MpicoSys Solutions B.V. General Terms and Conditions
These General Terms and Conditions are filed with the Court of ‘s-Hertogenbosch (The Netherlands) on June 6, 2012 under the number 35/2012.
The following definitions apply to these Conditions:
a. “Conditions”: these terms and conditions for the purchase of Products and/or Services which are incorporated into and form part of the Purchase Order and/or Quotation and/or Agreement.
b. “Purchase Order”: a document provided by Customer ordering Products and/or Services at MPS signed by an authorised representative of Customer and the documents (if any) incorporated in the purchase order.
c. “Quotation”: a numbered document issued or made available by or on behalf of MPS to the Customer offering for the supply of the Products and/or Services to the Customer.
d. “Agreement”: any agreement between MPS and the Customer for the purchase of the Products and/or Services to the Customer.
e. “MpicoSys”: MpicoSys Solutions B.V., having its registered office in Waalre, the Netherlands, hereinafter together with its subsidiaries and affiliates, as well as separately, referred to as “MPS”, with whom the Agreement is made by the Customer.
f. “Customer”: the company or person which or who places the order.
g. “Product or Services”: hardware, software and firmware items which are designed and/or delivered by MPS to Customer.
h. “Affiliate” any party that is under control or under common control with MPS, where control means the direct ownership of more than fifty (50) percent of the shares or interests which are entitled to vote for the directors of the controlled entity.
i. “Prototyping or Demonstration Project”: a project intended to generate new options where the results are not intended to be directly implemented as a, or in a commercial product, but for feasibility, demonstration or marketing applications.
j. “Development project”: a project where the results are intended to be directly implemented as a, or in a commercial product.
k. “Statement of Work”: document which defines the work activities, deliverables and timeline of the development of Products and/or Services by MPS for the Customer.
l. “Product Delivery”: a project intended to reproduce and deliver already developed products by MPS.
m. “Standard Product”: a product that was developed on MPS’s own account and not as a Customer Specific Design.
n. “Customer Specific Design”: a product that will be developed by MPS according to specifications of Customer and on Customers expenses.
o. “Party”: means MPS or the Customer and “Parties” means both of them.
p. “MPS”: means MpicoSys Solutions B.V. company.
2 Applicability of the Conditions
2.1 These Conditions apply to all Quotations, legal relationships and Agreements whereby MPS delivers Products and/or Services to the Customer, unless explicitly stated otherwise in the Quotation and/or Purchase Order and/or Agreement.
2.2 If one or more provisions in the Conditions is or becomes at any time fully or partly void or invalid, this shall not affect the remaining provisions in the Conditions.
3 The Quotation and realisation of the Agreement
3.1 Any Quotation is without obligation unless a date for acceptance is given in the Quotation.
3.2 Any sources supplied by or on behalf of MPS such as price lists, brochures, catalogues, folders, websites and other data shall only be binding on the Customer insofar as explicit reference is made in the Quotation to data from these sources.
3.3 The Agreement or Purchase Order placed by the Customer shall only be considered accepted and an Agreement concluded between the Parties if MPS has confirmed acceptance of the Purchase Order in writing within five (5) days of receipt of the Purchase Order.
3.4 The Purchase Order may be modified or cancelled by MPS at any time prior to the receipt of the written acceptance by Customer.
3.5 Insofar as the scope of the Purchase Order varies in any point from the Quotation made by MPS, the Agreement shall only be realised at the time that MPS confirms the realisation and the content of the Agreement in writing and thereby described precisely the commitments of both Parties arising from the Agreement.
3.6 In the case of work or Orders, for which MPS does not or has not sent a Quotation or confirmation of Quotation, the Agreement shall only be deemed to be realised from the time that MPS actually commences implementation of the Agreement or commissions third parties to do so. In this case the invoice shall be deemed to be confirmation of order, which shall also be deemed to report the Agreement correctly and fully.
3.7 MPS is authorised to engage third parties for the implementation of the Agreement and to charge the Customer for the costs of this in accordance with the rates given in the Quotation.
3.8 If no Agreement is realised, Customer shall pay MPS any reasonable costs necessary for making a proposal.
3.9 Any entire or partial amendment or cancellation of the Agreement may only be made with prior written agreement from MPS.
3.10 If MPS consents to such amendment or cancellation, the Customer is obliged to pay MPS for the costs of work already undertaken by MPS. In such situation MPS is permitted to invoice the Customer for the related costs and to re-establish the delivery and lead times in relation to her commitments under the Agreement.
4 Standard Business Relationship: Customer specific Designs
4.1 MPS will design a Product according to Customer and/or joint Customer-MPS specification for which it will charge a (fixed) fee, using state-of-the-art MPS technology.
4.2 When MPS will deliver (parts of) the resulting Product to the Customer, MPS will not charge for the usage of this technology in the design phase. Fees for Demonstration- and Development Projects do not include IP transfer nor fees for such transfer. Customer has to inform MPS regarding the (specific) aim and purpose of the Products and/or Services designed and delivered by MPS, especially whenever a failure of the Product and/or Service can lead to major disturbances and interruptions of the systems the Products and/or Services are used for.
4.3 The Products and Services designed and delivered by MPS are unfit for medical applications and/or security applications. Whenever Customer whishes’ to have the Products and Services to have these specific applications Parties have to explicitly agree on these applications, which agreement must be integrated in the Statement of Work and the Quotation.
4.4 Whenever Customer fails to inform MPS of important and decisive information regarding the development and delivery of Products and/or Services by MPS to Customer, as well as in the cases as mentioned in article 4.2 and 4.3, this will have direct consequences for the Guarantee/Service (article 12), the liability of MPS(article 14) and possible claims (article 15). In such case Customer will not have any of the rights as mentioned in the articles 12, 14 and 15.
4.5 MPS is allowed to outsource (parts) of the design and manufacturing of the Products/Services to third parties and will deliver the Products with technical support to Customer.
4.6 Within the exclusivity period MPS will refrain from creating, designing, developing or selling Products with similar specifications targeted for similar markets for different customers, without approval of Customer. The exclusivity period for Demonstration Projects is three (3) months after the final delivery of the project. The exclusivity period for Development Projects is six (6) months after the final delivery of the project. The exclusivity period for Product deliveries is twelve (12) months after the Product delivery. The exclusivity period for a certain Product or project will be extended when, within the exclusivity period, the Product or project will enter the next phase of development, more specifically from a Demonstration project into a Development project or Product Delivery or from a from a Development project to a Product Delivery. The exclusivity period will not be renewed in case of a repeat order or a new order of a Product or a project with very small alterations or modifications of the original Product or project, unless otherwise agreed in a separate supply agreement.
4.7 Article 4.6 does not apply for existing Standard Products or Standard Products that were already in development at the start of the Customer Specific Design project. MPS will notify Customer at the quotation stage of any Standard Product (existing or in development) which is being considered to fall under the exception in this article.
4.8 All projects are governed by the Statement of Work that will be formulated before the start of the project, describing all deliveries.
4.9 All projects will be governed by change control, being a formal process used to ensure that changes to a product or system are introduced in a controlled and coordinated manner, allowing MPS to issue an additional Statement of Work or an adapted Statement of Work including additional quotation in case the specifications by the customer or the deliveries change during the course of the project.
4.10 All Products are defined in detail by the product datasheet and the product Quotation.
4.11 Unless specifically agreed otherwise in the Purchase Order or in the Agreement, MPS is free to use photographic and video material of the developed Product and a short description as example project description for marketing purposes (website, presentations and printed material), when the prototyping or Product Development Project is completed. MPS will remove or make unreadable Customer’s brand name in all marketing items, unless otherwise agreed between the Parties.
5 Standard Business Relationship: Standard Products
5.1 MPS will deliver the Standard Products with technical support to Customer.
5.2 All Standard Products are defined in detail by the product datasheet and the product Quotation.
5.3 MPS will grant no exclusivity rights on Standard Products.
5.4 Customer has to inform MPS regarding the (specific) aim and purpose of the Standard Products delivered by MPS, especially whenever a failure of the Standard Product can lead to major disturbances and interruptions of the systems the Standard Products are used for.
5.5 The Standard Products designed and delivered by MPS are unfit for medical applications and/or security applications unless explicitly stated otherwise.
5.6 Whenever Customer fails to inform MPS of important and decisive information regarding the development and delivery of Standard Products by MPS to Customer, as well as in the cases as mentioned in article 5.4 and 5.5, this will have direct consequences for the Guarantee/Service (article 12), the liability of MPS (article 14) and possible claims (article 15). In such case Customer will not have any of the rights as mentioned in the articles 12, 14 and 15.
6 Prices and terms of payment
6.1 All prices shall be stated in the Quotation and/or the Agreement. The prices are fixed unless agreed differently between the Parties.
6.2 Prices are in Euro’s, exclusive of VAT, import duties and other taxes.
6.3 Customer shall reimburse travel costs at the same rate as they occur. MPS shall decide which means of transport is to be used.
6.4 For Demonstration Projects and Development Projects payment shall be done in three stages.
40% of the total sum after accepting the Purchase Order and/or signing the Agreement between the Parties;
30% of the total sum upon delivery of the Hardware and/or Software and/or the Products or the most important parts thereof;
30% of the total sum after acceptance of the Hardware and/or Software and/or Products by Customer. In case bigger projects are divided into smaller parts, these terms will apply per phase.
6.5 For Customer Specific Product Deliveries payment shall be done in two stages:
50% of the total sum after accepting the Purchase Order and/or signing the Agreement;
50% of the total sum upon delivery of the Software and/or Product.
6.6 For Standard Product Deliveries payment shall be done before shipment, but MpicoSys may request in the Quotation a down payment up to 50% of the total sum at accepting the Purchase Order and/or signing the Agreement.
6.7 Contrary to the articles 6.4, 6.5 and 6.6, MPS may determine that Customer has to pay in advance the entire price as well as to provide security to MPS for the (entire) price stated in the Quotation and/or Agreement.
6.8 Unless the prices have been indicated as firm by MPS, MPS is entitled to increase the price of the Products or Services still to be delivered if the cost price determining factors have been subject to an increase. These factors include but are not limited to: raw and auxiliary materials, energy, products obtained by MPS from third parties, wages, salaries, social security contributions, governmental charges, freight costs and insurance premiums. MPS shall notify Customer of such increase.
6.9 MPS will provide to Customer an invoice for each payment as mentioned in paragraph 6.4, 6.5 or 6.6.All invoices shall be paid without deductions within the term stated in the Invoice and/or the Quotation and/or the Agreement, where “is paid” applies to situation when the agreed amount has been received at MPS’ bank account.
6.10 Customer is not entitled to offset or delay payment.
6.11 Any payment by Customer shall – if applicable – go in the first place towards settlement of any interest he owes and towards any costs of collection and administrative costs owed to MPS, and then towards settlement of the outstanding claims in order of age, therefore commencing with the oldest outstanding claim.
6.12 If Customer defaults in punctual payment, Customer shall without a warning or declaration of default being necessary also owe the outstanding amount of statutory interest. If following the reminder to pay Customer remains in default, MPS may, from that moment on, pass the claim on for collection. Once the claim is passed on, Customer is obliged to reimburse MPS the legal and non legal expenses including the costs charged by external experts, being 15% of the price stated in the Quotation and/or Agreement, or 15% of the stage left unpaid as mentioned in article 6.4, 6.5 or 6.6, with a minimum € 250,-.
7.1 Where MPS delivers the Products ex works, the risk of the Products to be delivered to Customer transfers to Customer from the moment that they leave the plant.
7.2 Where the Products are shipped directly by the producer or a third party on behalf of MPS, the risk of the Products to be delivered to Customer, transfers to Customer from the moment that they are loaded for transport to the agreed place of delivery.
7.3 Notwithstanding the Parties’ arrangements about the moment on which the risk transfers to Customer, loading and offloading, the assembly, installation, composition, adjustment, calibrations and commissioning of the Products, shall likewise be for the risk of Customer even if it takes place before the risk transfers to Customer as indicated in the first half of the sentence.
8 Delivery and delivery time
8.1 Irrespective of the moment at which the risk transfers to Customer, the moment of delivery shall be deemed to be the same as the moment on which the Products are loaded ex works; this also holds if MPS must assemble and/or install the Products.
8.2 The Customer must report any shortages, defects and damage in writing directly to MPS within 24 hours of the delivery and if nothing is reported than the Products will be regarded as having reached the Customer in good condition, complete and without damage.
8.3 MPS is entitled to deliver in instalments (part-deliveries) and to invoice these instalments separately. Customer is obliged to settle the separate invoice in accordance with the provisions on the terms of payment of these Conditions.
8.4 MPS is not obliged to be able to supply spare parts after a Product is delivered to Customer, unless this is expressly agreed between the Parties and insofar as these parts are still available.
8.5 Lead times and delivery dates given in the Quotation/Agreement of MPS are not absolute deadlines. Delay shall therefore not arise until Customer has declared MPS in default and granted him a reasonable grace period to fulfil his commitments under the Agreement.
8.6 MPS is obliged to observe the specified delivery time or delivery period as much as possible, yet shall never be liable if they are exceeded. When they are exceeded MPS is not obliged to provide any compensation for damages of whatsoever nature. Exceeding a delivery time or delivery period does not give the Customer the right to terminate or do dissolve the Agreement or to refuse to purchase Products. In cases where a delivery time or period is exceeded excessively the Parties must consult with each other.
8.7 If Products are not purchased by Customer within the delivery time or period, or if Customer does not observe an agreed call period then MPS is entitled to invoice Customer for the Products in question and, furthermore, MPS is entitled to store these Products at its own discretion but wholly at the cost and risk of Customer. In the event Customer does not purchase or call within the agreed period, MPS may at its discretion demand fulfilment by Customer or dissolve the Agreement, without prejudice to the right of MPS in either case to claim damages.
9 Transport and packing
9.1 MPS shall based on her experience determine the method of packaging, transport, shipment, etc. of Products, notwithstanding the provisions concerning the risk of these Conditions.
9.2 If customer has specific wishes and insofar as MPS agrees to these wishes in relation to packaging and/or transport, also including relocation within the business or company site, Customer is obliged to settle the costs invoiced for this by MPS.
10 Acceptance of results by Customer
10.1 After delivery of the Products/Services Customer has a period of four (4) weeks to test the Product/Service delivered by MPS. If Customer does not (fully) accept the results, Customer has to inform MPS immediately, or at least within one (1) week after the end of the testing period, in writing of the situation, detailing the reason for not accepting the Product/Service.
10.2 In case of a non-acceptance of Customer, MPS will take action, whenever possible, to correct or complete the delivery. The acceptance period will start again as of the new delivery date.
10.3 In case Customer does not inform MPS on the non-acceptance of the results in the period of four (4) weeks after delivery, the results are to be considered automatically accepted.
11 Force Majeure
11.1 A Party will not be liable to the other party for any delay in or failure to perform its obligations as a result of any cause beyond its reasonable control, including but not limited to: force majeure of subcontractors of MPS; deficiency of items, equipment, software or materials from third parties whereby said use is stipulated by Customer; governmental actions; electricity failure; failure of the Internet, service providers, computer network or telecommunication facilities; war; strike; general transport problems; the unavailability of one or more members of staff; epidemics.
11.2 If such delay or failure continues for at least two (2) months, the Parties shall be entitled to terminate the Agreement in writing. Any work already carried out shall be settled pro rata, without the Parties owing anything further to one another.
11.3 If MPS wishes to plead force majeure, she shall inform Customer of this as soon as possible.
11.4 If MPS is prevented by force majeure from fulfilling any commitments towards Customer and the force majeure is in the opinion of MPS temporary or provisional in nature, MPS is entitled to postpone implementation of the Agreement until the circumstances that causes or cause the force majeure no longer applies.
12.1 With due observance to the articles specified elsewhere in the conditions MPS guarantees the quality of the materials used and their promised characteristics as well as the correct working of the Products provided by MPS. Deliverables from Demonstration Projects or Development Projects are not considered to be Products and are excluded from the conditions in this section.
12.2 This guarantee is valid only for new Products for a period of twelve (12) months after delivery (including any ‘viewing period’) to Customer. A guarantee for Products purchased by MPS from third parties is only given if and insofar as it is guaranteed by this third party.
12.3 Faults in any Products supplied which fall under the guarantee will, exclusively at the discretion of MPS, be rectified or replaced.
12.4 In principle guarantee work will be performed within the business of MPS and during normal working hours. MPS is entitled to allow guarantee activities to be performed outside his own business if this, in the opinion of MPS, is in the best interest of these activities or if the performance of such activities within the business of MPS is not reasonably possible or desirable.
12.5 If it appears that the Products offered to MPS for rectification or repair exhibit no faults then Customer is obliged to settle all costs incurred by MPS.
12.6 All guarantee agreements lapse if Customer himself makes changes and/or repairs to the Product supplied or allows them to be made, or if the good supplied has not been or is not being used or treated exactly according to the supplied or applicable directives or the user instructions, or is being used or treated injudiciously in any other way, or if a software change has been made in or with regard to the Product by a party other than MPS, or if the Product supplied has been used or applied for purposes other than for which it is intended, or if the good supplied has been or is being used in a way which MPS could not reasonably have expected.
12.7 If Customer fails to fulfil one or more of his obligations then MPS is released from her guarantee obligations.
12.8 Satisfying the guarantee obligations shall be deemed to be the only and complete compensation.
13 Ownership reservation
13.1 All the goods supplied by or on behalf of MPS remain the property of MPS until the moment the debt owed by the Customer to MPS has been settled in full, this debt including all interest and costs. For so long as the ownership of the goods supplied by or on behalf of MPS remains with MPS, Customer is obliged to hold these goods separately from other goods in such way that they can easily and clearly be identified as the goods of MPS.
13.2 In the case of non-payment by Customer of any amount due to MPS and furthermore when the agreement is ended, MPS will be entitled to demand the return of any Products for which ownership reservation applies and to take the measures associated with this, taking into account any payments already made for the goods, without prejudice to the right of MPS to demand compensation for possible loss or damage. In the case of non-payment or termination of an Agreement each claim which MPS has against Customer becomes immediately due.
13.3 At the first request from MPS Customer must authorise the immediate return of the goods which have not yet been fully paid for, wherever these may be.
13.4 Customer is entitled to sell or use the Products on which there is an ownership reservation in favour of MPS within the framework or normal business operations; however, no right of security can be bestowed on the Products, while with regard to these Products, Customer must not perform any actions or allow any actions to be performed which result in these Products becoming a part or element of one or more other products. When Products with an ownership reservation are sold, Customer is obliged to reserve ownership for himself and at the first request from MPS to cede to MPS all demands against the debtor of Customer, up to the amount that Customer owes.
13.5 If Customer forms a new item from part-items delivered by MPS, Customer forms the new item for MPS until Customer has settled all sums owed on grounds of the agreement; in that case MPS has all rights as owner of the item thus formed until Customer settles in full.
14 Liability of MPS
14.1 The total liability of MPS on account of a liable failing in the fulfilment of the Agreement or for any other reason, is limited to reimbursement of direct losses to a maximum sum of the price (excl. VAT) stipulated in the Agreement.
14.2 If the Agreement is primarily a term agreement with a term of more than one year, the price stipulated in the Agreement shall be deemed to be the total reimbursements (excl. VAT) for one year.
14.3 In no case shall the total liability of MPS for direct losses, for whatsoever reason, amount to more than € 500.000,- (five hundred thousand euros).
14.4 Notwithstanding the previous paragraphs, the liability of MPS is limited to the amount paid out or covered by the insurance.
14.5 The liability of MPS is excluded for consequential or indirect losses; lost profits, lost economics, loss of goodwill, loss due to business stagnation; losses as a result of liability to customers of Customer; losses in relation to the use of items stipulated by Customer, including but not limited to installations, tools, machines, materials or data, information or software of third parties; losses in relation to the engagement of subcontractors stipulated by Customer. Likewise excluded is the liability of MPS for the mutilation, destruction or loss of data or documentation.
14.6 The exclusions and restrictions of the liability of MPS, as described in article 14.1 to 14.5 lapse if and insofar as the losses are the consequence of intentional or deliberate recklessness of MPS’s management.
14.7 A condition for any right to compensation arising is always that Customer notifies the loss to MPS in writing as quickly as possible after it arises.
14.8 Any claim that Customer has on MPS shall lapse by the simple elapsing of twelve months from the date on which the claim arises, and in any case after the elapsing of three years from the delivery by MPS, irrespective of the legal grounds of the claim.
14.9 Customer exempts MPS from all losses arising from the liability of third parties owing to product liability as a result of a fault in a product, installation or system that is delivered by Customer to a third party and that partly consists of equipment, software or other materials delivered by MPS, unless and insofar as Customer proves that the loss is caused by the equipment, software or other materials.
14.10 The provisions in this article and all other restrictions and exclusions of liability given in the Conditions shall also apply in favour of all (legal) persons on whom MPS calls in the implementation of the Agreement and in favour of the concern of which she or they form(s) part.
14.11 With regard to goods and services which MPS has obtained from a third party, the (contractual and/or guarantee) provisions applicable to the agreement between MPS and the third party shall also apply to the Agreement between MPS and Customer, if and insofar as Customer invokes this.
15.1 Notwithstanding the provisions in article 8.2 MPS shall only accept claims for processing if it receives them from Customer in written form within eight (8) days of delivery. For hidden faults, claims are only possible within the guarantee period.
15.2 Contrary to the provisions in article 15.1 any claims with regard to Products for which a test or inspection takes place must be made immediately on the date of testing or inspection and at the place where this testing or inspection occurs and then confirmed to MPS in writing.
15.3 Claims can only be handled when the nature and grounds for the complaints are stated precisely.
15.4 Claims regarding invoices must be lodged in writing with MPS within eight (8) days of the date of the invoice.
15.5 If Customer does not claim within the applicable period or does not do so in the required way, the delivery shall be deemed to comply fully with the agreement and to be irrevocably accepted and approved by Customer; an invoice against which no claim has been lodged in the required manner within the period of eight (8) days will be regarded as having been unconditionally accepted and approved by Customer.
15.6 If MPS regards a claim with regard to Products supplied to be legitimate, then MPS is only obliged to replace or repair the unsound Products, Customer having no right to any compensation.
15.7 Lodging a claim never discharges Customer from his payment obligations towards MPS.
15.8 Return of the delivery or any part thereof to MPS, for whatsoever reason, may only take place with express prior written consent and shipment instructions from MPS to Customer.
16 Intellectual or industrial property rights
16.1 All right of intellectual and industrial ownership to the software, databases, diagrams, equipment, installations, solutions, analyses, designs, documentation, reports, proposals, and preparatory materials for the same developed or made available by MPS for the Customer, remains exclusively with MPS, her licensors or his subcontractors. The Customer only receives the usage rights that are expressly assigned in these conditions and the law. These usage rights are non-exclusive and are only transferable to third parties as an integrated part of a Product that was delivered by MPS.
16.2 If, contrary to expectation, a Product sold by MPS to the Customer, infringes an industrial or intellectual right of a third party and the Customer is held liable, the Customer is obliged to inform MPS of the situation. MPS has at her discretion either to supply the right to use the Product to the Customer, or to modify the Product in such a way that there is no further infringement.
16.3 In case of legal action involving a possible infringement of MPS Products to third parties industrial rights or intellectual rights, Customer will inform MPS immediately. After consultation, MPS will decide whether or not it is useful and necessary to put forward a defence or to take other (legal) action. MPS will bear the cost of any actions taken by her. Whenever Customer decides to take (legal) action without consultation of MPS or to take other (legal) actions than (already) started or to be started or recommended by MPS, Customer has to pay the costs for those actions itself.
16.4 MPS is not liable for the infringement of any right of industrial or intellectual right or of any other exclusive right which is the consequence of:
Any change of or to a Product sold or delivered by or on behalf of the Customer;
Any use of such a Product;
Any application of such a Product other than that recommended by MPS or expected or assumed by MPS;
Integration with or use or application in combination with Products not sold and delivered by or on behalf of MPS;
A software modification which is not carried out by or on behalf of MPS.
17.1 The Parties shall treat all information, business process and documents, of which they become aware in connection with the Quotation and/or Agreement and which are described to them as being confidential, as confidential towards third parties, unless they have in some other way already come into the public domain.
18 Ending an agreement
18.1 In the event a party is in default, this entitles the other party to dissolve all or part of the agreement notwithstanding the entitlement to claim for fulfilment.
18.2 MPS is in the event of dissolution not obliged to pay any compensation.
18.3 MPS may without declaration of default dissolve the agreement with immediate effect in the event the Customer is declared bankrupt, cedes property, is granted suspension of payment, in the event that all or part of the assets of Customer are seized or in the event that the Customers enterprise is liquidated.
18.4 If a party terminates or dissolves an agreement in accordance with the provisions of this article then the amount that the Customer owes to MPS at the moment of termination or dissolution remains as the full debt and the Customer will be liable to pay interest and costs according to the articles of these conditions, without prejudice to the right of the MPS to demand damages, to make use of the rights arising form the ownership retention, to take other (legal) measures and other rights due to MPS.
19 Cancellation by Customer
19.1 Customer is not allowed to cancel a Purchase Order before the final delivery of the (Standard) Product or Services and/or the end of a (Prototyping or Demonstration/Development) Project.
19.2 Whenever Customer wishes to cancel a Purchase order he has issued, it is at the discretion of MPS to agree on the cancellation as well as on the moment of cancellation.
19.3 Cancellation is only possible after consent of MPS, as of the end of a certain stage, whenever a project is divided into different stages, and/or subject to three (3) months notice. Whenever MPS is working on a stage within a Project, this current stage will always be finished by MPS. Customer will always have to pay the costs for (finishing) the current stage.
19.4 The costs of cancellation depend on the moment of cancellation and depend on work meanwhile undertaken by MPS to implement the Agreement, the nature or type of Services and (Standard) Products to which the Purchase Order relates, and the costs that have occurred up to the moment of cancellation. These costs being always the costs of the (General) Products and Services delivered by MPS as well as the costs of the different stages of the project which have been delivered by MPS to Customer and/or the costs of the current stage of the project MPS is working on at the moment of cancellation. Whenever the real damage for MPS as a result of the cancellation by Customer is higher than the costs of cancellation as mentioned before MPS is free to claim the entire costs and damages caused by the cancellation of Customer. In the event of cancellation as indicated in this article MPS is never obliged to reimburse any losses of Customer.
20 Choice of law and disputes
20.1 Dutch law shall apply to all Quotations and Agreements entered into by or on behalf of MPS.
20.2 Disputes arising from an agreement concluded between the Parties shall be presented to the authorised judge of the district in which MPS is located (‘s-Hertogenbosch, the Netherlands) as judge of first instance. Whenever a particular judge is mandatorily appointed as competent judge then the dispute will be decided in the first instance by the judge so appointed, in either case without prejudice to the right of MPS to seizure or to take other provisional measures at the place(s) and before the legal bodies that Customer wishes.
20.3 The provisions of paragraph 20.2 leave intact the right to of MPS to bring the dispute before a judge qualified according to the normal competency rules or to obtain a settlement by means of arbitration or binding advice.