- These General Terms and Conditions apply to all quotations and agreements, issued or concluded respectively by unTill Software Licensing B.V., hereinafter called: the User.
- The User supplies software for various checkout systems or, as the case may be, issues licences for the use of that software, hereinafter also called the Item or the Product, to the Other Party.
- Amendments or additions to these General Terms and Conditions must be explicitly confirmed in writing by the User and only apply to the quotation or agreement issued or concluded respectively on the occasion of the amendment or addition.
- If and insofar the Other Party uses general terms and conditions that conflict with these General Terms and Conditions, the Other’s Party’s general terms and conditions shall not apply.
- All offers issued by the User are subject to contract unless explicitly stated otherwise.
- An agreement is only formed once the User has confirmed the offer or the Other Party’s contract in writing.
Nonetheless, the Parties may supply evidence of the formation of the agreement by other means.
- If the User has used models, designs, calculations, samples, prospectuses, etc. with an offer, these items shall remain the property of the User and should be returned by the Other Party at the User’s request. The User retains all intellectual property rights to those items.
- The documents intended in paragraph 3 may not, by any means, be reproduced, published or put at the disposal of third parties or used in any other way, either partially or fully, by the Other Party without the User’s explicit and written consent.
- The Other Party guarantees explicitly and unconditionally the information, specification, calculations, etc. provided by the Other Party.
Prices, price adjustments and payment
- None of the prices arranged include any turnover tax that may be due on that sum, unless explicitly arranged otherwise.
- Unless specifically arranged otherwise, all prices are given in the currency of the Netherlands.
- If the Other Party consists, according to the agreement arranged between the Parties, of several natural persons and/or legal entities, each of those persons or entities is jointly and severally committed to the User.
- The User’s records serve as full evidence for the sum owed by the Other Party under the agreement arranged between the Parties.
- If the Other Party has periodic payment obligations, the User is entitled to make price adjustments if the User notifies the Other Party of the adjustment in writing and at least three months in advance. If the Other Party does not agree with the intended price adjustment, the Other Party is entitled to cancel the current agreement as of the date on which the new prices would come into force, on condition the Other Party announces its wish to exercise its right to cancellation in writing and within one month of the notice of the price adjustment intended in the first sentence of this paragraph.
- All payments should be made within thirty days of the date on the invoice, without any right to discount or setoffs, even in the event of bankruptcy or liquidation, at the offices of the User or by means of deposit into a bank account designated by the latter.
- If the Other Party has not paid within the term arranged for payment or has not paid within a term arranged at a later time,
the Other Party is in default by operation of law and the User is entitled, without further warning or notice of default, to charge the Other Party the statutory commercial interest rate (Section 6:119a of the Dutch Civil Code) plus one percentage point on an annual basis as of the expiry date until the date of full payment and without prejudice to the other rights to which the User is entitled.
- All costs incurred by the User arising from the Other Party’s failure to perform, failure to perform in due time or inadequate performance of any obligation of the latter arising from this agreement shall be borne by the Other Party. These costs include the costs of warning, cancellation, collection and the bailiff, and the costs of the legal assistance/lawyer and local counsel, and all other out-of-court costs and legal costs. The User and the Other Party have fixed those costs at 15%, at least, of the principal sum of the claim. The Other Party is in default if the Other Party fails to perform or performs inadequately.
- The User retains the right to demand full or partial advance payment of the estimated price.
- If and insofar the Other Party is in default of payment and in the event of bankruptcy or liquidation, an application for a moratorium, closure or winding-up of the Other party’s company, every sum the User claims against the Other Party shall immediately become due and payable.
- The User is entitled to suspend the User’s performance of the obligation to grant the licence or to implement updates until the Other Party has performed all the Other Party’s obligations to the User. Any free renewals of the licence will not be suspended.
- The delivery of the object of the agreement is effected when the Other Party receives the licences or the codes for the licences.
- The risk of loss, damage or full or partial destruction of the Products to be delivered (explicitly including but not limited to: user names, codes and passwords), documents, programs or data files manufactured, delivered or used within the framework of the agreement is transferred to the Other Party if and insofar those Items have been put into the Other Party’s actual possession or into the possession of the Other Party’s agent appointed for that purpose.
The execution of the agreement/installation of the software Article 5
- The User decides how the agreed work is executed.
- The User indemnifies the Other Party against every claim from a third party based on the allegation that the programs, websites, data files, equipment or other materials developed by the supplier infringe on the said third party’s intellectual property rights on the condition that the Other Party notifies the User of the existence and content of those claims and leaves the handling of the issue, including any settlements, fully to the User. The Other Party shall provide all necessary powers of attorney and information so that the User can defend itself against said claims.
This indemnification lapses if and insofar the alleged infringement is connected to acts determined by the Other Party.
- The User is never obliged to carry out data conversion, unless explicitly arranged in writing.
- The Parties explicitly recognise that the success of the work within the context of information and communication technology depends of correct and timely mutual cooperation. Accordingly, the Other Party shall also always cooperate as necessary.
- If the Other Party uses auxiliary staff for the execution of the agreement, the auxiliary staff shall always possess all the knowledge and experience necessary for the success of the installation for the ultimate end user.
- The Other Party is responsible for the management, including checking the settings, the use of the Products delivered and/or services rendered by the User and how the results of the Products and services are deployed. The Other Party is also responsible for instruction of, and use by, the ultimate end users.
User right, intellectual property and transferability Article 6
- The User’s software is protected by copyright law and by other (inter)national laws.
- The Other Party is permitted to install (or commission the instalment of) the software on a checkout system. If the Other Party has a licence for several checkout systems in a single network environment, the Other Party is permitted to use the software on the number of checkouts the User has listed to the Other Party.
- The Other Party is not permitted to deploy software products already purchased for others than the original end users.
- The user right is not transferable and cannot be granted as a sub-licence without the User’s written consent. The Other Party is not permitted to pledge the granted licence for the software, transfer it as security or cede it to third parties by any other means for any purpose.
- In the event the Other Party fails to perform or only partially performs the provisions of this Article, the Other Party shall forfeit an immediately due and payable fine, which is not subject to judicial mitigation, of EUR 100,000.00 (in words: one hundred thousand Euros) per violation and of EUR 1,000.00 (in words: one thousand Euros) per day for as long as the violation continues without prejudice to the User’s right to additional compensation for damage and reimbursement of the costs of recovery.
Privacy and confidentiality
- If the User is obliged to provide a form of information security, that security shall match the specifications for the security that Parties shall lay down in writing in more detail. The User does not guarantee that the said security is effective in all cases. If a specifically described method of security is omitted from the intended agreement, the security shall comply with a standard that is not unreasonable in view of the technology, the sensitivity of the data and the costs involved in implementing security measures.
- The access or identification codes and certificates supplied by, or on behalf of, the User to the Other Party are confidential and as such will be handled by the Other Party and may only be disclosed to authorised staff of the Other Party´s own company. The User is entitled to alter the identification codes and/or certificates.
- The Other Party shall protect its systems and infrastructure and shall always have an anti-virus program in operation.
- The Other Party is obliged to maintain confidentiality towards third parties regarding all the User’s company matters, in the broadest sense of the word, of which the Other Party has become aware by reason of the agreement or its execution.
- The User guarantees the soundness and the agreed quality of the delivered Product for a period of twelve months, to be calculated from the time of the delivery and only if the Other Party demonstrates that the fault in the delivered Product is caused by incorrect processing, construction or manufacture of the Product and on condition the complaint is lodged within two months of identifying the fault.
- Fault is understood to mean an objectively identified fault in the software, due to which the delivered Product does not operate optimally. Erroneous expectations held by the Other Party cannot be regarded as a fault.
- The guarantee does not cover faults that are either fully or partially attributable to:
- Faults that are fully are partially caused by erroneous use of the checkout systems and consequently caused by the Other Party’s actions or omissions;
- improper storage by the Other Party due to which the delivered Product is exposed to the effects of moisture, pollution, high or low temperatures, shocks or vibrations or by storing the Product too long;
- use, treatment or processing of the delivered Product other than in accordance with the guidelines and specifications supplied with the delivered Product or other than the purpose for which the Goods were delivered;
- non-observance of any government regulation.
- If and insofar a supplier is obliged to provide any form of guarantee to the User in relation to the delivered Product, the guarantee issued by the User shall never extend beyond the guarantee issued by that supplier.
- The User has the right to remedy the fault in the delivered Product by means of a free repair or full replacement of the delivered Product.
The User may, at the User’s discretion, also perform its guarantee obligation by refunding the price.
- If the User decides to fully or partially replace the delivered Product or to fully or partially refund the purchase price, the User may set off the benefits of the Product’s temporary use by the Other Party.
- The guarantee does not, in any case, extend further than the delivery of a new product. The labour costs are explicitly not included in this guarantee.
- Replacement or repair of the delivered Products pursuant to these guarantee provisions do not extend the arranged guarantee term.
- During the period in which the Other Party is in default of any obligation that the Other Party should perform arising from this agreement or any other agreement connected to it, the User is not obliged to issue any guarantee.
- All liability towards the Other Party in the matter of a faulty delivery is always limited to the aforementioned guarantee obligations.
- The User guarantee the standards of quality and soundness of the delivered Product for normal use.
- The User explicitly cannot be held liable for damage or costs arising from transmission faults in, breakdowns of, or lack of access to, the available facilities unless the Other Party proves that the damage is, or costs are, a consequence of intentional actions or deliberate recklessness of the User’s supervisors.
- The User’s liability for all direct costs and damage in related in any way to, or caused by, an error or failure in the execution of the agreement is always limited to the net invoice sum pertaining to the relevant delivery or the sum for which the User is insured for incidents that cause such damage and for which cover is actually provided, or the sum for which companies comparable to the User are usually insured.
- The User can never be held liable for any indirect costs or indirect damage related in any way to, or caused by, an error or failure in the execution of the agreement.
- The Other Party indemnifies the User against all claims from third parties for compensation for damage or otherwise, related either directly or indirectly, to the execution of agreement between the User and the Other Party.
- If and insofar the User cannot perform the User’s obligations arising from the agreement, or cannot perform them fully, in due time or at the arranged location, as a consequence of a cause that cannot be attributed to the User, the User is entitled to dissolve the agreement in question or to suspend the obligations arising from the agreement in question for a period the User deems reasonable, without court intervention and without being obliged to pay for any damage in that connection.
- Causes that cannot be attributed to the User include: every unforeseeable interruption of the User’s company’s daily course of affairs or in the company of a third party from whom the User buys goods or services and evident changes to the actual circumstances since the formation of the agreement that have a direct or indirect influence on the purchase price factors or delivery options.
- Causes that cannot be attributed to the User also include: fire, water damage, exceptional weather, disasters, war and the threat of war, contagious diseases, government measures, riots, wilful damage, labour strikes, lockouts, work-to-rule action, lack of correctly operating Internet connections, interruption, delays in the supply of. or rationing of. commodities, auxiliary agents and fuel and the failure of a third party, from whom the User buys goods or services, to perform its obligation.
- If one of the aforementioned circumstances occurs, the User shall notify the Other Party as soon as possible, on presentation of the evidence available.
Applicable law and choice of forum
- All agreements between the User and the Other Party are governed by Dutch law. The applicability of the Vienna Sales Convention and any other international regulation of which exclusion is permitted are excluded.
- The court of the district in which the User has its registered office is, by exclusion, competent to hear disputes
unless the law mandatorily prescribes otherwise. Nonetheless, the user has the right to submit the dispute to the court competent by law.
- The Parties shall only appeal to the court after they have made every effort to settle a dispute in joint consultation.