1 - DEFINITIONS
In these general terms and conditions the following definitions are used, both in singular and plural.
1.1 General Terms and Conditions: the present general terms and conditions of delivery, regardless of the form in which they are made known to the Customer.
1.2 Integrace: the private limited company Integrace B.V., having its registered office and principal place of business in Eindhoven, the Netherlands.
1.3 Services: all activities that are the subject of any quotation, agreement or other legal act in the relationship between Integrace and the Client.
1.4 Client: the party, acting in the course of a profession or business, to whom the offer (the quotation) of Integrace is addressed, with whom Integrace has entered into an agreement or for whom Integrace performs its services.
2 -APPLICABILITY
2.1 The General Terms and Conditions apply to and form part of all offers, quotations, agreements and other legal acts, regardless of the form in which they are made, relating to the provision of Services by Integrace to or for the benefit of the Client, as well as to products or services which Integrace may have obtained from third parties and which Integrace may or may not have supplied to the Client in an amended form.
2.2 The applicability of any general (purchase) conditions of the Client is expressly rejected.
2.3 Deviations from the General Terms and Conditions will only be valid if they have been explicitly agreed upon in writing by Integrace and the Client.
2.4 If and insofar as any provision of the General Terms and Conditions is declared null and void or annulled, the other provisions of the General Terms and Conditions shall remain in full force and effect. In such a case, Integrace and the Client will consult with each other about a new provision to replace the old provision, whereby the content and purport of the old provision will be approximated as much as possible.
3 - OFFER, QUOTATION AND DURATION OF AGREEMENT
3.1 All offers of Integrace are without obligation, unless explicitly stated otherwise in writing.
3.2 Integrace's quotations are based on an inventory made in advance in consultation with the Client of the work to be carried out by Integrace.
3.3 All offers made by Integrace are valid for the period indicated in the offer in question. If no period is indicated, the offer is valid until 14 (fourteen) days after the date on which the offer is made.
3.4 Agreements on a subscription basis have a standard term of 1 year, and are each time tacitly renewed by 1 year, subject to a notice period of 1 month.
4 - PRICES, RATES AND EXTRA WORK
4.1 All prices and rates stated by Integrace are in euro and are exclusive of turnover tax (VAT) or any other government-imposed levies.
4.2 Unless it has been expressly agreed in writing that prices and rates will apply for a certain period, for example a defined project, Integrace will be entitled to adjust its prices and rates in the interim, with due observance of a period of one month after the announcement thereof.
4.3 If, in consultation with or at the request of the Client, the original agreement is deviated from, or if the original agreement is extended, the resulting costs for additional work will be charged to the Client at the prices and rates applicable at that time.
5 - INVOICING, PAYMENT AND ADVERTISING
5.1 Invoicing of Services takes place on the basis of the payment schedule included in the offer or agreement. If no payment schedule has been agreed, invoicing shall in principle take place on a monthly basis.
5.2 All invoices must be paid within the payment term indicated on the invoice. If no payment term is indicated, a payment term of 30 (thirty) days applies.
5.3 Payments shall be deducted from the oldest outstanding invoices of the Client, if not provided with any other indication by the Client.
5.4 Integrace is at all times entitled to demand (partial) prepayment and to suspend the delivery of Services until such prepayment has been received. Integrace is furthermore entitled, before commencing with the Services, or if applicable a subsequent phase of the Services, to demand security for payment in a form to be indicated by Integrace, for example by means of a bank guarantee.
5.5 If the Client fails to pay any invoice from Integrace within the term of payment, the Client will automatically be in default, without any reminder or notice of default being required. From that moment on, the Client will automatically owe statutory interest on the outstanding amount.
5.6 If, after a reminder or notice of default, the Client continues to fail to pay the outstanding invoice and the interest owed thereon, Integrace may hand over its claim for collection. In that case, in addition to payment of the principal sum plus interest, the Client will also be obliged to pay all extrajudicial and judicial costs, explicitly in addition to any legal costs. The amount of said costs will be set at a minimum of 15% over the principal sum.
5.7 All objections of the Client to an invoice from Integrace must be notified to Integrace in writing within 14 (fourteen) days of the invoice date, failing which the indebtedness of the amount will be deemed to have been acknowledged by the Client.
5.8 The provisions of the General Terms and Conditions, more specifically the provisions in this article, are without prejudice to Integrace's rights to suspend the performance of the Services if the Client fails to fulfil its obligations under the agreement with Integrace, as well as to Integrace's right of set-off.
5.9 Any reliance by the Principal on suspension, set-off or deduction is excluded.
6 - PERFORMANCE OF SERVICES AND RETENTION OF TITLE
6.1 Integrace will make every effort to perform or deliver its Services and, if applicable, the result thereof in accordance with the planning, if applicable. However, all periods stated will serve as a guideline and will never be fatal, unless Integrace and the Client have explicitly agreed otherwise in writing.
6.2 Integrace will use its best efforts to perform its Services with due care, if applicable in accordance with agreements and procedures agreed in writing with the Client. If all or part of the Services are performed at the offices of the Client, Integrace and its employees will comply with the 'house rules' applicable there, provided that they are made available in good time by the Client.
6.3 If Integrace and the Client have agreed that the Services will be performed in phases, Integrace will be entitled to wait until the results of the previous phase(s) have been approved by the Client before the start of the Services belonging to a subsequent phase.
6.4 If the starting point for the execution of the Services has been the execution by a certain person or persons, then Integrace is entitled to replace that person or persons by a person or persons with the same qualifications.
6.5 Integrace has the right to outsource the assignment or parts thereof to third parties, or to hire third parties for the execution of the assignment.
6.6 The Client is aware that requirements or wishes that lead to additional work as referred to in Article 4.4 affect the mutual responsibilities and the planning made or the expected time of delivery of the results of the Services.
6.7 All goods delivered to the Client will remain the property of Integrace until the Client has paid in full all amounts due to Integrace in respect of the provision of Services and any interest and collection costs due thereon.
6.8 After delivery of the results of the Services follows an acceptance period of 2 weeks, during which Client has the opportunity to check the results of the Services for correct functioning in accordance with the agreed specifications. The faults and defects found during this period will be repaired free of charge, as long as they have not been caused by adjustments, changes or injudicious use by the Customer or a third party. The repair of faults and defects found after the acceptance period shall take place under a maintenance contract to be concluded.
7 - OBLIGATIONS OF THE CLIENT
7.1 The Client is aware that the results of the performance of the Services partly depend on the correct, complete and timely provision by the Client of the information required or requested by Integrace before or during the performance of the Services. The Client therefore warrants that the information provided, in whatever form, is correct, complete and consistent, and that the provision of such information to Integrace in no way infringes the rights of third parties, in the broadest sense of the word.
7.2 The Client will use its best efforts to provide such cooperation as is reasonably requested and/or necessary for the proper performance of the Services by Integrace. In this respect, the Client will provide employees of Integrace who perform work at the offices of the Client for the performance of the Services with the necessary support for the performance of their work.
8 - INTELLECTUAL PROPERTY RIGHTS
8.1 All intellectual property rights relating to the results of the Services, as well as the designs, software, documentation and all other materials developed or used in preparation or execution of the Services, belong exclusively to Integrace. The provision of the Services does not extend to any transfer of intellectual property rights, unless expressly agreed otherwise in writing between Integrace and the Client.
8.2 The Client obtains a non-exclusive and non-transferable right of use (license) to use the results of the Services for the agreed purposes. In the event of such use, the Client will strictly adhere to any additional conditions of use that may have been agreed for that purpose.
8.3 The Client declares that all products and materials provided by him/her to Integrace in the context of the performance of the Services by Integrace are the property of the Client, or that the Client has obtained permission from the rightful owner for the use of these products and materials. The Client will be liable in this respect in the event of infringement of any property rights or copyrights.
8.4 Without Integrace's prior written consent, the Client shall not publish, reproduce or make available to a third party in any manner whatsoever, in whole or in part, the results of the Services, or other materials as referred to in paragraph 1 of this article.
8.5 The Client will not remove, alter or render illegible any indications of Integrace concerning copyrights, trademark rights, trade names or other intellectual property rights.
8.6 Integrace is allowed to use the client name and the developed parts for its own promotion and/or publicity.
8.7 Integrace warrants that it is entitled to grant the licence referred to in paragraph 2 of this article, and indemnifies the Client against any claims from third parties in this respect, on the condition that it will be immediately informed of such a claim and that the handling of such claim will be completely outsourced to Integrace by the Client. This indemnification will lapse if and in so far as the results of the Services have changed, unless the Client demonstrates that the claim in question does not result from this.
8.8 In the event of violation of one of the provisions of this article, the Client will forfeit to Integrace, without any further notice of default or judicial intervention being required, an immediately payable fine of EUR 50,000 (in words: fifty thousand euros) per violation, increased by an amount of EUR 5,000 (in words: five thousand euros) per day that such violation continues, without prejudice to Integrace's right to claim full compensation, at its discretion.
9 - CONFIDENTIALITY
9.1 Integrace and the Customer mutually undertake to observe confidentiality with respect to all confidential information they receive about (the business of) the other party. They also impose this obligation on their employees or third parties they have engaged for the execution of the agreement.
9.2 Information shall in any case be regarded as confidential if it has been designated as such.
10 - LIABILITY AND FORCE MAJEURE
10.1 Integrace's legal liability on account of attributable failure to comply with the agreement is limited to compensation of the direct loss suffered by the Customer up to a maximum of the amount of the compensation stipulated for the agreement in question. In the event of an agreement with a term of more than one year, the stipulated compensation will be set at the total compensation stipulated for the current year at the time that the damage in question occurs. Under no circumstances will the aforementioned compensation for direct damage exceed the amount actually paid out in such a case under the insurance taken out by Integrace for this purpose and, if the damage consists of death, bodily injury or property damage, up to a maximum of the amount paid out in such a case by the insurance company. For this purpose, a series of related events will be regarded as a single event.
10.2 In this context, direct loss shall be understood to mean only the costs reasonably incurred by the Client to remedy or remedy the failure of Integrace, so that Integrace's performance still complies with the agreement.
10.3 Any liability of Integrace for indirect damage, including but not limited to consequential damage, loss of profit and loss of turnover, is excluded.
10.4 There is no question of a culpable shortcoming on the part of Integrace in case of force majeure. Force majeure includes, but is not limited to, illness or otherwise reduced availability of personnel.
10.5 If the period of force majeure lasts longer than 60 (sixty) consecutive days, the Client will be entitled to dissolve the agreement extrajudicially by means of a registered letter sent for that purpose, without Integrace being obliged to pay compensation for any damage the Client may suffer as a result of such dissolution. Integrace will be entitled to pay for all Services that it has performed and/or provided to the Client up to the moment of dissolution.
11 - TERMINATION
11.1 Each party is entitled to dissolve the agreement extrajudicially by means of a registered letter addressed for that purpose if the other party fails imputably in the fulfilment of its obligations under the agreement and has not remedied such failure within the period specified in the notice of default, after that party has been duly given notice of default in writing. Dissolution does not release the Client from any payment obligation in respect of Services already performed or delivered, and without prejudice to Integrace's right to (additional) compensation, including but not limited to loss of turnover and/or profit.
11.2 Integrace will be entitled to terminate the agreement with immediate effect, without any further notice of default or judicial intervention being required, and without being liable to pay damages to the Client, if the Client is granted a provisional or final suspension of payment, if a petition has been filed for the Client's bankruptcy, if all or part of the Client's property is seized, or if the Client's business is discontinued or liquidated.
11.3 Immediately after termination of the Agreement, for whatever reason, the Customer will cease using the results of the Services and will return all copies of software, documentation and other materials made available within the framework of the Services.
12 - PERSONAL
12.1 For as long as the relationship with Integrace continues, as well as for one year thereafter, the Client will not be permitted to hire employees of Integrace or to allow them to work for or on behalf of Integrace in any other way, directly or indirectly, without Integrace's prior written consent. In this context, employees of Integrace are also understood to mean persons who are employed by Integrace or a company affiliated with Integrace, or who have been employed by Integrace in the preceding six months.
12.2 In the event of violation of the provisions of the previous paragraph, the Client will forfeit to Integrace an immediately payable fine of EUR 100,000 (in words: one hundred thousand euros) per violation, increased by an amount of EUR 10,000 (in words: ten thousand euros) per day that such violation continues, without prejudice to Integrace's right to claim full compensation for damages, at Integrace's option.
13 - DISPUTES
13.1 All offers, quotations, agreementsand other legal acts concerning the execution and delivery of Services by Integrace are governed by Dutch law.
13.2 Disputes between Integrace and the Client will exclusively be submitted to the competent court in the district of 's-Hertogenbosch.
Eindhoven, January 2011