Euify OSS B.V. General Product Safety Regulations (GPSR) Terms

V1.1

 

ARTICLE 1. DEFINITIONS AND INTERPRETATIONS

 

1. The following definitions are used in these Euify OSS B.V. General Product Safety Regulations (GSPR) Terms:

 

Agreement: any agreement between the Parties regarding any Service to be provided by Euify in the name and/or on behalf of the Client.

 

Assignment: the Assignment given by the Client to Euify to provide the Service(s) as mentioned in the relevant Agreement.

 

Client: the natural or legal person who has concluded an Agreement with Euify OSS B.V. to act as a Responsible Person and/or to perform any Services in the name of and/or on behalf of said natural or legal person.

 

Conditions: these Euify OSS B.V. General Product Safety Regulations (GPSR) Terms.

 

EU: the European Union.

 

Euify: the company with limited liability Euify OSS B.V. and its affiliates.

 

Fee: all the reimbursements the Client shall (have to) pay to Euify for the performance on the basis of an Agreement and/or performed Services.

 

GPSR Regulation (EU) 2023/988 of the European Parliament and the Council of May 10 2023, on general product safety.

 

Intellectual property rights: all current and future intellectual property rights such as patents, copyrights, database rights, related rights, trademark rights, registered and unregistered design rights, trade names and know-how and every other intellectual property right, registered or unregistered or able to be registered and regardless of protection in the Netherlands or any other part of the world.

 

Labelling or Label: for the purpose of the GPSR, the name, registered trade name or registered trade mark, and contact details, including the postal and electronic address, of the economic operator and the Manufacturer shall be indicated -  if Parties agree that Euify will act as Responsible Person - on the:

a.     product or on its packaging,

b.     the parcel or an accompanying document.

 

Manufacturer: any natural or legal person that either places a product on the EU market under their own name or trademark or substantially modifies a product in such a way that conformity with the requirements of the Regulation might be affected, should be considered to be the Manufacturer and should assume the obligations of the Manufacturer.

 

Parties: the Client and Euify.

 

Party: the Client or Euify.

 

Responsible Person: an economic operator based within the EU who acts on behalf of the legal entity not established within the EU, as a Responsible Person as defined in article 16 of the GPSR.

 

Services: all services provided by Euify to the Client. The Services can, for example, consist of Euify to act as a Responsible person for the Client and other services related to the GPSR.

 

1.2   Unless these Conditions expressly provide otherwise, the following applies to the interpretation of the Conditions

-        a reference in these Conditions to an "Article", is a reference to an article of the Conditions;

-        references to a Dutch legal term include, where applicable, the term that most closely corresponds to the Dutch term in relevant other jurisdictions;

-        the words 'included', and words of similar import mean 'including but not limited to';

-        a reference to a person is a reference to a natural person, partnership or a legal entity; and

-        the singular shall be deemed to include the plural and vice versa and a reference to a male form shall be deemed to include a reference to a female form and vice versa (except for the definitions of “Party” and “Parties”).
 

ARTICLE 2. APPLICABILITY CONDITIONS

1.3   These Conditions are applicable to every Offer, Assignment and Agreement between the Parties. Agreements that deviate from these Conditions are only valid if they have been laid down in writing by both Parties. By accepting an Offer, placing an Assignment or signing the Agreement, whether orally, in writing, by e-mail or in any other way, the Client declares to have received a copy of the Conditions and to be familiar with them and to agree with the contents of the Conditions. These Conditions are an inseparable part of the relevant Offer, Assignment or Agreement between the Parties.

 

1.4   The applicability of any general terms and conditions of the Client (regardless of the definition/naming of such conditions) are expressly rejected. A reference by the Client to the applicability of its own (general terms and) conditions has no legal effect. If the Client explicitly rejects these Conditions before entering into any Agreement, no Agreement shall be concluded until agreement has been reached between the Parties on the applicability of the Conditions.

 

Euify is authorized to amend the Conditions from time to time. When this occurs, the new version of the Conditions will automatically apply to all existing legal relationships by operation of law and the new version of the Conditions will replace the present. Euify will notify the Client in writing of the amended Conditions. The Client’s continued use of Euify’s Services after the effective date of any change to these Conditions will constitute the Client’s acceptance of that change. If changes are unacceptable to the Client, the Client shall cease using Euify’s Services and may terminate the Agreement by providing written notice by registered mail to Euify at any time prior to the effective date of change.

 

1.5   If one or more provisions of the Conditions prove to be invalid or cannot be legally applied, the other provisions of the Conditions will remain in force. The Parties will consult about the provisions that are not legally valid or cannot be applied legally in order to make a replacement provision that is legally valid and is as close as possible to the purport of the provision to be replaced.

 

ARTICLE 3. OFFERS AND CONCLUSION OF AGREEMENTS

3.1   For all Services the costs will be charged in accordance with the Quotation and/or order confirmation provided by Euify. The Assignment is concluded by signing the Quotation or Agreement by the Parties or a declaration of agreement from the Client by e-mail. In all cases, the Assignment will only be concluded after a written confirmation from Euify to the Client.

 

3.2   All offers and Quotations of Euify are without obligation, unless the contrary is explicitly stated in writing. Euify is entitled to revoke an offer without any obligation to pay damages, at the latest three working days after the acceptance of the offer by the Client.

 

3.3   The Agreement shall be deemed to have been concluded from the day the Offer or Agreement is signed by the Parties or from the day that Euify has accepted or confirmed the Assignment and any special arrangements in writing by signing an order confirmation or an agreement by e-mail, whereby the date of the confirmation is decisive, or at the moment that Euify, at the Client's request, has started the performance of the Agreement in accordance with the provisions of the order confirmation.

 

3.4   Euify cannot be held to its offers, Quotations or order confirmations if the Client can reasonably understand that the offers, Quotations or order confirmations or any part thereof, contain an obvious mistake or error. If an offer, Quotation or order confirmation contains an (obvious) error, ambiguity or clerical error, the Client will inform Euify thereof. Euify is not liable for any damage suffered by the Client as a result of the (apparent) error, ambiguity or error in offers, Quotations or order confirmations.

 

3.5   Client warrants the accuracy and completeness of the information provided by or on behalf of Euify on which Euify has based its Quotation.

 

3.6   An offer in a Quotation only applies to the specific underlying Assignment and not to any future Assignments.

 

ARTICLE 4. PRICES

4.1     The Client shall pay to Euify the Fees for the Services to be provided under any Agreement. The prices quoted in the Quotation or at the conclusion of any Agreement are excluding bank transaction costs of Euify and excluding VAT and other government levies, unless expressly agreed otherwise in writing. All Fees are in euros (EUR) and Client shall make all payments in euros (EUR), unless otherwise agreed.

 

4.2     Unless otherwise stated, prices apply in accordance with the Quotation or Agreement, or the rate indicated by Euify. Prices in Quotations and Agreements are based on data and information provided by the Client. In the event of any additions or changes to the Assignment, materials, data or information provided by the Client, changes in prices in Quotations and Agreements may occur.  Price increases resulting from the aforementioned additions and changes will be borne by the Client. The Client accepts the possibility of changes to the Assignment, including the change of the Fee. Euify will inform Client of the need for a price increase as soon as possible.

 

4.3     If after the conclusion of the Agreement and before the agreed time of delivery of the Services unforeseen and cost-increasing circumstances occur (including a change / increase in the prices of any materials, parts, wages or any price-determining factors whatsoever), Euify is entitled to adjust / increase the price accordingly. However, if Euify wishes to increase the stipulated price within three months of the conclusion of the Agreement, the Client is entitled to terminate the Agreement. In that case, costs already incurred or work performed will be charged. The Client is in no case entitled to compensation or damages. Euify will inform the Client of the need for a price increase as soon as possible. In the event that the Client does not cancel the Assignment within seven (7) days of the price increase, the Client shall be deemed to have agreed to the price increase.

 

ARTICLE 5. PAYMENT TERMSN AND COLLECTION COSTS

5.1   The Client authorizes third-party PSP to collect subscription fees and pay such amounts to Euify, provided that the Client may also pay such amounts to Euify directly. Any subscription fees collected by third-party PSP may be deducted from amounts that third-party PSP holds on behalf of the Client. If the Client is required to report transactions that occurred prior to the Client’s appointment of Euify under these Conditions, these backfilling services will be considered an ancillary service.

 

5.2   Unless otherwise agreed in writing, the Client shall pay the full Fee to Euify prior to the commencement of the Services. The invoice must be paid no later than ten (10) days prior to commencement of the Services. In specific cases, an earlier payment may be required, which will be recorded in writing. In all cases, the invoices of Euify shall be paid by Client no later than thirty (30) days after the invoice date.

 

5.3   If and when the Client does not pay the invoice in time in accordance with Article 5.1, he will be in default by operation of law, without further notice of default and/or summons by Euify being necessary. The Client shall then owe the statutory interest (in case of a consumer) or the statutory commercial interest (in case of a company). The interest on the due amount is calculated from the moment that the Client is in default until the moment the full amount owed is paid.

 

5.4   Exceeding of one or more payment terms or non-payment of one or more invoices of Euify as referred to in Article 5.2 shall give Euify the right to suspend its performance under the Agreement within the period specified in Article 5.2. Euify also has the right to cancel or dissolve the Agreement. The costs for the preparation and cancellation of the work will be charged to the Client.

 

5.5   If and as soon as Client is in default, Euify shall have the right to hand over the invoice amounts thus overdue to third parties without further notice. All judicial and extrajudicial (collection) costs shall be borne by Client. The extrajudicial collection costs will always amount to at least 15% of the total amount quoted, supplemented with agency costs with a minimum of € 150,-. Without prejudice to the right of Euify to charge a higher amount in respect of extrajudicial collection costs if the actual extrajudicial collection costs turn out to be higher.

 

5.6   The payments made by the Client shall always primarily serve to pay all interest due and subsequently due and payable invoices which have been outstanding for the longest time, even if the Client states that the payment relates to a later invoice. In the case of invoices of the same date, each invoice shall be paid pro rata.

 

5.7   The full claim of Euify on the Client is immediately due and payable if:

-             Client exceeds a payment term;

-             Client has been declared bankrupt or has been granted a suspension of payment;

-             Client (company) is dissolved or liquidated;

-             Client (natural person) is placed under guardianship or dies.

 

ARTICLE 6. CLIENT’S OBLIGATIONS

6.1   The Client undertakes to provide all information and/or materials that are necessary for Euify to carry out the Assignment properly and in a timely manner, with the understanding that the information and/or materials must be provided to Euify at least ten (10) working days before the date of the agreed work, unless the Parties agree otherwise. The information and materials as meant in this Article 6.1 includes that what is listed in Articles 6.4, 6.5, and 16.2 up until 16.4.

 

6.2   If the Client fails to provide the necessary information or materials in a timely manner, Euify may suspend the performance of the Assignment and charge the Client for the additional costs resulting from the delay. Euify shall not be liable for any damage resulting from Euify having relied on incorrect or incomplete information provided by Client. The information and materials as meant in this Article 6.2 include the Information as defined and mentioned in Articles 6.4 and 6.5 as well as the information and obligations of the Client as mentioned in Articles 16.2 up until 16.4.

 

6.3   Late delivery of the information and/or materials does not release the Client of its obligation to pay the agreed Fee on time.

 

6.4   The Client hereby grants Euify an irrevocable authorization, and if necessary the power of attorney, to provide on behalf of the Client all information to the relevant market surveillance authorities which information Euify is obliged to provide as a Responsible Person. This authorization, and if necessary power of attorney, also applies insofar as Euify, in view of its tasks and responsibilities under the Agreement and the GPSR and related European and national laws and regulations, must carry out checks and report to the relevant authorities and (legal) persons as provided in the aforementioned laws and regulations.

 

6.5   The Client has – with regard to GPSR Services, and in case Euify will act as a Responsible Person – the following obligations:

 

-       ensure that the products in question are safe before market launch;

-       conduct an internal risk analysis and create/provide technical documentation with a product description and essential safety characteristics, and where applicable, include: an analysis of risks and solutions, including test reports in line with the relevant European standards, which includes in any case the GPSR;

-       identify and apply partially applied European standards, health and safety requirements, and mark applied parts;

-       keep technical documentation of the products in question up to date for ten (10) years after market launch for market surveillance authorities, and if necessary accessible for Euify;

-       ensure procedures are in place to maintain product conformity with subsequent products to ensure safety;

-       ensure the products in question have easily visible and legible identification elements or provide required information on packaging or accompanying documents where size or nature prevents it;

-       include its name, registered trade name or mark, postal and electronic address, and single contact point (if different) on the product or packaging;

-       provide clear, consumer-understandable instructions and safety information in the language determined by the member states of the EU where the product is, will or might be available. This doesn’t apply where the product can be used safely without such instructions;

-       if the Client has any reason to presume that a product, that is brought onto the market or will be brought to market might be dangerous, to take corrective measures like withdrawal or recall, inform consumers and market surveillance authorities, and provide details about consumer health and safety risks, corrective measures, and available product quantities by member state(s) of the EU. In any case, Euify should be informed about this;

-       inform other economic operators, Euify as a Responsible Person, and online marketplaces about safety issues that are known;

-       make publicly available complaint channels, considering accessibility needs, for consumers to submit complaints and report product accidents or safety issues;

-       investigate complaints and information on accidents involving their allegedly dangerous products, and maintain an internal register of complaints, recalls, and corrective measures.

-       inform Euify of any new products that are placed or will be placed on the EU market so that Euify can together with the Client decide on what Services to be provided, for example as mentioned in article 16 of the GPSR.

 

6.6   In case Parties agree that Euify will indicate its name, registered trade name or registered trade mark, and contact details, including the postal and electronic address on the product in question or on its packaging, the parcel or an accompanying document, the following shall apply. The aforementioned details can only be indicated as long as there is an Agreement in place between Parties for said Services. In case such an Agreement has not been concluded, or when the Agreement is ended (in any way), as well as in case the Client has not paid the relevant Fees in time, the aforementioned details of Euify may not be indicated. The Client is then obligated to make sure that all Euify’s details will be removed immediately from the product in question or on its packaging, the parcel or an accompanying document, except for the products that have already been sold to an end-user before the moment that Euify’s details should be removed. The proof of burden is on the Client. In any case, Euify’s details cannot be indicated on any product or on its packaging, the parcel or an accompanying document when there is no Agreement in place for said Services or when the Client has not paid the relevant Fees in time. In case the Client violates this provision, the Client shall forfeit to Euify an immediately due and non-refundable fine of € 750,- per day or part of a day that the Client violates this Article.

 

ARTICLE 7. EXECUTION AND COMPLETION PERIOD

7.1   The Parties shall record the execution period and delivery period in the Assignment. The Client is aware that after Client agrees to the Assignment and these Conditions, Euify will require a minimum of 30 working days to perform the work, unless otherwise agreed.

 

7.2   If the Client owes an advance payment or must provide information or materials, the time period within which Euify must complete the work will not begin until the payment, information or materials are received by Euify. If the Client does not pay on time or does not provide the required information or materials on time, Euify cannot guarantee the desired execution and completion time.

 

7.3   In the event of a change to the Assignment by the Client, the specified period of execution may also change. The Client accepts the possibility of changing the Assignment, including the change in the execution period. The Client may only change the completion date after consultation and with the consent of Euify.

 

7.4   Euify may refuse a request from the Client to change the Assignment, if this may have qualitative or quantitative consequences for the work. Euify may refuse a request to change the Assignment if, among other things, (i) the change negatively affects the quality of the end result of the original Assignment or (ii) insufficient capacity is available for the execution of the change, given the deadlines set by the Client. Euify shall inform the Client in writing of the reasons for the refusal.

 

7.5   An initial completion date is never a statutory limit. The delivery times are set in the expectation that there are no impediments for Euify to perform the Services. If a date is exceeded, the Client must first give Euify written notice of default, including a reasonable timeframe within which the Services still can be performed.

 

7.6   Exceeding a completion date will never entitle the Client to dissolve the Agreement, unless (i) the execution is permanently impossible or (ii) if Euify also fails to perform the Assignment within a period again communicated in writing by Euify or (iii) the Parties have expressly agreed in writing that the specified term and/or delivery date was to be regarded as a statutory limit.

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ARTICLE 8. CANCELLATION OF THE ASSIGNMENT

8.1   Except when this is agreed with Euify in writing, an Assignment may not be cancelled. If cancellation is permitted, Client shall notify Euify in writing of the total or partial cancellation and the Client is obliged to compensate Euify for all expenses reasonably incurred in connection with the execution of this Assignment, as well as for any other damages resulting from the cancellation in question.

 

8.2   In deviation from Article 8.1, Euify may terminate the Agreement with immediate effect and without being liable for any damages:

 

(a) for legal, regulatory, fraud and abuse prevention, or security reasons;

(b) to change existing features or add additional features to Euify’s Services (where this does not materially adversely affect the Client’s use of Euify’s Services); or

(c) to restrict products or activities Euify deems unsafe or inappropriate.

 

ARTICLE 9. DURATION OF THE CONTRACT

9.1   Euify and the Client shall enter into the Agreement with a duration of twelve (12) months, which will automatically renew for the same period until the Agreement is terminated by the Client. Termination by the Client should be done by registered mail and at the latest three months before the end of the (automatically renewed) contract period. Euify can terminate the Agreement at any given moment by registered mail with a one month’s notice.
 

ARTICLE 10. EARLY DISSOLUTION

10.1 Parties are entitled to dissolve any Agreement (fully or partially) out of court by means of a registered letter if the other Party remains in default of fulfilling its obligations under any Agreement even after a notice of default has been issued in writing, whereby a period of 30 days has been given for compliance.

 

10.2 The Parties will furthermore be entitled, without any notice of default being required, to dissolve any Agreement (in whole or in part) out of court if one of the Parties:

• files for bankruptcy or is declared bankrupt;

• applies for (provisional) suspension of payment or is granted its (provisional) suspension of payment;

• (company) is dissolved or liquidated;

• (natural person) is placed under guardianship or dies.

10.3 Obligations in these Conditions which by their nature are intended to continue even after dissolution of any Agreement, shall continue in full force after dissolution of the Agreement. These obligations include, but are not limited to: Article 6.5 and 6.5, Confidentiality and secrecy (Article 14), Intellectual property (Article 12), Liability (Article 13), Force majeure (Article 11), Choice of forum and choice of law (Article 17).
 

ARTICLE 11. FORCE MAJEURE

11.1 Euify shall not be obliged to fulfil any obligation if it is prevented from doing so as a result of force majeure. If, due to force majeure, the execution of the Assignment cannot take place on an agreed date or an (initial) completion date, Euify will inform the Client thereof without prejudice to the Client's obligation to purchase the relevant Services at a different time, and without prejudice to the other obligations of the Client arising from the relevant Assignment. In mutual consultation, a new date and/or term will be set as soon as possible. The Client cannot cancel or dissolve the Agreement, unless the force majeure situation persists for longer than 60 days. Euify shall not be liable for any damage suffered by the Client as a result of the force majeure situation of Euify.

 

11.2 If Euify is prevented from performing the Agreement due to force majeure, Euify shall be entitled, without prejudice to its other rights, to suspend the performance of the Agreement without judicial intervention, or to dissolve the Agreement in whole or in part, without being liable for any compensation.

 

11.3 Force majeure shall mean all external causes, foreseen or unforeseen, which are beyond the control of Euify, but which prevent Euify from fulfilling any obligation.

 

11.4 Force majeure shall mean in any case: war, terrorism, non-delivery of materials by supplier(s), delay by post,  epidemic/pandemic, civil war, riot, molestation, destruction of advertising carriers by third parties, danger of war, state of emergency, strikes, blockade, business disruption, material shortages, defectiveness of goods and materials, fire, explosion, flood, earthquake and other natural disasters, general transport problems, export or import bans, refusal to issue import and export permits, excessive absenteeism of employees, suppliers or third parties engaged, loss of advertising concession or withdrawal of permission by the grantor of Euify, the restrictions imposed by the government, the removal and/or requisition of an advertising medium on confiscation or other government action and non-performance of the suppliers of Euify or other means of non-compliance by these suppliers with their obligations. In addition, force majeure includes unsafe situations. These include situations that arise from threats and violence from third parties, weather conditions, danger of contamination in times of an epidemic / pandemic, the danger of being imposed any fines or warnings by the police, justice, municipalities and government. When the execution of the work is prevented by a summons to leave, for whatever reason, from an enforcer, police, security guard or bystander, Euify is entitled to stop the execution as a result of force majeure.

 

11.5 In the event of restrictive government measures as a result of an epidemic/pandemic, Euify will try to perform the Services properly within the imposed (government) measures. When this is not possible, Euify has the right to postpone the performance of the Services to a later time when this is possible without incurring additional costs. In the event of a curfew on the day of performance, Euify shall perform the Services within the rules and permitted times of such curfew.

 

11.6 If Euify has already partially fulfilled its obligations under the Agreement before the time of occurrence of force majeure or has the possibility to partially fulfill them, Euify shall be entitled to invoice the work already performed.

 

ARTICLE 12. INTELLECTUAL PROPERTY RIGHTS

12.1 The Intellectual Property Rights of all sketches, drawings, illustrations, paintings, photos, posters, advertisements, advertising carriers, etc. designed or created by Euify, will exclusively rest with Euify. The Client is not permitted to use these Intellectual Property Rights in any way without written permission from Euify. The Client shall only acquire the rights of use that have been expressly granted to it in the Agreement concluded in writing between the Parties.

 

12.2 The Client guarantees to be entitled to the Intellectual Property Rights that rest on the provided material, such as Labels. By granting the Assignment, the Client grants Euify the right to use the material in accordance with the Assignment. The Client shall indemnify Euify against all third party claims for infringement of the material and information supplied by Client and placed or used on Labels by Euify

 

12.3 The Client is not permitted to use the trade names, brand names, logos or figurative marks of Euify, except with the express written permission of Euify. The Client is also not permitted to reproduce or publish texts, photos or other content from the websites of Euify without the express written permission of Euify

 

12.4 If the Client does not fulfil its obligations under this article towards Euify, or acts contrary to the provisions of this article, the Client shall forfeit to Euify, due to the violation and/or non-compliance, an immediately due and payable, not subject to set-off (“verrekening”), suspension (“opschorting”) or moderation (“matiging”) fine of € 5,000,-- (in words: five thousand euros), to be increased by € 1.000,-- (in words: one thousand euros) per day that the violation and/or non-compliance continues, without prejudice to the right to recover the actual damages suffered as a result of the violation and/or non-compliance from the Client and/or to claim full compliance in addition to the fine.

 

12.5 The Client is obliged to pay the fines as referred to in Article 12.4 of the General Terms and Conditions to Euify within ten working days, failing which the statutory commercial interest persuant to Article 6:119a of the Dutch Civil Code is due. The fine may not be offset (“verrekend”) or suspended (“opgeschort”).

 

ARTICLE 13. LIABILITY

13.1 If one of the Parties fails to comply with one or more of its obligation(s) under an Agreement or these Conditions, the other Party will give notice of default, unless fulfilment of the obligations concerned is already permanently impossible, in which case the defaulting party is immediately in default. If delivery is made to two or more Clients jointly, they will each be severally liable for the full compliance with the Agreement concluded by them.

 

13.2 The notice of default shall be given in writing, granting the defaulting Party a reasonable period in which to perform its obligations. This term has the character of a statutory limit (“fatale termijn”). The Client's notice of default must contain a description of the shortcoming that is as complete and detailed as possible, so that Euify is given the opportunity to respond adequately.

 

13.3 The Party that fails attributably in the fulfilment of its obligation(s) is liable to the other Party for compensation of the material damage suffered or to be suffered by the other Party, with due observance of the rest of this Article, insofar such damage cannot be remedied by the failing Party within a reasonable time.

 

13.4 In all cases, the damages to be compensated by Euify is limited to the direct material damage, limited to an amount equal to no more than the invoice value (excluding VAT) under the relevant Agreement during a period of 12 months prior to the occurrence of the liability.

 

13.5 In all cases, the damages to be compensated by Euify shall be limited to the amount that its insurer pays out in that particular case.

 

13.6 Indirect damage, consequential damage, loss of profit, lost savings, reduced goodwill, damage due to business interruption, damage as a result of claims from customers of the Client, damage related to the use of items, materials or software of third parties prescribed by the Client to Euify and damage related to the use of suppliers, staff or any other third party prescribed by the Client to Euify is excluded. Also excluded is the liability of Euify in connection with mutilation, destruction or loss of data or documents. Euify is also not liable for improper use of the (product of the) Services provided and/or the material supplied by Euify.

 

13.7 Notwithstanding the provisions of this Article 13, the following shall apply. The Client is aware that Euify can only perform the agreed upon Services adequately if the Client has uphold its obligations as set out in Article 6, and has provided the “Information” as defined and mentioned in Articles 16 of these Conditions. In case the Client has or will not provide this Information fully, not correctly or not in a timely manner, Euify cannot be held liable in any way for any damages.

 

13.8 In case Euify will suffer any damages as a result of the Client's failure to comply with any provision of the Agreement or these Conditions - in particular Article 6 and the provisions with regard to providing the Information as laid down in Article 16 of these Conditions -, the Client will indemnify Euify for all those damages. At Euify's first request, the Client will compensate such damages. Such damages may include, but are not limited to, fines (administrative or administrative) imposed upon Euify by the relevant competent authority for breach of any obligation set out in the GPSR or related European or national laws and/or regulations.

 

13.9 Euify can under no circumstances be held liable for any damage resulting from a report made by Euify, or the disclosure of information by Euify to a designated authority or (legal) person regarding the product in question, the Client or another economic operator in the chain of distribution in the event that Euify is obliged to do so under the GPSR or related European and/or national laws and regulations.

 

13.10       The exclusions and limitations of liability of Euify described in this Article are without prejudice to the other exclusions and limitations of liability of Euify described in these Conditions.

 

13.11       A condition for the existence of any right to compensation is always that the Client reports the damage to Euify in writing immediately after its occurrence. Any claim for compensation against Euify will lapse by the mere lapse of two months after the claim arose, unless the Client has instituted a legal claim for compensation for the damage before the expiry of that period.

 

ARTICLE 14. CONFIDENTIALITY AND SECRECY

14.1 The Parties will keep the content of the Quotations, Assignments and Agreements confidential and secret, unless expressly stated otherwise.

 

14.2 The Parties will observe strict confidentiality with regard to the confidential information provided by the other Party, including trade secrets and personal data, and shall not provide these to third parties or in any way disclose them to third parties, except with the prior written consent of the other Party.

 

14.3 The obligation of confidentiality shall not apply if:

1. the other Party gives written permission for deviation from this, whereby consent will not be withheld on unreasonable grounds;

2. there is a statutory obligation or an obligation imposed by a court or an arbitrator to disclose information about the Agreement or to provide a copy of the Agreement;

3. proceedings between the Parties are pending before the public courts or in arbitration, where the submission of the Agreement is necessary for the settlement of the dispute;

4. (information regarding) the Agreement has become public, unless this is a result of violation of the Agreement by the person who is obliged to maintain confidentiality;

5. it concerns communication with auxiliary persons involved in the (execution of the) Agreement (whether or not employed by the Parties), more specifically the advisors and insurers of the Parties. The parties will take all reasonable measures to ensure that these auxiliaries are aware of the confidentiality obligation and will request that they comply with it.

ARTICLE 15. THIRD PARTIES

15.1 If Euify wishes to use of the services of third parties in the performance of the Services either by subcontracting of by hiring temporary personnel, Euify is entitled to do so. Euify does not need to obtain (prior) permission from the Client and the Client hereby authorises Euify to provide such third party with the necessary information to perform the Services. The applicability of Articles 7:404, 7:407(2) and 7:409 of the Dutch Civil Code is expressly excluded.

 

ARTICLE 16. GUARANTEES, WARRANTIES & REPRESENTATIONS

16.1 The Client is obliged to thoroughly inspect the work and provided Services for defects, inaccuracies and faults of any kind, after delivery/completion (of a part) of the Service, and in the presence thereof, to notify Euify immediately in writing. The Client understands that this is crucial to prevent and/or reduce any damages.

 

16.2 If Euify acts as a Responsible Person for the Client and/or will perform GPSR related tasks, the Client guarantees to provide any and all, samples, data, reports and all (other) information that is necessary for Euify to perform the tasks and duties as set out in article 16 of the GPSR, and all other articles of the GPSR and relevant (EU) regulation or national laws and/or regulations that are (implicitly) mentioned therein/referred thereto correctly, in full, and in a timely manner (hereinafter: the “Information”). The Client will provide the Information on its own initiative and at least ten days before Euify will start its Services (as set out in Article 6.1). If during the course of an Agreement any developments take place, and therefore, the Information has changed or will change, the Client will inform Euify of these changes immediately and in writing. For all clarity, the Client will also inform Euify immediately if it is to foreseen that the Information might change in the (near) future.

 

16.3 The Information that the Client must provide in any case (this is therefore non-exhaustive) is the information so that Euify is actually able to perform the tasks referred to in article 4.3 of the Regulation (EU) 2019/1020 of the European Parliament and the Council of 20 June 2019 on market surveillance and compliance of products. To avoid any uncertainties, this means that the Client will provide any and all Information so that Euify is fully able to perform the following tasks (which are cited from article 4.3 of said Regulation):

 

“Without prejudice to any obligations of economic operators under the applicable Union harmonisation legislation, the economic operator referred to in paragraph 1 shall perform the following tasks:

(a) if the Union harmonisation legislation applicable to the product provides for an EU declaration of conformity or declaration of performance and technical documentation, verifying that the EU declaration of conformity or declaration of performance and technical documentation have been drawn up, keeping the declaration of conformity or declaration of performance at the disposal of market surveillance authorities for the period required by that legislation and ensuring that the technical documentation can be made available to those authorities upon request;

(b) further to a reasoned request from a market surveillance authority, providing that authority with all information and documentation necessary to demonstrate the conformity of the product in a language which can be easily understood by that authority;

(c) when having reason to believe that a product in question presents a risk, informing the market surveillance authorities thereof;

(d) cooperating with the market surveillance authorities, including following a reasoned request making sure that the immediate, necessary, corrective action is taken to remedy any case of non-compliance with the requirements set out in Union harmonisation legislation applicable to the product in question, or, if that is not possible, to mitigate the risks presented by that product, when required to do so by the market surveillance authorities or on its own initiative, where the economic operator referred to in paragraph 1 considers or has reason to believe that the product in question presents a risk.”.

 

16.4 Furthermore, the Client guarantees to provide any and all Information that is necessary for Euify to perform its tasks as mentioned in article 16.2 of the GPSR. This means among other things that the Client will provide the Information necessary to check whether the required tasks and responsibilities of the (other) economic operator(s)[1] are in compliance with their tasks and responsibilities, as well as any Information that is required to ensure the safety of the product in question – where appropriate with regard to the possible risks related to the specific product. Furthermore, Euify will need to – if this is agreed upon between the Parties – regularly check whether the products comply with the technical documentation referred to in article 9.2 of the GPSR and the requirements provided article 9.5, 9.6 and 9.7 of the GPSR. For all clarity, the last mentioned articles of the GPSR are cited hereunder:

 

“2. Before placing their products on the market, manufacturers shall carry out an internal risk analysis and draw up technical documentation containing at least a general description of the product and its essential characteristics relevant for assessing its safety. Where appropriate with regard to possible risks related to the product, the technical documentation referred to in the first subparagraph shall also contain, as applicable: (a) an analysis of the possible risks related to the product and the solutions adopted to eliminate or mitigate such risks, including the outcome of any reports related to tests conducted by the manufacturer or by another party on their behalf; and (b) the list of any relevant European standards as referred to in Article 7(1), point (a), or the other elements referred to in Article 7(1), point (b) or Article 8, applied to meet the general safety requirement laid down in Article 5. Where any of the European standards, health and safety requirements or elements as referred to in Article 7(1) or Article 8 have been only partly applied, the manufacturers shall identify the parts which have been applied.

 

[..]

 

5. Manufacturers shall ensure that their products bear a type, batch or serial number or other element enabling the identification of the product and which is easily visible and legible for consumers, or, where the size or nature of the product does not allow it, that the required information is provided on the packaging or in a document accompanying the product.

 

6. Manufacturers shall indicate their name, their registered trade name or registered trade mark, their postal and electronic address and, where different, the postal or electronic address of the single contact point at which they can be contacted. That information shall be placed on the product or, where that is not possible, on its packaging or in a document accompanying the product.

 

7. Manufacturers shall ensure that their product is accompanied by clear instructions and safety information in a language which can be easily understood by consumers, as determined by the Member State in which the product is made available on the market. That requirement shall not apply where the product can be used safely and as intended by the manufacturer without such instructions and safety information.”.

 

16.5 The Client represents and warrants that none of the Client, any of its affiliates, or any of their respective officers, directors, owners, employees, representatives or agents is or has engaged in, been charged with or indicted for, or convicted of, any “criminal activity” as defined in article 2 of the Directive (EU) 2018/1673 of the European Parliament and of the Council of 23 October 2018 on combating money laundering by criminal law. Subject to this definition, for these purposes, “criminal activity” generally means any kind of criminal involvement in the commission of any offense or crime punishable, in accordance with relevant national law, by deprivation of liberty or a detention order for a maximum of more than one year or, as regards EU member states that have a minimum threshold for crimes or offenses in their legal systems, any crime or offense punishable by deprivation of liberty or a detention order for a minimum of more than six months. The Client guarantees to immediately inform Euify if the Client or any affiliate in the future is engaged in, been charged with or indicted for, or convicted of, any “criminal activity” as defined in said article.

 

16.6 Unless the Client notifies Euify to the contrary in writing, the Client represents and warrants that none of the the Client Affiliated Parties is a Politically Exposed Person (“PEP”) as defined by the Financial Action Task Force and which definition is located in the document available at https://www.fatf-gafi.org/documents/documents/peps-r12-r22.html. The Client represents and warrants that none of the Client affiliated parties are under sanction, prohibition, or restriction from the United Nations, the EU, any other EU member states, Canada, or the United States. The Client guarantees that if anything changes in this regard, it will inform Euify immediately of this.

 

ARTICLE 17. TRANSFER OF RIGHTS AND OBLIGATIONS

17.1 Parties are not entitled to transfer the rights and obligations arising from the Agreement concluded under these Conditions to third parties in whole or in part, except with the prior written consent of the other Party.

 

ARTICLE 18. APPLICABLE LAW AND COMPETENT COURT

18.1 The legal relationship(s) between Parties and all obligations arising therefrom are exclusively governed by Dutch law.

 

18.2 In case Parties sell or buy any goods from each other, the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded.

 

18.3 The court of The Hague (the Netherlands) has exclusive jurisdiction to rule on any disputed between the Parties.

 

ARTICLE 19. GENERAL PROVISIONS

19.1 The Conditions and any Agreement and the appendixes attached thereto contain all that has been agreed between the Parties regarding the subjects included therein. All previous oral or written agreements, statements or commitments between the Parties in this regard will lapse.

 

19.2 These Conditions are in addition to the Euify OSS B.V. General Terms and Conditions, which also are applicable to any Agreement and form – together with these Conditions – an integral part of the Agreement. The Euify OSS B.V. General Terms and Conditions are located at https://www.euify.eu/terms-conditions.

 

19.3 Each Agreement consists of a list of parties, a preamble, a body and appendixes. All these parts must be considered and interpreted in conjunction with each other. In the event of a conflict between the Conditions and any Agreement, the content of the Agreement shall prevail, unless explicitly stated otherwise. In the event of a conflict between the content of the appendixes or the content of the preamble and the content of the body of the Agreement, the content of the body shall prevail. In case a provision of the Euify OSS B.V. Generals Terms and Conditions and a provision of these Conditions conflict, the provision of these Conditions prevail.

 

19.4 If one or more provisions of any Agreement or these Conditions prove to be invalid or not legally applicable, the relevant Agreement and these Conditions will remain in force for the remainder. The Parties will consult on the provisions that are not legally valid or cannot be applied legally in order to make a replacement provision that is legally valid and that matches the purport of the provision to be replaced as closely as possible.

 

19.5 The headings to articles of these Conditions and any Agreement only serve to roughly indicate the content thereof, but have no meaning for the interpretation of the provisions of the Conditions or any Agreement.

 

19.6 Notifications that the Parties will make to each other on the basis of the Agreement – which includes these Conditions - will be done in writing. Oral notifications, promises or agreements have no legal force unless confirmed in writing.

 

19.7 The undersigned declare by placing their signature that they are authorized to enter into an Agreement for themselves or on behalf of the respective legal persons for which they sign, that they will comply with the provisions of their articles of association and that all necessary formalities have been completed.

 

19.8 The Parties shall elect domicile for the performance of the Agreement at the addresses stated in the head of the Agreement, unless another address is stated in writing.

 

19.9 The Client has agreed to communicate with Euify electronically.

 

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Dated 01-December 2024

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