1. Offer and agreement
1.1 These general terms and conditions apply to all offers and agreements whereby Supplier delivers goods and / or services of whatever nature to Client, even if these goods or services are not (further) described in these terms and conditions. Deviations from these general terms and conditions are only valid if expressly agreed in writing.
1.2 All offers are without obligation, unless explicitly rejected in the offer in writing.
1.3 The applicability of any purchase or other conditions of the Client is explicitly rejected.
1.4 If any provision of these general terms and conditions is null and void or is nullified, the other provisions of these general terms and conditions will remain in full force and the Supplier and Client will consult in order to agree new provisions to replace the null and void or nullified provisions, whereby as far as possible the purpose and the tenor of the void or nullified provision are taken into account.
2. Price and payment
2.1 All prices are exclusive of turnover tax (VAT) and other levies imposed by the government.
2.2 In the event of an agreement in which there are periodic amounts due to be paid by the Client, the Supplier shall be entitled to adjust the applicable prices and rates by means of a written notice to the effect of a period of at least three months. .
2.3 The Supplier is in all cases entitled to adjust the agreed prices and rates by means of a written notification to the Client for services that, according to the agreement, will be delivered at a time that is at least three months after the date of this notification.
2.4 If the Client does not wish to agree to an adjustment made by the Supplier of prices and rates as referred to in Article 2.2 or 2.3, the Client is entitled to terminate the agreement in writing within seven working days after the notification referred to in those articles. the date stated in the Supplier’s notification on which the price or tariff adjustment would come into force or to cancel the agreement.
2.5 All invoices will be paid by the Client in accordance with the payment conditions stated on the invoice. In the absence of specific conditions, the Client will pay within 15 (fifteen) days of the invoice date.
2.6 Loyally invoices 50% of the agreed project costs at the start of a project. The remaining 50% will be invoiced on completion.
2.7 If the Client does not pay the amounts due within the agreed term, the Client will owe the statutory interest on the outstanding amount, without any notice of default being required. If Client continues to fail to pay the claim after notice of default, the claim can be handed over, in which case Client will be obliged to pay full compensation for extrajudicial and judicial costs, including all costs charged by external parties. experts in addition to the costs established in court, in connection with the collection of this claim or the exercise of legal action, the amount of which is fixed at a minimum of 15% of the total amount.
3. Confidential information and non-takeover clause
3.1 Each party guarantees that all confidential information received before and after entering into the agreement of the other party will remain secret. Information will in any case be regarded as confidential if it is designated as such by one of the parties.
3.2 Each of the parties will, during the term of the agreement, as well as one year after its termination only after proper business consultation with the other party has taken place, employees of the other party who were involved in the execution of the agreement. , employing or otherwise, directly or indirectly, making it work for them.
4. Reservation of property and rights
4.1 All goods delivered to the Client remain the property of the Supplier until all amounts due by the Client for the goods delivered or to be delivered pursuant to the agreement, as well as the amounts referred to in Article 2.6, including interest and costs of collection, are fully applicable. to the Supplier.
4.2 Rights are always granted to the Client or, where appropriate, transferred under the condition that the Client pays the agreed fees in a timely and complete manner.
The risk of loss or damage to the items that are the subject of the agreement will pass to the Client at the time when they are brought into the actual disposal of the Client or an auxiliary person used by the Client.
6. Intellectual or industrial property rights
6.1 All intellectual or industrial property rights on all software, equipment or other materials such as analyses, designs, documentation, reports, quotations, and preparatory material, developed or made available under the agreement, are exclusively vested in the Supplier or its licensers. Client only obtains the rights of use and powers that are explicitly granted under these conditions or otherwise and otherwise he will not multiply the software or other materials or make copies thereof. The above applies unless otherwise agreed between the Supplier and the Client.
6.2 The Client is aware that the software, equipment and other materials made available contain confidential information and trade secrets of the Supplier or its licensors. The Client undertakes, without prejudice to the provisions in article 3, to keep this software, equipment and materials secret, not to disclose it to third parties or to use it and to use it only for the purpose for which it was made available to it. Third parties also include all persons working in the Client’s organization who do not necessarily have to use the software, equipment and / or other materials.
6.3 The Client is not permitted to remove or alter any designation concerning copyrights, brands, trade names or other intellectual or industrial property rights from the software, equipment or materials, including indications concerning the confidential nature and secrecy of the software. software.
6.4 The Supplier is permitted to take technical measures to protect the software. If the Supplier has secured the software by means of technical protection, the Client is not permitted to remove or circumvent this protection. If the security measures result in the Client being unable to make a backup copy of the software, the Supplier shall make available to the Client a back-up copy of the software at the request of the Client.
6.5 Unless the Supplier makes a back-up copy of the software available to the Client, the Client is entitled to keep one back-up copy of the software, which must also be understood. The term ‘back-up copy’ in these general terms and conditions is understood to mean: a material object on which the software is fixed solely for the replacement of the original copy of the software in the event of involuntary loss of possession or damage. The spare copy must be an identical copy and always be provided with the same labels and indications as the original copy.
6.6 If the Client develops software or a third party develops software for him or if the Client intends to do so, and in connection with the interoperability of the software to be developed, the Client will request the Supplier to provide written and specified information on the required information. The Supplier will then within a reasonable period of time state whether the Client can obtain the requested information and on what conditions, including financial conditions and conditions concerning the third parties that may be called in by the Client. In these general conditions interoperability is understood to mean: the ability of software to exchange information with other components of a computer system and / or software and to communicate through this information.
6.7 With due observance of the other provisions in these terms and conditions, the Client is entitled to correct errors in the software made available to him if this is necessary for the intended use resulting from the nature of the software. Where in these general terms and conditions there are rights or obligations with regard to errors, errors shall be understood to mean non-fulfilment of the functional specifications made known by the Supplier in writing and, in the case of the development of customized software, to the expressly agreed functional specifications. An error only exists if it can be demonstrated and can be reproduced. Client is obliged to report errors to the Supplier without delay.
6.8 The Supplier shall indemnify the Client against any legal claim based on the contention that software, equipment or materials developed by the Supplier infringe an intellectual or industrial property right in the Netherlands, on the condition that the Client informs the Supplier in writing without delay the existence and the maintenance of the legal claim and the settlement of the case.
7. Cooperation by the Client
7.1 The Client shall always provide the Supplier in a timely manner with all data and information that is useful and necessary for the proper performance of the agreement and provide full cooperation.
7.2 The Client is responsible for the use and application in its organization of the equipment, software and of the services to be provided by the Supplier as well as for the control and security procedures and adequate system management.
7.3 If it has been agreed that the Client will make software, materials or data available on information carriers, these will comply with the specifications necessary for the performance of the work.
7.4 If data necessary for the execution of the agreement are not, not timely or not at the disposal of the Supplier in accordance with the agreements or if the Client does not fulfill its obligations in any other way, the Supplier shall in any case have the right to suspend the execution of the agreement. agreement and he has the right to charge the resulting costs according to his usual rates.
7.5 In the event that employees of the Supplier carry out work at the location of the Client, the Client shall provide free of charge for the facilities reasonably desired by those employees, such as – if applicable – a workspace with telecommunications facilities, etc. The Client shall indemnify the Supplier against claims from third parties, including employees of the Supplier, who suffer damage in connection with the performance of the agreement as a result of the Client’s actions or omissions or unsafe situations in his organization.
8. Delivery terms
All (delivery) periods mentioned by the Supplier have been determined to the best of its knowledge on the basis of the information known to the Supplier at the time of entering into the agreement and will be observed as much as possible; the mere exceeding of a specified (delivery) term does not result in the Supplier being in default. The Supplier is not bound by (delivery) periods that can no longer be met due to circumstances beyond his power that occurred after the conclusion of the agreement. If there is a risk of exceeding any term, the Supplier and the Client will consult as soon as possible.
9.1 The parties to the termination of the agreement shall only be entitled to dissolve the agreement if the other party, after a proper and as detailed notice as possible, with which a reasonable period is set for the purification of the shortcoming, imputably fails in the performance of the agreement. the essential obligations under the agreement.
9.2 If an agreement which by its nature and content does not end by completion, has been entered into for an indefinite period of time, it can be terminated by either party after proper business consultation and stating reasons by means of written cancellation. If no explicit notice period has been agreed between the parties, a reasonable period of notice must be observed in the termination. Contrary to the provisions of Article 10, the parties will never be obliged to pay any compensation for termination.
9.3 The Supplier can terminate the agreement in full or in part without notice of default and without judicial intervention by written notice with immediate effect if Client is granted provisional suspension of payment, if Client is filed for bankruptcy or if his company is liquidated or terminated other than for the purpose of reconstruction or merger of companies. Supplier will never be held to pay any compensation because of this termination.
9.4 If the Client has already received performance for the performance of the agreement at the time of the dissolution as referred to in Article 9.1, these performances and the associated payment obligation will not be subject to cancellation, unless the Supplier is in default with regard to those performances. Amounts that the Supplier has invoiced for the dissolution in connection with what he has already performed or delivered in execution of the agreement will remain fully due, with due observance of the previous sentence, and will become immediately due and payable at the time of the dissolution.
10. Liability of the Supplier, indemnity
10.1 The Supplier accepts legal obligations to pay compensation insofar as this appears from this article 10.
10.2 The total liability of the Supplier due to attributable shortcoming in the fulfillment of the agreement is limited to compensation of direct damage up to the amount of the price stipulated for that agreement (excluding VAT). If the agreement is mainly a continuing performance contract with a term of more than one year, the stipulated price is set at the total of the fees (excluding VAT) stipulated for one year. Under no circumstances will the total compensation for direct damage exceed € 450,000 (four hundred and fifty thousand euros).
Direct damage is exclusively understood as:
a. the reasonable costs that the Client would have to incur in order to have the Supplier’s performance comply with the agreement. However, this damage will not be compensated if the Client has terminated the agreement;
b. the costs incurred by the Client for the longer-term operation of its old system or systems and associated facilities because the Supplier has not delivered on a delivery date that is binding for him, less any savings resulting from the delayed delivery;
c. reasonable costs incurred to determine the cause and extent of the damage, insofar as the determination relates to direct damage within the meaning of these conditions;
d. reasonable costs incurred to prevent or limit damage, insofar as Client demonstrates that these costs have led to limitation of direct damage within the meaning of these conditions.
10.3 The Supplier’s total liability for damage caused by death or physical injury or for material damage to goods shall under no circumstances exceed € 450,000 (four hundred and fifty thousand euros) per event, whereby a series of related events counts as one event.
10.4 Liability of the Supplier for indirect damage, including consequential damage, lost profit, missed savings and damage due to business interruption, is excluded.
10.5 Apart from the cases referred to in Articles 10.2 and 10.3, the Supplier will not have any claim for compensation, irrespective of the grounds on which an action for damages would be based. However, the maximum amounts mentioned in articles 10.2 and 10.3 will lapse if and insofar as the damage is the result of intent or gross negligence on the part of the Supplier.
10.6 The liability of the Supplier due to imputable shortcoming in the performance of an agreement arises only if the Client promptly and in writing gives the Supplier default, setting a reasonable period for the purification of the shortcoming, and the Supplier also after that term imputable in the performance. of his obligations remains inadequate. The notice of default must contain as detailed a description as possible of the shortcoming, so that the Supplier is able to respond adequately.
10.7 The condition for the existence of any right to compensation is always that the Client reports the damage to the Supplier in writing as soon as possible after the occurrence thereof.
10.8 The Client shall indemnify the Supplier against all third-party claims due to product-specificity as a result of a defect in a product or system supplied by the Client to a third party and which also consisted of equipment, software or other materials supplied by the Supplier, except if and insofar as the Client proves that the damage was caused by that paper, software or other materials.
11. Force majeure
11.1 Neither party is obliged to fulfil any obligation if he is prevented from doing so as a result of force majeure. Force majeure also means a non-attributable shortcoming of suppliers of Supplier.
11.2 If the force majeure situation has lasted longer than ninety days, the parties have the right to terminate the agreement by means of written termination. What has already been achieved as a result of the agreement will then be settled proportionally, without the parties owing each other anything else.
The relevant export conditions apply to the export of equipment, parts or software by the Client. The Client indemnifies the Supplier against all third-party claims that are related to violations attributable to the Client from the applicable export provisions.
13. Dispute settlement
The disputes that may arise between the Supplier and the Client as a result of an agreement concluded by the Supplier with the Client or as a result of further agreements that may result therefrom, will be settled by a competent Dutch court.
The provisions mentioned in this chapter “Services” are, in addition to the General Provisions of these general terms and conditions, applicable if the Supplier provides services, such as organizational and automation advice, feasibility research, consultancy, training, courses, training, support, secondment, designing or developing software or information systems or providing assistance and services related to networks. This provision does not affect the provisions included in these general terms and conditions regarding specific services, such as computer services, the development of software and maintenance.
14.1 The Supplier shall make every effort to execute the service with due care and, where appropriate, in accordance with the arrangements and procedures laid down in writing with the Client.
14.2 If it has been agreed that the services will take place in phases, the Supplier is entitled to postpone the commencement of the services that belong to a following phase until the Client has approved the results of the preceding phase in writing.
14.3 Only if this has been explicitly agreed in writing and is the Supplier obliged to follow timely and responsible instructions from the Client during the performance of the service.
15. Change and additional work
15.1 If the Supplier has carried out work or other services at the request or with the prior consent of the Client that fall outside the content or scope of the agreed services, these activities or performances shall be reimbursed to the Supplier by the Client in accordance with the Supplier’s usual rates. However, the Supplier is not obliged to comply with such a request and may require that a separate written agreement be concluded for this.
15.2 The Client accepts that work or performance as referred to in Article 15.1 may affect the agreed or expected time of completion of the service and the mutual responsibilities of the Client and the Supplier.
15.3 Insofar as a fixed price has been agreed for the service and the parties intend to enter into a separate agreement with regard to extra work or services, the Supplier shall inform the Client in advance in writing about the financial consequences of this extra work or performance.
16. Training, courses and training
16.1 Insofar as the service provided by the Supplier consists of providing training, course or training, the Supplier may always demand the payment due for the commencement thereof. The consequences of a cancellation of participation in a course, course or training will be governed by the rules customary at the Supplier.
16.2 If, in the opinion of the Supplier, the number of registrations gives reason to do so, the Supplier shall be entitled to combine the training, course or training with one or more other programs, courses or training courses, or to have these take place at a later date or later date.
Development of software
The provisions mentioned in this chapter “Development of software” are, in addition to the General Provisions of these general terms and conditions and the special provisions in the chapter “Services”, applicable if the Supplier develops a program on behalf of the Client. The chapter “Use and maintenance of software” also applies to this software, except to the extent that this is deviated from in this chapter. The rights and obligations referred to in this chapter relate exclusively to computer software in a form that is readable for a data-processing machine and recorded on material readable for such a machine, as well as to the accompanying documentation.
17. Development of software
17.1 Parties will specify in writing which software will be developed and in which way this will take place. The Supplier shall carry out the software development with due care on the basis of the data to be provided by the Client, for the correctness, completeness and consistency of which the Client is responsible.
17.2 The Supplier is entitled, but not obliged, to investigate the correctness, completeness or consistency of the data or specifications made available to it and to suspend the agreed activities in the event of any deficiencies until the Client has removed the shortcomings concerned.
17.3 Without prejudice to the provisions in Article 6, the Client will acquire the right to use the software in his company or organization. If and insofar as this has been expressly agreed in writing, the source code of the software and technical documentation produced during the development of the software can be made available to the Client and the Client is entitled to make changes in this software.
18. Delivery, installation and acceptance
18.1 The Supplier shall deliver and install the software to be developed to the Client in accordance with the specifications laid down in writing, the latter only in the event that an installation to be performed by the Supplier has been agreed in writing.
18.2 If an acceptance test has been agreed in writing, the test period shall be fourteen days after delivery or, if an installation to be carried out by the Supplier has been agreed in writing, after completion of the installation. During the test period, the Client is not permitted to use the software for productive or operational purposes.
18.3 The software will be accepted as between parties:
A: if no acceptance test has been agreed between the parties at the time of delivery or, if an installation to be carried out by the Supplier has been agreed in writing, at the completion of the installation, or
B: if an acceptance test has been agreed between the parties in writing: on the first day after the test period, or
C: if the Supplier receives a test report as referred to in Article 18.5 before the end of the test period: at the moment that the errors stated in that test report have been rectified, the presence of
Contrary to the foregoing, if the Client makes any use for productive or operational purposes before the moment of acceptance, the software will already be considered as fully accepted from the start of that use.
18.4 If during the execution of the agreed acceptance test it appears that the software contains errors that impede the progress of the acceptance test, the Client shall inform the Supplier in writing in detail, in which case the test period shall be interrupted until the software is adjusted in such a way that that obstacle has been raised.
18.5 If, when carrying out the agreed acceptance test, it appears that the program contains errors within the meaning of Article 6.7, the Client shall inform the Supplier of the errors by means of a written and detailed test report at the latest on the last day of the test period. The Supplier shall make every effort to repair the reported errors within a reasonable period, whereby the Supplier is entitled to install temporary solutions or program detours or problem avoiding restrictions in the software.
18.6 Acceptance of the software may not be withheld on grounds other than those relating to the specifications explicitly agreed between the parties and also not due to the existence of minor errors, namely errors that do not reasonably prevent the operational or productive use of the software. without prejudice to the obligation of the Supplier to rectify these minor errors in the context of the guarantee scheme of Article 21, if applicable.
18.7 If the software is delivered and tested in phases and / or parts, the non-acceptance of a certain phase and / or part will not affect any acceptance of earlier phase and / or another part.
Use and maintenance of software
The provisions mentioned in this chapter “Use and maintenance of software” are, in addition to the General Provisions of these general terms and conditions, applicable to all software provided by the Supplier. The rights and obligations referred to in this chapter relate exclusively to computer software in a form that is readable for a data processing machine and recorded on material readable for such a machine, as well as to the accompanying documentation, all including, where appropriate, Supplier to provide new versions.
19. Right of use
19.1 Without prejudice to the provisions of article 6, the Supplier grants the Client the non-exclusive right to use the software. The Client will always strictly comply with the user restrictions agreed between the parties. Without prejudice to the other provisions in these general terms and conditions, the Client’s right of use only includes the right to load and execute the software.
19.2 The Client may only use the software in his own company or organization on the one processing unit and for a certain number or type of users or connections for which the user right has been granted. Insofar as nothing has been agreed upon, the Client’s processing unit on which the software was first used and the number of connections connected to that processing unit at the time of first use, as processing unit and number of connections for which the right of use applies. has been provided. In the event of a malfunction of the intended processing unit, the software can be used on another processing unit for the duration of the malfunction. The right of use may relate to multiple processing units insofar as this is expressly stated in the agreement.
19.3 The right of use is not transferable. The Client is not permitted to sell, lease, sublicense, surrender or grant limited rights to the software and media on which it is recorded, or to make it available to a third party in any way or by any form whatsoever, not even if the third party in question uses the software solely for the benefit of the Client.
The Client will not modify the software other than in the context of repairing errors, and will not use it in the context of the processing of data for the benefit of third parties (time-sharing). The source code of the software and the technical documentation produced during the development of the program will not be made available to the Client.
19.4 Immediately after the end of the right to use the software, the Client will return all copies of the software in its possession to the Supplier. If the parties have agreed that the Client will destroy the relevant copies at the end of the right of use, the Client shall immediately notify the Supplier in writing of such destruction.
20. Delivery, installation and acceptance
20.1 The Supplier shall deliver the software to the Client on the agreed type and format of information carriers and, if an installation to be performed by the Supplier has been agreed in writing, install the software with the Client.
20.2 If an acceptance test has been agreed between the parties in writing, the provisions of articles 18.3 up to and including 18.7 shall apply mutatis mutandis.
20.3 If no acceptance test has been agreed between the parties, the Client accepts the software in the condition in which it is at the time of delivery, without prejudice to the obligations of the Supplier under the guarantee in Article 21.
21.1 During a period of three months after delivery, or if an acceptance test has been agreed between the parties, three months after acceptance, the Supplier shall, to the best of its ability, correct any errors in the software within the meaning of Article 6.7 if it is detailed within that period. described in writing to the Supplier. Supplier does not guarantee that the software will work without interruption or errors or that all errors will be corrected. The repair will be carried out free of charge, unless the program has been developed on behalf of the Client, other than for a fixed price, in which case the Supplier will charge its usual rates and costs of repair. Supplier may charge its usual rates and the costs of repair if there are errors of use or improper use by the Client or other causes not attributable to the Supplier or if the errors could have been established when the agreed acceptance test was carried out. Recovery of corrupted or lost data is not covered by the warranty. The guarantee obligation lapses if the Client makes changes to the software or has them made without the written consent of the Supplier.
21.2 Repair of errors will take place at a location to be determined by the Supplier. Supplier is entitled to install temporary solutions or program detours or problem avoiding claims in the software.
21.3 After expiry of the warranty period referred to in Article 21.1, the Supplier shall not be obliged to repair any errors, unless a maintenance agreement has been concluded between the parties that includes such a repair.
22.1 If a maintenance agreement has been concluded for the software or if maintenance is included in the user’s fee for the software, the Client shall report any errors noted in the software to the Supplier in accordance with the Supplier’s usual procedures. After receipt of the report, the Supplier shall attempt to correct faults within the meaning of Article 6.7 to the best of its ability and / or make improvements in later new versions of the software. Depending on the urgency, the results will be made available to the Client in the manner and period to be determined by the Supplier. Supplier is entitled to install temporary solutions or program detours or problem-avoiding restrictions in the software.
22.2 Supplier does not guarantee that the software will operate without interruption or errors or that all errors will be corrected.
22.3 Supplier may charge its usual rates and costs of repair if there are user errors or improper use or other causes not attributable to the Supplier, or if the software has been modified by parties other than the Supplier. Recovery of corrupted or lost data is not covered by maintenance.
22.4 If a maintenance agreement has been concluded, the Supplier will make these available to the Client upon the availability of improved versions of the software. Three months after making an improved version available, the Supplier is no longer obliged to repair any errors in the old version and to provide support with regard to the old version in question. For the provision of a version with new possibilities and functions, the Supplier may require the Client to enter into a new agreement with the Supplier and that a new fee will be paid for the provision.
22.5 If the Client has not entered into a maintenance agreement with the Supplier at the same time as concluding the agreement to make the software available, the Supplier may not be obliged to enter into a maintenance agreement at a later date.
23. Software from supplier
If and insofar as the Supplier makes software of third parties available to the Client, the terms and conditions of those third parties shall apply to the software in so far as this has been communicated to the Client in writing, with the exception of the provisions in these terms and conditions. Client accepts the terms and conditions of third party. These conditions are available for inspection by the Client at the Supplier and the Supplier will send them to the Client at his request.
If and insofar as the aforementioned conditions of third parties in the relationship between Client and Supplier for whatever reason are deemed not to apply or are declared to be out of application, the provisions in these conditions shall apply.