Terms and conditions of sale IC2 Innovative Computer Consultancy
1.1 These conditions apply to all offers and agreements, oral or written, encompassing the provision of services and products, if and insofar as not expressly agreed otherwise in writing, made between IC2 Innovative Computer Consultancy (“IC2”) and clients/users (“the other party”)
1.2 These conditions supersede any general or special conditions of the other party.
1.3 If only part of these conditions have been expressly agreed otherwise, the remaining conditions will remain full binding.
1.4 Failure to require strict compliance with the terms does not reduce rights for IC2.
2.1 An agreement is deemed to be made after verbal or written instruction is received by the other party and verbal or written acceptance by IC2.
2.2 The contents of any agreement is deemed to be those as written in the confirmation of IC2, or in the absence of these, a written order from the other party.
2.3 Should discrepancies in the job description of IC2 to the other party occur, the other party is bound to react in writing prior to the commencement of the assignment, but at least 7 days after receiving the confirmation of the agreement from IC2. Such a document may be added or amended to the agreement of terms and descriptions.
2.4 Additions or changes in the agreement desired by the other party must be expressed in writing to IC2. After approval of such a revision, the specification and / or delivery and / or price may supplement or amend the agreement.
2.5 IC2 is entitled to engage third parties not employed by IC2 to have the agreement implemented.
All prices, unless otherwise stated, are exclusive of taxes and excluding any travel, transportation and insurance costs. Prices in an offers are valid 1 month, but with exception of the delivery, directly or indirectly, of required goods or services which can be subject to price changes, unless otherwise stated.
4.1 Invoices must be paid within 15 days after the invoice date only by transferring the amount in Euro to the account stated on the invoice without the deduction of bank or other costs.
4.2 The other party is not entitled to suspend payment for alleged failure of IC2 to fulfill obligations until by final court order it has been established, that IC2 did not fulfill obligations
4.3 For overdue invoices IC2 can charge on a subsequent invoice an interest payment without prior notice, being the statutory rate.
4.4 Any legal and/or extrajudicial collection costs shall be paid by the other party. The extrajudicial costs are at least 15% of the amount due with a minimum of fifty euro.
4.5 Complaints regarding the amount or the build up of the invoice must be sent in writing to IC2 within 12 days of the date of the invoice. After these 12 days, the full amount has to be paid and the other party will be credited when the claim has been acknowledges by IC2.
4.6 If any product or service from IC2 may be subject to a subsidy or cost reduction the other party carries the full risk of bouncing.
5. LIABILITY AND DISPUTES
5.1 If, to the opinion of the other party, IC2 has not fulfilled the obligations (fully) as agreed, or other errors surface, IC2 must be notified by a proper written notice.
5.2 The liability of IC2 is limited to repair/restore the defects or omissions which have been acknowledged by IC2, as much as possible and within a reasonable time. In case of incapacity of IC2 to do so, the additional cost charged to the party which is the direct result of having done the unfinished part of the assignment by a third party can be credited or deducted from subsequent invoices but never to a higher amount than the relevant part of the original.
5.3 IC2 is not liable for any consequential damages, which include business interruption, data loss or corruption, financial or commercial losses.
5.4 For damage caused to goods and possessions, caused by employees/owners of IC2, the normal legal liability applies.
5.5 IC2 can only be held liable for any damage that was caused deliberately or by gross negligence, up to the amount of the agreement, but never exceeding 25.000 euro, insofar not (partially) 5.2 to 5.4 apply.
5.6 Without prejudice to 5.1-5.5 IC2 and / or the other party may not be complied to obligations under the agreement, if there is force majeure or unforeseen circumstances which can be considered equivalent to a force majeure, such as labor dispute, war, transportation difficulties, government actions.
5.7 Complaints relating to supplied products or services must be sent in writing to IC2 within 8 days after delivery or services rendered by IC2.
5.8 Any dispute which may arise on formation, interpretation, execution and payment of the agreement, if not agreed upon on otherwise, must be submitted to the competent court in The Hague.
5.9 The Dutch law is applicable.
5.10 Without prejudice to 5.1-5.9 compensation resulting from liability which is not (fully) covered by any insurance held by IC2, can never exceed the amount of the agreement or 25.000 euro, whichever is the lowest.
6.1 IC2 and the other party must keep confidential all information which can be considered confidential and will take all possible measures to protect it. Information indicated as such is information classified as confidential or from which it could reasonably be assumed that it is confidential.
6.2 The other party gives permission to IC2 to register personal data in the other party registration of IC2, which is required for its administration and management tasks. This register contains the information considered relevant by IC2 to render its services and is only accessible to IC2. The data is not passed on to others, with the possible exception of third-party IC2 works together to offer its services, unless IC2 is required to do so by law or court order.
6.3 The other party may file a request to inspect the personal data or have these altered or removed. IC2 reserves the right to retain relevant data to prevent re-entering into active files, but after this request, will never actively use the data.
7. SUSPENSION OR BREACH OF DELIVERY
7.1 IC2 can not guarantee that all objectives of an assignment are feasible.
7.2 IC2 reserves the right to suspend or terminate a delivery or service when the circumstances warrant. This can be the case, among others, but in any event, excess time spent and/or materials delivered of more than 15%, unfulfilled obligations of the other party or threat thereof, like expected insolvency in general, or the suspension of payments and bankruptcy if not all invoices have been paid.
7.3 After termination of the agreement, neither party is bound to it, with the reservations that the actual time spent to date or goods delivered as agreed must still be paid for, however limited to the maximum size of the of the assignment plus any actual excess time spent or deliveries done.
7.4 Agreements for a specified period will be automatically renewed unless three months before the expiry of that period a written notice of termination, either registered or confirmed by IC2, has been received. With no notice within this period, the agreement/contract will be renewed each for the period of one year and from August of any year to the end of the next calendar year.
7.5 If the other party does not properly or timely comply with any of the obligations as stated in the agreement or these terms and conditions, or if there is serious doubt as to whether the other party is able to fulfill his or her contractual obligations to IC2, IC2 is entitled, without judicial intervention, either to suspend service(s) or suspend the contract either fully or in part, without the obligation of IC2 to grant any compensation to the other party and without prejudice to IC2’s rights.
7.6 IC2 is authorized without judicial intervention, to discontinue the agreement with immediate effect and to suspend services if the other party:
-provided false and / or incorrect personal details to IC2;
-failed to pass on or provide correct information or changes;
-entered the agreement under false pretenses;
-is declared bankrupt or a petition for bankruptcy is filed;
-has suspended payments;
-has been placed under legal restrain or is dissolved;
-can no longer fulfil financial obligations.
8. DELIVERY TIMES AND DELIVERY
8.1 Delivery times are offered to best knowledge and will be respected by IC2 as much as possible.
8.2 Any delivery period starts on the date specified in the offer as mentioned in 2.1 or a later date when the contract has not been returned on the in 2.1 mentioned time frame or not (all) by IC2 requested information needed to perform the agreement is received.
8.3 Exceedance of delivery dates or times for any reason whatsoever does not entitle the other party to compensation, to terminate the contract or non-fulfillment of any obligation to IC2.
8.4 If an exceedance as specified in 8.3 to the idea of the other party is no longer acceptable, a new mutually agreed time limit may be set.
8.5 A product or service offered for delivery must be collected or taken or otherwise paid within 15 days after the notice of availability.
8.6 Deliveries can be made in parts and invoiced. Advance payment can be requested.
8.7 Any defects or malfunction noticed in the delivery must be reported directly or shortly after delivery and be verifiable by IC2
8.8 Transportation of products is at the expense and risk of the other party.
8.9 Products shall remain the property of IC2 until full payment has taken place.
8.10 Re-selling, subletting, sub-licensing or otherwise provision to any third party of any portion of software, webdesigns, consultancy or instruction material is prohibited without prior written permission of IC2.
8.11 IC2 is always entitled to use the knowledge and experience that its staff have gained during carrying out activities on behalf of the other party without limitation. IC2 does not owe anyone compensation for such use.
9. ADVICE AND CONSULTANCY
9.1 Advice and information is provided based on an investigation. The time spent to this investigation will be proportionate to the importance of the issue, on which advice or information is collected, but limited to the estimated time within the agreement.
9.2 The other party is obliged to provide information or to have information accessible by IC2 that may be relevant for the advice.
9.3 IC2 is not liable for her and / or its employees and / or third party employed by IC2 for any given information and advice.
9.4 The choice of hardware and software resulting from a recommendation is for risk and responsibility of the other party.
10.1 The content of instruction on IT subjects and use of software is determined by IC2, possibly in consultation with the other party.
10.2 IC2 is required to give the instruction as clear as possible and with proper knowledge of the subject but can never guarantee that the instructions has the desired effect on the participants.
10.3 For instructions directed by the other party IC2 retains the right, to determine a maximum group size, if necessary to divide the groups when knowledge of participants varies too much and charge extra for participation of people from outside the organization.
10.4 The agreed duration of the instruction will be entirely devoted to instruction, but can be reduced by 2 times per 8 hours coffee or tea break and possibly more breaks, if on request of the other party. Up until 30 minutes spent on a lunch break, if applicable, is counted as part of the agreed duration.
11.1 Guidance includes informing and advising the other party regarding the most efficient and effective way to use IT as possible, as well as help identify and resolve problems with computer and software.
11.2 Guidance will usually be based on a contract under the terms of that contract. Also, assistance requested by the other party by telephone or on-site can be invoiced on time actually spent with the reservation that at least 2 hours will be billed per year, at least 15 minutes per incident will be registered, although multiple short phone calls may be bundled, and that travel time and costs for a site visit will be charged.
12.1 Software means computer programs in whatever form, source code as well as the final form in which it can be used for the other party, such as executables, web pages and applications, and databases, schemas and documentation. IC2 and its suppliers grant the other party a nonexclusive and nontransferable license to use the IC2 software
12.2 Software remains at all times (intellectual) property of IC2.
12.3 IC2 safeguards the other party against any action of third parties which is based on the assertion that the software developed by IC2 would infringe a valid copyright in the Netherlands. The other party, if necessary, must cooperate to prevent any such claims. IC2 replaces if necessary (parts of) the software to prevent claims.
12.4 IC2 warrants that the software substantially conforms to its published specifications. Except for the foregoing, the software is provided “AS IS”. This limited warranty extends only to other party as the original licensee. IC2 does not guarantee that software will operate without interruption, malfunction or defects. Defects or parts of the program not working according to the written specifications shall, as far as possible, within a reasonable time be corrected, provided that the other party sends IC2 a detailed breakdown of the problems, as much as possible with screenshots and description of the origins of the problem situation. This correction is free of charge within 30 days after delivery of the software unless the other party has a maintenance contract where the time spent on the correction may still be counted as time spent. Defects that could not reasonably have been discovered within this period could be repaired free of charge, only for other reasons than by not having used the software, until one year after delivery of the first version of the software.
12.5 The warranty does not apply if the user has made changes to files, software or other files associated with the program or the configuration of the computer. Any resulting work can be invoiced. Warranty does not apply either to beta software, software provided free of charge, “as is” or against a considerably lower price than the normal price, the latter with exception of special offers.
12.6 The other party may not attempt to convert the purchased software to source code (or have this done). IC2 does not release source code or make libraries available to the other party.
12.7 In addition to 12.6 the other party can ask IC2 to deposit the source code and libraries, from which the program can be adjusted and compiled, with a legal party. This legal party may only transfer the source codes and libraries to the other party under pre-determined conditions for the sole purpose of safeguarding the continuity and maintenance of the program to the other party. All costs for this procedure, including the extra time spent on this by IC2, will be charged to the other party. The source codes are available to companies selected by IC2, who have knowledge of the methods and techniques of IC2, to guarantee the continuity in case of inability of IC2 to fulfill maintenance obligations.
12.8 The other party is obliged to reduce the risk to a minimum of data loss and to act on any incorrect or unexpected outcomes and results of the software by making regular backups of data and testing a new program or a new version.
12.9 The software may only be installed on (the number of) computers and the organization as stated in the agreement.
12.10 For violating of the provisions 12.6 and / or 12.9, an immediately payable penalty, to be determined by IC2, can be determined.
12.11 For software the other party has the right on maintenance, support and new versions by paying a regular fee, a percentage of the actual sales price of the licenses or an amount to be determined. On entering an agreement to supply the software, a maintenance fee is charged immediately or after a certain period. This maintenance agreement is subject to what is written in 7.4. The agreement can state that the right to use the software ends with a timely cancellation of the maintenance agreement. New versions, including changed functionality and appearance, will be made available at the discretion of IC2. If at any (other) time a new version, support or other services or supplies related to the program, (such as direct data manipulation, import/export, tailor made changes), is required by the other party, IC2 charges time spent as such as additional work.
12.12 The other party must formulate the required functionality and appearance of the product as clear as possible, possible in collaboration with IC2. Depending on the size of the agreement, one or more intermediate stages are determined, where the other party evaluates the results and possibly corrects. During development any agreed amendments and additions replace the originally stated objectives, without a specific written notification.
12.13 Less time spent, disagreements in the appearance or operation of the product, does not entitle the other party to a refund or lower charges than the agreed amount or (partial) cancellation of the agreement unless previously agreed.
12.14 If during the terms of an agreement the other party requests to add features or change functionality other than described in the proposal the necessary work by IC2 will be regarded as additional work. For additional work the other party will be charged on an hourly basis of the prevailing rates.
13. STANDARD SOFTWARE
13.1 For standard software everything mentioned in § 12 applies. Also applies:
13.2 Properties of programs, as stated in brochures, offers, etc. are never guaranteed. Guaranteed is that the complete operation of the program as determined by the other party is equal to that of a demonstration version, when run on the same configuration (“AS IS”). A demonstration version is available at cost, with some restrictions on a full version of the software.
13.3 Complaints regarding the operation of standard software lead only to delivery of a corrected version within 45 days after filing when:
– A maintenance contract for the package is available and the other party has entered one with IC2
– The full version does not work properly in the way the demo version on the same system works under the same conditions, except this is in the opinion of IC2 an implemented product improvement.
In all other cases, complaints together with suggestions for improvement will be considered in future versions.
13.4 If a reported problem is not detected on systems of IC2, then only on request of the other party, the problem can be investigated on location and will be charged. All time spent on problems that seem to correlate with other applications, including the operating system or network software, the other party will be charged except when the other party has signed a contract with IC2, including the activities on site, or if it is found that the problem identified as one which warrants an overall change in the standard program.
13.5 The other party will not install the software on more than any other place than he is entitled under the restricted license. Other party will ensure that documentation, or copies thereof and other software in the package, goods or services are not made available to third parties, otherwise than in the manner permitted in the license.
14.1 Web hosting means providing server space for the purpose of hosting a website or create e-mail boxes. Namehosting means the payment of a fee to maintain the registration of domain names. The choice of the domain name is at the expense and risk of the other party and IC2 does not accept liability in the matter of choosing and using the domain name. The application, registration or transfer of a domain can take several days. Relocation of your domain, depending on circumstances and third parties may take longer.
14.2 IC2 can not guarantee unrestricted access and availability to the domain and the internet. Maintenance of the systems can influence access negatively.
14.3 IC2 refrains from accessing personal email and / or files stored on the domain or make these available to third parties unless IC2 is required to do so by law or court order, or on behalf or assumed behalf of the other party.
14.4 The amount of data / email traffic and the amount of stored data is limited to the published number of megabytes per period for the chosen hosting package. Where no limits are given, fair use is assumed, being the average storage space and/or data traffic of the average user. If any domain/website limit is exceeded the other party will be notified and given the choice of reducing to the agreed quantities, or extending the hosting package to a higher level. The published surcharges apply in this case. Excess data storage on webspace can not be notified in advance and will usually be noted when the website does not accept further data storage.
14.5. IC2 has the right to (temporarily) de-commission and / or restrict the use of the domain if the other party does not fulfill (parts) of the contract or acts contrary to these terms. IC2 will notify this in advance, unless it can reasonably not be expected of IC2. The obligation to pay the amounts due will continue during the decommissioning operations.
14.6. The suspension as mentioned in 14.6 will be lifted if the other party has fulfilled his obligations within a period prescribed by IC2 a reconnection fee has been paid, which is € 50, – excl VAT. If the full obligations are not fulfilled within 14 days, IC2 is entitled to terminate or make available the domain to others, without compensation to the other party or the right to reduce the third parties obligations of the service to IC2.
14.7 The other party shall maintain the attitude and behavior of a responsible and careful internet user. The other party notifies IC2 as soon as possible of any changes in relevant information.
14.8 The other party shall refrain from harming other parties or internet users, or damaging the system by placing content or starting programs which of which he can reasonably suspect that these result into such damage or harm. This expressly includes indirect damage through misconfiguration on the other party side, for example but not exclusively ‘open relaying’ through an incorrectly configured mail server. The other party is only allowed to start processes or programs if there is a direct connection to the system allowed by IC2 .
14.9 The other party may not use the system and the disk space for actions and / or conduct contravening the applicable legal provisions, netiquette, the guidelines of the Advertising Code Commission, the agreement or these general conditions. These include, but are not limited to, the following acts and conduct:
-Spamming: the unsolicited sending of bulk e-mail with the same content and / or unsolicited posting to large numbers of newsgroups on the internet of messages with similar content;
-Infringement on copyrighted works or otherwise acting in violation of intellectual property rights of third parties;
-The publication or distribution of child pornography;
-Sexual intimidation or harassment of other persons;
-Hacking: gaining unauthorized access to computers or computer systems on the Internet. The performance of acts that could reasonably be regarded as a preparation to do so (such as port scanning) is not allowed.
14.10 The other party is not permitted to transfer his domain/account, the manual or the contractual rights to third parties or allow third parties to use them unless IC2 has allowed this in a written statement. Notwithstanding the foregoing, the other party is permitted to have a website designed, published and maintained by a third party. The other party remains responsible for the use of his or her domain/account and password.
14.11 The other party himself will be responsible for the necessary hardware and software, peripherals and connections to access the domain. IC2 is entitled to charge if IC2 has (re-)configure any of these to allow connections.
14.12 IC2 is entitled to make changes in the login procedure, and relevant account settings, without being entitled to compensation to the other party. IC2 will notify the other party as soon as possible in such cases to make him aware of the changes.
15.1 Web design means providing active capabilities to the other parties’ reserved server space, for example, but not limited to, one or more integrated Internet pages, preceded by a homepage, Web enabled software, and so on.
15.2 For web design everything mentioned in § 12 applies. Also applies:
15.3 Unless not suitable for that purpose, IC2 is always entitled to add its name in the website. Without the prior permission of IC2, the other party is not allowed this use, publish or reproduce the design without mentioning the name of IC2. This article does not apply if and insofar as the other party and IC2 have made alternative arrangements.