General terms and conditions of delivery and payment
Of the private company Computer Business Applications hereinafter referred to as "CBA", established and having its registered office in Amsterdam
Filed with the Chamber of Commerce and Industry for Amsterdam on 4 December 1992 under number 1359
CHAPTER I: GENERAL PROVISIONS
1. VALIDITY
1.1 All our offers, agreements and the execution thereof are exclusively governed by these terms and conditions. Deviations must be expressly agreed with us in writing.
1.2 In these terms and conditions, "the other party" means: any (legal) person who has concluded or wishes to conclude an agreement with our company and, apart from this, its representative(s), authorized representative(s), assignee(s) and heirs.
1.3 The other party's own terms and conditions remain unaffected insofar as they do not conflict with these terms and conditions. In that case, our terms and conditions will prevail at all times, even if priority is otherwise stipulated.
2. CONCLUSION OF THE AGREEMENT
2.1 All offers, in whatever form made, are without obligation, unless a binding offer as described in 2.4 has been made expressly and in writing.
2.2 An agreement is only concluded after CBA has confirmed an assignment in writing, or has started its execution. 2
2.3 If the stated in the written confirmation by CBA deviates from the stated in the written order by the other party, the stated in the confirmation shall be deemed to have been agreed, unless the other party responds in writing within seven days of receipt of the confirmation.
2.4 An offer is binding if made in writing, stating a period within which it can be accepted.
2.5 For transactions for which no quotation or order confirmation is sent due to the nature and scope, the invoice is deemed to reflect the agreement correctly and completely, unless complained within 3 working days. In cases as described above, the invoice is deemed to accurately reflect the content of the agreement.
3. PRICES
3.1 Unless otherwise stated, our prices are:
- based on delivery from our company, warehouse or other warehouse,
- excluding VAT, import duties, other taxes, levies and duties,
- excluding the costs of packaging, loading and unloading, transport and insurance,
- indicated in Euros; Any changes in course will be charged.
3.2 In the event of an increase in one or more of the cost price factors, we are entitled to increase the order price accordingly; This is done in compliance with any existing legal requirements, on the understanding that future price increases already known must be indicated in the order confirmation.
4. LIABILITY
4.1 With regard to breach of contract, CBA is only liable if, after proper notice of default, the other party terminates the agreement in the interim or dissolution of the agreement is concluded at his request. The liability of CBA is limited to the additional costs of the other party which are the direct result of the completion of the unfinished assignment by another party or the delivery of replacement goods or services by a third party, but not more than the lower of the two following amounts: € 45,380,-, or the amount equal to the total stipulated price (excluding turnover tax) of the work and deliveries assigned to us, which price in the case of continuing performance contracts will be equal to the price of the work ordered during the three-month period before termination.
4.2 CBA and/or CBA personnel is in no way liable to the other party and/or third parties for damage caused by unlawful acts of CBA, CBA personnel and/or third parties used by CBA. 3
4.3 Exceptions to the provisions of 4.2: CBA is liable for damage caused by intentional or grossly negligent unlawful actions of CBA and/or CBA personnel, on the understanding that CBA's liability per event or series of events is limited to a maximum of € 45,380,-. CBA is liable for death or personal injury caused by unlawful acts of CBA and/or CBA personnel, on the understanding that CBA's liability per event or series of events is limited to a maximum of € 45,380,-.
4.4 Under no circumstances and in no way will CBA and/or CBA personnel be held liable to the other party and/or third parties for, by CBA or staff of CBA or third parties that CBA uses, as a result of non-performance, late or incorrect performance or unlawful action caused by consequential damage and/or indirect damage. Indirect and/or consequential damage includes business interruption, data loss and/or data degradation, pure financial loss, financial or commercial losses, loss of profit, etc.
4.5 Liability excluding provisions imposed by the other party on persons who enter the premises and/or buildings of the other party do not apply with regard to CBA and/or CBA personnel.
5. FORCE MAJEURE
5.1 Force majeure is understood to mean: any circumstance independent of the will of the parties or unforeseeable as a result of which performance of the agreement can no longer reasonably be required by the other party.
5.2 If in our opinion the force majeure will be of a temporary nature, we have the right to suspend the execution of the agreement for as long as possible, until the circumstance that results in the force majeure no longer occurs.
5.3 If, in our opinion, the force majeure situation is of a permanent nature, the parties can make an arrangement about the dissolution of the agreement and the associated consequences.
5.4 We are entitled to claim payment of the services performed during the execution of the relevant agreement before the circumstance causing force majeure has become apparent.
5.5 The party that believes that it is or will be in force majeure must immediately inform the other party.
6. ADVERTISING
6.1 Any complaints will only be processed by us if they have reached us directly within 3 days of delivery of the relevant service in writing, stating precisely the nature and basis of the complaints.
6.2 Complaints about invoices must also be submitted in writing within 3 days of the invoice date.
6.3 After the expiry of this period, the other party is deemed to have approved the delivered goods or the invoice. In that case, advertisements will no longer be processed by us.
6.4 If the complaint is found to be well-founded by us, we are only obliged to deliver the agreed performance.
6.5 Only if and insofar as the complaint is found to be well-founded, this suspends the payment obligation of the other party until the moment the complaint has been settled.
7. PAYMENT
7.1 Unless otherwise agreed in writing, payment must be made in cash upon delivery without any discount, or by deposit or transfer to a bank or giro account designated by us within 30 days of the invoice date.
The currency day indicated on our bank/giro statements is decisive and is therefore regarded as the payment day.
7.2 All payments made by the other party are primarily intended to pay any interest and collection costs incurred by us and subsequently to pay the oldest outstanding invoices.
7.3 In the event that the other party:
a. declares bankruptcy, disposes of estate, applies for suspension of payments or seizes all or part of his property,
b. Dies or is placed under guardianship,
c. fails to fulfil any obligation under the Law or these conditions,
d. fails to invoice all or part of an invoice within the prescribed period. suffice
e. ceases or transfers all or a substantial part of his business, including the transfer of his business to a company to be formed or already in existence, or changes the purpose of his business,
by merely taking place in one of the circumstances reported, we have the right either to consider the agreement dissolved without any judicial intervention being required, or to claim any amount owed by the other party on the basis of the services provided by us, immediately and without any warning or notice of default being necessary, all without prejudice to our right to reimbursement of costs, damages and interests.
7.4 The other party does not have the right to compensate amounts owed to us by the other party with amounts owed by us to the other party.
7.5 The other party does not have the right to suspend payments in the event of alleged breach of contract by CBA until such time as it has been established by irrevocable court judgment whether there is a breach of contract.
7.6 If the other party has not expressly indicated to which debt a payment has been made, we are entitled to unilaterally determine for which debt payment has been made.
8. INTEREST AND COSTS
8.1 If payment has not been made within the period mentioned in the previous article, the other party is in default by operation of law and from the invoice date an interest of 1.5% per (part of a) month is due on the outstanding amount.
8.2 All judicial and extrajudicial costs to be incurred shall be borne by the other party. The extrajudicial collection costs amount to at least 15% of the amount owed by the other party, including the aforementioned interest.
9. APPLICABLE LAW
9.1 All our offers, agreements and the execution thereof are exclusively governed by Dutch law.
10. DISPUTES
10.1 All disputes, including those that are only considered as such by one party, arising from or related to the agreement to which these terms and conditions apply or the relevant conditions themselves and its interpretation or execution, both of a factual and legal nature, will be decided by the competent civil court within whose jurisdiction our domicile is located, unless the subdistrict court has jurisdiction.
11. CONFIDENTIALITY AND SECURITY
11.1 The parties undertake to take measures to ensure confidentiality with regard to all data of a confidential nature of which the parties and its employees, or third parties of which the parties use in the execution of an agreement, become aware.
12. SUSPENSION OF PERFORMANCE
12.1 CBA is entitled, after written notification to the other party, to immediately suspend all obligations arising from an agreement if the other party is in default towards CBA for whatever reason, including failure to make payments on time.
CHAPTER II: GOODS
13. DELIVERY TIMES
13.1 From the moment of conclusion of the purchase agreement, the purchased is at the risk of the other party. Unless otherwise agreed, delivery takes place ex warehouse CBA Free delivery only takes place if and insofar as this has been agreed by us with the other party and is indicated on the invoice or otherwise.
13.2 The other party is obliged to check the delivered goods or packaging immediately upon delivery, but in any case within 3 working days, for any shortages and/or damage, or to carry out this check after notifying us that the goods are at the disposal of the other party.
13.3 Any shortages and/or damage to the delivered and/or the packaging that are present upon delivery, the other party must state on the delivery note, the invoice and/or the transport.
documents, failing which the other party is deemed to have approved what has been delivered. In that case, complaints in this regard will no longer be processed.
13.4 We are entitled to deliver in parts (partial deliveries), which we can invoice separately.
13.5 Indication of the delivery time is always approximate, unless expressly agreed otherwise in writing.
13.6 If the goods have not been purchased by the other party after the expiry of the delivery time, they are stored at his disposal, at his expense and risk. If the other party remains negligent in taking the goods after our summons to do so, we have the right, without further notice of default or judicial intervention, to declare the agreement dissolved and to claim compensation for all resulting damage for us, including, among other things, lost profit.
13.7 If the producer changes the specifiers of goods, as a result of which the specifications of the delivered goods differ from the goods ordered by the other party, this is not a reason to refuse acceptance, provided that the deviation does not negatively affect the performance of the goods.
13.8 If it has been agreed that the ordered goods must be delivered to the address of the other party and/or third parties, packaging and transport shall be entirely at the expense and risk of the other party.
14. RETENTION
14.1 All delivered goods remain our property until full payment is made, including any interest and charges. In the event of suspension of payment, bankruptcy, suspension of payment, liquidation of the other party, or death if the other party is a natural person, we are entitled to cancel the order in whole or in part without notice of default or judicial intervention and to reclaim the unpaid part of the delivered goods. Cancellation and return do not affect our right to compensation for loss or damage. In these cases, any claim by us against the other party will be immediately and fully due and payable.
14.2 The goods may be resold or used by the other party in the ordinary course of his business, but may not be given as collateral or serve as security for a claim by a third party.
14.3 To security for In addition, we obtain a non-possessory lien for all our claims, for whatever reason, by the occurrence of the claim - on all those goods in which the substances supplied by us are incorporated, or of which they form part. The order signed by the other party and the subsequent written acceptance on our part count as a private deed as referred to in the Law.
15. CHAPTER III: ACTIVITIES
If work is to be carried out by CBA in any way, the articles set out in this chapter shall apply.
15.1 Unless expressly agreed otherwise, the period within which, or the time at which, the work is to be carried out by CBA may be changed by CBA on the basis of changed circumstances. 7
15.2 Work is carried out between 09:00 and 17:00 on normal working days. If it follows from the order of the other party that the work must be performed at other times or days, we have the right to charge the following surcharges:
- ordinary working days after 17:00 150%
- Sundays and public holidays 200%
15.3 CBA cannot guarantee that the work will lead to the desired result.
15.4 CBA reserves the right to have all or part of the agreed work carried out by third parties.
15.5 Work will be done separately at the then applicable hourly rates. invoiced, with a minimum of two hours to be charged. 8
16. CHAPTER IV; SOFTWARE
16.1 Software means computer programs in any form of any kind, such as systemprogram and application software. Making available is understood to mean: the actual surrender by CBA to the other party of software in computer-readable form.
16.2 Deadlines within which software must be made available and/or used have been determined to the best of our knowledge but are not fatal.
16.3 Software, software, drawings, diagram's etc, remain the (intellectual) property of CBA at all times
16.4 CBA will indemnify the other party against any action by third parties which is based on the claim that the software developed by CBA itself infringes a copyright valid in the Netherlands. CBA will pay the final judgment irrevocably determined costs and damages provided that the other party immediately informs CBA in writing and leaves the handling of the case exclusively to CBA and cooperates fully.
16.5 Contrary to the provisions of 7.1, payment of custom software must be made in 3 phases, i.e.:
1. 30% on order
2. 50% on installation
3. 20% at final acceptance.
Ad. 1 The adjustments and/or the development of the software will only start when the payment has actually been received by CBA.
Ad.2 Installation/implementation means that the software, in terms of system functions, actually does what is considered operational according to the manual and/or job descriptions.
Ad.3 This final acceptance may take place no later than 1 month after installation/implementation. This month is intended to identify and correct real errors. Final acceptance cannot be refused due to differences in interpretation, terminology used and texts on help screens and/or in the manual.
16.5A For a period of 30 days after the above final acceptance, CBA will correct program errors free of charge if the software does not meet the written specifications. After this period, the normal hourly rate will be charged for repair/additional work.
16.6 CBA reserves the right in the event of dissolution of the agreement on the basis of the provisions of art. 7.3 and 13.6, without judicial intervention and without being obliged to pay compensation in any way, unilaterally grant an already granted right of use to software.
16.7 The other party is expressly prohibited from converting software supplied in machine language and or having it converted into source language, or to attempt to do so and/or have it carried out.
16.8 Per violation of the in art. 16.7 the other party to CBA is not to be moderated and immediately due and payable fine of € 68,068 per case, on the understanding that CBA's right to claim compensation if the damage would exceed € 68,068 is not affected 9
16.9 Unless expressly agreed otherwise in writing, the other party is prohibited from copying, reproducing, modifying, transferring as security and/or giving it to third parties or making it available in any way. However, the user is permitted to produce one copy of the software, in computer-readable form, for backup purposes.
16.10 Per violation of the in art. 16.9 The other party owes CBA a non-mitigated and immediately due and payable fine of € 68,068 per case, on the understanding that CBA's right to claim compensation if the damage would exceed € 68,068 is not affected
16.11 If a right of use is granted to software originating from a third-party supplier, to which CBA can therefore not assert ownership, this grant will take place in accordance with the requirements that the third-party supplier sets for such an extension.