GENERAL TERMS OF DELIVERY OF THE DAMEN SHIPYARDS GROUP, filed with the Chamber of Commerce under number 23036357. The most recent version of these terms will be sent on first request (Damen Shipyards Group, PO Box 1, 4200 AA Gorinchem, The Netherlands).
Version dated 01 October 2012 GTD.
1.1 In these terms and conditions the following definitions apply:
Damen: B.V. Holding Maatschappij Damen and/or one of its group companies.
Services: any activities to be provided by Damen to the Customer under the Agreement, relating to the delivery of Goods or otherwise.
Goods: any works, physical assets, materials and other goods to be delivered to the Customer by Damen under the Agreement, as well as any activities and services relating to such delivery. Where reference is made in these General Terms of Delivery to Goods this should at all times expressly be taken to include Services as well. Goods are also taken as meaning third-party products made available by Damen.
Customer: the party with which the Agreement is concluded.
Agreement: any enquiries, offers, agreements, order confirmations and ensuing commitments whereby the Customer obtains Goods and/or services from Damen or places an order with Damen.
Object: the vessel or other physical asset to which the Goods and/or Services relate.
Where reference is made in these General Terms of Delivery to “written” this should be understood as meaning by letter, by e-mail, by online confirmation and/or by fax.
1.2 These General Terms of Delivery apply to all Agreements with the Customer.
1.3 Departures from and supplements to these General Terms of Delivery are valid only if agreed expressly and in writing.
1.4 Application of any purchasing or other conditions of the Customer is expressly rejected.
1.5 These General Terms of Delivery are available in both Dutch and English. In the event of an inconsistency between the Dutch and English versions, the Dutch version shall be binding.
2. Offers, orders and agreements
2.1 Any offers made by Damen shall be without engagement. The Customer vouches for the accuracy and completeness of the designs and specifications submitted by it or on its behalf to Damen in relation to the performance or other details on which Damen bases its offer.
2.2 The Agreement shall come into effect as soon as Damen has confirmed the order in writing or has made a start on its implementation.
3.1 All prices are exclusive of value added tax (VAT/BTW) and any other officially imposed levies.
3.2 Unless determined otherwise in the Agreement, Damen shall be authorised unilaterally to adjust its prices and tariffs each quarter.
3.3 Activities not forming part of the Services shall be charged separately to the Customer at Damen’s standard rates at the time of performance.
3.4 The costs associated with the handling and/or collection and/or sampling and/or removal, storage, transportation and destruction of materials, waste residues and so on may be charged by Damen in addition to the price.
3.5 If as a result of an exceptional shortage of materials or suppliers, or due to other circumstances of an exceptional nature, such as war or serious complications, the level of wages and price of materials should rise to such an extent above the level applying on the offer date that Damen cannot reasonably be asked to bear the resultant increase in costs, Damen shall have the right to a reasonable and fair additional reimbursement, to be determined by the parties in mutual consultation or, in the absence of agreement, by the disputes procedure provided for in Article 18.
4.1 Payment shall be made in accordance with the agreed instalment schedule, with the first instalment falling due upon placement of the order. In the absence of agreed instalment payments, the Customer shall pay invoices within fourteen days of invoice date. Payments shall be made to a bank or giro account specified by Damen. The Customer shall not be authorised to set off or suspend a payment.
4.2 If the Customer fails to pay the amounts due on time, it shall, without the need for any demand for payment or notice of default, be liable to pay the statutory rate of commercial interest on those amounts as from the due date, in which regard Damen shall moreover be authorised to suspend compliance with its own obligations for a period equal to that for which the payment has been delayed.
4.3 Damen shall be authorised to charge the Customer for any legal or extralegal collection costs incurred in relation to the amounts due.
4.4 Before delivering further Goods and/or services, Damen shall at all times be authorised – even if an order has been completed or partly implemented – to demand that the Customer provide sufficient security to enable its payment and other obligations to be discharged. In the event of any delay, the delivery period shall be extended correspondingly.
5. Risk, transfer of ownership and security
5.1 If not delivered EXWORKS (INCOTERMS 2010), the risk relating to Goods for delivery by Damen shall be borne by the Customer as soon as the Goods have been built into or otherwise incorporated in the Customer’s physical assets or otherwise at the point at which they come under the effective power of disposal of the Customer or agent of the Customer.
5.2 Any deliveries shall be subject to retention of title. Any Goods delivered to the Customer shall remain the property of Damen and the rights of ownership will be transferred to the Customer only when the latter has discharged all its obligations to Damen under the Agreement.
5.3 Damen shall be authorised to retain the Customer’s physical assets and documents until such time as the latter has discharged all its debts to Damen under the Agreement.
5.4 Damen shall be authorised to suspend its obligation of delivery with regard to any physical assets of the Customer being held by Damen or being held by a third party and on or in connection with which Damen is working, until such time as the Customer has fully discharged its obligations under the Agreement and/or other agreements with Damen, including loss, costs and interest.
5.5 If so requested by Damen, the Customer shall cooperate in taking measures to protect Damen’s title to the Goods in the country in question.
6. Implementation and deviations
6.1 Damen shall have the right to engage third parties in order to implement a part of the Agreement.
6.2 Apart from the customary and agreed tolerances with regard to dimensions, performance or other aspects, deviations required in order to achieve the desired results or that are due to a change in the working procedure shall also be permitted.
6.3 The Customer shall be obliged to enable Damen to carry out the work without hindrance. It must make the Object available to Damen in good time and in a fully prepared state for the work in question to be carried out.
6.4 Damen shall have the right to relocate the Customer’s Object and other properties (including reberthing/remooring, launching and dry-docking).
7.1 Unless agreed otherwise, delivery shall be EXWORKS (INCOTERMS 2010).
7.2 The delivery of the Goods and the performance of the Services shall commence at the agreed time as specified by Damen in the written order confirmation. Damen shall suspend this time until such point as Damen has received all the documents, information and details to be provided by the Customer and until such time as a prepayment agreed upon placement of the order has been received or Damen has been provided with security.
7.3 Damen shall seek to observe the delivery date as strictly as possible. Agreed delivery dates may not be regarded as fatal deadlines. Failure to meet the delivery date for whatever reason does not provide the Customer with any right to compensation or any right to demand the rescission of the Agreement on these grounds. Damen shall not be in breach of contract until the Customer has served Damen with written notice of default, in which regard Damen will be granted a reasonable period to discharge its obligations.
7.4 Only in the event that Damen is in breach with regard to the delivery shall be the Customer be authorised to invoke the financial penalty, under which Damen shall be liable to pay the Customer an amount in respect of the delay not exceeding 3% of the price of the Goods the delivery of which has been delayed. The penalty shall take the place of the Customer’s right to demand compensation or rescission of the Agreement.
7.5 Damen shall in no circumstances be liable for failure to discharge its obligations or to do so on time as a result of force majeure. Force majeure shall include fire, flood, exceptional weather conditions, war, danger of war, riots, disorder, strike, failure of castings and forgings and any hindering circumstance that is not dependent exclusively on the will of Damen, such as the failure of third parties engaged by Damen to deliver Goods and Services or to do so on time. Damen shall also be excluded from liability in the event of force majeure beyond the agreed delivery date.
7.6 Interpretation of the commercial terms shall be subject to the latest version of the “Incoterms” issued by the International Chamber of Commerce in Paris. Notwithstanding the provisions in the most recent version of Incoterms, wilful damage shall be for the account and risk of the Customer from the date of order confirmation.
7.7 Damen shall be entitled to suspend delivery if the parties are not agreed upon the level of the shipping costs or if any prepayment of the shipping costs agreed upon placement of the order has not taken place.
8. Delivery and inspection
8.1 The Goods and Services shall be deemed to have been delivered once they have been accepted or approved by the Customer.
8.2 The Goods shall also be deemed to have been delivered:
a) if the Customer fails to cooperate with handover or inspection on the delivery date notified by Damen or withholds approval unjustifiably or without proper grounds;
b) if the Object has left the Damen shipyard or third-party shipyard or if the Customer provides evidence of having taken over the practical management of the Goods;
c) if the Customer fails to notify any deficiencies immediately upon handover and fails to confirm these in writing within 48 hours.
8.3 Minor and/or customary deficiencies will not stand in the way of delivery. These deficiencies will be established in writing by the Customer and Damen, in which regard Damen will indicate the period within which those deficiencies will be made good.
8.4 Damen may deliver the Goods in part and/or perform the Services in part if the delivery of the remaining element is temporarily or permanently prevented or made more difficult by force majeure.
9.1 Damen guarantees that the Goods and Services it has delivered are sound and have been manufactured or performed in accordance with a professional standard. Should the Goods and Services delivered by Damen nevertheless exhibit defects, Damen will rectify the defects on the terms and conditions set out in this article.
9.2 For a period of three months from delivery of the Goods, Damen will make good any defects or if necessary effect replacements, provided that Damen has been notified in writing by the Customer of the defects within 15 calendar days of detection. In the event of unusually lengthy delivery dates on the part of suppliers or other long lead items, Damen shall be authorised to take longer to effect repairs.
9.3 If the Customer, after consultation with Damen, has the repairs or replacement carried out elsewhere by third parties, Damen shall reimburse a sum equal to no more than what the repairs and replacement would have cost had they been carried out in the workshops of Damen or its supplier(s) during normal working hours within the guarantee period.
9.4 The duty to effect repairs is confined to the repair of the deficient part and does not extend to the repair or reimbursement of consequential loss. Deficient parts shall be made available to Damen upon replacement and will become the property of Damen.
9.5 Images, drawings, capacity specifications, details stated in catalogues and similar information provided by the Customer or third parties shall not be binding on Damen, unless expressly agreed otherwise in writing.
9.6 The costs incurred by the Customer in order to transfer the Object to the agreed location and hold it there shall be for the Customer’s account.
The Customer is required to take into account Damen’s instructions in relation to such transportation. Any additional costs of repair, dismantling, assembly and transportation incurred by Damen because the Goods are located in a place other than that referred to in the Agreement or – where no location has been specified – the place of delivery shall be for the Customer’s account.
9.7 The guarantee obligations in Article 9.2 lapse:
(i) if modifications are made by other than Damen personnel;
(ii) if the defects that come to light are due to inexpert use, substandard maintenance, incorrect assembly or faulty repairs effected by the Customer or third parties and not to causes attributable to Damen;
(iii) if the defects are due to normal wear and tear and loss of quality;
(iv) if the defects that come to light could reasonably have been detected in the course of acceptance;
(v) if the Customer has any defects to the Goods made good by a third party;
(vi) if the Customer otherwise fails to comply properly with any obligation under the Agreement.
In these cases Damen will make a retrospective charge for the time spent.
9.8 Any materials that have been delivered or prescribed by the Customer shall be excluded from the guarantee.
9.9 Unless otherwise agreed under the Agreement all Services are specifically excluded from the guarantee.
9.10 With regard to materials delivered by and services performed by third parties, Damen’s guarantee obligations shall be confined in scale and duration to the guarantee actually provided by that third-party supplier. Damen shall be relieved of its guarantee obligations by the transfer to the Customer of any claim it may have against the supplier(s).
9.11 Activities, including research work, carried out after the Customer has wrongfully invoked the guarantee, shall be charged for in accordance with Article 3(3) and shall be carried out in accordance with these conditions.
10. Liability and indemnity
10.1 Any liability on the part of Damen shall cease upon delivery with the exception of the latter’s liability under this article.
10.2 Damen’s liability in relation to any deficiencies in the Goods delivered and Services performed by it shall be limited to compliance with the guarantee obligations defined in the previous article, unless the loss incurred is due to wilful intent and/or gross negligence on the part of Damen.
10.3 In all cases in which Damen is, despite the provisions in paragraph 2, obliged to pay compensation, the latter shall in no circumstances exceed
(i) with regard to the delivery of the Goods: 15% of the purchase price of the Goods delivered;
(ii) with regard to the performance of Services the reimbursement shall not exceed the lower of
a) the sum of the amounts invoiced specifically for Services during a period of three calendar months immediately preceding the loss-causing occurrence; or
b) 10% of the reimbursement of the Services under the Agreement, unless this has been departed from in the Agreement.
10.4 Any claim against Damen, except those specifically acknowledged in writing by Damen, shall automatically lapse 12 months after the claim arose.
10.5 Any conditions serving to limit, exclude or determine liability that can be held against Damen by suppliers or agents in connection with the delivered materials or services can also be held against the Customer by Damen.
10.6 Under this Agreement liability for Damen for consequential damages, whatever the cause, is specifically excluded, with the exception of individual cases for which such exclusion would be contrary to the law.
11. Third-party goods
11.1 If and in so far as Damen provides the Customer with third-party Goods or delivers such Goods, the terms and conditions of those third parties shall apply to those Goods, replacing the provisions in the Agreement and these General Terms of Delivery. The Customer accepts the aforementioned terms and conditions of third parties, of which Damen will provide the Customer with a copy on request.
11.2 If an in so far as the terms and conditions of third parties as referred to in Article 11.1 are regarded as not being applicable to the relationship between the Customer and Damen or are declared not to apply, the provisions in the Agreement and these General Terms of Delivery shall apply.
11.3 Damen’s liability for third-party goods shall in no circumstances exceed what is recoverable from the third party or parties in question.
12. Confidential information
12.1 Any information provided by either of the parties to the other shall be regarded as confidential information, including at all events any information concerning the Goods provided by Damen to the Customer as well as third-party goods and services and intellectual property of Damen and third parties. The party receiving confidential information shall make use of such information solely for the purposes of implementing the Agreement.
12.2 The Parties shall not make copies of the confidential information and/or disclose it to third parties without the prior consent of the other party.
12.3 Any confidential information provided by the parties to each other shall remain the property of the party that has provided that information to the other party.
12.4 The Parties shall not disclose the existence of the Agreement in publications or any advertising matter without the written consent of the other party.
13. Intellectual property rights
13.1 All rights of intellectual and industrial property on all Goods developed or provided pursuant to an Agreement shall be vested exclusively in Damen or third-party claimants and shall in no circumstances be transferred to the Customer. Such property shall include the drawings, calculations, diagrams, systems, methods, designs, documentation, reports and websites, together with any related preparatory material.
13.2 Damen shall hold the Customer harmless against any legal claim by a third party based on the allegation that the Goods developed by Damen infringe an applicable right of intellectual or industrial property under Dutch law, on condition that the Customer advises Damen without delay in writing of the existence and content of the legal claim and leaves the handling of the case, including any settlements, entirely to Damen. The Customer shall provide Damen with the necessary authorisations, information and cooperation to enable Damen to defend itself against these legal claims, if necessary in the name of the Customer. This obligation of indemnification lapses if the alleged infringement is related to (i) materials provided to Damen by the Customer for use, treatment, processing or incorporation, or (ii) modifications made to the Goods by the Customer or third parties on behalf of the Customer. The obligation to indemnify shall not apply if the infringements are due to the use of the delivered Goods (i) in a form not modified by Damen, (ii) in conjunction with materials or goods not delivered or provided by Damen, or (iii) in some other manner than that for which the Goods were developed or intended.
14. Product liability
14.1 Damen shall not be liable for any damage to property of the Customer and/or third parties after delivery of the Goods that arises while the Goods are in the possession of the Customer. Damen shall also not be liable for any damage to products manufactured by the Customer or to products of which Damen’s Goods form part. The Customer will indemnify Damen for the claims for damages of third parties mentioned in this clause.
15. Environment, safety and shipyard rules
15.1 The Customer is obliged to provide safe working conditions and to observe the applicable environmental and safety regulations, as well as the shipyard rules. The Customer is obliged to advise Damen before commencement of the work of the presence of any hazardous materials, such as but not confined to asbestos and chemical or radioactive substances and of measures taken in that connection in the previous 90 days. The Customer is required to co-operate in research by Damen into the safety of the working conditions. In the event of doubt in this regard Damen is authorised to suspend or terminate the activities or to take or commission measures to effect improvements. Any ensuing costs and loss shall be borne by the Customer. The Customer recognises that the removal of asbestos and other hazardous substances is subject to strict statutory regulation.
16.1 If the Customer fails to discharge one or more of its obligations or to do so on time or properly, is declared bankrupt, applies for a provisional or definite moratorium of payment or proceeds to the liquidation of its firm, or if some or all of its assets are seized, Damen shall have the right to suspend the implementation of the Agreement or to rescind the Agreement in full or in part without prior notice of default by means of a written statement, at its discretion, and subject always to the retention of any right it may have to reimbursement of expenses, loss and interest.
16.2 The Customer shall only be entitled to proceed to rescission in the cases referred to in Articles 7.3 and 16.4 of these terms and conditions and then only after payment to Damen of any amounts that may be owing to Damen at that time, whether or not these are due and payable.
16.3 If the Agreement ends on the basis of Article 16.1 before the agreed Services have been completed or if the period in which they should have been performed has expired, Damen shall have the right to the full agreed price for those Services, less the savings arising directly from such termination. If the Agreement is terminated in this way through rescission by the Customer, Damen shall have a right in respect of work already performed to a proportionate element of the agreed price.
16.4 In the event of force majeure on the part of Damen the latter’s obligations will be suspended. If Damen invokes force majeure for a period in excess of one month both Damen and the Customer shall be authorised to rescind the Agreement in respect of the unperformed element by means of written notification to the other party without obligation to reimburse any loss and without prejudice to the provisions in Article 16.2.
17.1 The Customer is not authorised to transfer the rights and obligations arising under this Agreement either in full or in part to third parties without the prior written consent of Damen. Conditions may be attached to such consent. Damen is authorised to transfer the rights and obligations under the Agreement to third parties.
18. Disputes and applicable law
18.1 Any disputes arising between the parties shall be exclusively resolved by the competent court in Rotterdam.
18.2 The Agreement is subject to Dutch law.
18.3 The parties may decide in mutual consultation on arbitration. In that case the parties agree that any disputes arising from or related to the Agreement shall be exclusively resolved in accordance with the Arbitration Regulations of the Netherlands Arbitration Institute (NAI) by one or more arbitrators appointed in accordance with the aforementioned regulations. The place of arbitration will be The Hague and the arbitration will be conducted in Dutch.
USE AND MAINTENANCE OF SOFTWARE
The provisions set out below in relation to the Use and maintenance of software shall, in addition to the other provisions of Damen’s General Terms of Delivery, apply to any software provided by Damen. The rights and obligations referred to in this chapter relate solely to software in a form readable by a data-processing machine and recorded on material readable by such a machine, as well as the associated documentation, all this including any new versions issued by Damen.
19. Right of use
19.1 Without prejudice to the intellectual property rights referred to in Article 6, Damen grants the Customer the non-exclusive right to the use of the software for internal purposes within the meaning of paragraph 2 of this article. The Customer shall at all times strictly observe the restrictions on use agreed between the parties. Without prejudice to the other provisions in these General Terms of Delivery, the right of use shall relate solely to the right to load and execute the software.
19.2 The software may exclusively be used by the Customer in its own business or organisation on the one processing unit and for a given number or type of users or connections for which the right of use has been granted. In so far as nothing has been agreed in this regard, the Customer’s processing unit on which the software was first used and the number of connections linked up at the time of first use of that processing unit shall be regarded as the processing unit and number of connections for which the right of use has been granted. In the event of a breakdown of the aforementioned processing unit the software may be used for the duration of such breakdown on another processing unit. In so far as specifically evident from the Agreement, the right of use may relate to multiple processing units.
19.3 The right of use is not transferable. The Customer is not permitted to sell, rent out or sublicense the software and carriers on which it is recorded or to grant restricted rights on them or make them available to a third party in whatever manner and for whatever purpose, even if the third party in question uses the software exclusively on behalf of the Customer.
The Customer will not modify the software other than for the correction of errors, all within the meaning of Article 24.7, and will not use it for the processing of data on behalf of third parties (i.e. time-sharing). The source code of the software and the technical documentation produced upon the development of the software will not be provided to the Customer.
19.4 Should the right of use of the software come to an end, the Customer shall return all the copies of that software in its possession to Damen without delay. If the parties have agreed that the Customer is to destroy the copies in question when the right of use comes to an end, the Customer shall notify Damen of such destruction without delay in writing.
20. Delivery, installation and acceptance
20.1 Damen will deliver the software to the Customer on the agreed type and format of information carriers and, if installation by Damen has been agreed in writing, install the software at the Customer.
20.2 The Customer will accept the software in the condition it is in at the time of delivery, without prejudice to Damen’s obligations under the guarantee in Article 21.
21.1 For a period of three months from delivery or installation where that has been agreed in writing, Damen shall to the best of its ability rectify any errors in the software within the meaning of the provisions in paragraph 2 of this article, provided that these errors have been notified to Damen in writing, with a detailed description, within the stipulated period. Damen does not guarantee that the software will work without interruption or error or that all the errors will be rectified. The repairs will be carried out free of charge, unless the software has been developed on behalf of the Customer for other than a fixed price, in which case Damen will charge its customary rates and costs of repair. Damen may charge its customary rates and the costs of repair in the event of usage errors or inexpert use by the Customer or other causes not attributable to Damen or if the errors could have been determined when the agreed acceptance test was carried out. The repair of mutilated or lost data does not come under the guarantee. The guarantee commitment will lapse if the Customer makes or commissions modifications to the software without Damen’s written consent.
21.2 By errors are understood failure to comply with the specifications advised in writing by Damen and, in the event of the development of customised software, with the expressly agreed functional specifications. An error shall be said to exist only if it can be demonstrated and can be reproduced. The Customer is obliged to report any errors to Damen without delay.
21.3 Any errors will be repaired by Damon at a location of its choice. Damon shall be authorised to effect temporary solutions or software workarounds or problem-avoiding restrictions in the software.
21.4 Upon expiry of the guarantee period referred to in paragraph 1 of this article Damen shall not be obliged to rectify any errors, unless a maintenance agreement has been concluded between the parties covering such repair.
22.1 If a maintenance agreement has been concluded for the software or if software maintenance forms part of the usage fee, the Customer shall notify Damen of any errors detected in the software in accordance with Damen’s customary procedures. Upon receipt of the notification Damen will seek to the best of its ability to repair the errors within the meaning of Article 21.2 and/or to make improvements to later new versions of the software. Depending on the urgency, the results will be provided to the Customer in the manner and within the period determined by Damen. Damon shall be authorised to effect temporary solutions or software workarounds or problem-avoiding restrictions in the software.
22.2 Damen does not guarantee that the software will operate without interruption or errors or that all the errors will be rectified.
22.3 Damen may charge its customary rates and the costs of repair in the event of usage errors or inexpert use by the Customer or other causes not attributable to Damen or if the software has been modified by parties other than itself. The repair of mutilated or lost data does not come under the guarantee.
22.4 If a maintenance agreement has been concluded, Damen shall provide the Customer with any improved versions of the software when these become available. Three months after an improved version has been made available Damen shall no longer be obliged to repair any errors in the old version or to provide support in relation to that version. With regard to the provision of a version offering new possibilities and functions, Damen may require the Customer to conclude a new agreement with it and may require payment of a further fee for the provision of that version.
22.5 If the Customer has not entered into a maintenance agreement with Damen at the same time as entering into the agreement for the provision of the software, Damen cannot be obliged by the Customer to enter into a maintenance agreement at a later point.
23. Supplier software
If and in so far as Damen provides the Customer with third-party software, the terms and conditions of those third parties shall apply to that software, replacing the provisions in these terms and conditions. The Customer shall accept the aforementioned third-party terms and conditions, including any restrictions therein concerning the use of the software, the guarantees and the limitation of liability. These terms and conditions may be inspected by the Customer at Damen and the latter will send them to the Customer on request.
If and in so far as the aforementioned third-party conditions are regarded as not being applicable to the relationship between the Customer and Damen or have been declared not to apply, the provisions in these terms and conditions shall apply in full.
24. Intellectual or industrial property rights
24.1 Any intellectual or industrial property rights applying to any software, hardware or other materials such as analysis, designs, documentation, reports, and offers, together with preparatory material for these, that have been developed or provided under the Agreement shall remain exclusively vested in Damen and/or its licensors. The Customer shall solely obtain the rights of use and powers as specifically assigned under these Terms of Delivery or in some other way and otherwise the Customer shall not duplicate or make copies of the software or other materials.
24.2 The Customer is aware that the software, hardware and other materials made available contain confidential information and trade secrets pertaining to Damen and/or its licensors. The Customer undertakes to keep the software, hardware and materials secret, not to disclose them or to provide them for use to third parties and to use them solely for the purpose for which they were made available. Third parties shall also be taken as including all persons employed in the Customer’s organisation not having a need to use the software, hardware and/or other materials.
24.3 The Customer shall not be permitted to delete or modify any indication of copyright, trademarks, trade names or other rights of intellectual or industrial property from the software, hardware or materials, including indications concerning the confidential nature and secrecy of the software.
24.4 Damen and its licensors are permitted to take technological measures in order to protect the software. If Damen or its licensors has protected the software technologically, the Customer shall not be permitted to delete or evade that protection. If the protection measures mean that the Customer is not capable of making a reserve copy of the software, Damen will on request provide the Customer with such a copy.
24.5 Apart from the case in which Damen provides the Customer with a reserve copy of the software, the Customer shall have the right to keep a reserve copy of the software, by which shall also be understood making such a copy. In these Terms of Delivery a reserve copy shall be defined as a physical object on which the software is recorded, solely with the purpose of replacing the original copy of the software in the event of involuntary loss of possession or damage. The reserve copy must be an identical copy and must always bear the same labels and indications as the original copy.
24.6 If the Customer develops software or a third party develops software for it, or if the Customer has the intention of doing so and, in connection with the interoperability of the software to be developed and the software with which it has been provided by Damen, it needs information in order to effect such interoperability, the Customer shall specify the required information to Damen in writing. Damen will then advise within a reasonable period whether the Customer can obtain access to the desired information and on what terms, including financial conditions and terms concerning any third parties that might be engaged by the Customer. In these General Terms of Delivery interoperability shall be defined as the capacity of the software to exchange information with other components of a computer system and/or software and to communicate by means of that information.
24.7 Subject to the other provisions in these Terms of Delivery, the Customer shall be authorised to rectify any errors in the software with which it has been provided, where this is necessary for the intended use arising from the nature of the software.
Where these General Terms of Delivery make reference to rights or obligations in relation to errors, errors shall be taken as a failure to comply with the functional specifications advised in writing by Damen and, in the case of the development of customised software, to the specifically agreed functional specifications. An error arises only if this can be demonstrated and also reproduced. The Customer is obliged to notify Damen without delay of any errors.
24.8 Damen shall hold the Customer harmless against any legal claim by a third party based on the allegation that the software, hardware or materials developed by Damen infringe an applicable right of intellectual or industrial property under Dutch law, on condition that the Customer advises Damen without delay in writing of the existence and content of the legal claim and leaves the handling of the case, including any settlements, entirely to Damen.
The Customer shall provide Damen with the necessary authorisations, information and cooperation for Damen to defend itself against these legal claims, if necessary in the name of the Customer.
This obligation of indemnification lapses if and in so far as the infringement in question is related to modifications made by the Customer or made on its behalf by third parties to the software, hardware or materials.
If it has been irrevocably established at law that the software, hardware or materials developed by Damen itself infringes any right of intellectual or industrial property vested in a third party or if in the opinion of Damen there is a reasonable chance that such a violation has taken place, Damen shall take back what has previously been delivered, in return crediting the acquisition costs less a reasonable usage fee, or will ensure that the Customer can continue to enjoy the undisturbed use of the delivered or functionally equivalent other software, hardware or materials.
Any other or more far-reaching liability or obligation to indemnify on the part of Damen on account of the violation of third-party intellectual or industrial property rights shall be excluded, including liability and obligations to indemnify on the part of Damen for infringements caused by the use of the software, hardware and/or materials supplied in a form not modified by Damen’s licensors, in connection with items or software not delivered or provided by Damen or in any other way than that for which the hardware, software and/or materials has been developed or is intended.
24.9 The Customer undertakes to ensure that no third-party rights will prevent the provision to Damen of hardware, software or materials with a view to use or processing and the Customer shall hold Damen harmless against any action based on the allegation that such provision, use or processing infringes any third-party right.