1. Scope of application Scope of application
1.1 These General Terms and Conditions shall apply between the Supplier and the Customer to all (oral or written) offers, bids, contracts and statements of work in the broadest sense of the word (hereinafter: a “contract”).
1.2 The Customer expressly represents that it accepts these General Terms and Conditions to the exclusion of any general terms and conditions it uses, unless the Supplier and the Customer have expressly agreed otherwise in writing. In the event that the parties have agreed in writing that other terms and conditions shall apply, the latter terms and conditions shall apply only for the specific order for which they have been agreed.
2. The formation of contracts
2.1 All of our (oral or written) offers shall be free of obligation, unless a period has been agreed in writing for the acceptance or validity of any offer. The Supplier shall nevertheless be entitled to revoke an offer within five working days of its having reached the Customer.
2.2 A contract shall be deemed to have been concluded and the work shall be scheduled in upon acceptance of the offer by the Customer in writing or, in the absence of any offer, in the event that the Customer gives the Supplier an order and the latter accepts said order.
2.3 In the event that the Customer cancels the order completely or in part after a contract has been formed, the Supplier shall be entitled to charge the Customer all the costs the former has incurred and/or will incur in connection with the order. After payment of the cancellation costs by the Customer, the Supplier shall surrender to the Customer all the work-in-progress in furtherance of the order that was developed during the period prior to the cancellation, all of this subject to the other provisions of these Terms and Conditions.
3.1 The prices and rates shall be inclusive the work to be carried out by the Supplier as described in the offer, bid or contract. All prices and rates shall be exclusive of do not include a compensation for packaging, import, transport, travel and accommodation expenses, office costs, (technical) documentation, audio and/or visual material of third parties, purchase of hardware, software of third parties, training of the Customer, installation, implementation and the like, unless as agreed otherwise in the offer, bid or contract.
3.2 In the event the Customer has a request to change and/or add to the specifications for the work to be produced and delivered by the Supplier, it shall notify the Supplier accordingly. The Supplier shall then issue the Customer with a price quotation for any additional work to be performed as a result of such change(s) and/or addition(s). The Supplier shall not carry out any additional work without first receiving a written order thereto from the Customer. The Supplier shall invoice the Customer for this additional work. In the event of a request for change/additional work, the most recent specifications will always prevail over older specifications.
3.3 The Supplier shall at any time be entitled to adjust her prices or rates by means of a written notification to the Customer. These new prices and rates shall be applicable to all the following offers, bids and contracts between the Supplier and the Customer.
4.1 All invoices shall be paid by the Customer in accordance with the payment conditions stated on the invoice. In the absence of specific conditions, the Customer must make payment no later than thirty days after the invoice date hereinafter: ‘the payment period’.
4.2 If payment is not made in the payment period, the Customer shall be in default by operation of law and the Supplier shall impose a late-payment interest fee of 2.5% per month (one point five percent), calculated over the period the Customer is in default, all of this without any further notice of default or court intervention being required.
4.3 If, after notice of default, the Customer remains in default of its payment obligation, the claim may be put out for collection, in which case the Customer shall also be required to make full payment for all the (extra-) judicial and collection costs incurred by the Supplier, without prejudice to the Supplier's other rights.
4.4 If payment is not made in any relevant payment period, the Supplier is entitled to suspend its obligations pursuant to the contract and any other current contracts until full payment has been made, without prejudice to the Supplier's right to damages and without any obligation to compensate the Customer for any loss.
4.5 The Customer waives any right to set off any claim. Accordingly, the Customer may never evade any claim due the Supplier by reliance on any claim set-off. Each payment shall be considered to be applied first in payment of the claim outstanding for the longest period, even though the Customer states that the payment pertains to a more recent claim.
4.6 The Supplier reserves the right to return any goods, materials, equipment and the like which the Customer may make available to the Supplier, only after the Customer has made full payment of all amounts owed.
4.7 If the work is performed on the basis of subsequent calculations, the Supplier shall bill the Customer on a monthly basis. The provisions of Articles 4.1 through 4.6 shall apply accordingly.
5.1 The delivery deadlines – if any – stated by the Supplier have been fixed to the best of the Supplier's knowledge and in accordance with the Supplier's best intentions on the basis of the information of which the Supplier was aware at the time the contract was concluded; these delivery deadlines shall be observed to the maximum possible extent. In the event that the activities are delayed or if delay in the activities is foreseeable, parties shall notify each other as soon as possible thereof.
5.2 The Supplier shall develop and deliver the work to the Customer in accordance with the specifications, in the form, within the planning and on the delivery date as agreed (will be agreed) between parties.
5.3 If the Supplier executes any specific changes in and/or additions to the specifications for the work to be supplied by the Supplier, and does so at the request of the Customer, the Supplier may – having first consulted the Customer – postpone the delivery date of the Work to the extent that this is required in order to execute the relevant changes or additions.
5.4 Except upon the basis of any intentional act or omission (opzet) or gross negligence (grove schuld) on the part of the Supplier, the Supplier's mere failure to meet any delivery deadline shall not put the Supplier in default and shall not entitle the Customer to dissolve the contract. The parties shall then consult as soon as possible in order to set a new deadline for delivery.
5.5 The risk of any partial or full loss of or damage to property forming the subject matter of a contract shall pass to the Customer upon the departure thereof from the office and/or warehouse of the Supplier.
6. Miscellaneous provisions
6.1 Additions and amendments to a contract concluded by the parties and/or to these General Terms and Conditions which govern such contracts shall be valid only if agreed to in writing and signed by both parties. If the parties have agreed in writing to certain additions and/or amendments, these shall apply exclusively to the specific order for which they have been agreed.
6.2 The voidness of any provision in these General Terms and Conditions shall not affect the validity of the other provisions. In the event of a void or voidable provision, the Supplier and Customer shall adopt a new provision in mutual consultation to replace the provision in question. In this context, the purpose and the scope of the void, avoided or voidable provision shall be taken into account as much as possible.
7.1 For a period of one month after delivery or, if agreed on, the expiry of a test period, the Supplier shall remedy for free any defects in the software as a result of its not satisfying the specifications or (in as far as other criteria were agreed during the test period) its not satisfying the written acceptance rapport, if and to the extent that it is notified of these defects in writing by the Customer within this period. The Supplier does not warrant that the software will operate without interruption and/or defects and/or that it will be possible to repair all defects.
7.2 The Customer shall be responsible for the correct and judicious use/application of the software, as well as having control and security procedures and effective system management in place.
7.3 The Supplier shall be entitled during the aforementioned warranty period to charge its customary commercial rates and the repair costs if the defects in the software have been caused by errors in using and/or the injudicious use of the software and/or by other causes for which the Supplier is not responsible.
7.4 The warranty obligations shall lapse if the Customer has made or has had changes made to or in the software without Supplier’s prior written consent. The restoration of damaged or lost data shall not fall within the scope of the warranty obligations.
7.5 Defects shall be repaired at a location to be determined by the Supplier. The Supplier shall be entitled at its own discretion to introduce definitive or temporary solutions or program detours and/or problem-avoiding restrictions into the software.
7.6 After expiry of the warranty period described in this Article, the Supplier shall not be obliged to repair any defects in the Software, unless the parties have concluded a maintenance or service level contract for this purpose.