CONDITIONS CONCERNING XTENDIS ONE
These general conditions govern all offers, contracts and legal relations whereby DocVisie B.V. sells and/or supplies software,software licences, software-related services or software maintenance to the customer. Any terms and conditions of the customer are hereby excluded unless agreed otherwise in writing. A contract is only binding once it has been validly signed by both the customer and by DocVisie B.V.
Each 1 January, DocVisie shall increase the fees by at least the level of the Consumer Price Index as established and published in October of each preceding year by Statistics Netherlands. In the absence of such Consumer Price Index, the price shall be amended in accordance with a similar benchmark.
Any dispute concerning any change in price should be notified to DocVisie within ten (10) working days following the date of written notice of the change. If DocVisie is not notified of any objection within this period then DocVisie will implement the new prices. In addition to the agreed prices, the customer may be charged the costs of delivery and installation.
In addition, any necessary special work, such as dataconversion or import, will also be charged. All prices quoted in the contract are exclusive of VAT.
- Nature of the contract
If the contract specifies several articles or services, it is assumed that a separate contract is entered into for eachindividual article or service, each of which is governed by these general conditions.
- Software licences
Software packages are sold and delivered by DocVisie B.V. as agent for the software manufacturer and licensor Expansion B.V. (Expansion). The related software licences are created between the licensor and the customer. The terms and conditions of these software licences are mentioned on https://www.expansion.nl/nl/algemene-voorwaarden/. The scope of the permitted use, fully apply to the use by the customer. The provisions in the relevant software licences concerning the applicable guarantees and/or provisions regarding liability remain in force.
- Intellectual rights
The ownership of and all intellectual property rights to the software products and their source codes remain at all times with Expansion. unless expressly agreed otherwise in writing. All costs incurred as a result of any breach of copyrights by the customer are payable by the customer.
- Ownership, transfer of ownership and risk
DocVisie B.V. retains ownership of all software packages supplied at any time to the customer. Even in the case where by virtue of the contract ownership remains with DocVisie B.V., all costs and risks associated with the use of the software, including any breach of copyright, are at the risk of the customer. The transfer of ownership of the software licenses by DocVisie B.V. to the customer is deemed to take place as soon as DocVisie B.V. has received full payment of all financial liabilities of the customer to DocVisie B.V. under the contract, including any claims for interest and costs.
- Exchange and finance
Software will not be exchanged. Unless expressly agreed otherwise, any financing of the purchase of software licences shall be on the basis of a financial lease arrangement, whereby once the software has been used it shall have no residual value or exchange value.
DocVisie B.V. shall deliver the software to the delivery address. ‘Delivery’ means only the physical delivery of the relevant software package. The term for payment commences on the day following the date of delivery.
If the contract includes installation, such installation shall be planned and executed in consultation with the customer. DocVisie B.V. shall carry out the installation to the best of its capabilities. Installation is performed on a best endeavours basis, unless expressly agreed otherwise in writing beforehand.
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- Duration of maintenance contract
The commencement date and minimum duration is one calendar month. This minimum duration shall be extended in default of express termination by a further period of one calendar month. Either party may terminate this maintenance contract monthly subject to a notice period of 30 days.
- Performance of maintenance
With regard to both the creation and implementation of the maintenance contract, DocVisie B.V. acts as agent of Expansion B.V.The maintenance of the software will therefore be performed by Expansion. The terms and conditions operated by Expansion with regard to the maintenance of the supplied products shall apply and the parties are sufficiently familiar with their content. The customer shall contact DocVisie with regard to performance of maintenance work. DocVisie B.V. shall supply the customer with the relevant terms and conditions, and the necessary contact details for the principal, before supplying the software.
- Termination of the software maintenance contract before expiry of its term Notwithstanding the provisions of the principal’s terms and conditions of maintenance, DocVisie B.V. may terminate any maintenance contract related to the software before the expiry of their term in the event that either:
- The customer remains in breach of its payment obligation under this contract or other contracts between DocVisie B.V. and the customer, or in breach of other provisions under this contract, for a period of more than five days following service upon it of notice of default; or
- The customer enters into any scheme with creditors, fails to pay any outstanding debts to third parties, applies for a moratorium or insolvency, or if an application for insolvency is filed against it, or if it ceases its business operations; or
- The customer demonstrates a wish to locate its registered office address outside the Netherlands or has already done so, or the customer (or a member of any entity thereof) receives a prison sentence for any crime; or
- The customer’s business is wound up, goes into liquidation or is sold;
- then the customer will automatically be in breach by virtue of one of these events occurring and its remaining obligations to DocVisie B.V. under the maintenance contract will become immediately enforceable. In such a case, DocVisie B.V. may terminate the maintenance contract without the need to obtain any court order, which termination shall automatically take effect as soon as written notice of termination has been served by DocVisie B.V. upon the customer. Customer can export imported documents. Additional costs apply in case DocVisie or Expansion need to assist with an export.
- Fees, taxes and other costs
The agreed maintenance fee applies to maintenance and service as described in the principal’s general conditions for maintenance contracts. Work carried out by DocVisie B.V. which is not part of the activities described above shall be charged to the customer at the then current fees charged by DocVisie B.V. The maintenance fee may be increased by DocVisie B.V. annually in line with price increases charged by the principal. All taxes and costs, howsoever described and whenever imposed upon the payment liabilities of the customer under this contract, irrespective of the party named as liable therefor, are payable by the customer unless any statute specifies otherwise.
- Transfer of rights and obligations
The software licences supplied by DocVisie B.V. may not be transferred to any third party unless the relevant software licence specifically states otherwise. The customer may not transfer any rights and obligations arising from this maintenance contract to another party without the prior written consent of DocVisie B.V. With regard to the performance of maintenance, the principal is entitled to transfer the performance of technical services. In the event of any such transfer, the customer shall be notified accordingly.
- Guarantee and indemnity
The customer shall bring any claims relating to any guarantee or indemnity directly against the principal. DocVisie B.V. is not liable for direct or indirect loss resulting from the non-functioning or incorrect use of the software. Where appropriate, DocVisie B.V. may rely on the exclusion clauses included by the licensor in its licence agreement or as agreed with the licensee. Notwithstanding this provision, DocVisie B.V. will replace free of charge any defects to data carriers resulting from defects in manufacturing or materials for a period of three months following delivery. This guarantee excludes software bugs and defects arising from normal wear and tear, or from incorrect usage. The guarantee applies only within the Netherlands.
The payments owed by the customer shall become immediately due and payable on the final date for payment, without any right to deduction or set off. Customer authorises DocVisie B.V. to debit from its bank account the full amount of the liability of the customer under the maintenance contract, subject to the provisions and regulations applied either by Equens or the banks. If payment is not made within the specified term, or if there are insufficient funds in the bank account to cover full payment as at the payment date under the direct debit authorisation, then the customer is deemed to be automatically in default, without the need to serve any notice of default. In such a case, the customer shall be liable to pay interest at the rate of 1.5% per month on the outstanding sum as from the date that the payment falls due as stated on the invoice until the date that payment is made in full. For such calculation, part of a month shall be regarded as a full month. It is not permitted to set off any alleged claim against DocVisie B.V. Where appropriate, DocVisie B.V. may require the customer to provide security for payment of the obligations under a contract before supplying the service. If the contract is entered into with more than one customer, each customer is jointly and severally liable for the obligations under the contract. Any failure to comply with the payment obligations shall relieve DocVisie B.V. of its obligations to the customer, without prejudice to its other rights to claim specific performance of the contract or full compensation. All costs incurred by DocVisie B.V. in the exercise and protection of its rights, such as judicial and extrajudicial enforcement costs, are payable by the customer. Extrajudicial costs are fixed either at 15% of the amount payable by the customer, with a minimum of € 450, or the amount of costs actually incurred, whichever is higher.
- Direct and indirect loss and personal injury
DocVisie B.V. accepts no liability for personal injury or material loss to property of the customer allegedly caused by software or services it supplies, except where such liability is imposed by Dutch law. If it is established that DocVisie B.V. is liable for any loss, then compensation shall be limited to the amount that the insurer pays out for each incidence of personal injury or material loss. Liability for loss resulting from breakdowns, stoppages, inadequate or incorrect working of products, delays to the carrying out of repairs, the performance of maintenance work, the replacement of parts or the exchange of products in the form of business stagnation, loss of turnover, profits, data or savings, and other indirect loss is expressly excluded.
Each party shall treat as confidential all information of a confidential nature of which it, or any persons it employs, learns in connection with the performance of the contract.
- Breaches of contract attributable to the customer
If the customer fails to comply with any obligation under a contract properly, on time or at all, then DocVisie B.V. is entitled to terminate the contract without the need to first serve the customer with notice of default. Following termination, DocVisie B.V. may recover possession of the articles it supplied, without the need for a court order. The cost of this action is payable by the customer. In such a case, DocVisie B.V. has no obligation to pay compensation to the customer. The insolvency of the customer or the grant of, or application for, a moratorium, are deemed attributablebreaches by the customer for the purposes of this article. In the event of termination of the contract, the customer grants to such party or parties as designated by DocVisie B.V. access to the location where the products are kept so that they can be transported back.
- Extrajudicial costs
All costs incurred by DocVisie B.V. in the exercise and protection of its rights under the contract, such as judicial and extrajudicial enforcement costs, are payable by the customer. Extrajudicial costs are fixed either at 15% of the amount payable, with a minimum of €450, or at the amount of the costs actually incurred, whichever is higher. In that case the higher costs are at the expense of the customer.
- Prevention of Money Laundering and Financing of Terrorism Act
Under the Prevention of Money Laundering and Financing of Terrorism Act, DocVisie B.V. has a duty to properly identify the customer. The Act prescribes that both the legal entity and the person who actually enters into the contract on behalf of the legal entity be identified. In such a case, the customer must supply:
- A clear copy of a recent, valid form of identification of the authorised signatory;
- A recently certified extract from the Trade Register pertaining to the customer. DocVisie B.V. must report any unusual transactions to the contact body as specified in the Act.
- Final provisions
In the event that any of the provisions of this software contract are invalid, contrary to law or unenforceable, this shall not affect the validity of the other provisions. The parties shall negotiate the terms of new provisions to replace any invalid or unenforceable provisions such that the new provisions are as close as possible in scope to the invalid or unenforceable provisions. All costs incurred by DocVisie B.V. in the exercise and protection of its rights, such as judicial and extrajudicial enforcement costs, are the liability of the customer. The maintenance contract is governed by Dutch law and sets out all rights and obligations the parties may enforce against each other. The maintenance contract supersedes all previous negotiations, assurances, proposals and correspondence on this matter. Amendments to the contract must be agreed in writing. Any disputes will be submitted to the court for the district where DocVisie has its registered office, on the understanding that DocVisie is entitled to submit the dispute to such court as would be competent to hear this dispute in the absence of this provision.
Woerden, 6 March 2019