General Terms and Conditions
A. GENERAL PROVISIONS
Article 1. Definitions and terms in these terms and conditions
1. Ictoria: the user of these general terms and conditions, established at Koorstraat 53, 5831 GH Boxmeer, hereinafter referred to as Ictoria.
Client: the other party of Ictoria.
Agreement: the (purchase) agreement for the delivery and installation of ICT infrastructure, software, system management, maintenance and repair of (office) automation matters and other ICT-related (advisory) services, all this in the broadest sense of the word, as laid down in a document agreed upon by both parties and the documents that may be declared applicable therein, such as the quotation.
Work: the performance of services and/or the giving of advice as aforementioned and/or the delivery of goods, without any subordination and outside the scope of employment or contracting for work, all this in the broadest sense of the word and as stated in the agreement.
Conditions: these general conditions
Article 2. Applicability of the terms and conditions
1. The terms and conditions apply to every offer, quotation and agreement between Ictoria and a Client to which Ictoria has declared these terms and conditions applicable, insofar as these terms and conditions are not expressly departed from by the parties in writing. The conclusion of an agreement with Ictoria implies that the Client unconditionally accepts the applicability of these terms and conditions.
2. The terms and conditions shall also apply to agreements with Ictoria, the execution of which requires the involvement of third parties.
3. If one or more of the provisions in these terms and conditions should at any time be wholly or partially null and void or declared null and void, the other provisions of these general terms and conditions shall remain fully applicable. Ictoria and the Client shall then consult to agree on new provisions to replace the null and void or annulled provisions, taking into account the objective and purport of the original provisions as much as possible.
4. The applicability of any purchase or other conditions of Client is explicitly rejected.
Article 3. Realisation of the Agreement
1. All offers, quotations, price lists, delivery times, etc. by Ictoria shall be without obligation and revocable, unless they contain a deadline for acceptance. If a quotation or offer contains an offer that is free of obligation and this offer is accepted by the Client, Ictoria shall be entitled to revoke the offer within 2 working days after receipt of the acceptance.
2. Furthermore, all quotations and offers are based on the information provided by the Client. If the information proves to be incorrect or incomplete, the Client may not derive any rights vis-à-vis Ictoria from an (accepted) quotation or offer.
3. Ictoria cannot be bound by its quotations or offers if the Client can reasonably understand that the quotations or offers, or a part thereof, contain an obvious mistake or error.
4. The prices given in a quotation or offer shall be exclusive of VAT and other government levies, any costs to be incurred in the context of the agreement, including travel and accommodation, transport, postage and administration costs, unless otherwise indicated.
5. An agreement shall only come into effect at the moment that Ictoria has accepted or confirmed an order or assignment in writing or by e-mail.
6. Supplements and amendments to the agreement may only be made in writing.
7. Illustrations and descriptions in offers, prospectuses, catalogues, indications of size and weight, small data and promotional material as well as other data provided by Ictoria shall not be binding on it.
8. Ictoria is entitled to charge the Client for the costs involved in the offer or quotation, provided that Ictoria has pointed out these costs to the Client in writing in advance.
9. The Client is not entitled to sell and/or transfer the rights and/or obligations arising from the Agreement to a third party.
10. Ictoria is entitled to transfer its claims to payment of compensation to a third party.
Article 4. Execution of the Agreement
1. All services by Ictoria shall be carried out on the basis of an obligation to perform to the best of one’s ability, unless and insofar as Ictoria has expressly promised a result in the written agreement and the result in question is also described with sufficient certainty.
2. If and insofar as required for the proper execution of the agreement, Ictoria shall be entitled to have certain work carried out by auxiliary persons and third parties. The applicability of Articles 7:404, 7:407(2) and 7:409 of the Netherlands Civil Code is expressly excluded. When calling in third parties, Ictoria shall exercise due care.
3. Ictoria shall not be liable for any damage that is the consequence of shortcomings on the part of third parties and shall assume and, if necessary, hereby stipulate that each instruction given to Ictoria includes the authority to accept any limitations of liability of third parties, also on behalf of the Client.
4. The Client shall ensure that Ictoria is provided in good time with all information that Ictoria indicates is necessary or that the Client should reasonably understand is necessary for the execution of the agreement. The execution period shall not commence until the Client has made the information available to Ictoria.
5. If it has been agreed that the agreement shall be performed in phases, Ictoria may suspend the performance of those parts that belong to a subsequent phase until the Client has approved the results of the preceding phase in writing.
6. The Client shall bear the risk of the selection, use, application and management in its organisation of the equipment, software, websites, data files and other items and materials and of the services to be provided by Ictoria. The Customer shall ensure the correct installation, assembly and commissioning and the correct settings of the equipment, software, websites, data files and other items and materials.
7. If the Client does not make data, documents, equipment, software, materials or employees available to Ictoria that are deemed useful, necessary or desirable for the performance of the agreement by Ictoria, or does not make them available on time or in accordance with the agreements, or if the Client fails to fulfil its obligations in any other way, Ictoria shall be entitled to suspend the performance of the agreement in whole or in part, and Ictoria shall also be entitled to charge the costs arising from this in accordance with its usual rates, all of this without prejudice to the right of Ictoria to exercise any other statutory and/or agreed right.
8. If employees of Ictoria carry out work at the Client’s location, the Client shall ensure the facilities reasonably required by those employees, such as a workspace with computer, data and telecommunication facilities, free of charge. The work area and facilities shall comply with all statutory and other applicable requirements concerning working conditions.
9. All expenses incurred by Ictoria at the request of the Client shall be entirely at the expense of the latter, unless agreed otherwise in writing.
10. The Client shall indemnify Ictoria against any claims from third parties, including employees of Ictoria, who, in connection with the execution of the agreement, incur damage as a result of acts or omissions by the Client or of unsafe situations in its organisation. The Client shall make the house and security rules applicable within its organisation known to the employees deployed by Ictoria before the work commences.
11. If computer, data or telecommunication facilities, including internet, are used in the performance of the agreement, the Client is responsible for the correct choice of the resources required for this and for their timely and full availability, except for those facilities that are under the direct use and management of Ictoria. Ictoria shall never be liable for damage or costs on account of transmission errors, malfunctions or non-availability of these facilities, unless the Client proves that this damage or these costs are the consequence of intent or deliberate recklessness on the part of the Ictoria management.
Article 5. Delivery and deadlines
1. All (delivery) periods and (completion) dates named or agreed by Ictoria are determined to the best of its knowledge on the basis of the data that were known to it when it concluded the agreement. Interim (delivery) dates mentioned by Ictoria or agreed between the parties shall always be target dates, shall not be binding to Ictoria and shall always be of an indicative nature only.
2. Ictoria shall make reasonable efforts to observe final (delivery) dates and final (completion) dates as much as possible. Ictoria shall not be bound by any deadline (for delivery or otherwise) or deadline (for completion) dates that can no longer be met due to circumstances beyond its control that occurred after the agreement was concluded. Nor shall Ictoria be bound by any deadline or deadline for delivery or completion if the parties have agreed to change the content or scope of the agreement (additional work, change in specifications, etc.) or to change the approach to implementing the agreement. If there is a risk of any deadline being exceeded, Ictoria and the Client shall consult to discuss the consequences of the delay for further planning.
3. The mere fact that a (delivery) period or (completion) date mentioned by Ictoria or agreed between the parties, whether final or not, is exceeded shall not constitute a default on the part of Ictoria.
4. If during the execution of the agreement it appears that for a proper execution it is necessary to change or supplement the work to be done, the parties shall amend the agreement accordingly in good time and in mutual consultation.
5. If the agreement is amended or supplemented, Ictoria shall only be entitled to perform the agreement after the parties have agreed on all amendments and/or additions, including the time of completion of the work, remuneration and other conditions. Failure to execute the amended agreement, or failure to execute it immediately, shall not constitute default on the part of Ictoria and shall not be a ground for the Client to cancel or dissolve the agreement.
6. If Ictoria is unexpectedly unable to fulfil its obligations within an agreed fixed delivery period, Ictoria can only be declared to be in default in writing, whereby Ictoria is granted a period of at least 14 days to fulfil its obligations.
Article 6. Changes and extra work
1. If, at the request or with the prior consent of the Client, Ictoria has carried out work or rendered other performances that are outside the content or scope of the agreed work and/or performances, the Client shall pay for these work or performances in accordance with the agreed rates and, in the absence thereof, in accordance with the usual rates of Ictoria. Ictoria shall never be obliged to comply with such a request and may require that a separate written agreement be concluded for that purpose.
2. The Client accepts that work or performance as referred to in this article may affect the agreed or expected time of completion of the services and the mutual responsibilities of the Client and Ictoria. The fact that (the demand for) additional work arises during the execution of the agreement shall never be a ground for the Client to terminate or dissolve the agreement.
3. If a fixed price has been agreed for the services, Ictoria shall, if so requested, inform the Client in writing of the financial consequences of the additional work or performances as referred to in this article.
B. SPECIAL PROVISIONS
Article 7. Purchase and Sale
1. Ictoria shall sell the goods according to the nature and quantity as agreed in writing between the parties, as the Client buys from Ictoria.
2. The Client bears the risk of selecting the purchased goods. Ictoria guarantees that, upon delivery, the goods are suitable for normal use and meet the specifications agreed on in writing between the parties. Ictoria shall not guarantee that the goods are suitable for the use intended by the Client, unless the written agreement between the parties clearly and unreservedly specifies the intended use.
3. The agreement shall in any case not include assembly and installation materials, software, consumables, batteries, stamps, ink (cartridges), toner articles, cables and accessories, unless the parties have agreed this in writing.
4. Ictoria does not guarantee that the assembly, installation and use instructions accompanying the goods are error-free or that the goods have the properties stated in these instructions.
5. Delivery shall be made from the Ictoria warehouse, unless otherwise agreed in writing. Only if agreed in writing, Ictoria shall deliver the goods sold to the Client or shall have them delivered to a place designated by the Client. The delivery times indicated by Ictoria are always indicative.
6. Unless explicitly agreed otherwise, the purchase price of the goods shall not include the costs of transport, insurance, hoisting and lifting, hiring of temporary facilities, etc.
7. Ictoria shall pack the goods in accordance with its usual standards. If the Client requires a special method of packaging, the Client shall bear the additional costs thereof. The Client shall handle the packaging released by the goods delivered by Ictoria in a manner that is in accordance with the applicable government regulations. The Client shall indemnify Ictoria against any claims from third parties on account of non-compliance with such regulations. If the Client requests Ictoria to remove old materials (such as networks, cabinets, cable ducts, packaging materials, equipment) or if Ictoria is obliged to do so, Ictoria may accept this request by means of a written order at its usual rates, on the condition that said materials shall always remain the property of the Client.
8. The Client shall ensure an environment that complies with the requirements specified by Ictoria for the goods, where applicable, including with regard to temperature, air humidity and technical environment requirements.
9. If the parties have agreed to this in writing, Ictoria shall install the goods or have them installed, configure them or have them connected. Any obligation to install and/or configure equipment by Ictoria shall not include the performance of data conversion and the installation of software.
10. Ictoria shall always be entitled to execute the agreement in partial deliveries.
11. Ictoria shall only be obliged to make a trial installation in respect of the goods in which the Client has expressed an interest if this has been agreed in writing.
12. Ictoria may attach (financial) conditions to a trial.
13. The Client is liable for the use, damage, theft or loss of goods that are part of a trial installation.
Article 8. Transport
1. Goods ordered shall be shipped in a manner to be determined by Ictoria, but at the expense and risk of the Client, unless the parties have expressly agreed otherwise in writing.
2. Ictoria shall not be liable for any damage, of whatever nature and in whatever form, in connection with the transport, whether or not suffered by the goods.
3. The Client shall take out adequate insurance against the aforementioned risks.
4. The Customer guarantees good accessibility to the place of destination and/or unloading location and is responsible for the unloading and/or loading.
5. Loading and unloading will take place at the expense and risk of the Client.
6. Non-accepted orders or deliveries shall be stored by Ictoria, at the expense and risk of the Client, in accordance with the provisions of Article 5.
7. The Client is obliged to check the goods immediately after receiving them or after having completed the work. If the Client observes visible errors, imperfections and/or defects, the Client shall notify Ictoria thereof within 24 hours after receipt of the goods, followed by immediate written confirmation thereof to Ictoria.
Article 9. Maintenance agreements
1. Ictoria shall carry out the maintenance of the equipment mentioned in the agreement.
2. A maintenance agreement concluded between the parties shall not affect the responsibility of the Client for the management, including checking the settings, the use of the equipment and the manner in which the equipment is used. The Customer shall also be responsible for the instruction of and the use by users, regardless of whether these users are in a relationship of authority with the Customer.
3. Ictoria shall not accept any maintenance obligations for equipment that is not installed in the Netherlands, unless agreed otherwise in writing.
4. For as long as Ictoria has the equipment to be maintained in its possession, the Client shall not be entitled to temporarily replacement equipment.
5. The content and scope of the maintenance services to be performed by Ictoria and any associated servicelevels shall be laid down in a written agreement between the parties. In the absence of such an agreement, Ictoria shall be obliged to do its utmost to remedy, to the best of its ability, any malfunctions that the Client has duly reported to Ictoria, within a reasonable period of time.
6. In this article, “malfunction” shall be understood to mean that the equipment does not comply, or does not comply without interruption, with the specifications of the equipment expressly notified by Ictoria in writing. A malfunction shall only exist if the Client can demonstrate it and it can be reproduced. Unless otherwise agreed, Ictoria shall also be entitled, but not obliged, to carry out preventive maintenance.
7. Immediately after a malfunction has occurred in the equipment, the Client shall notify Ictoria thereof by means of a detailed description of the malfunction drawn up by an employee of the Client who is knowledgeable on the matter.
8. The Client shall provide all the cooperation required by Ictoria for the maintenance, including the temporary cessation of the use of the equipment. In the absence of the required cooperation, Ictoria may suspend or limit the maintenance.
9. Before offering the equipment to Ictoria for maintenance, the Client shall ensure that a complete and properly functioning back-up copy is made of all software and data recorded in or on the equipment. Any liability of Ictoria on account of mutilation or loss of data or software as a consequence of the maintenance or on account of failure to advise the Client to make a back-up copy is excluded.
10. The costs of investigating and rectifying faults that arise from connecting equipment not supplied by Ictoria or from installing software not supplied by Ictoria shall be borne by the Client.
11. Customer is responsible for the technical, spatial and telecommunications facilities required to allow the equipment to function. The maintenance will explicitly not extend to the aforementioned facilities and connections.
12. Work to investigate or repair faults that are the result of or are connected to user errors, improper use of the equipment or external causes, such as defects in communication lines, network connections or in voltage supplies, or connections with equipment, software or materials that are not covered by the maintenance agreement, shall not be part of Ictoria’s obligations under the maintenance agreement.
13. Nor shall the maintenance obligations of Ictoria cover the investigation or rectification of faults that are the consequence of, or are connected with, changes in, or related to modification of the equipment other than by or on behalf of Ictoria, the use of the equipment contrary to the applicable conditions and the failure of the Client to have the equipment maintained in good time.
14. Unless agreed otherwise, the maintenance obligations of Ictoria do not include investigation or repair of malfunctions that are a consequence of or that are related to software installed on the equipment.
15. If Ictoria carries out research and/or performs maintenance in connection with the provisions of the previous paragraphs, Ictoria may charge the costs of this maintenance in accordance with its usual rates.
16. Ictoria shall never be obliged to restore data that has been mutilated or lost as a result of malfunctions and/or maintenance.
17. Ictoria does not guarantee that the equipment to be maintained shall work without interruption or any other defects or that all defects shall be rectified.
18. The Client shall bear the risk of loss or theft of or damage to the equipment during the period that Ictoria has the equipment in its possession for the purpose of maintenance. If desired, the client shall take out its own insurance to cover this risk.
Article 10. Repair agreements
1. Unless agreed otherwise in writing, all repair work to be carried out by Ictoria shall be carried out at the applicable rate and all replaced parts and/or materials shall become the property of Ictoria.
2. If Ictoria replaces parts, whether or not in fulfilment of guarantee obligations, the replaced parts shall become the property of Ictoria.
3. Ictoria bears no responsibility whatsoever for the data on the goods offered for repair and the possible loss thereof.
Article 11. Prices and payment
1. All prices are exclusive of turnover tax (VAT) and other levies imposed or to be imposed by the government. Unless agreed otherwise, all prices shall be in euros and the Customer shall make all payments in euros.
2. All preliminary calculations and budgets issued by Ictoria are indicative only, unless Ictoria makes otherwise known in writing. The Client can never derive any rights or expectations from any preliminary calculation or budget issued by Ictoria. An available budget made known to Ictoria by the Client shall never be deemed to be a (fixed) price agreed between the parties for the performances to be carried out by Ictoria. Ictoria is only obliged to inform the Client of impending overrun of a preliminary calculation or budget issued by Ictoria if this has been agreed in writing between the parties.
3. Unless otherwise agreed, the maintenance price shall not include in the case of maintenance agreements
– the costs of (replacing) consumables such as batteries, stamps, ink (cartridges), toner articles, cables and accessories.
– the costs of (the replacement of) parts as well as maintenance services for the repair of faults that are caused in whole or in part by attempts to repair by third parties;
– work in connection with the complete or partial overhaul of the equipment
– modifications to the equipment;
– moving, relocating or reinstalling equipment or work resulting from this
4. Ictoria is entitled to change the rates. These changes shall be announced to the Client by e-mail, regular mail and/or through the Ictoria website at the latest two months before they take effect. The Client shall be entitled to terminate the agreement by the date on which the change takes effect, provided that the price change amounts to an increase.
5. The Client’s payment obligation shall commence on the day on which the agreement is concluded. The payment shall relate to the period starting on the day on which Ictoria actually makes goods and services available.
6. The fee payable in respect of the agreement is exclusive of VAT and any other levies arising from statutory regulations. The client shall also owe the remuneration that arises from these conditions.
7. The costs owed, depending on the period for which the agreement is entered into, shall be charged in advance, unless otherwise stated in the agreement, and must be paid in advance by invoice; if failing to do so, Ictoria shall be entitled to (temporarily) suspend the performance. The compensation for other costs shall be invoiced/collected in advance per agreed payment term.
8. Ictoria shall send the Client an invoice for the costs associated with the agreement by each payment deadline.
9. In the event of direct debit, the Client must ensure that sufficient funds are in its account.
10. In any event, payment must always be made within 14 days of the invoice date, in a manner indicated by Ictoria.
11. Ictoria is authorised – with regard to the fulfilment of the Client’s financial obligations – to demand advance payment or security from the Client before making any deliveries and/or commencing the activities.
12. If the Client fails to pay an invoice on time and/or in full, the Client shall be in default by operation of law and the following rules shall apply:
A. The Client shall then owe an interest of 2% per month or part of a month cumulatively calculated on the principal sum, unless the statutory commercial interest is higher, in which case the statutory commercial interest shall be due. The interest on the amount due and payable shall be calculated as from the moment the Client is in default until the moment of payment of the amount due in full. Parts of a month shall be treated as full months in this respect;
B. The Client shall, after being warned to do so by Ictoria, owe extrajudicial costs of at least 15% of the sum of the principal sum and the default interest, with an absolute minimum of € 150.00;
C. Ictoria shall be entitled to charge the Client an amount of at least € 20.00 for administration costs for every payment reminder, demand etc. sent to the Client. Ictoria shall state this in the agreement and/or on the invoice.
D. If the Client is in default or breach of contract regarding the (timely) fulfilment of its obligations, all reasonable costs incurred to obtain satisfaction out of court shall be borne by the Client. The extrajudicial costs are calculated in accordance with the calculation method of Rapport Voorwerk II.
13. The foregoing does not affect the Customer’s obligation to pay the agreed price or the price owed, as well as any storage costs and/or other costs.
14. If the Client fails to fulfil its payment obligations on time, Ictoria shall be entitled to suspend the fulfilment of its obligations to deliver or carry out work for the Client until payment has been made or sound security has been provided for this. The same applies, even before the moment of default, if Ictoria has a reasonable suspicion that there are reasons to doubt the creditworthiness of the Client.
D. DURATION OF AGREEMENTS
Article 12. Duration and termination of agreements
1. The Agreement shall be entered into for a definite period of time unless it follows from the nature of the assignment given that it has been entered into for an indefinite period of time.
2. The client and Ictoria are at all times entitled to terminate the agreement for an indefinite period by giving notice. A judicial intervention is not required for this. Such a termination shall be effected by registered letter and with due observance of a notice period of 1 (one) month.
3. The fixed-term agreement cannot be terminated prematurely unless there are urgent circumstances as a result of which the Client or Ictoria can no longer reasonably be required to continue the agreement of assignment. The other party must be informed of this in writing, stating the reasons. All this without prejudice to the obligation of the Client to pay the agreed fee in full.
4. If, in accordance with the preceding paragraphs, the Client terminates the agreement prematurely, either in full or in part, by mutual consent, Ictoria shall be entitled to compensation for the loss of capacity utilisation incurred by it and which can be demonstrated to have been incurred, as well as for additional costs that it has reasonably had to incur as a result of the premature termination of the agreement. This shall apply unless the premature termination is based on facts or circumstances that can be attributed to Ictoria.
5. If one of the parties is declared bankrupt, requests a suspension of payments or ceases its business operations, the other party shall be entitled to terminate the agreement without observing a period of notice, all this subject to the reservation of rights.
6. Ictoria is authorised to suspend the fulfilment of its obligations or to dissolve the agreement if:
– The Client fails to fulfil the obligations arising from the agreement, or fails to do so fully or in good time;
– After the agreement has been concluded, circumstances become known to Ictoria that give it good reason to fear that the Client will not fulfil its obligations;
– if, due to a delay on the part of the Client, Ictoria can no longer be required to fulfil the agreement on the originally agreed conditions.
7. Ictoria shall also be authorised to suspend the issuing of documents or other goods to the Client or third parties until all due and payable claims against the Client have been settled in full.
8. If progress in the execution or delivery of the work is delayed as a result of default by the Client or force majeure on its part, Ictoria may charge the full agreed amount, without prejudice to its right to claim further costs, damages and interest.
9. If the agreement is dissolved, the claims of Ictoria against the Client shall become immediately due and payable.
E. LIABILITY, FORCE MAJEURE AND GUARANTEE
Article 13. Liability
1. Ictoria shall carry out its work to the best of its ability, exercising the care that may be expected of it. If an error is made because the Client has provided it with incorrect or incomplete information, Ictoria shall not be liable for any damage resulting from this.
2. Ictoria shall not be liable for the security or misuse by third parties of the data that are stored or sent in connection with the Agreement.
3. In the event of an attributable failure to comply with the Agreement, Ictoria shall only be liable for substitute damages, i.e. compensation for the value of the performance that was not carried out.
4. The liability of Ictoria shall therefore be limited to the invoice value of the goods delivered or the fee received by Ictoria for its activities in the framework of the agreement. For agreements that have a term of more than six months, the liability shall be further restricted to a maximum of the payment for the last six months.
5. Furthermore, Ictoria’s liability shall be limited in its totality to the amount that is paid out in the relevant case under the professional and business liability insurance taken out, increased by the amount of the excess.
6. The aforementioned limitations of liability shall not apply if there is evidence of gross negligence or intent on the part of Ictoria or its managers.
7. Ictoria shall not be liable for persons engaged by Ictoria on the instructions of the Client.
8. If there is any liability, Ictoria shall only be liable for direct damage. Ictoria shall not be liable for any other direct, indirect and/or consequential loss (including but not limited to loss of profit, costs incurred as a result of business interruption, loss of business relations, inter alia as a result of any delay, loss of data, goodwill, failure to meet a delivery deadline and/or any established defects) other than direct financial loss suffered by the Client.
9. The Client shall be obliged to notify Ictoria in writing of any inaccuracy in the performance of the agreement and any damage risk, whether or not resulting therefrom, within 2 months after the Client has detected or reasonably could have detected such inaccuracy.
10. If the notification referred to in the previous paragraph is not made or is made too late, Ictoria shall not be obliged to the Client in any way whatsoever to undo the damage suffered in a way that is appropriate and in keeping with the content of the order and the nature of the work.
11. The Client shall indemnify Ictoria against all claims that third parties might make or exercise against Ictoria for compensation of damage suffered, costs incurred, loss of profit and other expenses that are in any way connected to and/or result from the implementation of the assignment by Ictoria.
12. Ictoria shall never be liable for damage that arises from work that the Client has instructed it to carry out that is contrary to the standard guidelines that are customary in the ICT sector.
13. After a period of 24 months, counting from the day on which the advice is provided, any right of the Client vis-à-vis Ictoria to compensation for damage arising from any shortcomings and/or errors by Ictoria in the execution of the agreement shall lapse.
Article 14. Force majeure
1. Force majeure with respect to the agreement shall be understood to mean all that is understood in this respect in the law and in case law.
2. Ictoria shall not be bound by its obligations under the agreement if fulfilment has become impossible due to force majeure. The agreement shall then be dissolved.
3. These circumstances shall in any event include, but not be limited to: obligations imposed by the government that have consequences for the provision of services via the internet, malfunctions in systems that are part of the internet, malfunctions in telecommunications, infrastructure, computer burglary and failure of electricity supplies. This provision applies not only in respect of Ictoria, but also in respect of the hosting provider engaged by Ictoria.
4. Ictoria may suspend its obligations under the agreement for the period that the force majeure continues. If this period lasts longer than two months, each of the parties shall be entitled to dissolve the agreement without any obligation to pay compensation for damage to the other party.
5. Insofar as Ictoria has partially fulfilled its obligations arising from the agreement at the time of the force majeure event or shall be able to fulfil them and insofar as independent value can be attributed to the part that has been or shall be fulfilled, Ictoria shall be entitled to separately invoice the part that has been or shall be fulfilled respectively. The Client is obliged to pay this invoice as if it were a separate agreement.
6. If the Client should fail to fulfil its obligations towards Ictoria promptly in any way whatsoever, or in the event of a cessation of payments, an application for (temporary) suspension of payments, bankruptcy, attachment under a court order, cession of assets or liquidation of the Client’s business, all that which the Client owes Ictoria by virtue of any contract shall become immediately due and payable.
Article 15. Guarantees and complaints
1. The guarantee to be given by Ictoria for delivered goods is limited to the guarantee given by the manufacturer or importer concerned, unless agreed otherwise in writing.
2. Without prejudice to the previous paragraph, Ictoria shall, to the best of its ability, endeavour to repair any defects in material and workmanship in the goods delivered by Ictoria and in parts that Ictoria has delivered in connection with the guarantee or maintenance, within a reasonable period and free of charge, if these defects have been reported to Ictoria, described in detail, within a period of two (2) weeks from discovery but no later than two (2) months from delivery.
3. If, in the reasonable opinion of Ictoria, repair is not possible, or if repair will take too long, or if disproportionately high costs are involved, Ictoria shall be entitled to replace the equipment with other, similar but not necessarily identical, equipment free of charge.
4. Data conversion that is necessary as a result of repair or replacement is not covered by the guarantee.
5. All replaced parts become the property of Ictoria.
6. The guarantee obligation shall lapse if the material or manufacturing defects are wholly or partially the result of incorrect, careless or inexpert use, external causes such as fire or water damage, or if the Client makes changes or has changes made to the equipment or to the parts that are supplied by Ictoria in connection with the guarantee or maintenance without permission from Ictoria.
7. Ictoria shall have no obligation to make repairs for faults reported after the expiry of the guarantee period referred to in this article, unless the parties have concluded a maintenance agreement that includes such an obligation to make repairs.
8. In the event of a consumer purchase, Article 7:5 of the Civil Code shall apply if one of the previous paragraphs is contrary to this.
9. Ictoria shall never be obliged to restore mutilated or lost data.
10. Ictoria shall not be obliged to rectify faults that have been reported after the guarantee period has expired, unless the parties have concluded a separate maintenance agreement that includes such a duty to rectify.
11. Ictoria shall charge work and repair costs outside the scope of this guarantee in accordance with its usual rates.
12. The Client must notify Ictoria in writing of any complaints about the services provided in any case within 14 days of their discovery, but no later than within 30 days of the delivery of the service concerned. The notice of default must contain a description of the shortcoming that is as detailed as possible, so that Ictoria is able to respond adequately.
13. If a complaint is well-founded, Ictoria shall still provide the services as agreed, unless this has meanwhile become demonstrably pointless for the Client. The Client must indicate this in writing.
14. If it is no longer possible or meaningful to still perform the agreed work or to deliver goods, Ictoria shall only be liable within the limits of Article 12.
F. OTHER PROVISIONS
Article 16. Confidentiality and takeover of staff
1. Unless any statutory provision, regulation or other rule obliges it to do so, Ictoria is obliged to observe secrecy towards third parties in respect of confidential information obtained from the Client. The Client may grant an exemption in this respect. Information shall be considered to be confidential if the other party has indicated this or if this follows from the nature of the information.
2. Except with the written permission of the Client, Ictoria is not entitled to use the confidential information made available to it by the Client for any other purpose than that for which it was obtained. However, an exception shall be made if Ictoria acts on its own behalf in disciplinary, civil or criminal proceedings in which this information may be important.
3. During the term of the agreement and for one year following the termination thereof, each of the parties shall only take on employees of the other party who are or were involved in the execution of the agreement, or otherwise allow them to work for it, directly or indirectly, with the prior written permission of the other party. Such permission may be subject to conditions.
Article 17. Retention of title and right of retention
1. All goods created or delivered by Ictoria in the context of the agreement remain the property of Ictoria until the amounts owed by the Client have been paid in full.
2. Rights, including rights of use, are granted or transferred to the Client on the condition that the Client has paid all the amounts owed under the agreement concluded between the parties in full. If the parties have agreed on a periodic payment obligation for Customer for the granting of a right of use, Customer shall have the right of use for as long as he meets his periodic payment obligation.
3. Ictoria may retain the goods, products, property rights, data, documents, software, data files and (interim) results of the services of Ictoria received or generated in the framework of the agreement, despite an existing obligation to surrender or transfer, until the Client has paid all amounts owed to Ictoria.
Article 18. Intellectual property
1. All intellectual and industrial property rights to the software, websites, data files, equipment or other items developed or made available by virtue of the Agreement are vested exclusively in Ictoria. The Client only receives the rights of use that are expressly granted in these Conditions and by law. Any other or further right of the Client to reproduce software, websites, data files or other materials is excluded. A right of use to which Customer is entitled is non-exclusive and non-transferable to third parties.
2. The Customer is not permitted to remove or change any designation concerning the confidential nature or concerning copyrights, brands, trade names or other intellectual or industrial property rights from the software, websites, data files, equipment or materials.
3. Ictoria retains all rights to and in relation to the intellectual property associated with the goods it uses or has used in the performance of the Agreement.
4. The Client is not permitted to make these items available to third parties, other than to obtain an expert opinion about Ictoria’s work.
5. Ictoria is also entitled to use the knowledge it has acquired through the performance of an Agreement for other purposes, to the extent that no strictly confidential information of the Client is brought to the attention of third parties in the process.
6. In the event of infringement of the provisions of this article, the Client shall forfeit a penalty of EUR 5,000 for each infringement or for each day, including part of a day, without prejudice to any other rights that Ictoria may enforce.
Article 19. Applicable law and conditions
1. All agreements between the Client and Ictoria shall exclusively be governed by Dutch law. The possible applicability of the Vienna Sales Convention is excluded.
2. All disputes related to or arising from the interpretation and/or fulfilment of the assignment agreement shall be submitted to the competent Dutch court, although Ictoria shall be entitled to bring the matter before the competent court in the place where Ictoria has its registered office, unless the subdistrict court is authorised to do so.
3. These terms and conditions have been filed with the Chamber of Commerce and shall be sent by Ictoria free of charge on request. The terms and conditions can also be consulted and saved on the Ictoria website.
4. The most recently filed version or the version that applied at the time the legal relationship with Ictoria was established shall always apply.
5. The Dutch text of the general terms and conditions shall always be decisive for the interpretation thereof.
6. As regards disputes arising from an agreement concluded with a Client who is established outside the Netherlands, Ictoria is entitled to act in accordance with the provisions of paragraph 2 of this article or – at its discretion – to submit the disputes to the competent court in the country or the state where the Client is established.
Article 20. Bankruptcy, Dispossession, etc.
1. Without prejudice to the provisions of the other articles of these terms and conditions, the agreement concluded between the Client and Ictoria shall be dissolved without any judicial intervention and without any notice of default being required, at the time when the Client is declared bankrupt, applies for a (provisional) moratorium, loses the power of disposition and/or legal capacity with regard to its assets or parts thereof due to attachment, placement under guardianship or otherwise, unless the guardian in the bankruptcy or the administrator in the (provisional) suspension of payments acknowledges the obligations arising from the agreement as estate debt.