Terms and conditions

These general terms and conditions are based on the Nederlandse ICT Voorwaarden. The Nederland ICT Voorwaarden have been filed with the Kamer van Koophandel under number 30174840.

1. Applicability of the Nederland ICT Voorwaarden

   1. These Nederland ICT Voorwaarden apply to all offers and agreements under which the supplier supplies goods and/or services of any nature and under any name to the customer.

   2. Deviations from and additions to these general terms and conditions are valid only if agreed in writing between the parties.

   3. The applicability of the customer’s purchasing or other terms and conditions is expressly rejected.

   4. If any provision of these general terms and conditions is void or annulled, the remaining provisions remain fully effective. In that event, the supplier and customer will consult with the aim of agreeing new provisions to replace the void or annulled provisions.

2. Offers

   1. All offers and other statements by the supplier are non-binding unless the supplier indicates otherwise in writing. The customer warrants the accuracy and completeness of information supplied to the supplier by or on behalf of the customer on which the supplier based its offer.

3. Price and payment

   1. All prices exclude value added tax (VAT) and other levies imposed or to be imposed by government. All prices communicated by the supplier are always in euros, and the customer must make all payments in euros.

   2. The customer may derive no rights or expectations from a preliminary estimate or budget supplied by the supplier unless the parties agree otherwise in writing. An available budget communicated by the customer to the supplier counts as an agreed fixed price for the supplier’s performance only if expressly agreed in writing.

   3. If, under the agreement between the parties, the customer consists of several natural persons and/or legal entities, each is jointly and severally liable to the supplier for performance of the agreement.

   4. The supplier’s administrative records constitute conclusive evidence of the supplier’s performance and the amounts payable by the customer, without prejudice to the customer’s right to provide contrary evidence.

   5. Where the customer has a periodic payment obligation, the supplier may adjust current prices and rates in writing at the intervals specified in the agreement, in accordance with the index or other measure included in it. If the agreement does not expressly provide for the supplier to adjust prices or rates, the supplier may nevertheless adjust current prices and rates in writing with at least three months’ notice. In that latter case, if the customer does not wish to accept the adjustment, the customer may terminate the agreement in writing within thirty days of notification, effective on the date the new prices and/or rates would take effect.

   6. The parties will record in the agreement the date or dates on which the supplier invoices the customer for the agreed performance. The customer will pay amounts due under the agreed payment terms or those stated on the invoice. The customer is not entitled to suspend any payment or set off amounts payable.

   7. If the customer fails to pay amounts due, or pays late, statutory interest for commercial agreements is payable on the outstanding amount without a reminder or notice of default being required. If the customer still fails to pay after a reminder or notice of default, the supplier may refer the claim for collection. In that case, in addition to the total amount then due, the customer must reimburse all judicial and extrajudicial costs, including all costs charged by external experts. This does not affect the supplier’s other statutory and contractual rights.

4. Term of the agreement

   1. If and insofar as the agreement between the parties is a continuing agreement, it is concluded for the term agreed between them or, in the absence of such agreement, for one year.

   2. The agreement is tacitly renewed each time for the originally agreed period unless the customer or supplier terminates it in writing with three months’ notice before the end of the relevant period.

5. Confidentiality and recruitment of personnel

   1. The customer and supplier must ensure that all information received from the other party which they know or reasonably ought to know is confidential remains confidential. This prohibition does not apply to the supplier if and insofar as disclosure to a third party is necessary under a court ruling, statutory provision or for the supplier’s proper performance of the agreement. The party receiving confidential information will use it only for the purpose for which it was supplied. Information is in any event regarded as confidential if designated as such by either party.

   2. The customer acknowledges that software originating from the supplier is always confidential and contains trade secrets of the supplier, its suppliers or the software producer.

   3. During the agreement and for one year after it ends, neither party may employ employees of the other party who are or have been involved in performance of the agreement, or otherwise have them work for it directly or indirectly, without the other party’s prior written consent. Conditions may be attached to that consent, including payment of reasonable compensation by the customer to the supplier.

6. Privacy and data processing

   1. If necessary for performance of the agreement, the customer will, on request, inform the supplier in writing how the customer fulfils its obligations under personal data protection legislation.

   2. The customer indemnifies the supplier against claims by persons whose personal data has been recorded or is processed within personal data records maintained by the customer or for which the customer is otherwise legally responsible, unless the customer proves the facts underlying the claim are attributable to the supplier.

   3. Responsibility for data processed by the customer using a supplier service lies entirely with the customer. The customer warrants to the supplier that the content, use and/or processing of the data is not unlawful and does not infringe any third-party right. The customer indemnifies the supplier against any third-party legal claim, on any grounds, relating to this data or performance of the agreement.

7. Security

   1. If the agreement requires the supplier to provide a form of information security, that security will meet the security specifications agreed in writing between the parties. The supplier does not warrant that information security will be effective in all circumstances. If the agreement contains no expressly defined security method, security will meet a level that is not unreasonable considering the state of technology, sensitivity of the data and cost of security measures.

   2. Access or identification codes and certificates supplied to the customer by or on behalf of the supplier are confidential. The customer must treat them accordingly and disclose them only to authorised personnel within the customer’s own organisation. The supplier may change assigned access or identification codes and certificates.

   3. The customer must adequately secure its systems and infrastructure and keep antivirus software running at all times.

8. Retention of title and rights, and suspension

   1. All items supplied to the customer remain the supplier’s property until all amounts owed by the customer to the supplier under the agreement between them have been paid in full. A customer acting as a reseller may sell and pass on items subject to the supplier’s retention of title insofar as this is customary in the normal course of its business.

   2. The proprietary effects of retention of title in an item intended for export are governed by the law of the destination state if that law contains provisions more favourable to the supplier in this respect.

   3. The supplier may retain data, documents, software and/or data files received or created under the agreement, despite an existing obligation to release or transfer them, until the customer has paid all amounts owed to the supplier.

   4. Where applicable, rights are granted or transferred to the customer on condition that the customer has paid all amounts due under the agreement.

9. Transfer of risk

   1. The risk of loss, theft, misappropriation or damage to items, data (including usernames, codes and passwords), documents, software or data files created, supplied or used in performance of the agreement passes to the customer when they are placed under the actual control of the customer or a person assisting the customer.

10. Intellectual Property

    1. If the supplier is willing to undertake to transfer an intellectual property right, such an undertaking can be made only expressly and in writing. If the parties agree in writing that an intellectual property right in software, websites, data files, equipment or other materials developed specifically for the customer will transfer to the customer, this does not affect the supplier’s right or ability to use and/or exploit the underlying components, general principles, ideas, designs, algorithms, documentation, works, programming languages, protocols, standards and similar elements for other purposes without restriction, for itself or third parties. Nor does transfer of an intellectual property right affect the supplier’s right to undertake developments for itself or a third party that are similar to or derived from those made or being made for the customer.

    2. All intellectual property rights in software, websites, data files, equipment, training, test and examination materials or other materials such as analyses, designs, documentation, reports and quotations developed or made available to the customer under the agreement, and their preparatory materials, belong exclusively to the supplier, its licensors or its suppliers. The customer acquires the rights of use expressly granted in these general terms and conditions, the written agreement between the parties and the law. Any right of use accruing to the customer is non-exclusive, non-transferable, cannot be pledged and cannot be sublicensed.

    3. The customer must not remove or alter, or have removed or altered, any indication of confidentiality, copyright, trademarks, trade names or any other intellectual property right from software, websites, data files, equipment or materials.

    4. Even where the agreement does not expressly provide for it, the supplier may always install technical measures to protect equipment, data files, websites, software made available and software to which the customer is given direct or indirect access, and similar items, in connection with an agreed restriction on the scope or duration of their use rights. The customer must not remove or circumvent these technical measures or have them removed or circumvented.

    5. The supplier indemnifies the customer against any third-party claim based on an allegation that software, websites, data files, equipment or other materials developed by the supplier itself infringe that third party’s intellectual property right, provided the customer immediately informs the supplier in writing of the existence and substance of the claim and leaves handling of the matter, including any settlement, entirely to the supplier. The customer will grant the supplier the necessary powers of attorney, information and cooperation to defend such claims. This indemnity obligation lapses if the alleged infringement relates (i) to materials supplied by the customer to the supplier for use, modification, processing or maintenance, or (ii) to changes the customer has made or had made without the supplier’s written consent to the software, website, data files, equipment                  or other materials. If a final and binding court decision establishes that software, websites, data files, equipment or other materials developed by the supplier itself infringe a third party’s intellectual property right, or if the supplier considers there is a substantial likelihood of such infringement, the supplier will, where possible, arrange for the customer to continue using the supplied items or functionally equivalent software, websites, data files, equipment or materials. Any other or further indemnity obligation of the supplier for infringement of a third party’s intellectual property right is excluded.

    6. The customer warrants that no third-party rights prevent equipment, software, materials intended for websites, data files and/or other materials and/or designs being made available to the supplier for use, maintenance, modification, installation or integration. The customer indemnifies the supplier against any third-party claim based on an allegation that such provision, use, maintenance, modification, installation or integration infringes any right of that third party.

    7. The supplier is never required to perform data conversion unless expressly agreed with the customer in writing.

11. Obligations to cooperate

    1. The parties acknowledge that successful information and communication technology work depends on proper and timely cooperation between them. The customer must always provide in good time all cooperation reasonably requested by the supplier.

    2. The customer bears the risk of selecting the items, goods and/or services to be supplied by the supplier. The customer must always exercise the utmost care to ensure that the requirements the supplier’s performance must meet are accurate and complete. Dimensions and information stated in drawings, images, catalogues, websites, quotations, advertising materials, standards sheets and similar materials are not binding on the supplier unless the supplier expressly states otherwise.

    3. If the customer uses personnel and/or persons assisting it in performance of the agreement, they must have the necessary knowledge and experience. Where the supplier’s employees work at the customer’s premises, the customer must provide the necessary facilities in good time and free of charge, such as workspace with computer and network facilities. The supplier is not liable for damage or costs caused by transmission errors, faults or unavailability of these facilities unless the customer proves that the damage or costs result from intent or conscious recklessness by the supplier’s management.

    4. The workspace and facilities must meet all statutory requirements. The customer indemnifies the supplier against claims by third parties, including the supplier’s employees, who suffer damage in connection with performance of the agreement resulting from the customer’s acts or omissions or unsafe conditions within its organisation. Before work starts, the customer must inform employees assigned by the supplier of the house and security rules applicable within its organisation.

    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 warrants that it obtains all necessary licences or approvals relating to those resources that the supplier may need.

    6. The customer is responsible for administration, including checking settings, use of products supplied and/or services provided by the supplier, and how the results of those products and services are used. The customer is also responsible for instructing users and for their use.

    7. The customer must itself install, configure, parameterise and tune the software and utility software required on its own equipment and, where necessary, adapt the equipment, other software and utility software and operating environment used with it, and achieve the interoperability desired by the customer.

12. Obligations to provide information

    1. To enable proper performance of the agreement by the supplier, the customer must always supply in good time all data or information the supplier may reasonably require.

    2. The customer warrants the accuracy and completeness of the data, information, designs and specifications it supplies to the supplier. If these contain inaccuracies apparent to the supplier, the supplier will enquire about them with the customer.

    3. For continuity, the customer will designate one or more contacts to act as such for the duration of the supplier’s work. The customer’s contacts must have the necessary experience, specific subject knowledge and understanding of the customer’s objectives.

    4. The supplier is required to provide the customer with periodic information about performance of the work only through the contact designated by the customer.

13. Project and steering groups

    1. Where both parties participate in a project or steering group through one or more assigned employees, information will be provided in the manner agreed for that group.

    2. Decisions made in a project or steering group in which both parties participate bind the supplier only if decision-making follows the parties’ written agreement on this or, in the absence of such written arrangements, if the supplier has accepted the decisions in writing. The supplier is never required to accept or implement a decision that, in its opinion, is incompatible with the content and/or proper performance of the agreement.

    3. The customer warrants that the people it designates to participate in a project or steering group are authorised to make decisions binding on the customer.

14. Time limits

    1. The supplier will make reasonable efforts to observe, as far as possible, delivery periods and/or completion dates stated by it or agreed between the parties, whether or not final deadlines. Interim completion dates stated by the supplier or agreed between the parties are always target dates, are not binding on the supplier and are always indicative.

    2. If any time limit is at risk of being exceeded, the supplier and customer will consult to discuss the consequences for further planning.

    3. In all cases, including where the parties have agreed a final delivery deadline or completion date, the supplier is in default for delay only after the customer has given written notice of default setting a reasonable period to remedy the failure to perform what was agreed, and that reasonable period has expired. The notice of default must describe the failure as fully and in as much detail as possible to enable the supplier to respond adequately.

    4. If it has been agreed that the work will be performed in phases, the supplier may postpone the start of work belonging to a phase until the customer has approved the results of the preceding phase in writing.

    5. The supplier is not bound by a completion date or delivery period, whether or not a final deadline, if the parties have agreed a change to the content or scope of the agreement, such as additional work or changes to specifications, or to the approach to its performance, or if the customer fails to fulfil its contractual obligations fully or on time. The fact that a need or request for additional work arises during performance never gives the customer grounds to cancel or terminate the agreement.

15. Termination and cancellation of the agreement

    1. Either party may terminate the agreement for an attributable failure to perform only if the other party, in every case following written notice of default in as much detail as possible setting a reasonable period to remedy the failure, attributably fails to fulfil essential obligations under the agreement. The customer’s payment obligations and all obligations to cooperate and/or provide information, whether fulfilled by the customer or a third party engaged by it, always count as essential contractual obligations.

    2. If, at termination, the customer has already received performance under the agreement, that performance and the associated payment obligations will not be unwound unless the customer proves that the supplier is in default regarding a substantial part of that performance. Subject to the preceding sentence, amounts invoiced by the supplier before termination for work or supplies already properly performed or delivered remain payable in full and become immediately due on termination.

    3. If an agreement that does not end by completion by its nature and content has been concluded for an indefinite period, either party may cancel it in writing after proper consultation and stating reasons. If no notice period has been agreed, a reasonable notice period must be observed. The supplier is never required to pay compensation because of cancellation.

    4. The customer may not cancel a fixed-term services agreement before the end of its term.

    5. Either party may cancel the agreement wholly or partly in writing with immediate effect and without notice of default if the other party is granted a suspension of payments, provisional or otherwise, if a bankruptcy petition is filed against it, or if its business is liquidated or discontinued other than for reconstruction or merger. The supplier may also cancel wholly or partly with immediate effect and without notice of default if decisive control over the customer’s business changes directly or indirectly. Termination under this paragraph never obliges the supplier to refund money already received or pay compensation. If the customer is declared bankrupt by a final decision, its rights to use the software, websites and similar items made available, and to access and/or use the supplier’s services, end without the supplier needing to give notice of cancellation.

16. Supplier’s liability

    1. The supplier’s total liability for attributable failure to perform the agreement or on any other legal basis, expressly including any failure to fulfil an agreed warranty obligation, is limited to compensation for direct damage up to the price agreed for that agreement, excluding VAT. If the agreement is principally a continuing agreement with a term exceeding one year, the agreed price is taken as the total fees agreed for one year, excluding VAT. In no event, however, will the supplier’s total liability for direct damage on any legal basis exceed € 500,000 (five hundred thousand euros).

    2. The supplier’s total liability for damage through death, personal injury or physical damage to property never exceeds € 1,250,000 (one million two hundred and fifty thousand euros).

    3. The supplier’s liability is excluded for indirect damage, consequential damage, lost profits, lost savings, reduced goodwill, business interruption, damage resulting from claims by the customer’s customers, damage connected with use of third-party items, materials or software specified to the supplier by the customer, and damage connected with engaging suppliers specified by the customer. Liability connected with corruption, destruction or loss of data or documents is also excluded.

    4. The exclusions and limitations of the supplier’s liability described in articles 16.1 to 16.3 do not affect any other exclusions and limitations of liability set out in these general terms and conditions.

    5. The exclusions and limitations referred to in articles 16.1 to 16.4 cease to apply if and insofar as damage results from intent or conscious recklessness by the supplier’s management.

    6. Unless performance by the supplier is permanently impossible, liability for attributable failure to perform an agreement arises only if the customer immediately gives the supplier written notice of default setting a reasonable period to remedy the failure, and the supplier continues to attributably fail to fulfil its obligations after that period. The notice must describe the failure as fully and in as much detail as possible to enable the supplier to respond adequately.

    7. Any right to compensation is always conditional on the customer reporting the damage to the supplier in writing as soon as possible after it arises. Every compensation claim against the supplier lapses simply upon expiry of twenty-four months after the claim arises, unless the customer has brought legal proceedings for compensation before that period expires.

    8. The customer indemnifies the supplier against all third-party product liability claims resulting from a defect in a product or system supplied by the customer to a third party that partly comprised equipment, software or other materials supplied by the supplier, unless and insofar as the customer proves that the damage was caused by that equipment, software or other materials.

    9. The provisions of this article and all other limitations and exclusions of liability in these general terms and conditions also apply for the benefit of all natural persons and legal entities the supplier uses in performance of the agreement.

17. Force majeure

    1. Neither party is required to fulfil any obligation, including any statutory and/or agreed warranty obligation, if prevented from doing so by force majeure. Force majeure on the supplier’s side includes: (i) force majeure affecting its suppliers, (ii) failure by suppliers specified by the customer to fulfil obligations properly, (iii) defects in third-party items, equipment, software or materials whose use the customer has specified, (iv) government measures, (v) power failures, (vi) failures of internet, data network or telecommunications facilities, (vii) war and (viii) general transport problems.

    2. If force majeure lasts longer than sixty days, either party may terminate the agreement in writing. Performance already provided under the agreement will then be settled proportionately, with neither party otherwise owing anything to the other.

18. Changes and additional work

    1. If, at the customer’s request or with its prior consent, the supplier has performed work or other services outside the content or scope of the agreed work and/or performance, the customer will pay for it at the agreed rates or, in their absence, the supplier’s customary rates. The supplier is not obliged to comply with such a request and may require a separate written agreement for it.

    2. Where a fixed price has been agreed for services, the supplier will, on request, inform the customer in writing of the financial consequences of additional work or performance referred to in this article.

19. Transfer of rights and obligations

    1. The customer must never sell, transfer or pledge to a third party its rights and obligations under the agreement.

    2. The supplier may sell, transfer or pledge its claims for payment of fees to a third party.

20. Governing law and disputes

    1. Agreements between the supplier and customer are governed by Dutch law. Applicability of the Weens Koopverdrag 1980 is excluded.

    2. Disputes arising from the agreement between the parties and/or subsequent agreements resulting from it will be settled by arbitration under the Arbitragereglement of the Stichting Geschillenoplossing Automatisering, whose registered office is in Den Haag, without prejudice to either party’s right to seek interim relief in court or arbitration or to take protective legal measures. The place of arbitration is Den Haag.

    3. If a dispute arising from the agreement between the parties or subsequent agreements resulting from it falls within the jurisdiction of the kantonrechter, either party may, in derogation from article 20.2, bring the matter as a subdistrict case before the court with statutory jurisdiction. The parties have this right only if arbitration proceedings concerning the dispute have not yet been commenced under article 20.2. If one or more parties bring the case before the court with statutory jurisdiction for hearing and determination in accordance with this article 20.3, that court’s kantonrechter has jurisdiction to hear and determine it.

    4. Either party may in all cases initiate ICT-Mediation concerning a dispute arising from the agreement between the parties or subsequent agreements resulting from it, under the ICT-Mediation Reglement of the Stichting Geschillenoplossing Automatisering. The other party must participate actively in commenced ICT-Mediation. This legally enforceable obligation includes attending at least one joint meeting of mediators and parties to give this out-of-court dispute resolution method an opportunity. Either party may end the ICT-Mediation procedure at any time after an initial joint meeting of mediators and parties. This paragraph does not prevent a party that considers it necessary from seeking interim relief in court or arbitration or taking protective legal measures.

21. Site work

    1. The supplier will use its best efforts to perform its services with care, where applicable in accordance with arrangements and procedures recorded in writing with the customer. All services are performed on a reasonable-efforts basis unless and insofar as the supplier expressly commits to a result in the written agreement and that result is also described with sufficient precision in the agreement.

    2. The supplier is not liable for damage or costs resulting from use or misuse of access or identification codes or certificates unless the misuse directly results from intentional or consciously reckless acts or omissions by the supplier’s management.

    3. If the agreement was concluded with a view to performance by a particular person, the supplier may always replace that person with one or more people with the same and/or similar qualifications.

    4. In performing its services, the supplier is not required to follow the customer’s instructions, particularly instructions changing or adding to the content or scope of the agreed services. If such instructions are nevertheless followed, the work concerned will be paid for at the supplier’s customary rates.

22. Service Level Agreement

    1. Any arrangements concerning a service level (Service Level Agreement) must be expressly agreed in writing. The customer must always immediately inform the supplier of all circumstances affecting or potentially affecting the service level and its availability.

    2. Where service level arrangements have been made, availability of software, systems and related services is always measured excluding downtime announced in advance by the supplier for preventive, corrective or adaptive maintenance or other forms of service, and circumstances beyond the supplier’s control. Unless the customer provides contrary evidence, availability measured by the supplier constitutes conclusive evidence.

23. Back-up

    1. If the services to the customer include backing up the customer’s data, the supplier will make a full back-up of the customer’s data in its possession at the intervals agreed in writing or, in their absence, once a week. The supplier will retain the back-up for the agreed period or, in the absence of agreement, for its customary retention period. The supplier will keep the back-up with due care as a prudent custodian.

    2. The customer remains responsible for complying with all statutory accounting and retention obligations applicable to it.

24. Performance of the SaaS service

    1. The supplier provides the SaaS service only on the customer’s instructions. The customer may not allow third parties to use the SaaS services provided by the supplier.

    2. If the supplier performs work concerning data of the customer, its employees or users at the request or duly authorised order of a government body or in connection with a statutory obligation, all associated costs will be charged to the customer.

    3. The supplier may change the content or scope of the SaaS service. If such changes require changes to the customer’s procedures, the supplier will inform the customer as early as possible, and the customer bears the cost of the procedural change. In that case, the customer may cancel the agreement in writing effective on the date the change takes effect, unless the change relates to changes in relevant legislation or other rules issued by competent authorities, or the supplier bears the cost of the change.

    4. The supplier may continue providing the SaaS service using a new or modified software version. The supplier is not required to maintain, modify or add particular service or software features or functions specifically for the customer.

    5. The supplier may temporarily take all or part of the SaaS service out of operation for preventive, corrective or adaptive maintenance or other forms of service. The supplier will not extend the downtime beyond what is necessary and will, where possible, schedule it outside office hours.

    6. The supplier is never required to provide the customer with a physical medium containing software made and kept available to the customer as part of the SaaS service.

25. Warranty

    1. The supplier does not warrant that software kept available as part of the SaaS service is error-free or operates without interruption. The supplier will endeavour to correct errors as defined in article 30.3 within a reasonable period if and insofar as the software was developed by the supplier itself and the customer has reported the defects to the supplier in writing with a detailed description. Where appropriate, the supplier may defer correction until a new software version is put into use. The supplier does not warrant that defects in software it did not develop itself will be remedied. The supplier may introduce temporary solutions, workarounds or problem-avoiding restrictions into the software. If the software was developed on the customer’s instructions, the supplier may charge the customer correction costs at its customary rates.

    2. Based on information supplied by the supplier about measures to prevent and limit the consequences of faults, defects in SaaS services, corruption or loss of data or other incidents, the customer will assess the risks to its organisation and take additional measures where necessary. The supplier is willing, at the customer’s request, to provide reasonable cooperation with further measures the customer takes, subject to financial or other conditions set by the supplier. The supplier is never required to restore corrupted or lost data.

    3. The supplier does not warrant that software kept available as part of the SaaS service will be adapted in time to changes in relevant laws and regulations.

26. Protection of personal data

    1. Under legislation concerning personal data processing, such as the Wet Bescherming Persoonsgegevens, the customer has obligations towards third parties, including providing information and access to, correction and deletion of data subjects’ personal data. Responsibility for fulfilling these obligations rests fully and exclusively with the customer. The parties regard the supplier as a ‘bewerker’, or processor, within the meaning of the Wet Bescherming Persoonsgegevens for personal data processing.

    2. As far as technically possible, the supplier will support the customer in fulfilling the obligations referred to in article 26.1. The costs of this support are not included in the supplier’s agreed prices and fees and are payable by the customer.

27. Commencement of services; fees

    1. The supplier will begin providing the SaaS service within a reasonable period after the agreement is concluded. The customer must ensure that, immediately after conclusion, it has the facilities needed to use the SaaS service.

    2. The customer owes the SaaS service fee stated in the agreement. In the absence of an agreed payment schedule, all amounts relating to   the SaaS service provided by the supplier are payable in advance for each calendar month.

28. Right of use and restrictions on use

    1. Under a licence, the supplier makes the agreed computer programmes and user documentation available to the customer for use during the agreement, hereinafter ‘the software’. The right to use the software is non-exclusive, non-transferable, cannot be pledged and cannot be sublicensed.

    2. The supplier’s obligation to make software available and the customer’s right of use extend only to the software’s object code. The customer’s right of use does not extend to its source code. The source code and technical documentation created during development are not made available to the customer, even if the customer is willing to pay for them.

    3. The customer must always strictly observe the agreed restrictions on its right to use the software, whatever their nature or content.

    4. If the parties agree that the software may be used only with particular equipment, the customer may, if that equipment malfunctions, use the software on other equipment with the same specifications for the duration of the fault.

    5. The supplier may require the customer not to start using the software until it has obtained one or more necessary use codes from the supplier, its supplier or the software producer. The supplier may always take technical measures to protect the software against unlawful use and/or use in a manner or for purposes other than agreed between the parties. The customer must never remove or circumvent technical software protection measures or have them removed or circumvented.

    6. The customer may use the software only within and for its own business or organisation, and only insofar as necessary for its intended use. The customer must not use it for third parties, for example as part of ‘Software-as-a-Service’ (SaaS) or ‘outsourcing’.

    7. The customer must never sell, rent out or dispose of the software or media on which it is or will be recorded, grant limited rights over them or make them available to a third party in any manner, for any purpose or on any legal basis. Nor may the customer give a third party access to the software, remotely online or otherwise, or have it hosted by a third party, even if that party uses it solely for the customer.

    8. On request, the customer must immediately cooperate with an investigation by or for the supplier into compliance with agreed use restrictions. At the supplier’s first request, the customer must grant access to its premises and systems. The supplier will keep confidential all confidential business information obtained from or at the customer during an investigation insofar as it does not concern use of the software itself.

    9. The parties regard the agreement between them, insofar as it concerns making software available for use, as never constituting a contract of sale.

    10. The supplier is not obliged to maintain the software or support its users and/or administrators. If, contrary to the foregoing, the supplier is asked to provide maintenance and/or support, it may require the customer to enter into a separate written agreement for this.

29.  Delivery and installation

    1. At its option, the supplier will deliver the software on the agreed data medium format or, if none is agreed, a format chosen by the supplier, or make it available online for delivery to the customer. Any agreed user documentation will be supplied, at the supplier’s option, on paper or digitally in a language chosen by the supplier.

    2. The supplier will install software at the customer’s premises only if agreed. In the absence of agreement, the customer must itself install, configure, parameterise and tune it and, where necessary, adapt the equipment and operating environment used.

30.  Acceptance

    1. If the parties have not agreed an acceptance test, the customer accepts the software in its condition on delivery (‘as is, where is’), including all visible and hidden errors and defects, without prejudice to the supplier’s obligations under the warranty provisions in article 34. In that case, the software is deemed accepted by the customer on delivery or, if installation by the supplier is agreed in writing, on completion of installation.

    2. If an acceptance test is agreed, articles 30.3 to 30.10 apply.

    3. In these general terms and conditions, ‘errors’ means substantial failure of software to meet functional or technical specifications expressly communicated in writing by the supplier or, for wholly or partly custom-developed software, the expressly agreed written functional or technical specifications. An error exists only if the customer can demonstrate it and it is reproducible. The customer must report errors immediately. The supplier has no obligation concerning defects in or affecting the software other than errors within the meaning of these general terms and conditions.

    4. If an acceptance test is agreed, the test period is fourteen days after delivery or, if installation by the supplier is agreed in writing, fourteen days after installation is completed. During the test period, the customer may not use the software for production or operational purposes. The customer must perform the agreed acceptance test with qualified personnel and sufficient scope and depth.

    5. If an acceptance test is agreed, the customer must test whether the delivered software meets the functional or technical specifications expressly communicated in writing by the supplier and, if and insofar as the software is wholly or partly custom-developed, the expressly agreed written functional or technical specifications.

    6. The software is deemed accepted between the parties:

       1. if an acceptance test is agreed: on the first day after the test period, or

       2. if the supplier receives a test report as referred to in article 30.7 before the test period ends: when the errors listed in that report have been corrected, notwithstanding errors which do not prevent acceptance under article 30.8, or

       3. if the customer makes any use of the software for production or operational purposes: when that use begins.

    7. If the agreed acceptance test reveals errors in the software, the customer must report the test results to the supplier in writing no later than the final day of the test period, clearly, in detail and comprehensibly. The supplier will use its best efforts to correct the errors within a reasonable period and may introduce temporary solutions, workarounds or problem-avoiding restrictions.

    8. The customer may not withhold acceptance for reasons unrelated to the expressly agreed written specifications, nor because of minor errors that do not reasonably prevent operational or production use, without prejudice to the supplier’s obligation to correct such minor errors under the warranty provisions in article 34. Nor may acceptance be withheld for software aspects assessable only subjectively, such as the aesthetics of user interfaces.

    9. If software is delivered and tested in phases and/or parts, non-acceptance of a particular phase or part does not affect acceptance of an earlier phase or another part.

    10. Acceptance in any manner referred to in this article discharges the supplier’s obligations concerning making the software available and delivering it and, where installation by the supplier is also agreed, its installation obligations. Acceptance does not affect the customer’s rights under article 30.8 concerning minor defects and article 34 concerning warranty.

31. Making available

    1. The supplier will make the software available to the customer within a reasonable period after the agreement is concluded.

    2. Immediately after the agreement ends, the customer must return all software copies in its possession to the supplier. If destruction of the copies at the end of the agreement has been agreed, the customer must immediately notify the supplier of that destruction in writing. At or after the end of the agreement, the supplier is not required to assist with any data conversion desired by the customer.

32. Licence fee

    1. The fee payable by the customer for the right of use is due at the agreed times or, if no time is agreed:

       1. if the parties have not agreed that the supplier will install the software:

          • on delivery of the software;

          • or, for periodic licence fees, on delivery and then at the start of each new licence period;

       2. if the parties have agreed that the supplier will install the software:

          • on completion of that installation;

          • or, for periodic licence fees, on completion of installation and then at the start of each new licence period.

33. Changes to the software

    1. Except where the law provides otherwise, the customer may not change all or part of the software without the supplier’s prior written consent. The supplier may refuse consent or attach conditions to it. The customer bears the full risk of all changes made by the customer or by third parties on its instructions, with or without the supplier’s consent.

34. Warranty

    1. The supplier will use its best efforts to correct errors within a reasonable period if reported to it in writing with a detailed description within three months of delivery or, if an acceptance test is agreed, within three months of acceptance. The supplier does not warrant that the software is suitable for actual and/or intended use. Nor does it guarantee uninterrupted operation or that every error will always be corrected. Corrections are free unless the software was developed on the customer’s instructions other than for a fixed price, in which case the supplier will charge correction costs at its customary rates.

    2. The supplier may charge correction costs at its customary rates where there are user errors, improper use by the customer or other causes not attributable to the supplier. The correction obligation lapses if the customer changes the software or has it changed without the supplier’s written consent.

    3. Errors are corrected at a location and in a manner chosen by the supplier. The supplier may introduce temporary solutions, workarounds or problem-avoiding restrictions into the software.

    4. The supplier is never required to restore corrupted or lost data.

    5. The supplier has no obligation of any nature or content concerning errors reported after the warranty period referred to in article 34.2 has expired.

35. Software from suppliers

    1. If and insofar as the supplier makes third-party software available to the customer, the relevant third parties’ licence or other terms apply to that software between the supplier and customer, replacing conflicting provisions of these general terms and conditions, provided the supplier has notified the customer in writing that those third-party terms apply and supplied them before or when the agreement is concluded. In derogation from the preceding sentence, the customer may not rely on the supplier’s failure to fulfil that information obligation if the customer is a party referred to in article 6:235 paragraph 1 or paragraph 3 BW.

    2. If and insofar as those third-party terms are deemed inapplicable or disapplied between the customer and supplier for any reason, these general terms and conditions apply in full.

36. Specifications and development of software/websites

    1. If specifications or a design for the software or website to be developed have not been supplied to the supplier before or when the agreement is concluded, the parties will, through proper consultation, specify in writing which software or website will be developed and how development will take place.

    2. The supplier will develop the software and/or website with care, observing the expressly agreed specifications or design and, where applicable, the project organisation, methods, techniques and/or procedures agreed in writing with the customer. Before starting development, the supplier may require the customer’s written approval of the specifications or design.

    3. If the parties use a development method based on iterative design and/or development of all or parts of the software or website, such as Scrum, they accept that work will not initially be based on complete or fully developed specifications. They also accept that specifications, whether agreed at the start or otherwise, may be adjusted through proper consultation during performance, observing the project approach associated with the development method. During performance, the parties will jointly decide through proper consultation on the specifications for the next project phase, such as a ‘time-box’, and/or the next development increment. The customer accepts the risk that the software and/or website will not necessarily meet every specification. The customer must ensure continuous, active input and cooperation from relevant end users, supported by its organisation, including for testing and further decision-making. The customer guarantees that personnel it assigns to key positions have the decision-making authority those positions require. The customer must ensure prompt progress decisions during performance. If it fails to make timely and clear progress decisions under the relevant development method’s project approach, the supplier may, but is not obliged to, make decisions it considers appropriate.

    4. If the parties use a development method referred to in article 36.3, article 30.1, articles 30.4 to 30.8 and article 34.1 do not apply. The customer accepts the software and/or website in its condition at the end of the final development phase (‘as is, where is’). After that phase, the supplier is not required to correct errors unless expressly agreed otherwise in writing.

    5. In the absence of specific arrangements, the supplier will start design and/or development work within a reasonable period it determines after the agreement is concluded.

    6. On request, the customer will enable the supplier to work at the customer’s office or premises outside normal working days and hours.

    7. The supplier’s obligations for website development do not include providing a content management system.

    8. The supplier’s obligations do not include maintenance of the software and/or website or support for their users and/or administrators. If, contrary to the foregoing, the supplier must also provide maintenance and/or support, it may require a separate written agreement. This work is charged separately at the supplier’s customary rates.

37. Delivery, installation and acceptance

    1. Article 29 concerning delivery and installation applies correspondingly.

    2. Unless the agreement requires the supplier to host the software and/or website for the customer on its own computer system, the supplier will deliver the website to the customer on a medium and in a format of its choice, or make it available online for delivery.

    3. Article 30 of these general terms and conditions concerning acceptance applies correspondingly.

38. Right of use

    1. The supplier makes the software and/or website developed on the customer’s instructions, and any associated user documentation, available to the customer for use.

    2. Only if agreed in writing will the software’s source code and technical documentation created during development be made available to the customer, in which case the customer may modify the software.

    3. The supplier is not required to provide utility software or programme or data libraries needed to use and/or maintain the software.

    4. Article 28 concerning rights of use and restrictions on use applies correspondingly.

    5. Only if the written agreement expressly shows that all design and development costs are borne fully and exclusively by the customer will the customer’s right to use the software and/or website be unrestricted, in derogation from article 38.4.

39. Fees

    1. In the absence of an agreed payment schedule, all amounts relating to software and/or website design and development are payable monthly in arrears for each calendar month.

    2. The development price includes the fee for the right to use the software or website during the agreement.

    3. The software development fee does not include utility software or programme and data libraries required by the customer, any installation services or adaptation and/or maintenance of the software. Nor does it include user support.

40. Warranty

    1. Article 34 concerning warranty applies correspondingly.

    2. The supplier does not warrant that a website it develops works properly with every type or new version of web browser or other software. Nor does it warrant that the website works properly with every type of equipment.

41. Maintenance services

    1. If agreed, the supplier maintains the software specified in the agreement. Maintenance includes correction of errors as defined in article 30.3 and, only if agreed in writing, provision of new software versions under article 42.

    2. The customer must report software errors in detail. After receiving a report, the supplier will use its best efforts under its customary procedures to correct errors and/or make improvements in later new versions. Depending on urgency and the supplier’s version and release policy, results will be made available in a manner and timeframe chosen by the supplier. The supplier may introduce temporary solutions, workarounds or problem-avoiding restrictions. The customer must itself install, configure, parameterise and tune the corrected software or new version made available and, where necessary, adapt the equipment and operating environment used.

    3. Articles 34.3 and 34.4 apply correspondingly.

    4. If the supplier performs maintenance online, the customer must provide proper infrastructure and network facilities in good time.

    5. The customer must provide all cooperation required by the supplier for maintenance, including temporarily stopping use of the software and backing up all data.

    6. If maintenance concerns software not supplied to the customer by the supplier itself, the customer must provide the source code and technical development documentation, including data models, designs and change logs, if the supplier considers this necessary or desirable for maintenance. The customer warrants that it is entitled to do so. The customer grants the supplier the right to use and modify the software, including its source code and technical development documentation, to perform the agreed maintenance.

    7. Maintenance by the supplier does not affect the customer’s own responsibility for software administration, including checking settings and how the results of software use are applied. The customer must itself install, configure, parameterise and tune software and utility software and, where necessary, adapt associated equipment, other software and the operating environment and achieve the interoperability it desires.

42. New software versions

    1. Maintenance includes provision of new software versions only if and insofar as agreed in writing. Where included, provision is at the supplier’s discretion.

    2. Three months after an improved version is made available, the supplier is no longer required to correct errors in, or provide support and/or maintenance for, the previous version.

    3. The supplier may require a further written agreement and additional fee for providing a version with new functionality. It may carry functionality over unchanged from a previous version, but does not warrant that every new version contains the same functionality as the preceding version. The supplier is not required to maintain, modify or add particular software features or functions specifically for the customer.

    4. The supplier may require the customer to adapt its system, including equipment and software, where necessary for a new software version to function properly.

43. Support services

    1. If the agreed services include support for software users and/or administrators, the supplier will advise by phone or email on use and operation of the software named in the agreement. The supplier may set conditions on the qualifications and number of people eligible for support. It will deal with properly substantiated support requests within a reasonable period under its customary procedures. It does not warrant the accuracy, completeness or timeliness of responses or support. Support is provided on working days during the supplier’s normal opening hours.

    2. If the agreed services include standby services, the supplier will keep one or more personnel available on the days and at the times specified in the agreement. In that case, the customer may urgently request support from those personnel in the event of a serious software malfunction. The supplier does not warrant that every fault will be remedied in time.

    3. Maintenance and other agreed services referred to in this chapter start on the date the agreement is concluded unless the parties agree otherwise in writing.

44. Fees

    1. In the absence of an expressly agreed payment schedule, all amounts relating to software maintenance and the other agreed services referred to in this chapter are payable in advance for each calendar month.

    2. Amounts for software maintenance and the other agreed services referred to in this chapter are payable from the start of the agreement. Maintenance and other service fees are payable regardless of whether the customer uses or has started using the software or makes use of maintenance or support.

45. Performance of advisory and consultancy services

    1. The duration of an advisory or consultancy assignment depends on factors and circumstances such as the quality of data and information supplied by the customer and cooperation by the customer and relevant third parties. Unless agreed otherwise in writing, the supplier will therefore not commit beforehand to an assignment duration.

    2. The supplier provides services only on its normal working days and during its normal working hours.

    3. The customer’s use of advice and/or a consultancy report supplied by the supplier is always at the customer’s risk. The customer bears the entire burden of proving that the advisory or consultancy services, or the manner of their provision, fail to meet the written agreement or what may be expected of a reasonably acting and competent supplier, without prejudice to the supplier’s right to provide contrary evidence by any means.

    4. Without the supplier’s prior written consent, the customer may not communicate to a third party about the supplier’s working methods, methods and techniques and/or the content of its advice or reports. The customer must not supply that advice or those reports to a third party or otherwise make them public.

46. Reporting

    1. The supplier will periodically inform the customer of work performed in the manner agreed in writing. The customer must give advance written notice of circumstances important or potentially important to the supplier, such as the reporting method, questions requiring attention, the customer’s priorities, availability of its resources and personnel, and particular facts or circumstances potentially unknown to the supplier. The customer is responsible for further distribution and awareness of the information within its organisation, assessing it partly on that basis and informing the supplier of its assessment.

47. Fees

    1. In the absence of an expressly agreed payment schedule, all fees for the services referred to in this chapter are payable monthly in arrears for each calendar month.

48. Secondment services

    1. The supplier will make the employee named in the agreement available to the customer to work under the customer’s direction and supervision. The results of the work are at the customer’s risk. Unless agreed otherwise in writing, the employee is made available for forty hours a week on the supplier’s normal working days.

    2. The customer may assign the employee to work other than that agreed only with the supplier’s prior written consent.

    3. The customer may make the assigned employee available to a third party to work under that third party’s direction and supervision only if expressly agreed in writing.

    4. The supplier will endeavour to keep the assigned employee available for work on the agreed days throughout the agreement, except in cases of illness or departure from employment. Even if the agreement was concluded with a particular person in mind, the supplier may always replace that person, after consulting the customer, with one or more people with the same qualifications.

    5. The customer may request replacement of the assigned employee (i) if the employee demonstrably fails to meet expressly agreed quality requirements and the customer provides the supplier with reasons within three working days of work starting, or (ii) in the event of prolonged illness or departure from employment. The supplier will give the request immediate priority attention. It does not warrant that replacement is always possible. If replacement is not possible, or not immediately possible, the customer’s claims for further performance and all claims for non-performance lapse. The customer’s payment obligations for work performed remain fully effective.

49. Term of the secondment agreement

    1. In derogation from article 4 of these general terms and conditions, if the parties have not agreed a secondment duration, the agreement is for an indefinite period, with either party entitled to cancel on one calendar month’s notice after any initial term. Cancellation must be in writing.

50. Working hours, times and conditions

    1. The assigned employee’s working times, rest periods and working hours are the same as those customary at the customer. The customer warrants that these comply with relevant laws and regulations.

    2. The customer must inform the supplier of any intended temporary or other closure of its business or organisation.

    3. The customer is obliged towards the supplier and assigned employee to comply with relevant workplace safety and working conditions laws and regulations.

51. Overtime fees and travel time

    1. If, on the customer’s instructions or request, the assigned employee works more than the agreed or customary daily hours or works outside the supplier’s normal working days, the customer owes the agreed overtime rate or, if none is agreed, the supplier’s customary overtime rate for those hours. On request, the supplier will inform the customer of applicable overtime rates.

    2. Expenses and travel time will be charged under the supplier’s customary rules and standards. On request, the supplier will inform the customer of those rules and standards.

52. Liability of the hirer of personnel and other liability

    1. The supplier will ensure timely and full payment of payroll tax, social insurance contributions and VAT payable for the assigned employee in connection with the agreement. The supplier indemnifies the customer against all claims by tax authorities or social insurance administering bodies payable because of the agreement, provided the customer immediately informs the supplier in writing of the claim’s existence and substance and leaves handling, including any settlement, entirely to the supplier. The customer will provide the necessary powers of attorney, information and cooperation to defend those claims, in the customer’s name if necessary.

    2. The supplier accepts no liability for the quality of work results produced under the customer’s supervision and direction.

53. Registration and cancellation

    1. Registration for training must be in writing and becomes binding after confirmation by the supplier.

    2. The customer is responsible for choosing the training and its suitability for participants. A participant’s lack of required prior knowledge does not affect the customer’s contractual obligations. The customer may replace a participant with another only with the supplier’s prior written consent.

    3. If the supplier considers registration numbers justify it, it may cancel the training, combine it with one or more courses or reschedule it to a later date or time. The supplier reserves the right to change the training location. It may make organisational and content changes to training.

    4. Consequences of cancellation by the customer or participants are governed by the supplier’s customary rules. Cancellation must always be in writing and before the training or relevant part. Cancellation or non-attendance does not affect the customer’s contractual payment obligations.

54. Delivery of training

    1. The customer accepts that the supplier determines the training’s content and depth.

    2. The customer must inform participants of contractual obligations and the supplier’s participation and conduct rules, and oversee their compliance.

    3. If the supplier uses its own equipment or software for training, it does not warrant that these are error-free or operate without interruption. If training is delivered at the customer’s premises, the customer must ensure properly functioning equipment and software are available.

    4. Conducting an examination or test does not form part of the agreement.

    5. The customer owes a separate fee for documentation, training materials or resources provided or created for training. This also applies to any training certificates or duplicates.

    6. If training is offered through e-learning, the provisions of the ‘Software-as-a-Service (SaaS) Chapter’ apply correspondingly as far as possible.

55. Price and payment

    1. The supplier may require payment of training fees before training starts. It may exclude participants if the customer has failed to pay on time, without prejudice to all its other rights.

    2. Unless the supplier expressly states that training is exempt from VAT under article 11 of the Wet op de Omzetbelasting 1968, the customer also owes VAT on the fee. After the agreement is concluded, the supplier may adjust prices if the statutory VAT regime for training changes.

56. Hosting services

    1. The supplier will provide the hosting services agreed with the customer.

    2. If the agreement concerns provision of disk space on equipment, the customer must not exceed the agreed space unless the agreement expressly regulates the consequences. Disk space on a server reserved exclusively and specifically for the customer is included only if expressly agreed in writing. All use of disk space, data traffic and other load on systems and infrastructure is limited to the agreed maxima. Unused data traffic in one period cannot be carried forward. The supplier will charge additional fees at its customary rates for exceeding agreed maxima.

    3. The customer is responsible for administration, including checking settings, use of the hosting service and how its results are used. In the absence of express arrangements, the customer must itself install, configure, parameterise and tune software and utility software and, where necessary, adapt associated equipment, other software and the operating environment and achieve the interoperability it desires. The supplier is not required to perform data conversion.

    4. Only if expressly agreed in writing does the agreement also include providing or making available back-up, fallback and recovery services.

    5. The supplier may temporarily take all or part of the hosting service out of operation for preventive, corrective or adaptive maintenance. It will not extend downtime beyond what is necessary, will where possible schedule it outside office hours and, depending on circumstances, start it after consulting the customer.

    6. If the supplier performs domain-name services under the agreement, such as applying, renewing, disposing of or transferring a domain name to a third party, the customer must observe the relevant bodies’ rules and procedures. On request, the supplier will provide a written copy of those rules. The supplier expressly accepts no responsibility for the accuracy or timeliness of services or achievement of the customer’s intended results. The customer owes all application and/or registration costs at the agreed rates or, if none are agreed, the supplier’s customary rates. The supplier does not warrant that a desired domain name will be allocated to the customer.

57. Notice and Take Down

    1. The customer must always act with care and lawfully towards third parties, particularly by respecting their intellectual property and other rights and privacy, not distributing data unlawfully, not gaining unauthorised system access, not distributing viruses or other harmful programmes or data, and refraining from criminal offences and breaches of any other statutory obligation.

    2. To prevent or limit liability towards third parties, the supplier may always take measures concerning acts or omissions by or at the risk of the customer. At the supplier’s first written request, the customer must immediately remove data and/or information from the supplier’s systems; failing this, the supplier may choose to remove it itself or prevent access. In the event of a breach or threatened breach of article 57.1, the supplier may also deny the customer access to its systems immediately and without prior notice. This does not affect other measures or exercise of the supplier’s statutory and contractual rights against the customer. In that case, the supplier may also cancel the agreement immediately without liability to the customer. The supplier cannot be required to judge the merits of third-party claims or the customer’s defence, or become involved in any way in a dispute between a third party and the customer. The customer must deal with the third party and inform the supplier in writing, properly substantiated with documents.

58. Purchase and sale

    1. The supplier sells, and the customer purchases from it, equipment and/or other items of the nature and quantity agreed in writing.

    2. The supplier does not warrant that equipment and/or items are suitable on delivery for actual and/or intended use unless the written agreement specifies the purposes clearly and without qualification.

    3. The supplier’s sales obligation excludes assembly and installation materials, software, consumables and operating supplies, batteries, stamps, ink cartridges, toner supplies, cables and accessories.

    4. The supplier does not warrant that assembly, installation and operating instructions accompanying equipment and/or items are error-free or that the equipment and/or items possess the properties stated in those instructions.

59. Delivery

    1. Equipment and/or items sold by the supplier will be delivered ex warehouse. Only if agreed in writing will the supplier deliver or arrange delivery to a location designated by the customer. In that case, where possible in good time before delivery, the supplier will notify the customer when it or the appointed carrier intends to deliver.

    2. The purchase price excludes transport, insurance, lifting and hoisting, hire of temporary facilities and similar costs. These will be charged to the customer where applicable.

    3. If the customer requests removal of old materials, such as networks, cabinets, cable trays, packaging or equipment, or the supplier is legally obliged to remove them, the supplier may accept the request through a written order at its customary rates. Where the law prohibits charging a fee, for example under an ‘old-for-new’ arrangement, the supplier will not request that fee from the customer.

    4. If agreed in writing, the supplier will install, configure and/or connect the equipment and/or items, or arrange for this to be done. Any obligation to install and/or configure equipment excludes data conversion and software installation. The supplier is not responsible for obtaining any necessary permits.

    5. The supplier may always perform the agreement through partial deliveries.

60. Trial installation

    1. The supplier is required to provide a trial installation of equipment of interest to the customer only if agreed in writing. It may attach financial or other conditions. A trial installation involves temporarily placing standard equipment, excluding accessories, for inspection in space provided by the customer before a final purchase decision. The customer is liable for use, damage, theft or loss of equipment forming part of the trial installation.

61. Environmental requirements

    1. The customer must provide an environment meeting the supplier’s equipment and/or item requirements, including temperature, humidity and technical environmental requirements.

    2. The customer must ensure work by third parties, such as building work, is performed properly and on time.

62. Warranty

    1. The supplier will use its best efforts to remedy material and manufacturing defects in sold equipment and/or other items and in parts supplied under warranty, free of charge within a reasonable period, if reported in detail within three months of delivery. If, in the supplier’s reasonable opinion, repair is impossible, would take too long or involve disproportionately high costs, it may replace the equipment and/or items free of charge with similar but not necessarily identical equipment and/or items. Data conversion required by repair or replacement is outside the warranty. All replaced parts become the supplier’s property. The warranty obligation lapses if defects in equipment, items or parts result wholly or partly from incorrect, careless or unskilled use, external causes such as fire or water damage, or if the customer modifies or has modifications made to equipment or parts supplied under warranty without the supplier’s consent. The supplier will not withhold such consent on unreasonable grounds.

    2. Any other or further claim by the customer for non-conformity of supplied equipment and/or items beyond article 62.1 is excluded.

    3. Work and repair costs outside this warranty will be charged at the supplier’s customary rates.

    4. Under the purchase agreement, the supplier has no obligation concerning errors and/or other defects reported after the warranty period referred to in article 62.1 expires.

63. Equipment from suppliers

    1. If and insofar as the supplier sells third-party equipment to the customer, that third party’s sales terms apply to it between the supplier and customer, replacing conflicting provisions of these general terms and conditions, provided the supplier has notified the customer in writing of their applicability and supplied them before or when the agreement is concluded. In derogation from the preceding sentence, the customer may not rely on the supplier’s failure to fulfil that information obligation if it is a party referred to in article 6:235 paragraph 1 or paragraph 3 BW.

    2. If and insofar as those third-party terms are deemed inapplicable or disapplied between the customer and supplier for any reason, these general terms and conditions apply in full.

64. Hire and letting

    1. The supplier hires to the customer the equipment and associated user documentation named in the hire agreement.

    2. Hire excludes software on separate data media and operating supplies and consumables needed for equipment use, such as batteries, ink cartridges, toner supplies, cables and accessories.

    3. Hire starts on the day the equipment is made available to the customer.

65. Initial inspection

    1. Before or when making equipment available, the supplier may, as an initial inspection in the customer’s presence, prepare a condition report listing defects found. It may require the customer to sign the report for approval before providing equipment for use. Defects listed in the report are the supplier’s responsibility. On finding defects, the parties will agree whether, how and within what period they will be remedied.

    2. If the customer does not cooperate properly with the initial inspection referred to in article 65.1, the supplier may perform it without the customer present and prepare the report itself. This report binds the customer.

    3. If no initial inspection takes place, the customer is deemed to have received the equipment in good and undamaged condition.

66. Use of equipment

    1. The customer must use the equipment solely for its intended contractual purpose and at the locations specified in the agreement, within and for its own organisation or business. Use by or for third parties is prohibited. The right to use the equipment is non-transferable. The customer may not subhire it to a third party or otherwise allow a third party to use or share its use.

    2. The customer must itself install, assemble and prepare the equipment for use.

    3. The customer may not use the equipment or any part as collateral or security in any way or otherwise dispose of it.

    4. The customer must use the equipment carefully and keep it with due care as a prudent custodian. It must take adequate measures to prevent damage and immediately notify the supplier of any damage. The customer is liable to the supplier for damage to the equipment. In all cases, it is liable for theft, loss or misappropriation during hire.

    5. The customer must not change all or part of the equipment or add anything to it. If changes or additions are nevertheless made, the customer must reverse or remove them no later than the end of the hire agreement.

    6. Between the parties, defects in changes and additions made by or on the customer’s instructions, and equipment defects arising from them, are not defects within the meaning of article 7:204 BW. The customer has no claim against the supplier for such defects. The supplier is not required to repair or maintain them.

    7. The customer has no right to compensation for changes or additions it makes to hired equipment that, for any reason, are not reversed or removed at or after the end of the hire agreement.

    8. The customer must immediately notify the supplier in writing of any attachment of the equipment, stating the attaching party’s identity and reason for attachment. The customer must immediately show the hire agreement to the bailiff making the attachment.

67. Maintenance of hired equipment

    1. The customer must not maintain hired equipment itself or have it maintained by a third party.

    2. The customer must immediately report defects it finds in hired equipment in writing. The supplier will use its best efforts to remedy defects for which it is responsible through corrective maintenance within a reasonable period. It may, but is not obliged to, perform preventive maintenance. On request, the customer must allow corrective and/or preventive maintenance. The parties will consult properly beforehand about maintenance dates and times. During maintenance, the customer has no right to replacement equipment.

    3. The obligation to remedy defects excludes:

       • remedying defects accepted by the customer when entering the hire agreement;

       • remedying defects caused by external factors;

       • remedying defects attributable to the customer, its personnel and/or third parties it engages;

       • remedying defects caused by careless, incorrect or unskilled use or use contrary to documentation;

       • remedying defects caused by use contrary to the equipment’s intended purpose;

       • remedying defects caused by unauthorised changes or additions to the equipment.

    4. If the supplier remedies or arranges repair of defects referred to in the preceding paragraph, the customer owes the associated costs at the supplier’s customary rates.

    5. The supplier may always choose not to remedy defects and instead replace equipment with similar but not necessarily identical equipment.

    6. The supplier is never required to restore or reconstruct lost data.

68. Final inspection and return

    1. At the end of the hire agreement, the customer must return equipment in its original condition. Return transport costs are borne by the customer.

    2. Before or no later than the final working day of the hire period, the customer must cooperate with a joint final inspection of equipment condition. The parties will jointly prepare a report of findings, to be signed by both. If the customer does not cooperate, the supplier may inspect without it present and prepare the report itself. This report binds the customer.

    3. The supplier may arrange repairs at the customer’s expense for defects listed in the final inspection report that reasonably fall within the customer’s responsibility and risk. The customer is liable for damage suffered by the supplier because the equipment is temporarily unusable or cannot be hired out further.

    4. If, at the end of hire, the customer has not reversed a change or removed an addition it made, the parties agree that the customer is deemed to have waived all rights to those changes and/or additions.

69. Maintenance services

    1. The supplier will maintain the equipment named in the agreement, provided it is located in the Netherlands.

    2. While the supplier holds equipment for maintenance, the customer has no right to temporary replacement equipment.

    3. The content and scope of maintenance services and any associated service levels will be recorded in a written agreement. In its absence, the supplier must use its best efforts to remedy faults properly reported by the customer within a reasonable period. In these general terms and conditions, a ‘fault’ means the equipment fails to meet, or continuously meet, the specifications expressly communicated in writing by the supplier. A fault exists only if the customer can demonstrate it and it can be reproduced. The supplier may, but is not obliged to, perform preventive maintenance.

    4. Immediately after an equipment fault occurs, the customer must notify the supplier with a detailed description.

    5. The customer must provide all cooperation required by the supplier for maintenance, such as temporarily stopping equipment use. It must give the supplier’s personnel or designated third parties access to the equipment’s location, provide all other necessary cooperation and make equipment available for maintenance.

    6. Before offering equipment to the supplier for maintenance, the customer must ensure a complete, properly functioning back-up has been made of all software and data stored in or on it.

    7. At the supplier’s request, a suitably knowledgeable customer employee must be present for consultation during maintenance.

    8. The customer may connect equipment and systems not supplied by the supplier to the equipment and install software on it.

    9. If the supplier considers testing connections to other equipment or software necessary for maintenance, the customer must make that other equipment and software, test procedures and data media available.

    10. The customer must provide test materials needed for maintenance that are not part of the supplier’s normal equipment.

    11. The customer bears the risk of equipment loss, theft or damage while the supplier holds it for maintenance. It is for the customer to insure that risk.

70. Maintenance fee

    1. The maintenance price excludes:

       • costs of consumables and their replacement, such as batteries, stamps, ink cartridges, toner supplies, cables and accessories;

       • costs of parts and their replacement, and maintenance services to remedy faults wholly or partly caused by repair attempts by anyone other than the supplier;

       • equipment overhaul work;

       • equipment modifications;

       • equipment relocation, removal or reinstallation and resulting work.

    2. The maintenance fee is payable regardless of whether the customer uses or has started using the equipment or makes use of maintenance.

71. Exclusions

    1. Work to investigate or remedy faults resulting from or connected with user errors, improper equipment use or external causes, such as defects in internet or data network connections, power supplies or connections with equipment, software or materials outside the maintenance agreement, does not form part of the supplier’s maintenance obligations.

    2. The supplier’s maintenance obligations exclude:

       • investigating or remedying faults resulting from or connected with equipment changes made other than by or on behalf of the supplier;

       • use of equipment contrary to applicable conditions and the customer’s failure to arrange timely maintenance. The supplier’s maintenance obligations also exclude investigating or remedying faults connected with software installed on the equipment.

    3. If the supplier performs investigation and/or maintenance in connection with articles 71.1 and/or 71.2, it may charge the costs at its customary rates. This does not affect any other amounts the customer owes for maintenance.

    4. The supplier is never required to restore data corrupted or lost through faults and/or maintenance.

© 2014 Nederland ICT