND MEDIA USA INC. WILL NOT BE LIABLE TO SUPPLIER WITH RESPECT TO THE SUBJECT MATTER OF THE PURCHASE ORDER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS IN THE AMOUNT MIND MEDIA USA INC. PAID TO SUPPLIER IN THE SIX MONTHS PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH LIABILITY.
- IN NO EVENT WILL MIND MEDIA USA INC. BE LIABLE TO SUPPLIER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS ARISING OUT OF, OR IN CONNECTION WITH, THE PURCHASE ORDER, WHETHER OR NOT MIND MEDIA USA INC. WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
- THE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. NOTHING IN THE PURCHASE ORDER LIMITS EITHER PARTY’S LIABILITY FOR BODILY INJURY OF A PERSON, DEATH, OR PHYSICAL DAMAGE TO PROPERTY OR ANY LIABILITY WHICH CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
Article 15. Lien
Mind Media USA Inc. has the right to keep the goods, products, property rights, data, documents, data files received or generated within the context of the agreement and the (interim) results of the services of Mind Media USA Inc., despite an existing obligation to surrender them, until the client has paid all amounts owed to Mind Media USA Inc.
Article 16. Force Majeur
- Unforeseen circumstances of any kind, as well as mobilisation, the threat of war, government measures, work strikes, factory occupations, transport strikes, fire, floods, a failure to comply or a failure to comply on time or properly on the part of third parties on which Mind Media USA Inc. depends for the performance of the agreement, which means that the agreement cannot be performed or, according to objective standards, cannot be performed without disproportionately onerous efforts and/or costs, will apply as force majeure for Mind Media USA Inc.. The same applies if Mind Media USA Inc. is unexpectedly confronted with illness or accidents involving its personnel and/or third parties whose replacement cannot be arranged at short notice within reason.
- The client will enable Mind Media USA Inc. to render the agreed performance in accordance with the agreement within a reasonable term as yet if one of the circumstances referred to in the previous paragraph arises.
- Any liability on the part of Mind Media USA Inc. of any kind is excluded in the event of force majeure. The parties will not exercise their right to dissolve the agreement in the event of force majeure until two months have passed since the start of the situation of force majeure arose, unless the parties agree a longer term for rendering the agreed performance as yet.
- If Mind Media USA Inc. has already complied with part of its obligations when the situation of force majeure arises, or is only able to comply with part of its obligations, Mind Media USA Inc. will have the right to separately invoice that part that has already been delivered or that part that is deliverable and the client will be obliged to settle this invoice as if it were a separate agreement. However, this does not apply if the part that has been delivered or, as the case may be, that can be delivered does not have independent value.
Article 17. Applicable law and choice of forum
- Agreements will be construed in accordance with, and all disputes will be governed by, the laws of the State of California, without regard to its conflict of laws rules. The parties specifically waive application of the UN Convention on Contracts for the International Sale of Goods. Supplier irrevocably consents to the personal jurisdiction of the state and federal courts in and for, and irrevocably waives any claim it may have that any proceedings brought in such courts have been brought in an inconvenient forum.