Terms & Conditions
These General Terms and Conditions are divided into five sections, namely: I. General provisions, II. Special provisions relating to services, III. Special provisions for (licence) rights to use software, IV. Special provisions for training courses and V. Special provisions relating to software development.
I. General provisions
Article 1 Definitions
In these terms and conditions the following definitions apply:
Client: a third party to whom VConsyst has made an offer or with whom VConsyst has concluded an agreement.
Intellectual property rights: patent rights, copyrights, drawing and model rights, trademark rights, trade name rights and any other intellectual property rights. Products: equipment, software and all goods that are brought onto the market by VConsyst, including work that is the result of services. Software: computer programs comprising a set of instructions or databases in a computer readable form and any accompanying documentation, including any follow-up versions provided by VConsyst or new versions.
Article 2 Offer and agreement
1. These General Terms and Conditions apply to all offers and agreements under which VConsyst supplies products and/or services of any kind to the client. Any general terms and conditions, under whatever name, of the client are not applicable unless explicitly accepted in writing by VConsyst. If the offer or agreement refers to a design or offer of the client, then such reference shall be deemed to only refer to the technical data and not to any provisions and/or general terms and conditions contained therein.
2. The agreement is concluded when the acceptance of the offer of VConsyst by the client reaches VConsyst, which also means acceptance of these General Terms and Conditions.
3. Changes to the agreement and deviations from these General Terms and Conditions are valid only if agreed in writing and apply only to the relevant agreement.
4. VConsyst reserves the right to modify the General Terms and Conditions, by means of written notice to the client. The amended General Terms and Conditions will then relate to subsequent agreements concluded between VConsyst and the client.
5. If any provision of these General Terms and Conditions is invalid or is declared void, the remaining provisions of these General Terms and Conditions shall remain in full force and effect.
Article 3 Prices
1. All prices quoted by VConsyst exclude turnover tax and other government levies and applies to delivery ex works.
2. The prices and/or rates specified in the offer are based on purchase prices, taxes, levies, wages, national insurance contributions, material and commodity prices and other factors affecting prices prevailing on the date of the offer and are not binding.
3. If one of the factors determining prices changes before the agreement has been executed, VConsyst is entitled to amend the agreed prices and/or rates by means of a written notice.
4. In the case of an agreement involving periodic payments outstanding by the client, VConsyst is entitled to amend the applicable prices and/or rates by means of a written notice within a period of at least three months.
5. If the client does not wish to agree with the amendments of prices and/or rates communicated by VConsyst, as referred to in Articles 3.3 or 3.4, the client is entitled to terminate the agreement in writing within seven working days of the notice referred to in those articles by the date mentioned in the notice of VConsyst on which the price or rate adjustment would become effective or to cancel the agreement.
6. VConsyst is entitled to charge a € 10.00 administration fee for deliveries with a value below € 75.00.
Article 4 Payment
1. Insofar as no different payment terms have been agreed in writing, all payments must be made within thirty days after the invoice date. The date on which the payment is made, shall be the date on which VConsyst receives a notification from its bank that its account has been credited with the corresponding amount. If the client does not pay the amount due on time, the client shall be in default by operation of law and interest of 1% per month shall be payable on the outstanding amount, whereby a part of a month is considered as a whole month.
2. Payment must be made without any appeal to a discount, settlement or suspension.
3. In the event of late payment of the amount due to VConsyst, the client is obliged to pay extrajudicial collection costs amounting to 15% of the outstanding amount with a minimum of € 113.45 or the amount of the actual collection costs if they exceed this, in addition to all court costs.
4. Payment by means of a Letter of Credit will first be recognised as such when the notification of the transfer into the account of VConsyst has been received.
5. VConsyst reserves the right to request an advance or, at its option, to deliver products cash on delivery when accepting orders.
6. If VConsyst has any reasonable doubt regarding the payment capacity of the client, VConsyst is authorised to postpone the agreed delivery of the products until the client has provided security for the payment. The client is liable for damage to be sustained by VConsyst as a result of this delayed delivery.
7. The costs of packaging will be charged at cost price. The packaging is not taken back. The necessity of its use is at the discretion of VConsyst.
Article 5 Delivery
1. The delivery periods specified and applied by VConsyst refer to target dates and, to the best of its ability, have been determined based on information known to VConsyst at the conclusion of the agreement. They can in no way be considered as periods referred to in Article 6:83a of the Dutch Civil Code, unless this has been specifically agreed in writing by the parties. VConsyst can never be held liable for the consequences of the specified delivery period being exceeded.
2. The client is not entitled to terminate the agreement if the delivery period is exceeded.
The client remains fully liable to fulfil its obligations under the agreement, including payment obligations, despite a delay in delivery.
3. VConsyst is not bound to delivery periods that can no longer be complied with due to circumstances arising after the conclusion of the agreement.
4. If the execution of the order is delayed at the request of the client, or by the lack of data or instructions or for other reasons that are for the account of the client, the client is nevertheless obliged to take delivery of the goods and to arrange for the payment of these goods. VConsyst can agree to store the goods on behalf of the client during the period that the execution of the contract is delayed. In that case, the prices and/or rates are increased by any additional costs incurred by VConsyst as a result, including loss of interest.
Article 6 Guarantee
1. The guarantee provided by VConsyst on the products and services delivered is specified in this article, except as provided in Chapters II et seq.
2. Deviations in quality and/or the properties of the delivered products, which cannot be avoided from a technical point of view or are in accordance with general commercial use, will be accepted or considered permissible and shall never provide any ground for either complaints or the termination of the agreement concerned.
3. VConsyst does not guarantee the suitability of the products for the purpose for which the client designates these products, even if this goal has been communicated to VConsyst, unless VConsyst has been able to assess the suitability for the intended application and has guaranteed this in writing.
4. Subject to the limitations specified in this article, VConsyst guarantees the soundness of the products supplied by it and the materials used for these products, all this in the sense that VConsyst shall deliver new parts for the delivered products free of charge for those products that, in a period of twelve months after delivery, become defective due to inadequate construction and/or defective materials, or will repair these products free of charge, such at the discretion of VConsyst, provided that such defect is immediately communicated to VConsyst in writing within the applicable period. In that case, the assembly and disassembly costs as well as the call-out charges are also for the account of VConsyst.
5. The relevant parts should be sent carriage paid to the address provided by VConsyst.
6. Defects caused by normal wear and tear, improper handling, improper or inadequate maintenance or faults that arise after repairs or modifications by the client or by third parties, are excluded from the guarantee.
7. Regarding the parts received by VConsyst from third parties, VConsyst does not provide a guarantee that extends beyond the guarantee that the supplier of these parts provided to VConsyst.
8. VConsyst does not provide a guarantee on used parts or materials, unless otherwise agreed in writing.
9. VConsyst is never liable for any other damage sustained by the client.
10. If parts are replaced during repairs, the replaced parts become the property of VConsyst.
11. The alleged non-compliance by VConsyst of its guarantee obligations does not relieve the client of its obligations arising from any agreement concluded with VConsyst.
Article 7 Retention of title
1. All products supplied to the customer remain the property of VConsyst, until all amounts owed by the client for the products delivered or to be delivered, or work performed or to be performed, under the agreement and any costs that the client may owe to VConsyst, including interest and collection costs, have been paid to VConsyst.
2. Rights are always granted to the client or, in a particular case, transferred under the condition that the client pays the fees agreed for this fully and timely.
3. The client is obliged to promptly inform VConsyst of (extra) judicial measures taken by third parties in connection with the products that are the property of VConsyst in accordance with this article.
Article 8 Installation and acceptance
1. In all cases, the client shall make a suitable and clean installation site available before delivery of the products, which is accessible without obstacles, and with all necessary facilities such as cabling and telecommunication facilities.
2. The products shall be deemed to have been accepted by the client on the date of installation or on the first day following the date of delivery, in the event the client installs the equipment itself, or has this installed by a third party or fails to comply with the obligations referred to in the preceding paragraph of this article.
Article 9 Maintenance/support equipment
1. If a maintenance or support contract has been concluded for the equipment or other products, the client will notify VConsyst of defects found in the products in accordance with the procedures used by VConsyst. Notification must be made by an expert employee of the client. Upon receipt of the notification, VConsyst will repair any defects in the products to the best of its ability.
2. VConsyst can charge the costs of repair at its applicable rates in the case of user errors of the client or other causes attributable to the client or if the products are modified or maintained by a party other than VConsyst.
3. The delivery of consumables is not covered by the maintenance/support.
4. Termination of the maintenance or support agreement must be made by registered mail, taking into account a notice period of three months.
Article 10 Confidential information
1. The parties undertake to keep the confidential information of the other party confidential. Each party shall take all reasonable precautions to comply with this obligation as well as possible. In any case, information will be considered as confidential if it is classified as such by either party,
2. The client is aware that software contains confidential information and trade secrets of VConsyst or its licensor. The client is obliged to keep the contents thereof confidential for third parties.
Article 11 Intellectual property rights
1. All intellectual property rights of the products or other goods supplied or made available by VConsyst are vested exclusively in VConsyst or its suppliers or licensors, except if and to the extent it is agreed otherwise in a document signed by VConsyst and the client.
2. The client is not permitted to remove, alter or make unrecognisable any notice regarding intellectual property rights from products.
3. VConsyst is permitted to take and maintain technical measures to protect the products supplied by it.
4. VConsyst indemnifies the client against any claims of third parties regarding infringement of intellectual property rights of the products supplied or made available by VConsyst, if they have been developed or created by or on behalf of VConsyst.
5. The obligation of VConsyst referred to in paragraph 4 of this article shall apply subject to the condition that the client promptly informs VConsyst in writing of the claim and refrains from conducting any defence or taking of any position on this, except to the extent VConsyst appeals to the client in this respect.
6. If products supplied by VConsyst are subject to the claims of third parties as referred to in this article, VConsyst may for its account and at its option, either acquire the right for the client to continue using the relevant products or replace the relevant products or modify them such that the infringement is terminated, or take back the relevant products and credit the client for the price paid by it to VConsyst, less straight-line depreciation of 20% per year. Replacement or modification of the products as referred to here should guarantee an equivalent functionality of the products.
7. The obligations of VConsyst specified in this article shall not apply if the claims or infringements are the result of coupling with or use of products that have not been designed or made available by VConsyst, or are the result of improper use by the client. Further, the obligations shall not apply if the claims or infringements are due to the works or information made ??available by the client. In these cases, the client is obliged vis-à-vis VConsyst to abide by what has been established in this article mutatis mutandis. The provisions of article 14 of these General Terms and Conditions shall continue to be fully applicable.
8. The client is only entitled to affix its own trademark on the packaging of the products if VConsyst has granted its written consent hereto. The trademark should never reduce the visibility of the brand affixed ??by VConsyst.
Article 12 Cooperation of client
1. Because of the need for cooperation of the client in the execution of the agreement by VConsyst, the client shall at all times provide all useful and necessary information, which should be correct and complete.
2. The client is responsible for the proper use and correct application of the products and services of VConsyst, as described in the manuals provided, the introduction in its organisation of the necessary procedures and for securing data, such as the daily making of backup copies of data files.
3. If it has been agreed that the client will make available equipment, materials or data on data carriers, these must meet the necessary specifications to perform the work.
4. For the execution of the agreement, if necessary information of the client is not made available to VConsyst, not in time or not in accordance with agreements, or if the place where VConsyst must deliver the products or provide services is not made available to VConsyst in accordance with the agreements, or if the client otherwise does not comply with its obligations vis-à-vis VConsyst, this may lead to suspension of the performance of the obligations of VConsyst and additional costs may be charged to the client in accordance with the usual rates of VConsyst.
5. In the event employees of VConsyst perform work at the offices of the client, the client will arrange the facilities reasonably required by these employees at no cost, including (if applicable) a workplace with telephone, data communications facilities, etc.
Article 13 Complaints
1. Complaints regarding invoices sent by VConsyst must be submitted to VConsyst in writing within fourteen days of the date of the invoice concerned. Complaints regarding products already processed are not possible.
2. If the products have been collected from the warehouse of VConsyst, they will be deemed to have been inspected and no complaints will be accepted with regard to these products.
3. Complaints do not suspend the payment obligation(s) of the client.
Article 14 Liability
1. In the event of an attributable breach in the fulfilment of the agreement, after a demand for fulfilment by the client, VConsyst shall only be liable for compensatory damages for the value of the remaining performance. Any liability of VConsyst for any other form of damage is excluded, including additional compensation for damage in any form, compensation for indirect or consequential damages or damage due to lost profits.
2. VConsyst shall furthermore in no event be liable for loss due to delay, damage for exceeding delivery periods, whether or not the result of changed circumstances, as well as damage caused by the provision of inadequate cooperation or information from the client.
3. In the event of an attributable breach in the fulfilment of the obligations by VConsyst, the compensation for damage shall in no event exceed 50% of the amounts invoiced and billable by VConsyst to the client (excluding VAT) under the agreement. If there is a fixed-term agreement, compensation for damage for an attributable breach shall in no event exceed the price and/or the rate (excluding VAT) stipulated in the relevant agreement for the performance of VConsyst in the six month period preceding the default of VConsyst.
4. In the case of a wrongful act of VConsyst or its employees or subordinates for which VConsyst can be held legally liable, VConsyst is only liable for compensation for damage caused by death or personal injury and other damages to the extent caused by intent or gross negligence. In these cases, the compensation for damage shall in no event exceed € 1,134,450.54 for each occurrence causing damage.
5. The liability of VConsyst for damage due to wrongful act otherwise than as referred to in the preceding paragraph of this article, is expressly excluded. If and to the extent this exclusion cannot be invoked??, then the compensation for damage per event, whereby a series of coherent events is regarded as one event, shall in no event exceed € 11,344.51 for each occurrence causing damage.
6. It is always a condition for the existence of any right to compensation that the client has always immediately reported the occurrence of the damage by registered letter, but no later than fourteen days after it occurs.
7. The client indemnifies VConsyst for all damages VConsyst may suffer as a result of claims by third parties, including employees of the client, relating to the products or services supplied by VConsyst to the client.
8. If VConsyst makes use of telecommunication facilities for computer services or other services, each party shall be responsible for the correct choice and timely availability on their part. VConsyst is not liable for corruption or loss of data or processing results during the transmission of data by means of telecommunications facilities.
Article 15 Installation
1. Unless otherwise agreed in writing, the installation and setup process is not included in the agreement and is for the account of the client. In the event VConsyst has undertaken to perform the installation, this is limited to the products supplied by VConsyst.
2. The client must provide the necessary auxiliaries, fuel, lubricants, electric power, water, etc. for the installation.
3. Unless otherwise agreed, repairs to existing old material are not included in the obligations assumed to install or set up.
4. Delayed installation or otherwise cost-causing circumstances arising that are not the fault of VConsyst, will be for the account of the client.
5. Any additional costs are for the account of the client, in particular the costs of suitable, lockable storage areas, the costs of all safety measures and precautions and enforcement of these measures, the costs of loading and unloading and transport of the goods, travel costs and costs of living and accommodation of personnel deployed by or through VConsyst under the agreement, and costs incurred because the installation cannot take place during normal business hours or resulting from a delay that is attributable to the client.
Article 16 Risk of purchased products
1. From the time of dispatch all products travel for the account and risk of the client. Even if the dispatch is carriage paid, the client bears the risk for all direct and indirect damage that may occur to or by these products. The client must adequately insure itself against this risk.
2. If the client, for whatever reason, is unable to take receipt of the products, VConsyst shall (arrange to) store the products. The cost of this storage will be charged to the client.
3. Storage that takes place at the prior request of the client, will be charged at a usual VConsyst storage rate.
Article 17 Subordinates
Arrangements or agreements with subordinates or personnel of VConsyst are not binding on VConsyst, except insofar as confirmed by VConsyst in writing.
Article 18 Termination
1. The agreement may only be ended by termination, unless the parties have agreed otherwise in writing, and this only if the other party culpably fails to fulfil the essential obligations under the agreement and a reasonable time to still fulfil these obligations has expired. The termination shall be effected by registered letter to the other party. Judicial intervention is not required.
2. If a performance has already been made at the time of termination, then the termination applies only to that part which is not yet performed. Amounts invoiced by VConsyst before the termination or that could have been invoiced by it in connection with what it has already performed or supplied in the execution of the agreement, continue to be outstanding and shall be immediately due at the time of termination.
3. Notwithstanding the above, VConsyst reserves the right to consider the current agreements between VConsyst and the client terminated, regardless of whether or not the agreement(s) has/have already been executed, in whole or in part, and without judicial intervention and without any notice of default being required, at such time as the client is declared in a state of bankruptcy, is granted a suspension of payments, the statutory debt adjustment is declared applicable, or the client loses the power of disposition of its assets or parts thereof through seizure, receivership or otherwise, unless adequate security is provided for the payment of all amounts due by the client to VConsyst.
Article 19 Force majeure
1. VConsyst is not obliged to fulfil any obligation if it has been prevented in this by a circumstance that is not attributable to its fault, or that is not by law, a legal act or by a generally accepted practice for its account. Such circumstances are considered to be: delay in delivery by suppliers; strike at VConsyst, scarcity of goods, strike or delay of carriers; illness of personnel of or deployed by VConsyst.
2. If an event of force majeure delays the execution of (part of) an agreement for more than three months, both VConsyst and the client have the right to terminate the agreement without any ensuing right to compensation; however, the client is obliged to pay the purchase price for products already delivered.
Article 20 Non-competition
If, pursuant to the agreement with the client, VConsyst makes employees of VConsyst available to the client or develops software for the client, then the client shall not within six months of the termination of the agreement in question, hire employees of VConsyst that have been involved in the execution of the agreement or otherwise have them perform work for it without the intervention of VConsyst.
Article 21 Applicable law and jurisdiction
1. Any disputes concerning these General Terms and Conditions or agreements concluded between VConsyst and the client are governed by Dutch law.
2. Disputes shall, at the option of VConsyst, be decided by the competent court in Zwolle or in accordance with the Arbitration Rules of the Dispute Resolution Foundation automation, located in The Hague. In the latter case, the mini-trial rules of this foundation also apply.
II Special provisions relating to services
The provisions contained in this Chapter shall apply if VConsyst provides services to the client and the provisions contained in these General Terms and Conditions relating to work specifically referred to shall be unaffected.
Article 22 Performance of services
1. VConsyst shall perform the services with due care, where appropriate in accordance with the agreements and procedures agreed with the client in writing.
2. If it has been agreed that the services will be provided in stages, VConsyst may delay the start of the services that are part of a next phase until the client has approved the results of the previous stage in writing.
Article 23 Amendments and additional work
1. The client accepts that, if the parties agree that the services to be provided will be extended or amended, this may affect the time of completion of the service. VConsyst shall inform the client in this regard as soon as possible.
2. If a fixed price has been agreed for the service, then VConsyst shall inform the client in advance if an extension or modification as referred to above occurs that affects the agreed price.
III Special provisions for user rights and (licence) of software.
The provisions contained in this Chapter III, in addition to the general provisions, are applicable to all software made available by VConsyst to the client that has not been developed completely on the instructions and on behalf of the client.
Article 24 Right of use/licence
1. VConsyst gives the client the non-exclusive right to use the software. The software will not become the property of the client.
2. The software may only be used by the client in its own company or organisation by one processing unit and/or by a specific number or type of users or terminals for which the right of use has been provided. If the right of use is valid for a specific processing unit, the following applies: in the absence of an agreement in this regard the processing unit of the client in which the software has been used for the first time applies as the processing unit for which the right of use has been issued; in the event of a breakdown, the software may temporarily be used by another processing unit for the duration of the breakdown.
3. Unless VConsyst asserts deviating provisions, the client is authorised to make a maximum of two copies of the software for security purposes. These copies may only be used by the client to replace the original material that has become unusable and should always have the same labels and indications as the original material.
4. The right of use is not transferable to third parties without the written permission of VConsyst. The client is not authorised to sell, lease, dispose of or transfer as security or in any manner whatsoever make the software ??available to any third party. The client shall not modify the software, allow third parties to use it or make it available to third parties. The source code of the software is not made ??available to the client.
5. The client is not allowed to reverse assemble software in full or in part. The client is not allowed to reverse compile software or otherwise trace it to the source code (“reverse engineer").
Article 25 Guarantee
During a period of six months after being made available, VConsyst shall use its best efforts to rectify any faults if the software does not meet the written specifications. Only in the event a maintenance or support contract for the software has been concluded with VConsyst or if a user fee to VConsyst applies whereby maintenance/support is included, such repair will be carried out free of charge in compliance with the provisions of the relevant agreement. VConsyst may charge the repair costs in the event of user error of the client or for other causes not attributable to VConsyst. Recovery of any corrupted or lost data is not covered under the guarantee. The guarantee does not apply if the software has been amended by others than VConsyst without its prior written permission.
Article 26 Maintenance/support of software
1. If a maintenance or support agreement has been concluded for the software, the client will report defects found to VConsyst in accordance with the usual procedures of VConsyst. Upon receipt of the notification, VConsyst will repair any defects within the working hours tables referred to in the agreement to the best of its ability if the software does not meet the written specifications.
2. VConsyst can charge the costs of repair at its applicable rates in the case of user errors of the client or other causes attributable to the client or if the software has been modified or is maintained by a party other than VConsyst.
3. Recovery of any corrupted or lost data is not covered by the maintenance/support.
4. If a maintenance or support agreement has been concluded, VConsyst shall make subsequent versions or new versions of the software available to the client when these are released. Three months after the release of a subsequent version or new version, VConsyst no longer obliged to repair any defects in the old version. VConsyst may request an additional fee for providing a version with new features and functions.
5. Termination of the maintenance or support agreement may only take place in writing, taking into account a notice period of three months.
Article 27 Software of supplier
If a supplier of VConsyst only grants the right to use software in accordance with the provisions of its use or licence agreement or if the maintenance/support is carried out in accordance with the provisions of the maintenance or support agreement of the supplier, the provisions of those agreements apply instead of the provisions of Articles 25 to 27 of this Chapter III. The client accepts the amounts mentioned in the contracts with suppliers and VConsyst will inform the client of the content thereof at its request.
IV Special provisions for training courses.
The provisions contained in this Chapter IV, in addition to the general provisions, apply if VConsyst provides education, training courses or training (hereinafter collectively referred to as “training courses") to the client.
Article 28 Location
1. In principle, the training courses take place at the offices of VConsyst. Applications for training courses are subsequently confirmed in writing by VConsyst to the client. Such written confirmation may take place