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1. Definitions
In these general terms and conditions the following definitions are used, in both the singular and the plural.
1.1 General Terms and Conditions: these general terms and conditions of delivery, regardless of the form in which they have been made known to the Client.
1.2 Integrace: the private limited company Integrace B.V., having its registered office and principal place of business in Eindhoven.
1.3 Services: all work that is 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 that Integrace may have obtained from third parties and supplies on to the Client, whether or not in amended form.
2.2 The applicability of any general (purchasing) conditions of the Client is expressly rejected.
2.3 Deviations from the General Terms and Conditions are only valid if they have been expressly agreed 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 is annulled, the other provisions of the General Terms and Conditions will remain in full force. In such a case, Integrace and the Client will consult each other on a new provision to replace the old provision, whereby the content and purport of the old provision will be approximated as closely as possible.
3. Offer, quotation and term of the agreement
3.1 All offers made by Integrace are without obligation, unless expressly stated otherwise in writing.
3.2 Integrace's quotations are based on an assessment, made in advance in consultation with the Client, of the work to be carried out by Integrace.
3.3 All quotations from Integrace are valid for the period stated in the quotation concerned. If no period is stated, the quotation is valid until 14 (fourteen) days after the date on which it was issued.
3.4 Subscription agreements have a standard term of 1 year and are tacitly renewed for one year each time, subject to a notice period of 1 month.
4. Prices, rates and additional work
4.1 All prices and rates stated by Integrace are in euros and exclusive of turnover tax (VAT) or any other levies imposed by the government.
4.2 Unless it has been expressly agreed in writing that prices and rates apply for a certain period, for example a defined project, Integrace is entitled to adjust its prices and rates in the interim, subject to a period of one month after announcing the adjustment.
4.3 If the original agreement is deviated from in consultation with or at the request of the Client, or if the original agreement is extended, the resulting costs of additional work will be charged to the Client at the prices and rates applicable at that time.
5. Invoicing, payment and complaints
5.1 Services are invoiced on the basis of the payment schedule included in the quotation or agreement. If no payment schedule has been agreed, invoicing will in principle take place monthly.
5.2 All invoices must be paid within the payment term stated on the invoice. If no payment term is stated, a payment term of 30 (thirty) days applies.
5.3 Payments are deducted from the Client's oldest outstanding invoices, unless the Client has indicated otherwise.
5.4 Integrace is entitled at all times to require (partial) prepayment and to suspend the provision of Services until such prepayment has been received. Integrace is also entitled, before commencing the Services or, where applicable, a subsequent phase of the Services, to require security for payment in a form to be specified by Integrace, for example by means of a bank guarantee.
5.5 If the Client fails to pay any invoice from Integrace within the payment term, the Client is automatically in default, without any reminder or notice of default being required. From that moment the Client automatically owes statutory interest on the outstanding amount.
5.6 If, after a reminder or notice of default, the Client still fails to pay the outstanding invoice and the interest owed on it, Integrace may hand over its claim for collection. In that case, in addition to payment of the principal sum plus interest, the Client is also obliged to pay all extrajudicial and judicial costs, expressly in addition to any legal costs awarded by the court. These costs are set at a minimum of 15% of 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 amount will be deemed to have been acknowledged as owed by the Client.
5.8 The provisions of the General Terms and Conditions, and in particular the provisions of this article, are without prejudice to Integrace's right to suspend the performance of the Services if the Client fails to fulfil its obligations under the agreement with Integrace, and to Integrace's right of set-off.
5.9 Any reliance by the Client on suspension, set-off or deduction is excluded.
6. Performance of Services and retention of title
6.1 Integrace will use its best endeavours to perform its Services and, where applicable, to deliver their result in accordance with the agreed schedule, if any. However, all stated time limits are indicative and never constitute strict deadlines, unless Integrace and the Client have expressly agreed otherwise in writing.
6.2 Integrace will use its best endeavours to perform its Services with due care, where applicable in accordance with arrangements and procedures agreed in writing with the Client for that purpose. If the Services are performed wholly or partly at the Client's premises, Integrace and its employees will comply with the 'house rules' applicable there, provided the Client has made them available in good time.
6.3 If Integrace and the Client have agreed that the Services will be performed in phases, Integrace is entitled to postpone the start of the Services belonging to a subsequent phase until the Client has approved the results of the preceding phase(s).
6.4 If the starting point for the performance of the Services was that they would be performed by a particular person or persons, Integrace is entitled to replace that person or those persons with a person or persons who have the same qualifications.
6.5 Integrace is entitled to outsource the assignment or parts of it to third parties, or to hire third parties for the performance of the assignment.
6.6 The Client is aware that requirements or wishes that lead to additional work affect the mutual responsibilities and the agreed schedule or the expected time of delivery of the results of the Services.
6.7 All goods delivered to the Client remain the property of Integrace until the Client has paid in full all amounts owed to Integrace for the provision of Services, plus any interest and collection costs owed on them.
6.8 Delivery of the results of the Services is followed by an acceptance period of 2 weeks, during which the Client has the opportunity to check that the results of the Services function correctly in accordance with the agreed specifications. Errors and defects found during this period will be remedied free of charge, provided they have not been caused by adjustments, changes or improper use by the Client or a third party. Errors and defects found after the acceptance period will be remedied 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 depend in part on the correct, complete and timely provision by the Client of the information that Integrace needs or requests 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 providing it to Integrace does not in any way infringe the rights of third parties, in the broadest sense of the word.
7.2 The Client will use its best endeavours to provide the cooperation that is reasonably requested and/or necessary for the proper performance of the Services by Integrace. In this respect, the Client will give employees of Integrace who carry out work at the Client's premises for the performance of the Services the support they need to carry out that work.
8. Intellectual property rights
8.1 All intellectual property rights in the results of the Services, as well as in the designs, software, documentation and all other materials developed or used in preparing or performing the Services, are vested exclusively in Integrace. The provision of the Services does not entail 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 (licence) to use the results of the Services for the agreed purposes. In such use, the Client will strictly comply with any additional conditions of use agreed for that purpose.
8.3 The Client declares that all products and materials it provides 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 to use these products and materials. The Client is liable in this respect for any infringement of property rights or copyrights.
8.4 Without the prior written consent of Integrace, the Client will not disclose, reproduce or make available to a third party, in any way and 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 make illegible any notices of Integrace concerning copyrights, trademark rights, trade names or other intellectual property rights.
8.6 Integrace is permitted to use the Client's name and the components developed 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 condition that Integrace is informed of such a claim immediately and that the Client leaves the handling of the claim entirely to Integrace. This indemnity lapses if and insofar as the results of the Services have been modified, unless the Client demonstrates that the claim concerned does not result from the modification.
8.8 If any of the provisions of this article is breached, the Client will forfeit to Integrace, without any further notice of default or court intervention being required, an immediately payable penalty of EUR 50,000 (in words: fifty thousand euros) per breach, plus EUR 5,000 (in words: five thousand euros) for each day that the breach continues, without prejudice to Integrace's right to claim full compensation, at its option.
9. Confidentiality
9.1 Integrace and the Client mutually undertake to keep confidential all confidential information they receive about the other party (or its business). They also impose this obligation on their employees and on third parties they have engaged to perform the agreement.
9.2 Information is in any case regarded as confidential if it has been designated as such.
10. Liability and force majeure
10.1 The legal liability of Integrace for an attributable failure in the performance of the agreement is limited to compensation for the direct damage suffered by the Client, up to a maximum of the fee stipulated for the agreement concerned. If the agreement has a term of more than one year, the stipulated fee is set at the total of the fees stipulated for the year that is current at the time the damage occurs. In no event will the compensation for direct damage exceed the amount actually paid out in such a case under the insurance taken out by Integrace for that purpose and, if the damage consists of death, bodily injury or damage to property, it will not exceed the amount paid out by the insurance in such a case. In this respect, a series of related events will be regarded as one event.
10.2 In this context, direct damage means solely the costs that the Client has reasonably had to incur to remedy or remove Integrace's failure, so that Integrace's performance does conform to the agreement after all.
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 attributable failure on the part of Integrace in the event of force majeure. Force majeure includes, among other things but not limited to, illness or otherwise reduced availability of staff.
10.5 If the period of force majeure lasts longer than 60 (sixty) consecutive days, the Client is entitled to dissolve the agreement extrajudicially by registered letter to that effect, without Integrace being obliged to compensate any damage the Client may suffer as a result of such dissolution. Integrace is entitled to payment for all Services it has performed or delivered to the Client up to the moment of dissolution.
11. Termination
11.1 Each party is entitled to dissolve the agreement extrajudicially by registered letter to that effect if the other party attributably fails to perform its obligations under the agreement and, after having been duly given notice of default in writing, has not remedied that failure within the period stated in the notice of default. Dissolution does not release the Client from any payment obligation in respect of Services already performed or delivered and is without prejudice to Integrace's right to (additional) compensation, including but not limited to damage resulting from loss of turnover and/or profit.
11.2 Integrace is entitled to terminate the agreement with immediate effect, without any further notice of default or court intervention being required and without becoming liable to the Client for damages as a result, if the Client is granted a provisional or definitive suspension of payments, if the Client's bankruptcy has been applied for, if (part of) the Client's assets have been attached or if the Client's business is discontinued or liquidated.
11.3 Immediately after termination of the agreement, for whatever reason, the Client will stop using the results of the Services and will return all copies of software, documentation and other materials made available in the context of the services.
12. Staff
12.1 For as long as the relationship with Integrace continues and for one year after it ends, the Client is not permitted, without the prior written consent of Integrace, to employ employees of Integrace or to have them work for it or on its behalf in any other way, directly or indirectly. In this context, employees of Integrace also include persons who are employed by Integrace or by a company affiliated with Integrace, or who were so employed in the preceding six months.
12.2 If the provisions of the previous paragraph are breached, the Client will forfeit to Integrace an immediately payable penalty of EUR 100,000 (in words: one hundred thousand euros) per breach, plus EUR 10,000 (in words: ten thousand euros) for each day that the breach continues, without prejudice to Integrace's right to claim full compensation, at its option.
13. Disputes
13.1 All offers, quotations, agreements and other legal acts relating to the performance and delivery of Services by Integrace are governed by Dutch law.
13.2 Disputes between Integrace and the Client will be submitted exclusively to the competent court in the District of ’s-Hertogenbosch.
Eindhoven, January 2011