1.1.These General Terms and Conditions shall apply to all offers and agreements whereby supplier provides goods and/or services of any nature and under any denomination to customer.
1.2.Deviations from and additions to these general terms and conditions shall only be valid if agreed in writing between the parties.
1.3.The applicability of purchasing or other conditions of customer is expressly rejected.
1.4.If any provision of these general terms and conditions is null and void or annulled, the other provisions of these general terms and conditions shall remain in full force. In that case, the Supplier and Customer shall enter into consultation with the aim of agreeing on new provisions to replace the void or nullified provisions.
2.1.All offers and other expressions of the supplier are without obligation, unless otherwise indicated in writing by the supplier. Customer warrants the accuracy and completeness of the data provided by or on behalf of him to supplier on which supplier has based its offer.
3.1. All prices are exclusive of sales tax (VAT) and other levies imposed or to be imposed by the authorities. All prices stated by the supplier are always in euros and the customer must make all payments in euros.
3.2. No rights or expectations can be derived by the Customer from a pre-calculation or budget issued by the Supplier, unless the parties have agreed otherwise in writing. An available budget made known to the supplier by the customer shall only count as a (fixed) price agreed between the parties for the performance to be carried out by the supplier if this has been expressly agreed in writing.
3.3. If, according to the agreement concluded between the parties, the Customer consists of several natural persons and/or legal entities, each of those (legal) entities shall be jointly and severally liable to the Supplier for compliance with the agreement.
3.4. With regard to the performances carried out by the Supplier and the amounts owed by the Customer for them, the data from the Supplier's administration shall constitute full evidence, without prejudice to the Customer's right to provide evidence to the contrary.
3.5. If there is a periodic payment obligation of the Customer, the Supplier shall be entitled to adjust the applicable prices and rates in writing, in accordance with the index or other standard included in the agreement, at the time stated in the agreement. If the agreement does not expressly provide for the supplier to adjust the prices or rates, the supplier shall always be entitled to adjust the applicable prices and rates in writing with due observance of a period of at least three months. If, in the latter case, Customer does not wish to agree to the adjustment, Customer shall be entitled, within thirty days after notification of the adjustment, to terminate the agreement in writing with effect from the date on which the new prices and/or rates would take effect.
3.6.The parties shall set out in the agreement the date or dates on which the Supplier shall charge the Customer for the agreed performance. Amounts due shall be paid by the Customer in accordance with the payment conditions agreed or stated on the invoice. Customer is not entitled to suspend any payment nor to set off amounts due.
3.7. If the customer fails to pay the amounts owed or fails to pay them on time, the customer shall owe statutory interest for trade agreements on the outstanding amount, without a reminder or notice of default being required. If the Customer fails to pay the claim after a demand for payment or notice of default, the Supplier may pass on the claim for collection, in which case, in addition to the total amount then owed, the Customer shall be obliged to pay all judicial and extrajudicial costs, the latter with a minimum of 15% of the outstanding amounts, including all costs calculated by external experts. The foregoing shall not affect the Supplier's other statutory and contractual rights.
4.1.If and to the extent that the agreement concluded between the parties is a continuing performance agreement, the agreement has been entered into for the term agreed between the parties, failing which the term of one year shall apply.
4.2.The duration of the agreement is tacitly extended each time for the duration of the originally agreed period, unless customer or supplier terminates the agreement in writing with due observance of three months' notice before the end of the relevant period.
5.1.Customer and Supplier shall ensure that all information received from the other party which is known or should reasonably be known to be of a confidential nature shall remain secret. This prohibition shall not apply to Supplier if and insofar as disclosure of the relevant data to a third party is necessary pursuant to a court order, a statutory regulation or for the proper performance of the agreement by Supplier. The party receiving confidential data shall only use it for the purpose for which it was provided. Data shall in any case be considered confidential if it is designated as such by one of the parties.
5.2.Customer acknowledges that the software originating from Supplier is always of a confidential nature and contains trade secrets of Supplier, its suppliers or the producer of the software.
5.3. Each of the parties shall, during the term of the agreement as well as for one year after the end thereof, only with the prior written consent of the other party, employ or otherwise, directly or indirectly, allow employees of the other party who are or have been involved in the execution of the agreement to work for them. Such consent may be subject to conditions, including the condition that customer pays reasonable compensation to supplier.
6.1.If necessary for the execution of the agreement, the customer shall, upon request, inform the supplier in writing of the manner in which the customer implements its obligations under personal data protection legislation.
6.2. The Customer shall indemnify the Supplier against claims by persons whose personal data have been registered or are processed in the context of a register of persons kept by the Customer or for which the Customer is otherwise responsible by law, unless the Customer proves that the facts underlying the claim are imputable to the Supplier.
6.3.The responsibility for the data processed by Customer using a service of Supplier lies entirely with Customer. Customer warrants to supplier that the content, use and/or processing of the data is not unlawful and does not infringe any right of a third party. Customer shall indemnify supplier against any legal claim by a third party, on whatever grounds, in connection with these data or the performance of the agreement.
7.1.If the Supplier is obliged under the Agreement to provide some form of information security, such security shall comply with the specifications on security agreed between the parties in writing. The Supplier does not warrant that the information security will be effective under all circumstances. In the absence of an explicitly defined method of security in the Agreement, the security shall meet a level that is not unreasonable in view of the state of the art, the sensitivity of the data and the costs involved in providing the security.
7.2. The access or identification codes and certificates provided by or on behalf of Supplier to Customer are confidential and shall be treated as such by Customer and shall only be disclosed to authorised personnel from Customer's own organisation. Supplier shall be entitled to change assigned access or identification codes and certificates.
7.3.Customer shall adequately secure its systems and infrastructure and have anti-virus software in operation at all times.
8.1. All items delivered to the customer remain the property of the supplier until all amounts due from the customer to the supplier under the agreement concluded between the parties have been paid to the supplier in full. A customer acting as a reseller shall be allowed to sell and resupply all goods subject to supplier's retention of title to the extent customary in the ordinary course of business.
8.2.The property law consequences of the retention of title of an export item shall be governed by the law of the State of destination if that law contains more favourable provisions for the supplier in this regard.
8.3.Rights are granted or transferred to customer, where applicable, on condition that customer has paid all amounts due from the agreement.
8.4.Supplier may retain the data, documents, software and/or data files received or realised under the agreement, despite an existing obligation to surrender or transfer, until Customer has paid all amounts due to Supplier.
9.1.The risk of loss, theft, embezzlement or damage to items, data (including user names, codes and passwords), documents, software or data files manufactured, delivered or used within the framework of the execution of the agreement shall pass to customer at the time they are placed in the actual control of customer or a helper of customer.
10.1.If the Supplier is prepared to undertake to transfer an intellectual property right, such an undertaking may only be entered into expressly in writing. If the Parties agree in writing that an intellectual property right with regard to software, websites, data files, equipment or other materials developed specifically for the Customer shall be transferred to the Customer, this shall not affect the Supplier's right or ability to use and/or exploit the parts, general principles, ideas, designs, algorithms, documentation, works, programming languages, protocols, standards and the like underlying that development for other purposes, either for itself or for third parties, without any restrictions. Nor does the transfer of an intellectual property right affect the supplier's right to make developments for itself or a third party that are similar or derived from those made or to be made for the customer.
10.2. All intellectual property rights to the software, websites, data files, equipment, training, test and examination materials or other materials such as analyses, designs, documentation, reports, offers, as well as preparatory materials thereof, developed or made available to the Customer on the basis of the Agreement, shall be held exclusively by the Supplier, its licensors or its suppliers. The Customer shall acquire the rights of use expressly granted by these General Terms and Conditions, the written agreement concluded between the parties and the law. A right of use granted to the Customer is non-exclusive, non-transferable, non-pledgeable and non-sublicensable.
10.3. Customer shall not remove or alter (or cause to be removed or altered) any indication(s) concerning the confidential nature or concerning copyrights, trademarks, trade names or any other intellectual property rights from the software, websites, data files, equipment or materials.
10.4. Even if the Agreement does not expressly provide for this, the Supplier is always allowed to install technical provisions to protect equipment, data files, websites, software made available, software to which access is provided to the Customer (directly or indirectly), and suchlike in connection with an agreed limitation in the contents or the duration of the right to use these objects. Customer shall not remove such technical provision(s) or have them removed or bypassed.
10.5 The Supplier shall indemnify the Customer against any claim by a third party based on the allegation that software, websites, data files, equipment or other materials developed by the Supplier itself infringe an intellectual property right of that third party, on the condition that the Customer immediately informs the Supplier in writing of the existence and substance of the claim and leaves the handling of the matter, including making any settlements, entirely to the Supplier. To this end, the Customer shall provide the necessary powers of attorney, information and cooperation to the Supplier to defend against such claims. This indemnification obligation shall be extinguished if the alleged infringement relates (i) to materials provided by the Customer to the Supplier for use, adaptation, processing or maintenance, or (ii) to changes which the Customer has made or caused to be made to the software, website, data files, equipment or other materials without the Supplier's written permission. If it has been irrevocably established in law that the software, websites, databases, equipment or other materials developed by the Supplier infringe any intellectual property right belonging to a third party or if, in the Supplier's judgment, there is a good chance that such an infringement has occurred, the Supplier shall, if possible, ensure that the Customer can continue to use the software, websites, databases, equipment or materials delivered or functionally equivalent other software, websites, databases, equipment or materials. Any other or further-reaching obligation to indemnify the Supplier on account of infringement of an intellectual property right of a third party is excluded.
10.6. The Customer warrants that no rights of third parties oppose making equipment, software, material intended for websites, data files and/or other materials and/or designs available to the Supplier for the purpose of use, maintenance, adaptation, installation or integration. The Customer shall indemnify the Supplier against any claim by a third party based on the allegation that such provision, use, maintenance, adaptation, installation or integration infringes any right of that third party.
10.7.Supplier shall never be obliged to perform data conversion, unless expressly agreed in writing with Customer.
11.1. Parties acknowledge that the success of work in the field of information and communication technology depends on correct and timely mutual cooperation. Customer will always provide all cooperation reasonably required by Supplier in a timely manner.
11.2.Customer shall bear the risk of selecting the items, goods and/or services to be delivered by Supplier. Customer shall always take the utmost care to ensure that the requirements to be met by Supplier's performance are correct and complete. Dimensions and data mentioned in drawings, images, catalogues, websites, quotations, advertising material, standardisation sheets, etc. are not binding for the supplier, except if expressly stated otherwise by the supplier.
11.3. If the Customer deploys personnel and/or auxiliary persons for the execution of the Agreement, such personnel and auxiliary persons shall possess the necessary knowledge and experience. If employees of the Supplier perform work on-site at the Customer's, the Customer shall provide the necessary facilities, such as a workspace with computer and network facilities, in a timely manner and free of charge. The Supplier shall not be liable for damage or costs due to transmission errors, breakdowns or non-availability of these facilities, unless the Customer proves that this damage or these costs are the result of intent or deliberate recklessness on the part of the Supplier's management.
11.4. The work area and facilities will meet all legal requirements. The Customer shall indemnify the Supplier against claims by third parties, including employees of the Supplier, who suffer damage in connection with the performance of the agreement as a result of acts or omissions by the Customer or unsafe situations in his organisation. Customer shall make the house and security rules applicable within his organisation known to the employees deployed by Supplier before commencement of the work.
11.5. If the Customer makes software, equipment or other resources available to the Supplier in connection with the Supplier's services and products, the Customer shall ensure that all necessary licences or approvals relating to these resources which the Supplier may require are obtained.
11.6.Customer is responsible for the management, including control of the settings, use of the products and/or services provided by Supplier and how the results of the products and services are deployed. Customer is also responsible for instruction to, and use by, users.
11.7 The Customer shall install, set up, parameterise and tune the (auxiliary) software required on its own equipment and, if necessary, adjust the equipment, other (auxiliary) software and user environment used in the process and achieve the interoperability desired by the Customer.
12.1.To enable the Supplier to properly execute the agreement, the Customer shall always provide the Supplier with all data or information reasonably required by the Supplier in good time.
12.2. Customer guarantees the accuracy and completeness of the data, information, designs and specifications provided by him to supplier. If the data, information, designs or specifications provided by the Customer contain inaccuracies known to the Supplier, the Supplier shall inquire about them with the Customer.
12.3.In connection with continuity, the Customer shall appoint a contact person or contact persons to act as such for the duration of the Supplier's work. Customer's contact persons will have the necessary experience, specific subject matter knowledge and understanding of Customer's desired objectives.
12.4.Supplier is only obliged to provide Customer with periodic information about the performance of the work through Customer's designated contact person.
13.1.If both parties participate in a project or steering group with one or more employees deployed by them, the provision of information will take place in the manner agreed for the project or steering group.
13.2. Decisions taken in a project or steering group in which both Parties participate shall only be binding on the Supplier if the decision-making is in accordance with what has been agreed between the Parties in writing or, in the absence of written agreements to that effect, if the Supplier has accepted the decisions in writing. The Supplier shall never be obliged to accept or implement a decision if, in its opinion, this is incompatible with the substance and/or proper performance of the Agreement.
13.3.Customer warrants that the persons appointed by it to form part of a project or steering group are entitled to make decisions binding on Customer.
The Supplier shall make reasonable efforts to observe as much as possible the (delivery) periods and/or (completion) dates stated by him or agreed between the Parties, whether final or not. Interim (delivery) dates stated by the Supplier or agreed between the Parties shall always be target dates, shall not be binding on the Supplier and shall always be of an indicative nature.
14.2.If the exceeding of any deadline is imminent, the Supplier and Customer shall consult to discuss the consequences of the exceeding for further planning.
14.3. In all cases, therefore, even if the Parties have agreed on a firm (delivery) deadline or (completion) date, the Supplier shall not be in default because of a time period being exceeded until the Customer has given it written notice of default, whereby the Customer allows the Supplier a reasonable time to remedy the breach (of what has been agreed) and this reasonable time period has expired. The notice of default must contain as complete and detailed a description of the shortcoming as possible, so that the Supplier is given the opportunity to respond adequately.
14.4.If it has been agreed that the performance of the agreed work will take place in phases, the Supplier is entitled to postpone the start of the work belonging to a phase until the Customer has approved in writing the results of the preceding phase.
14.5. Supplier shall not be bound by any deadline (for completion or otherwise) or (delivery) date if the parties have agreed on a change in the substance or scope of the agreement (additional work, change in specifications, etc.) or a change in the approach to the performance of the agreement, or if Customer fails to meet his obligations under the agreement, or fails to do so on time or in full. The fact that (the demand for) additional work arises during the execution of the agreement shall never be a ground for customer to terminate or dissolve the agreement.
15.1. Each of the parties shall only be authorised to dissolve the agreement on account of an attributable failure in the performance of the agreement if the other party, in all cases after a written notice of default which is as detailed as possible and in which a reasonable term is given to remedy the failure, fails attributably in the performance of essential obligations under the agreement. Payment obligations of Customer and all obligations to cooperate and/or provide information by Customer or a third party engaged by Customer shall in all cases be considered essential obligations under the agreement.
15.2. If the Customer has already received performances in execution of the agreement at the time of dissolution, these performances and the related payment obligations shall not be subject to cancellation, unless the Customer proves that the Supplier is in default with regard to the essential part of those performances. Amounts which the supplier has invoiced before the dissolution in connection with what it has already duly performed or delivered in execution of the agreement shall, with due observance of the provisions of the previous sentence, continue to be owed in full and shall become immediately payable at the time of dissolution.
15.3 If an agreement which by its nature and content does not end by completion has been entered into for an indefinite period, it may be terminated in writing by each of the parties after proper consultation and stating reasons. If no notice period has been agreed between the parties, a reasonable notice period must be observed. The Supplier shall never be liable for any compensation on account of termination.
15.4. Customer is not entitled to prematurely terminate an order agreement entered into for a definite period.
15.5 Each of the parties may partly or completely terminate the agreement in writing with immediate effect and without notice of default if the other party is granted a provisional or non-provisional suspension of payments, if bankruptcy is applied for with regard to the other party, if the other party's business is wound up or terminated other than for the purpose of reconstruction or merger of companies. Supplier may also terminate the agreement in whole or in part with immediate effect without notice of default if the decisive control over Customer's company changes directly or indirectly. On account of the termination referred to in this paragraph, the Supplier shall never be obliged to refund any monies already received or to pay damages. If the Customer has been irrevocably declared bankrupt, the Customer's right to use the software, websites and the like which have been made available, as well as the Customer's right to access and/or use the Supplier's services, shall terminate without any notice of termination being required on the part of the Supplier.
16.1. The total liability of the Supplier on account of an attributable failure in the fulfilment of the agreement or on any legal ground whatsoever, expressly including any failure in the fulfilment of a guarantee obligation agreed with the Customer, shall be limited to compensation of direct damage up to a maximum of the amount of the price (excluding VAT) stipulated for that agreement. If the agreement is mainly a continuing performance agreement with a duration of more than one year, the price stipulated for that agreement shall be set at the total of the fees (excluding VAT) stipulated for one year. In no case, however, shall the total liability of the Supplier for direct damage, on any legal basis whatsoever, exceed €500,000 (five hundred thousand Euros).
16.2. The total liability of the Supplier for damage due to death, physical injury or because of material damage to property shall never exceed € 500,000 (five hundred thousand Euros).
16.3. The Supplier's liability for indirect damage, consequential damage, loss of profit, lost savings, loss of goodwill, damage due to business stagnation, damage as a result of claims of customers of the Customer, damage relating to the use of items, materials or software of third parties prescribed by the Customer to the Supplier and damage relating to the involvement of suppliers prescribed by the Customer to the Supplier, is excluded. Also excluded is the supplier's liability in connection with mutilation, destruction or loss of data or documents.
16.4. The exclusions and limitations of liability of the Supplier described in Articles 16.1 to 16.3 shall not affect the other exclusions and limitations of liability of the Supplier described in these General Terms and Conditions.
16.5.The exclusions and limitations referred to in Articles 16.1 to 16.4 shall lapse if and insofar as the damage is the result of intent or conscious recklessness on the part of the Supplier's management.
16.6. Unless performance by the Supplier is permanently impossible, the Supplier's liability for an attributable failure to perform an agreement shall only arise if the Customer gives the Supplier immediate notice of default in writing, whereby a reasonable period for remedy of the failure is given, and the Supplier continues to fail attributably in the performance of its obligations even after that period. The notice of default must contain as complete and detailed a description of the breach as possible, so that the Supplier is given the opportunity to respond adequately.
16.7. A condition for the creation of any right to compensation for damages is always that the customer reports the damage to the supplier in writing as soon as possible after its occurrence. Any claim for compensation for damages against the supplier shall lapse by the mere expiry of twenty-four months after the claim arose, unless the customer has filed a legal claim for compensation for damages before the expiry of that period.
16.8. The Customer shall indemnify the Supplier against all third-party claims for product liability as a result of a defect in a product or system delivered by the Customer to a third party which partly consisted of equipment, software or other materials delivered by the Supplier, unless and insofar as the Customer proves that the damage was caused by that equipment, software or other materials.
16.9. The provisions of this article as well as all other limitations and exclusions of liability mentioned in these general terms and conditions also apply for the benefit of all (legal) persons which the supplier makes use of in the execution of the agreement.
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17.1. Neither party is obliged to fulfil any obligation, including any legal and/or agreed guarantee obligation, if prevented from doing so as a result of force majeure. Force majeure on the part of the Supplier shall include: (i) force majeure of suppliers of the Supplier, (ii) failure to properly fulfil obligations of suppliers prescribed by the Customer to the Supplier, (iii) defectiveness of items, equipment, software or materials of third parties, the use of which has been prescribed by the Customer to the Supplier, (iv) government measures, (v) power failure, (vi) failure of internet, data network or telecommunication facilities, (vii) war and (viii) general transport problems.
17.2 If a force majeure situation lasts longer than sixty days, each of the parties has the right to dissolve the agreement in writing. What has already been performed under the agreement shall in that case be settled proportionally, without the parties owing each other anything else.
18.1.If, at the request or with the prior consent of the Customer, the Supplier has performed work or other performance which falls outside the content or scope of the agreed work and/or performance, such work or performance shall be compensated by the Customer in accordance with the agreed rates and, in the absence thereof, in accordance with the Supplier's usual rates. Supplier shall not be obliged to comply with such a request and it may require a separate written agreement for that purpose.
18.2.Insofar as a fixed price has been agreed for the services, the Supplier shall, upon request, inform the Customer in writing of the financial consequences of the additional work or performance referred to in this article.
19.1.Customer shall never sell, transfer or pledge its rights and obligations under the agreement to a third party.
19.2.Supplier shall be entitled to sell, transfer or pledge its claims for payment of compensation to a third party.
The agreements between supplier and customer are governed by Dutch law. Applicability of the Vienna Sales Convention 1980 is excluded.
20.2 Disputes arising as a result of the agreement concluded between the parties and/or as a result of further agreements resulting therefrom shall be settled by the competent court in Utrecht.
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21.1. The Supplier shall use its best efforts to perform its services with care, where appropriate in accordance with the agreements and procedures laid down in writing with the Customer. All services of the Supplier shall be performed on the basis of an obligation to perform to the best of one's abilities, unless and insofar as the Supplier has expressly promised a result in the written agreement and the result concerned has also been described with sufficient definiteness in the agreement.
21.2 The Supplier shall not be liable for damages or costs resulting from use or misuse made of access or identification codes or certificates, unless the misuse is the direct result of an intentional or knowingly reckless act or omission of the Supplier's management.
21.3. If the agreement has been entered into with a view to performance by one particular person, the Supplier shall always be entitled to replace this person by one or more persons with the same and/or similar qualifications.
21.4 In performing its services, the Supplier shall not be obliged to follow any instructions of the Customer, in particular if these are instructions that change or supplement the content or scope of the agreed services. However, if such instructions are followed, the work in question shall be compensated in accordance with the Supplier's usual rates.
22.1 Any agreements concerning a service level (Service Level Agreement) shall only be expressly agreed in writing. The Customer shall always inform the Supplier without delay of all circumstances that affect or may affect the Service Level and its availability.
If agreements have been made about a service level, the availability of software, systems and related services shall always be measured in such a way that the shutdown announced in advance by the Supplier because of preventive, corrective or adaptive maintenance or other forms of service, as well as circumstances beyond the Supplier's control, are not taken into account. Unless the Customer can provide evidence to the contrary, the availability measured by the Supplier shall be considered complete evidence.
23.1. If the services provided to the Customer under the Agreement include making back-ups of the Customer's data, the Supplier shall make a full back-up of the Customer's data in its possession in accordance with the periods agreed in writing, and in the absence thereof once a week. The Supplier shall keep the backup for the agreed period, and in the absence of agreements to this effect, for the period customary for the Supplier. The Supplier shall store the back-up with due care and diligence.
23.2. Customer himself remains responsible to fulfil all legal administration and storage obligations applicable to him.
The provisions set forth in this Chapter "Software as a Service (SaaS)" shall, in addition to the General Provisions of these General Terms and Conditions and the provisions in the Chapter "Provision of Services", apply if the Supplier provides services under the name of or in the area of Software as a Service (also referred to as: SaaS). For the purposes of these General Terms and Conditions, SaaS shall mean: the Supplier making and keeping software available "remotely" to the Customer via the Internet or another data network, without providing the Customer with a physical carrier containing the software concerned.
24.1. The Supplier shall provide the SaaS service only on behalf of the Customer. The Customer is not free to allow third parties to use the SaaS services provided by the Supplier.
24.2. If Supplier performs work in relation to data of Customer, its employees or users on the basis of a request or authorised order issued by a public authority or in connection with a legal obligation, all related costs shall be charged to Customer.
24.3. Supplier may make changes to the content or scope of the SaaS Service. If such changes result in a change in the procedures in force at Customer, Supplier shall inform Customer of this as soon as possible and the costs of this change shall be borne by Customer. In that case, Customer may terminate the Agreement in writing by the date on which the change takes effect, unless such change is related to changes in relevant legislation or other regulations issued by competent authorities or Supplier bears the costs of such change.
24.4. Supplier may continue the performance of the SaaS service using a new or modified version of the software. Supplier is not obliged to maintain, change or add certain features or functionalities of the service or software specifically for Customer.
24.5. The Supplier may temporarily take the SaaS Service out of operation in whole or in part for preventive, corrective or adaptive maintenance or other forms of service. The Supplier shall not allow the decommissioning to last longer than necessary and if possible shall allow it to take place outside office hours.
24.6. Supplier is never obliged to provide Customer with a physical carrier containing the software to be made and kept at Customer's disposal as part of the SaaS service.
Supplier does not warrant that the software to be provided as part of the SaaS Service is error-free and functions without interruption. Supplier shall do its utmost to fix errors as referred to in Article 30.3 in the software within a reasonable time if and insofar as it concerns software developed by Supplier itself and the defects concerned have been reported in detail to Supplier in writing by Customer. Where appropriate, Supplier may postpone fixing the defects until a new version of the software is put into use. The Supplier does not warrant that defects in software not developed by the Supplier itself shall be fixed. Supplier shall be entitled to install temporary solutions, program bypasses or problem-avoiding restrictions in the software. If the software has been developed by order of the Customer, the Supplier may charge the Customer the costs of remedying the defects in accordance with its usual rates.
25.2 On the basis of the information provided by the Supplier concerning measures to prevent and limit the consequences of malfunctions, defects in the SaaS services, mutilation or loss of data or other incidents, the Customer shall identify the risks to its organisation and, if necessary, take additional measures. At the request of the Customer, the Supplier declares itself prepared to cooperate in all reasonableness with any further measures to be taken by the Customer, subject to (financial) conditions to be set by the Supplier. Supplier shall never be obliged to restore mutilated or lost data.
25.3. Supplier does not guarantee that the software to be made available as part of the SaaS Service will be adapted in time to changes in relevant legislation and regulations.
26.1. Customer has obligations towards third parties under the legislation concerning the processing of personal data (such as the Personal Data Protection Act), such as the obligation to provide information, as well as to allow inspection, correction and deletion of personal data of data subjects. The responsibility for compliance with these obligations rests entirely and exclusively with the Customer. The parties hold that in respect of the processing of personal data, Supplier is a 'processor' within the meaning of the Personal Data Protection Act.
26.2 The Supplier shall, to the extent technically possible, provide support for the obligations to be met by the Customer as referred to in Article 26.1. The costs associated with this support shall not be included in the Supplier's agreed prices and fees and shall be at the Customer's expense.
27.1. Performance of the SaaS service to be provided by the Supplier shall start within a reasonable period after entering into the agreement. Customer shall ensure that it has the facilities required for the use of the SaaS service at its disposal immediately after entering into the agreement.
27.2. Customer owes for the SaaS service the fee included in the agreement. In the absence of an agreed payment schedule, all amounts relating to the SaaS service provided by the Supplier shall be due in advance each calendar month.
The provisions in this Chapter 'Software' shall, in addition to the General Provisions, apply if the Supplier makes software available to the Customer for use other than on the basis of a SaaS service.
28.1. Supplier shall make the agreed computer programs and the agreed user documentation available to Customer for use during the term of the Agreement on the basis of a user licence, hereinafter referred to as 'the software'. The right to use the software is non-exclusive, non-transferable , non-pledgeable and non-sublicensable.
28.2. The Supplier's obligation to make available and the Customer's right of use shall extend only to the so-called object code of the software. The Customer's right of use shall not extend to the software's source code. The software's source code and the technical documentation created in developing the software shall not be made available to the Customer, even if the Customer is prepared to pay financial compensation for them.
28.3. Customer shall always strictly observe the agreed restrictions, of whatever nature or content, on the right to use the software.
28.4. If the parties have agreed that the software may only be used in combination with certain equipment, in the event of any equipment failure, the customer shall be entitled to use the software on other equipment with the same qualifications for the duration of the failure.
28.5. Supplier may require the Customer to use the software only after the Customer has obtained one or more codes required for use from the Supplier, its supplier or the producer of the software. Supplier shall always be entitled to take technical measures to protect the software against unauthorised use and/or against use in a different manner or for different purposes than agreed between the Parties. The Customer shall never (allow to) remove or bypass technical provisions intended to protect the software.
28.6. Customer may only use the software in and for its own company or organisation and only insofar as this is necessary for the intended use. The Customer shall not use the software for the benefit of third parties, for example in the context of "Software-as-a-Service" (SaaS) or "outsourcing".
28.7. The Customer shall never be allowed to sell, lease, alienate or grant limited rights to the software and the carriers on which the software is or will be recorded, or to make the software available to a third party in any way, for any purpose or under any title whatsoever. Nor shall the Customer give a third party remote or remote (online) access to the software or place the software with a third party for hosting, not even if the third party in question uses the software exclusively for the Customer's benefit.
28.8. If requested, the Customer shall immediately cooperate with an investigation to be carried out by or on behalf of the Supplier regarding compliance with the agreed restrictions on use. Customer shall grant access to its premises and systems at the Supplier's first request. Supplier shall provide all confidential business information which it has
of an investigation obtained from or at Customer, insofar as that information does not concern the use of the software itself, shall be treated as confidential.
28.9 The parties hold that the agreement concluded between them, insofar as it relates to the provision for use of software, shall never be regarded as a purchase agreement.
is considered.
28.10 The Supplier is not obliged to maintain the
software and/or providing support
to users and/or administrators of the
software . If in deviation from the
aforementioned supplier requested maintenance
and/or support with regard to the
software, supplier may require
that customer has a separate written
agreement.
29.1. The Supplier shall, at its choice, deliver the software on the agreed data carrier format or, in the absence of agreements to this effect, on a data carrier format to be determined by the Supplier, or make the software available to the Customer online for delivery. Any agreed user documentation shall be provided in paper or digital form in a language determined by the Supplier, at the Supplier's choice.
29.2. The Supplier shall install the software at the Customer's premises only if such has been agreed. In the absence of agreements in this regard, the Customer himself shall install, set up, parameterise, tune and, if necessary, adjust the equipment used and operating environment.
30.1. If the Parties have not agreed an acceptance test, the Customer shall accept the software in the condition it is in at the time of delivery ("as is, where is"), hence with all visible and invisible errors and defects, without prejudice to the Supplier's obligations under the guarantee provisions of Article 34. In the aforementioned case, the software shall be considered accepted by the Customer upon delivery or, if installation by the Supplier has been agreed in writing, upon completion of the installation.
30.2. If an acceptance test has been agreed between the parties, the provisions of Articles 30.3 to 30.10 shall apply.
30.3. Where these General Terms and Conditions refer to "errors", this shall mean a substantial failure of the software to meet the functional or technical specifications of the software expressly stated in writing by the Supplier and, where all or part of the software is custom-made software, to meet the functional or technical specifications expressly agreed in writing. An error shall only exist if the Customer can demonstrate it and it is reproducible. Customer shall be obliged to report errors forthwith. Supplier shall not be under any obligation with respect to defects in or to the software other than defects within the meaning of these General Terms and Conditions.
30.4. If an acceptance test has been agreed, the test period shall be fourteen days after delivery or, if installation by the Supplier has been agreed in writing, fourteen days after completion of the installation. During the test period, the Customer shall not be entitled to use the software for productive or operational purposes. The Customer shall conduct the agreed acceptance test with qualified personnel and with sufficient scope and depth.
30.5. If an acceptance test has been agreed, the Customer shall be obliged to test whether the software delivered meets the functional or technical specifications expressly stated in writing by the Supplier and, if and insofar as all or part of the software is custom-made software, the functional or technical specifications expressly agreed in writing.
30.6. The software shall be considered accepted by the Parties: a. if the Parties have agreed on an acceptance test: on the first day after the test period, or b. if the Supplier receives a test report as referred to in Article 30.7 before the end of the test period: at the time that the errors mentioned in that test report have been fixed, notwithstanding the presence of errors which do not preclude acceptance under Article 30.8, or c. if the Customer makes any use of the software for productive or operational purposes: at the time that the software is put to use.
30.7. If, when the agreed acceptance test is conducted, the software proves to contain errors, the Customer shall report the test results to the Supplier in writing, clearly, in detail and comprehensibly no later than on the last day of the test period. The Supplier shall do its utmost to fix the aforementioned errors to the best of its ability within a reasonable time period, with the Supplier being entitled to install temporary solutions, program bypasses or problem-avoiding restrictions.
30.8. The Customer may not withhold acceptance of the software for reasons not related to the expressly agreed specifications between the Parties in writing or because of the existence of minor errors, being errors which do not reasonably preclude putting the software to operational or productive use, without prejudice to the Supplier's obligation to fix these minor errors under the guarantee provisions of Article 34. Acceptance may furthermore not be withheld because of aspects of the software which can only be evaluated subjectively, such as aesthetic aspects of user interfaces.
30.9. If the software is delivered and tested in phases and/or parts, non-acceptance of a particular phase and/or part does not affect the acceptance of an earlier phase and/or another part.
30.10. Acceptance of the software in one of the ways referred to in this Article shall have the effect that the Supplier is discharged for performing its obligations concerning providing and delivering the software and, if installation of the software by the Supplier has also been agreed, its obligations concerning installation. Acceptance of the software shall not affect the Customer's rights under Article 30.8 concerning minor defects and Article 34 concerning the guarantee.
31.1. Supplier shall make the software available to Customer within a reasonable time after entering into the agreement.
31.2. Immediately after the Agreement has ended, the Customer shall return all copies of the software in his possession to the Supplier. If it has been agreed that the Customer shall destroy the copies concerned at the end of the Agreement, the Customer shall notify the Supplier immediately in writing of such destruction. Supplier shall not be obliged at or after the end of the Agreement to provide assistance in view of a data conversion desired by the Customer.
32.1. Fee is due at the agreed times, or in the absence of an agreed time:
a. if the Parties have not agreed that the Supplier shall arrange for installation of the software:
b. if the Parties have agreed that the Supplier shall arrange for installation of the software:
33.1. Except for exceptions provided by law, the Customer shall not be entitled to modify the software in whole or in part without the Supplier's prior written consent. Supplier shall be entitled to refuse its permission or to attach conditions to it. Customer shall bear the full risk of all changes made by or on behalf of Customer by third parties - with or without Supplier's permission.
34.1. Supplier shall exert its best efforts to correct errors within a reasonable time if these are reported in detail to Supplier in writing within a period of three months after delivery or, if an acceptance test has been agreed, within three months after acceptance. Supplier does not warrant that the software is suitable for the actual and/or intended use. Supplier also does not warrant that the software will operate without interruption and/or that all errors will always be corrected. Repairs shall be performed free of charge, unless the software has been developed by order of the Customer other than for a fixed price, in which case the Supplier shall charge the costs of repair according to its usual rates.
34.2. The Supplier may charge the repair costs according to its usual rates if there are user errors or improper use by the Customer or other causes not imputable to the Supplier. The repair obligation shall lapse if the Customer makes changes or causes changes to be made to the software without the Supplier's written permission.
34.3. Errors shall be fixed at a location and in a manner to be determined by the Supplier. The Supplier shall be entitled to install temporary solutions or program bypasses or problem-avoiding restrictions in the software.
34.4. The Supplier shall never be obliged to restore mutilated or lost data.
34.5. The Supplier has no obligation of any kind or content whatsoever in respect of faults reported after the expiry of the guarantee period referred to in Article 34.2.
35.1. If and insofar as the Supplier makes software of third parties available to the Customer, the (licence) terms and conditions of those third parties shall apply in the relationship between the Supplier and the Customer with regard to that software, setting aside the different provisions in these General Terms and Conditions, provided that the applicability of the (licence) terms and conditions of those third parties has been communicated to the Customer by the Supplier in writing and, moreover, those terms and conditions have been provided to the Customer before or when the Agreement is concluded. Contrary to the previous sentence, the Customer cannot invoke the Supplier's failure to fulfil the aforementioned obligation to provide information if the Customer is a party as referred to in Article 6:235(1) or (3) of the Dutch Civil Code.
35.2. If and insofar as the said terms and conditions of third parties in the relationship between customer and supplier are deemed not to apply or are declared inapplicable for whatever reason, the provisions of these general terms and conditions shall apply in full.
The provisions in this Chapter 'Development of software and websites' shall, in addition to the General Provisions and the provisions of the Chapter 'Provision of services', apply if the Supplier designs and/or develops software and/or a website for the Customer and possibly installs the software and/or website.
36.1. If specifications or a design for the software or website to be developed have not already been provided to the Supplier before or when the Agreement was concluded, the Parties shall, by mutual agreement, specify in writing which software or website will be developed and in what manner the development will take place.
36.2. The Supplier shall develop the software and/or website with due care, taking into account the expressly agreed specifications or design and, where appropriate, taking into account the project organisation, methods, techniques and/or procedures agreed with the Customer in writing. Before commencing the development work, the Supplier may require the Customer to agree to the specifications or design in writing.
36.3. If parties use a development method which is characterised by the starting point that the design and/or development of (parts of) the software or website takes place in an iterative manner (e.g. Scrum), parties accept that upon commencement, the work will not be performed on the basis of complete or fully elaborated specifications and also that specifications, which may or may not have been agreed upon upon at the commencement of the work, can be adjusted during the execution of the agreement in good consultation with due observance of the project approach belonging to the development method concerned.
During the execution of the agreement, the parties will jointly make decisions in good consultation regarding the specifications that will apply to the next phase of the project (e.g. a 'time-box') and/or to the next partial development. Customer accepts the risk that the software and/or website will not necessarily meet all specifications. Customer shall ensure permanent, active input and cooperation from relevant end-users, supported by Customer's organisation, including with regard to testing and with regard to (further) decision-making. Customer guarantees that the employees appointed by it to key positions have the necessary decision-making powers for this position. Customer guarantees the promptness of the progress decisions to be taken by it during the execution of the agreement. In the absence of timely and clear progress decisions on the part of the customer in accordance with the project approach belonging to the respective development method, the supplier shall be entitled but not obliged to take the decisions it deems appropriate.
36.4. If parties use a development method as referred to in article 36.3, the provisions of article 30.1, article 30.4 up to and including 30.8 and article 34.1 do not apply. Customer accepts the software and/or website in the state in which it is at the moment of the end of the last development phase ('as is, where is'). Supplier is not bound to repair errors after the final development phase, unless explicitly agreed otherwise in writing.
36.5. In the absence of specific agreements in this regard, the Supplier shall commence the design and/or development work within a reasonable period to be determined by the Supplier after entering into the Agreement.
36.6. If requested, the Customer shall give the Supplier the opportunity to perform the work outside the usual working days and working hours at the Customer's office or location.
36.7. The Supplier's performance obligations concerning the development of a website do not include the provision of a so-called 'content management system'.
36.8. The Supplier's performance obligations shall not include maintenance of the software and/or the website, and/or providing support to users and/or administrators thereof. If, in deviation from the foregoing, the Supplier also has to provide maintenance and/or support, the Supplier may require the Customer to enter into a separate written agreement for that purpose. These activities shall be charged separately at the Supplier's usual rates.
Delivery, installation and acceptance
37.1.The provisions of Article 29 on delivery and installation shall apply mutatis mutandis.
37.2. Unless the Supplier shall 'host' the software and/or website on its own computer system for the benefit of the Customer under the Agreement, the Supplier shall deliver the website to the Customer on a data carrier and in a form to be determined by the Supplier or make it available to the Customer online for delivery.
37.3.The provisions of Article 30 of these General Conditions on acceptance shall apply mutatis mutandis.
38.1.Supplier shall make the software and/or website developed on Customer's instructions and any accompanying user documentation available to Customer for use.
38.2.Only if agreed in writing, the source code of the software and the technical documentation created during the development of the software shall be made available to Customer, in which case Customer shall be entitled to make changes to the software.
38.3 Supplier shall not be obliged to make available the auxiliary software and program or data libraries required for the use and/or maintenance of the software.
38.4.The provisions of Article 28 on right of use and restrictions on use shall apply mutatis mutandis.
38.5. Only if the content of the written agreement explicitly shows that all design and development costs are fully and exclusively borne by Customer, in deviation from the provisions of article 38.4, no restrictions in the right to use the software and/or website apply to Customer.
39.1.In the absence of an agreed payment schedule, all amounts relating to the design and development of software and/or websites shall be due in arrears each calendar month.
39.2.The price for the development work also includes the fee for the right to use the software or website during the term of the agreement.
39.3.The fee for the development of the software does not include a fee for the auxiliary software and programme and data libraries required by Customer, any installation services and any modification and/or maintenance of the software. Nor does the fee include the provision of support to users thereof.
40.1.The provisions of Article 34 on warranty shall apply mutatis mutandis.
40.2.Supplier does not warrant that the website it has developed works properly in conjunction with all types or new versions of web browsers and any other software. Nor does Supplier warrant that the website will work properly in conjunction with all types of equipment.
The provisions set forth in this Chapter 'Software Maintenance and Support' shall, in addition to the General Provisions of these General Terms and Conditions and the provisions of the Chapter 'Provision of Services', apply if the Supplier provides services in the area of software maintenance and support for the use of software.
41.1. If agreed, the Supplier shall provide maintenance with regard to the software determined in the Agreement. The maintenance obligation shall include fixing errors in the software within the meaning of Article 30.3 and, only if agreed in writing, providing new versions of the software in accordance with Article 42.
41.2. The Customer shall report any errors found in the software in detail. After receiving the report, the Supplier shall, in accordance with its usual procedures, do its utmost to fix errors and/or make improvements in later new versions of the software. Depending on the urgency and the Supplier's version and release policy, the results shall be made available to the Customer in a manner and at a time to be determined by the Supplier. Supplier shall be entitled to install temporary solutions or program bypasses or problem-avoiding restrictions in the software. The Customer itself shall install, set up, parameterise and tune the corrected software or the new version of the software made available and, if necessary, adjust the equipment used and the user environment.
41.3. The provisions of Articles 34.3 and 34.4 shall apply mutatis mutandis.
41.4. If the Supplier performs the maintenance online, the Customer shall provide a proper infrastructure and network facilities in a timely manner.
41.5. The Customer shall provide all cooperation required by the Supplier for maintenance, including the temporary cessation of use of the software and making a back-up of all data.
41.6. If the maintenance relates to software not delivered to the Customer by the Supplier itself, the Customer shall, if the Supplier deems it necessary or desirable for the maintenance, make the source code and the technical (development) documentation of the software (including data models, designs, change logs and the like) available. The Customer warrants that he is entitled to such provision. The Customer grants the Supplier the right to use and change the software, including the source code and technical (development) documentation, as part of carrying out the agreed maintenance.
41.7. Maintenance by the Supplier shall not affect the Customer's own responsibility for managing the software, including checking the settings and the manner in which the results of using the software are deployed. The Customer itself shall install, set up, parameterise and tune (auxiliary) software and, if necessary, adjust the hardware , other software and user environment used in the process and achieve the interoperability desired by the Customer.
Maintenance shall only include providing new versions of the software if and insofar as this has been agreed in writing. If maintenance includes providing new versions of the software, such provision shall take place at the Supplier's discretion.
42.2.Three months after an improved version is made available, the Supplier is no longer obliged to fix errors in the previous version and to provide support and/or maintenance with regard to a previous version.
Supplier may require Customer to enter into a further written agreement with Supplier for the provision of a version with new functionality and to pay a further fee for the provision. Supplier may take over functionality from a previous version of the software unchanged, but does not warrant that each new version contains the same functionality as the previous version. Supplier shall not be obliged to maintain, change or add certain features or functionalities of the software specifically for Customer.
42.4.Supplier may require Customer to adapt its system (hardware, software, etc.) if necessary for the proper functioning of a new version of the software.
43.1.If the Supplier's services under the Agreement also include support for users and/or administrators of the software, the Supplier shall advise by telephone or e-mail on the use and operation of the software referred to in the Agreement. Supplier may set conditions to the qualifications and number of persons eligible for support. Supplier shall deal with properly substantiated requests for support within a reasonable time in accordance with its usual procedures. Supplier does not guarantee the accuracy, completeness or timeliness of responses or support provided. Support will be provided on working days during Supplier's usual opening hours.
43.2.If the Supplier's services under the Agreement also include the provision of so-called 'standby services', the Supplier shall keep one or more staff members available during the days and at the times specified in the Agreement. In that case, the Customer shall be entitled, in case of urgency, to call in the support of the personnel kept available if there is a serious malfunction in the functioning of the software. Supplier does not guarantee that all malfunctions will be remedied in a timely manner.
43.3.The maintenance and other agreed services referred to in this chapter shall be performed from the day the agreement is entered into, unless the parties have agreed otherwise in writing.
44.1.In the absence of an expressly agreed payment schedule, all amounts relating to maintenance of software and the other services set out in the agreement as referred to in this chapter shall be due in advance each calendar month.
44.2.Amounts relating to the maintenance of the software and the other services stipulated in the agreement as referred to in this chapter shall be due from the start of the agreement. The fee for maintenance and other services is due irrespective of whether Customer has (taken) the software in use or makes use of the possibility of maintenance or support.
The provisions contained in this chapter 'Consultancy and Advice' shall, in addition to the General Provisions of these General Terms and Conditions and the provisions of the chapter 'Provision of Services', apply if Supplier provides services in the field of consultancy and advice.
45.1.The lead time of an assignment in the field of consultancy or advice depends on various factors and circumstances, such as the quality of the data and information provided by the customer and the cooperation of the customer and relevant third parties. Therefore, unless otherwise agreed in writing, Supplier shall not commit in advance to a lead time for the assignment.
45.2.The Supplier's services shall be performed exclusively on the Supplier's usual working days and times.
45.3. The use made by Customer of an advice and/or consultancy report issued by Supplier shall always be at Customer's risk. The burden of proof that (the manner of) advice and consultancy services do not comply with what has been agreed in writing or with what may be expected of a reasonably acting and competent supplier shall rest entirely with the Customer, without prejudice to the right of the Supplier to provide evidence to the contrary by all means.
45.4.Without the prior written consent of Supplier, Customer shall not be entitled to make any communication to a third party about Supplier's working methods, methods and techniques and/or the contents of Supplier's advice or reports. Customer shall not provide or otherwise disclose Supplier's advice or reports to any third party.
46.1.Supplier shall periodically inform Customer in the manner agreed in writing about the performance of the work. Customer shall inform Supplier in writing in advance of circumstances which are or may be of importance to Supplier, such as the method of reporting, the issues for which Customer wishes attention, Customer's priorities, availability of Customer's resources and personnel and special facts or circumstances which may not be known to Supplier. Customer shall ensure the further dissemination and perusal of the information provided by Supplier within Customer's organisation and assess such information partly on that basis and inform Supplier accordingly.
47.1.In the absence of an expressly agreed payment schedule, all fees relating to services provided by the Supplier as referred to in this chapter shall be due in arrears each calendar month.
The provisions contained in this chapter 'Secondment services' shall, in addition to the General Provisions of these general terms and conditions and the provisions of the chapter 'Provision of services', apply if the supplier makes one or more employees available to the customer in order to work under the customer's supervision and management.
48.1.Supplier shall make the employee named in the agreement available to Customer to perform work under Customer's direction and supervision. The results of the work shall be at Customer's risk. Unless otherwise agreed in writing, the employee shall be made available to Customer for forty hours a week during Supplier's usual working days.
48.2.Customer may only use the employee made available for work other than that agreed if the Supplier has given its prior written consent.
48.3.Customer shall only be permitted to lend the employee made available to a third party to work under the management and supervision of that third party if this has been expressly agreed in writing.
48.4. The Supplier shall make every effort to ensure that the employee provided remains available for work during the duration of the agreement during the agreed days, except in the event of illness or dismissal of the employee. Even if the agreement has been entered into with a view to performance by a specific person, the Supplier is always entitled, after consultation with the Customer, to replace this person by one or more persons with the same qualifications.
48.5. Customer is entitled to request replacement of the employee made available (i) if the employee made available demonstrably does not meet expressly agreed quality requirements and Customer notifies Supplier to that effect within three working days after commencement of the work, giving reasons, or (ii) in the event of long-term illness or retirement of the employee made available. The Supplier shall immediately give priority attention to the request. The Supplier does not guarantee that replacement will always be possible. If replacement is not or not immediately possible, Customer's claims to further performance of the agreement as well as all claims of Customer due to non-performance of the agreement shall lapse. Customer's payment obligations regarding the work performed shall remain unaffected.
49.1 Notwithstanding the provisions of Article 4 of these general terms and conditions, if the parties have not agreed on the duration of secondment, the contract shall be for an indefinite term, in which case each of the parties shall be subject to a notice period of one calendar month after any initial term. Notice of termination must be given in writing.
50.1 The working hours, rest periods and working hours of the employee made available are equal to the times and duration customary at Customer. Customer guarantees that the working and rest times and working hours comply with the relevant legislation and regulations.
50.2. Customer shall inform Supplier of any intended (temporary) closure of its business or organisation.
50.3. Customer shall be obliged towards Supplier and the employee made available to comply with the relevant laws and regulations regarding the settlement of the case, including the making of any settlements, entirely left to Supplier. To this end, Customer shall provide the necessary powers of attorney, information and cooperation to Supplier to defend against these claims, if necessary in Customer's name.
51.1. If the employee made available to the Customer, by order of or at the request of the Customer, works longer than the agreed or usual number of working hours per day or works outside the Supplier's usual working days, the Customer shall owe the agreed overtime rate for these hours or, in the absence of an agreed overtime rate, the Supplier's usual overtime rate. Upon request, the Supplier shall inform the Customer of the applicable overtime rates.
51.2. Costs and travel time shall be charged to the Customer in accordance with the rules and standards customary to the Supplier. Upon request, Supplier shall inform Customer of the rules and standards customary for this purpose.
52.1 The supplier shall ensure the timely and complete payment of the payroll tax, social security contributions and turnover tax due for the employee made available in connection with the agreement with customer. The Supplier shall indemnify the Customer against all claims of the Tax Authorities or of the bodies implementing social insurance legislation which are due on account of the agreement with the Customer, on the condition that the Customer immediately informs the Supplier in writing of the existence and substance of the claim and leaves the handling of the matter, including making any settlements, entirely to the Supplier. To this end, the customer shall provide the necessary powers of attorney, information and cooperation to the supplier to defend against these claims, if necessary in the customer's name.
52.2.Supplier accepts no liability for the quality of the results of work carried out under Customer's supervision and direction.
The provisions contained in this chapter 'Education and Training' shall, in addition to the General Provisions of these General Terms and Conditions and the provisions of the chapter 'Provision of Services', apply if the Supplier provides services, under whatever name and in whatever manner (e.g. in electronic form), in the field of education, courses, workshops, training, seminars and the like (hereinafter referred to as: training).
53.1.An application for training must be made in writing and is binding upon confirmation by supplier.
53.2.Customer bears responsibility for the choice and suitability of the training for the participants. A participant's lack of the required prior knowledge does not affect the customer's obligations under the agreement. Customer is allowed to replace a participant for a training course by another participant after prior written consent of Supplier.
53.3 If in the opinion of Supplier the number of registrations gives cause to do so, Supplier shall be entitled to cancel the training course, to combine it with one or more training courses, or to have it take place on a later date or at a later time. Supplier reserves the right to change the location of the training course. Supplier is entitled to make organisational and content changes to a training course.
53.4.The consequences of a cancellation of participation in a training course by customer or participants shall be governed by the rules customary with supplier. A cancellation must always be made in writing and prior to the training course or the relevant part thereof. Cancellation or non-appearance shall not affect the Customer's payment obligations under the Agreement.
54.1.Customer accepts that Supplier determines the content and depth of training.
54.2.Customer shall inform and monitor participants' compliance with the obligations under the agreement and Supplier's
55.1 The Supplier may require the Customer to pay the fees due in respect of the training before it starts. Supplier may exclude participants from participation if Customer has failed to ensure timely payment, without prejudice to all other rights of Supplier.
55.2. Unless the Supplier has expressly indicated that the training is exempt from VAT within the meaning of article 11 of the Turnover Tax Act 1968, the Customer shall also owe VAT on the fee. After entering into the agreement, the Supplier is entitled to adjust its prices in the event of any change in the regime of VAT for training established by or pursuant to law.
The provisions contained in this chapter 'Purchase of Equipment' shall, in addition to the General Provisions of these General Terms and Conditions, apply if Supplier sells equipment of any kind and/or other items (material objects) to Customer.
56.1.Supplier shall sell the equipment and/or other items by nature and number as agreed in writing, as Customer purchases them from Supplier.
56.2.Supplier does not warrant that the equipment and/or items are suitable for the actual and/or Customer's intended use upon delivery, unless the written agreement clearly specifies the purposes of use without reservation.
56.3.The Supplier's obligation to sell does not include assembly and installation materials, software, feather consumables, batteries,
stamps, ink (cartridges), toner supplies, cables and accessories.
56.4.Supplier does not warrant that the assembly, installation and usage instructions accompanying the equipment and/or items are error-free and that the equipment and/or items possess the properties stated in these instructions.
57.1 The equipment and/or items sold by the Supplier to the Customer shall be delivered to the Customer ex warehouse. Only if this has been agreed in writing, the Supplier shall deliver the items sold to the Customer or have them delivered to a place to be designated by the Customer. In that case the Supplier shall inform the Customer, if possible in good time before delivery, of the time at which it or the carrier used intends to deliver the equipment and/or items.
57.2.The purchase price of the equipment and/or items does not include the costs of transport, insurance, hoisting and lifting, hiring temporary facilities, etc. These costs shall be charged to the customer where applicable.
57.3.If the Customer requests the Supplier to dispose of old materials (such as networks, cabinets, cable ducts, packaging materials, equipment) or if the Supplier is legally obliged to do so, the Supplier may accept this request by means of a written order at its usual rates. If and insofar as the Supplier is not permitted by law to demand payment of a fee (e.g. within the framework of the so-called "old for new regulation"), it shall not demand such a fee from the Customer where applicable.
57.4.If the Parties have so agreed in writing, the Supplier shall install, configure and/or connect the equipment and/or objects or have them installed, configured and/or connected. Any obligation to install and/or configure equipment by the Supplier shall not include performing data conversion and installing software. The Supplier shall not be responsible for obtaining any necessary permits.
57.5.Supplier is always entitled to execute the agreement in partial deliveries.
58.1.Only if this has been agreed in writing, the Supplier shall be obliged to set up a test arrangement with regard to the equipment in which the Customer is interested. The Supplier may attach (financial) conditions to a trial installation. A trial installation shall involve the temporary installation of equipment on view in a standard version, excluding accessories, in an area to be provided by the Customer, before the Customer definitively decides whether or not to purchase the equipment concerned. Customer shall be liable for use, damage, theft or loss of equipment forming part of a trial set-up.
59.1.Customer shall ensure an environment that meets the requirements specified by Supplier for the equipment and/or items, including temperature, humidity and technical environment requirements.
59.2.Customer shall ensure that work to be performed by third parties, such as construction work, is carried out adequately and on time.
The Supplier shall, to the best of its ability, do its utmost to fix material and manufacturing defects in the equipment and/or other things sold, as well as in parts supplied by the Supplier under the guarantee, within a reasonable time period, free of charge, if these defects have been reported to the Supplier within a period of three months after delivery and described in detail. If, in the Supplier's reasonable judgment, repairs are not possible, will take too long or will entail disproportionately high costs, the Supplier shall be entitled to replace the equipment and/or possessions free of charge with other, similar, but not necessarily identical equipment and/or possessions. Data conversion necessitated by repair or replacement shall be excluded from the guarantee. All replaced parts shall become the property of the Supplier. The guarantee obligation shall lapse if defects in the equipment, items or parts are wholly or partly the result of incorrect, careless or inexpert use, external causes such as fire or water damage, or if, without the Supplier's permission, the Customer makes changes or causes changes to be made to the equipment or to the parts supplied by the Supplier under the guarantee. The Supplier shall not withhold such permission on unreasonable grounds.
60.2.Any other or further reliance by Customer on non-conformity of the delivered equipment and/or items than the provisions of Article 62.1 is excluded.
60.3.Costs of work and repair outside the scope of this warranty will be charged by the Supplier in accordance with its usual rates.
60.4.Supplier has no obligation under the purchase agreement in respect of faults and/or other defects reported after the expiry of the guarantee period referred to in Article 62.1.
61.1. If and insofar as the Supplier sells equipment originating from a third party to the Customer, that third party's terms and conditions of sale shall apply in the relationship between the Supplier and the Customer with regard to that equipment, setting aside the provisions in these General Terms and Conditions deviating therefrom, provided that the Supplier has notified the Customer in writing of the applicability of that third party's terms and conditions of sale and those terms and conditions have, moreover, been provided to the Customer before or at the time of conclusion of the Agreement. Contrary to the previous sentence, the customer cannot invoke the supplier's failure to meet the aforementioned information obligation if the customer is a party as referred to in section 6:235 paragraph 1 or paragraph 3 of the Dutch Civil Code.
61.2.If and to the extent that the said third-party conditions in the relationship between customer and supplier are deemed inapplicable or declared inapplicable for whatever reason, the provisions of these general terms and conditions shall apply in full.
The provisions set out in this Chapter 'Maintenance of Equipment' shall, in addition to the General Provisions of these General Terms and Conditions and the provisions of the Chapter 'Provision of Services', apply if Supplier maintains equipment of any kind on behalf of Customer.
62.1.Supplier shall perform maintenance in respect of the equipment mentioned in the agreement, provided that the equipment is set up in the Netherlands.
62.2.During the time the Supplier has custody of the equipment to be maintained, the Customer shall not be entitled to temporary replacement equipment.
62.3.The content and scope of the maintenance services to be performed and any associated service levels shall be laid down in a written agreement. In the absence thereof, the Supplier shall be obliged to endeavour to remedy, to the best of its ability, malfunctions duly reported to the Supplier by the Customer within a reasonable period of time. For the purposes of these General Terms and Conditions, "malfunction" shall mean the equipment not meeting, or not meeting without interruption, the specifications of that equipment expressly stated in writing by the Supplier. There shall only be a malfunction if the Customer can demonstrate this malfunction and the malfunction in question can also be reproduced. The Supplier shall also be entitled, but not obliged, to preventive maintenance.
62.4.Customer shall, immediately after an equipment malfunction occurs, notify Supplier by detailed description.
62.5.Customer shall provide all cooperation required by Supplier for the maintenance, such as the temporary cessation of use of the equipment. The Customer shall be obliged to give access to the Supplier's staff or third parties designated by the Supplier to the site of the equipment, to provide all other necessary cooperation and to make the equipment available to the Supplier for the purpose of maintenance.
62.6.Before offering the equipment to the Supplier for maintenance, the Customer shall ensure that a complete and properly functioning back-up copy has been made of all software and data recorded in or on the equipment.
62.7.At the Supplier's request, a relevant employee of the Customer shall be present for consultation during maintenance work.
62.8.Customer is authorised to connect equipment and systems not supplied by Supplier to the equipment and to install software on it.
62.9.If, in the Supplier's judgment, maintenance of the equipment requires that the equipment's connections be tested with other equipment or with software, the Customer shall provide the Supplier with the other equipment and software concerned as well as the test procedures and data carriers.
62.10.The test material required for maintenance that is not part of the Supplier's normal equipment shall be made available by the Customer.
62.11.Customer shall bear the risk of loss, theft or damage to the equipment during the period that Supplier holds it for maintenance work. It shall be left to the Customer to insure this risk.
63.1.The maintenance price does not include:
63.2.The fee for maintenance is due irrespective of whether customer has (taken) the equipment into use or avails himself of the possibility of maintenance.
64.1. Work to investigate or repair malfunctions resulting from or related to user errors, improper use of the equipment or external causes, such as defects in the Internet, data network connections, voltage provisions, or connections with equipment, software or materials not covered by the maintenance agreement, shall not be part of the Supplier's obligations under the maintenance agreement.
64.2.The Supplier's maintenance obligations do not include:
Supplier's maintenance obligations also do not include investigation or repair of malfunctions related to software installed on the equipment.
64.3. If the Supplier carries out research and/or maintenance in connection with the provisions of article(s) 71.1 and/or 71.2, the Supplier may charge the costs of such research and/or maintenance in accordance with its usual rates. The foregoing shall not affect all that the Customer owes the Supplier in respect of maintenance.
64.4 The Supplier shall never be obliged to restore data mutilated or lost as a result of faults and/or maintenance.
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