Termos de uso

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General terms and conditions of delivery and payment of PubliQare B.V. registered at the Chamber of Commerce in Utrecht under registration number 32112011.

General provisions

Article 1: Definitions and applicability

  1. User: PubliQare B.V, with its registered office in Amersfoort (The Netherlands) and its principal place of business at Plesmanstraat 29, 3905 KZ in Veenendaal (The Netherlands).
  2. Other party: every natural or legal person who has given the user an assignment. An ‘other party’ is also understood to mean anyone who wishes to give or gives the user an assignment, wishes to purchase or purchases software from the user, wishes to hire or hires software from the user or wishes to conclude or concludes an agreement of any other nature with the user.
  3. Work: all the work, including services, which have been assigned or which are performed by the user for some other reason, all this in the broadest sense, and in any case constituting the work as stated in a relevant offer or all the work that could be useful for an assignment that has been given.
  4. Software: software developed by the user, whether or not based on an assignment from the other party, or software from third parties which is supplied by the user (hereinafter referred to as ‘standard software’).
  5. These general terms and conditions apply to all legal relationships, including agreements and offers (both verbal and written) between the user and the other party, irrespective of the capacity in which the other party acts. Unless provided otherwise below, all such legal relationships will hereinafter be referred to as ‘agreements’.
  6. The general terms and conditions also apply to all agreements of the user for the execution of which third parties must be engaged.
  7. These general terms and conditions also apply to all legal relationships between the other party and any party affiliated with the user, such as a subsidiary, sister or parent company. In that case, ‘user’ or ‘other party’ in these general terms and conditions is understood to mean the relevant affiliated party.
  8. The applicability of any terms and conditions of the other party is explicitly rejected.
  9. The user will not be bound by any agreements with personnel and/or third parties regarding the applicability of these general terms and conditions of the user or otherwise, unless the user has confirmed in writing that it considers itself bound by these agreements.
  10. Any departures from these general terms and conditions are solely permitted in so far as they have explicitly been agreed on, in writing. The terms and conditions not departed from explicitly and in writing will remain in full force. Any departure from these terms and conditions will solely apply to those cases specifically provided for in that agreement, unless explicitly agreed otherwise, in writing.
  11. In the event that any provision of these general terms and conditions is invalid, it will be deemed to have been replaced by a provision, to be regarded as valid, which is as close as possible to the invalid provision. This also applies to provisions which the user cannot rely on for other reasons. Any provision of these terms and conditions that is invalid or can be declared null and void will not affect the validity of the other general terms and conditions.
  12. In the event that these terms and conditions have been drawn up in a language other than the Dutch language and any part of this translation conflicts with the Dutch text, the Dutch text will prevail where this part is concerned.
  13. The user is entitled to make amendments to these general terms and conditions. These amendments will come into force on the date specified for them to come into force. The user will, in so far as reasonably possible, send the amended general terms and conditions to the other party in good time. If a date for coming into force has not been specified, the amendment will come into force as regards the other party as soon as the other party has been informed of the amendment.

Article 2: Offers

  1. All offers of the user are subject to contract, unless explicitly agreed otherwise.
  2. In the event of an offer subject to contract, which is accepted by the other party, the user will have the right to withdraw this offer within two working days of receiving the acceptance.
  3. The mere giving of a quotation, estimate or similar communication by the user, whether or not referred to as an offer, will not oblige the user to conclude an agreement.
  4. In the event that any reservation or any change is made to the offer in the other party’s acceptance, the agreement will only be concluded if and as soon as the other party has received written confirmation from the user that it agrees to this departure from the terms of its offer. This agreement will, however, never be deemed to refer to any applicability of general terms and conditions applied by the other party.
  5. Any models, pictures and descriptions enclosed, shown or referred to in offers in principle merely provide a general representation of the software or work offered. Changes as a result of which the actual performance differs from the aforementioned models, pictures or descriptions but as a result of which no essential change is made to the technical and functional performance of the software or work do not oblige the user to pay any compensation and do not give the other party the right to refuse to accept or to suspend the receipt of or payment for the software and/or work performed by the user or to give notice of termination of and/or terminate the agreement.

Article 3: Agreements

  1. A verbal or written order or assignment will be binding on the other party. The user will be bound by an assignment by signing an offer. At such time the agreement between the parties will be concluded.
  2. If the other party fails to make its objections against the offer or its content known within eight days of the offer having been signed, the offer will be deemed to be a correct and full representation of the content of the agreement.
  3. Any changes to the performance of the agreement required by the other party after the offer has been sent must be made known to the user by the other party in good time and preferably in writing. If the changes are communicated verbally, the risk regarding the implementation of the changes will be borne by the other party, unless the changes have been confirmed by the user in writing.
  4. Higher costs in connection with changes to the agreement, of whatever nature, will be charged additionally to the other party. The costs of these changes can be communicated to the other party by the user verbally and also in writing. Acceptance of the changes by the other party can be communicated verbally and also in writing.
  5. The user will endeavour to execute the agreement carefully, to represent the interests of the other party to the best of its ability and to achieve a useable result for the other party. Insofar as necessary or if stated in the agreement, the user will keep the other party informed of the progress of the work.
  6. The user reserves the right to perform more work if this work is in the interests of the other party and/or necessary for the proper performance of the agreement. The other party will be informed of the performance of this additional work as soon as possible. The costs of this additional work will be borne in full by the other party.

Article 4: Prices

  1. Quotations are always given based on the prices applicable at such time as the offer is made and will be in euros. The prices quoted are exclusive of VAT and expenses and exclusive of any other government levies, unless explicitly stated otherwise.
  2. Changes to prices quoted, without prior notification and after the confirmation of the agreement has been sent to the other party by the user, are explicitly subject to amendment.
  3. Any discounts will be on a case-by-case basis and will not bind the user as regards other agreements.
  4. The user will be entitled to increase the agreed price (also if a fixed price has been agreed on) if one or more of the following circumstances should arise after the agreement has been concluded: an increase in the costs of software, maintenance costs or services required for the performance of the agreement (including the services of third parties engaged by the user), an increase in postage/shipping costs, in wages, employer’s contributions, social security, the costs involved in other employment conditions, the introduction of new and/or an increase in existing government levies, import and export duties or other levies and/or taxes at home and abroad or, in general, any comparable circumstances. If such a circumstance should arise, the user will be entitled to increase the agreed price in proportion to the relevant increase.
  5. If such a situation as referred to above were to arise, the prices and/or rates previously agreed on or applied will not be binding on the user, unless they are explicitly agreed on, in writing, in a subsequent agreement. In the event of any price changes, the user will inform the other party as soon as possible.

Article 5: Engaging third parties

The user is entitled to engage third parties for the performance of the agreement.

Article 6: Delivery

  1. Delivery of products and services will take place in proper consultation with the other party.
  2. All delivery times given by the user are approximate only.
  3. The delivery time will commence as soon as the confirmation of the agreeement has been sent and, in addition, any and all information required in the user’s opinion has been provided to the user by the other party. In the event that the other party is of the opinion that a delivery time is a strict deadline, the user will not be in default until it has been declared so in writing and it has been granted a reasonable term for compliance.
  4. The user will notify the other party as soon as possible if the date of completion of the work will be affected by an amendment or addition to the agreement.
  5. If payment in instalments has been agreed on and the first instalment becomes due when the agreement has been signed by both parties, the actual delivery will not need to take place until after the first instalment has been received.
  6. Only if the delivery date has been exceeded to such an extent that it cannot reasonably be expected of the other party that it continues to uphold the agreement will the other party have the right to cancel the relevant agreement, without prejudice to the user’s right as yet to carry out the relevant agreement within four weeks of receipt of the aforementioned notification. The other party may demand that the user notifies it in writing regarding whether or not the user wishes to exercise this right.
  7. Every partial delivery, which is also understood to mean the delivery of parts of a composite agreeement, may be invoiced by the user, in which case this partial delivery will be regarded as a separate transaction. In such a case payment must be made in accordance with the provisions of Article 8.
  8. If it proves impossible to deliver software to the other party or to perform the work to be performed due to a cause that lies with the other party, the user reserves the right to charge the resulting costs incurred back to the other party. The user will inform the other party of this in writing and will at such time also specify a reasonable term in which the other party must enable the user to resume the work.
  9. In the event that the other party continues to fail to comply with its obligations, even after expiry of the reasonable term specified by the user as provided for in the preceding paragraph of this article, the other party will be in default through the mere expiry of 1 (one) month, calculated from the date on which the performance of the work to be performed was impeded, and the user will have the right to terminate all or part of the agreement in writing and with immediate effect, without any prior or later notice of default, without judicial intervention and without being obliged to pay compensation for any damage or loss, costs and interest.
  10. The foregoing does not affect the other party’s obligation to pay the agreed price or the price due and payable and any additional costs.

Article 7: Progress and performance of the work

  1. When deliveries or work cannot take place normally or without interruption due to causes that do not lie with the user, the user will have the right to charge the other party the ensuing costs, including travel and subsistence expenses.
  2. In the event that it becomes apparent, during the performance of the work by the user, that this cannot be performed, either as a result of a failure attributable to the other party or as a result of force majeure or the actions or omissions of third parties, the user will have the right to demand that the assignment given to the user be changed in such a way that the work can be performed, unless this will never be possible as a result of the unknown circumstances or force majeure. In that case the user will be entitled to full compensation for the work already performed and the costs already incurred by the user.
  3. All expenses incurred by the user at the other party’s request will be payable in full by the latter, unless agreed otherwise in writing.

Article 8: Payment

  1. Payment by the other party must be made by transferring the invoice amount to the bank account(s) of the user within the term specified on the invoice sent by the user. The invoice number must be quoted when the payment is made.
  2. The user will at all times have the right, despite the payment terms agreed on, to demand advance payment or payment in instalments or security for the payment.
  3. Payments made by the other party will always first be applied to settle all interest and costs payable and subsequently to settle those invoice amounts due and payable which have been outstanding for the longest period, even though the other party has stated that the payment relates to an invoice of a later date, and finally to settle the most recent invoice sent by the user.
  4. Setoff, discount or suspension by the other party, for whatever reason and however named, is excluded.
  5. In the event that any agreed payment terms are exceeded, in the event of liquidation, insolvency, suspension of payments or application of the statutory debt rescheduling/management scheme to the other party, the liabilities of the other party will become immediately due and payable. In the event that the payment terms are exceeded, the user will furthermore have the right, at its discretion, to suspend the performance of its obligations or to terminate the agreement.
  6. The user will also have the right to suspend its obligations or terminate the agreement if the user has reasonable reasons to suspect that the other party will not comply with its obligations.
  7. In the event that the other party should, in any manner whatsoever, continue to fail in respect of the user to comply promptly with its obligations, in the event that payments cease, in the event of a suspension of payments, provisional or otherwise, or in the event that a winding-up petition or bankruptcy is applied for, in the event of seizure under a warrant of execution, assignment of the assets/estate or winding-up of the company of the other party, all that which the other party owes the user on account of any contract whatsoever will become immediately due and payable in full.
  8. In the event that a payment term is exceeded and also if the other party fails to comply with one or more of its obligations, the other party will, without any notice of default being required,
    1. be obliged to pay contractual interest of 2% a month from the due date. Parts of a month will be regarded as a whole month. In the event that the statutory commercial interest in a particular period is higher than the contractual interest agreed on, the statutory commercial interest will be payable for this period instead of the contractual interest;
    2. be obliged to pay, in full, the judicial costs and extrajudicial costs, irrespective of whether these costs have actually been incurred. The extrajudicial costs are 15% of the principal, with a minimum of EUR 200. ‘Judicial costs’ include all the costs involved in collecting the debt, such as (but not limited to): bailiff’s costs, lawyer’s fees, costs for precautionary measures and preliminary relief, legal costs and costs involved in filing a winding-up or bankruptcy petition;
    3. owe an amount of at least EUR 20 for administrative costs for each payment reminder, demand and the like sent to the other party.

Article 9: Defects and complaints

  1. Immediately after the delivery of software and work, the other party will be obliged to assess the soundness of what has been delivered.
  2. Any complaints must be lodged in writing, by registered post and within eight calendar days of the delivery or performance of the assignment, at the risk of all rights being forfeited.
  3. Any defects involving part of the delivery or performance will not entitle the other party to reject the entire performance delivered.
  4. The other party must enable the user to investigate the complaint and, if required, to take measures to diminish the damage or loss. In the event that the user is not given sufficient opportunity to repair any defect that has arisen, all the ensuing costs, damage or loss will be borne by the other party.
  5. A complaint regarding software or work will not suspend the other party’s payment obligation.
  6. In the event that the periods referred to in this article must be regarded as short, even for a careful and alert other party, according to obvious standards of reasonableness and fairness, these periods will automatically be extended to at the most the first date on which the investigation or notification of the user is reasonably possible for the other party.
  7. The performance by the user will in any case be deemed to be sound if the other party has put all or part of that which has been delivered into use, unless the other party has complied with the provisions of the first paragraph of this article.
  8. In the event that the nature and/or composition of the software has changed, every right to lodge a complaint will lapse.

Article 10: Liability and guarantee

  1. The user will not bear any liability for any damage or loss, however named and however caused, other than as a result of an intentional act or gross negligence, to be proved by the other party. A similar limitation applies in respect of personnel and/or third parties engaged by the user in the performance of the work.
  2. In the event of liability, the user will never be obliged to pay a higher amount of compensation than the part of the invoice amount (excluding VAT) paid by the other party which relates to the delivery that has resulted in the liability, or a proportionate part thereof. Compliance with this provision will be regarded as sole and full compensation.
  3. In the event that the user has taken out insurance against the relevant damage or loss, its liability will be limited to the amount that will be paid out by the insurance company in the relevant case under the terms of the policies, less the excess.
  4. The user will never be obliged to pay the other party or third parties any compensation for any consequential damage or loss, such as loss consisting of lost profits or reduced income of the other party and/or of third parties.
  5. The other party will indemnify the user against all damage, loss or injury caused to third parties or property of third parties by or in connection with the software delivered to the other party or work performed for the other party by the user.
  6. The user will not be responsible for any defects occurring after delivery of the work and/or software as a result of incompetent use or lack of due care.
  7. Claims for compensation must be made known to the user by the other party in writing by registered letter, stating the amount of the loss, within three months of the damage or loss having been discovered or when it ought reasonably to have been discovered, at the risk of all rights being forfeited.
  8. The other party will forfeit its rights in respect of the user and will be liable for all damage or loss and will indemnify the user against any claims by third parties concerning compensation if and in so far as:
    1. the aforementioned damage or loss was caused through use by the other party of the software delivered that was inexpert and/or contrary to the instructions of the user or of a third party on behalf of the user;
    2. the aforementioned damage or loss was caused by the other party not acting in accordance with the instructions and/or advice given by the user or a third party engaged by the user;
    3. the aforementioned damage or loss was caused by mistakes or inaccuracies in information, materials, information carriers and the like provided and/or prescribed to the user by or on behalf of the other party;
    4. the aforementioned damage or loss was caused by instructions of the other party to the user;
    5. the aforementioned damage or loss was caused by the other party or a third party instructed by the other party carrying out work to that which has been delivered, without the user’s prior written permission.
  9. The user guarantees the customary normal quality and soundness of that which has been delivered.

Article 11: Force majeure

  1. ‘Force majeure’ is understood to mean circumstances that prevent the performance of the obligation and that are not attributable to the user.
  2. In the event of force majeure, the user will have the right to terminate the agreement concluded between the parties or to suspend the performance of its obligations towards the other party for a reasonable period, to be determined by the user, without being obliged to pay any compensation whatsoever. Should the aforementioned situation arise when the agreement has partially been performed, the other party will be obliged to comply with the obligations the other party has towards the user until that point in time.
  3. Circumstances which do not constitute an attributable failure to perform include: war, riot, mobilization, civil commotion at home and abroad, government measures, strikes and/or illness of personnel and lockouts by personnel in the company of the user and/or of third parties engaged by the user and/or of its suppliers, or if these and similar circumstances are imminent, general traffic problems, a general lack of the required software or services required to deliver the agreed performance, changes in exchange rates applicable on conclusion of the agreement, operational failures due to a fire, an accident or other incidents and natural phenomena, extreme and/or unexpected weather conditions, all of which irrespective of whether the failure to perform or to perform within the specified time takes place at the user, its suppliers or third parties engaged by the user in the performance of the obligation.

Article 12: Retention of title and right of retention

  1. All software delivered or to be delivered by, on behalf or at the risk or expense of the user under the terms of whatever agreement will remain the inalienable property of the user or the party who owns this software until the other party has made all payments in consideration for the software delivered or to be delivered by the user in accordance with the terms of any agreement and for work performed or to be performed for the transferee in accordance with the terms of such agreement, as well as all payments on account of any failure to perform such agreements, including payments of compensation, penalties, interest and costs.
  2. The other party will not be permitted to dispose of or encumber or allow third parties to use (under whatever title) the software delivered by the user.
  3. The other party will be obliged, if so requested and if required by the circumstances, to inform third parties of the user’s retention of title.
  4. The other party may not remove any proprietary notices.
  5. In the event that the user relies on the retention of title, the relevant agreement concluded will be deemed to have been terminated, without prejudice to the user’s right to compensation for damage or loss, lost profit and interest.
  6. The other party will be obliged to inform the user immediately in writing of the fact that third parties lay claim to software that, in accordance with the provisions of this article, are subject to retention of title.
  7. In the event that the other party fails to comply with any of its/his obligations arising from any agreement, the user will be entitled to exercise its right of retention in respect of all the software it holds, including the software handed over to it in connection with a guarantee claim.

Article 13: Intellectual Property Rights

  1. All intellectual property rights ensuing from the agreement, including patent rights, design rights and copyrights, will be vested in the user, unless agreed otherwise by the parties in writing. Insofar as such a right can only be acquired through filing or registration, only the user will be entitled to do so.
  2. The user guarantees that standard software delivered by it will as such not infringe any international patent rights, design rights or other industrial or intellectual property rights of third parties. In the event that it must nevertheless be acknowledged by the user or established by a court, in a judgment no longer open to appeal, that any standard software delivered by the user do indeed infringe any rights of third parties as referred to above, the user will, at its discretion after consulting the other party, replace the software concerned by software that does not infringe the right in question or acquire a licensing right in this respect or take back the standard concerned on repayment of the price paid for such standard software, less the depreciation considered to be normal, without being obliged to pay any further compensation in this respect. The other party will, however, lose the entitlement to the performances referred to above if the other party has not informed the user in good time and fully of any claims of third parties, as referred to above in this provision, in such manner that the user will be able to defend its rights in this respect in a proper manner.
  3. The user will indemnify the other party against any action brought by third parties which is based on the keeping of software developed by the user, if and in so far as the developed software infringes any copyright applicable in the Netherlands. The user will pay the costs and compensation irrevocably determined in the final judgment, provided that the other party notifies the user immediately in writing and leaves the handling of the matter exclusively to the user and renders every assistance in this respect. In the event that any action has been brought or if the possibility exists that this will be done, the user may replace the software or modify it as deemed proper by the user.
  4. The ownership of and all industrial and intellectual property rights in respect of standard software are and remain vested in the user or the original maker. The other party may not remove any proprietary notices. In order to protect the rights of the user, the other party will ensure that standard software is kept secret and is not made known to third parties.
  5. The user is permitted to take technical measures to protect its rights. The other party is aware of the possibility that software or other material that has been made available may contain confidential information and business secrets of the user.

Article 14: Termination and cancellation by the other party

  1. The other party waives its right to terminate the agreement.
  2. Cancellation by the other party is only possible if the user gives its consent thereto. In that case, the other party will be obliged to pay the user an amount equivalent to at least 30% of the agreed price and to reimburse all the costs incurred by the user in this respect.
  3. The other party will furthermore be liable towards any third parties engaged for the performance of the agreement for any consequences of the cancellation. The other party will indemnify the user in this respect.
  4. Any amounts already paid by the other party will not be refunded.

Article 15: Confidentiality

  1. The parties are obliged in respect of one another to keep confidential any and all information they have obtained from each other or from another source, in connection with the conclusion and performance of the agreement, which they ought to have presumed or can presume must have been or must be kept confidential. Information is deemed to be confidential if one of the parties has announced this or if this follows from the nature of the information. This confidentiality may only be breached with the written permission of the party concerned and/or in accordance with a statutory duty.
  2. Each party will take all reasonable precautions to ensure that the confidential information received from each other is kept confidential.
  3. Everything made available to the user by the other party in connection with the services and work to be performed by the user will irrevocably remain the property of the other party. The user guarantees that all the software, information carriers and information will only and exclusively be used by the user in connection with the performance of the agreement concluded between the parties.
  4. The parties guarantee that their personnel and other persons involved in any manner whatsoever, under their supervision, in the performance of the agreement will comply with the obligation of confidentiality as referred to in this article.
  5. The user undertakes to return to the other party all the software, information carriers and information made available, immediately, without delay and unconditionally, within 5 working days of a request thereto by the other party.

Article 16: Cooperation of the other party

  1. On account of the necessity that the other party cooperates in the performance of the agreement, the other party must always provide the user, in good time, with any and all useful, necessary and relevant data or information.
  2. The other party will be responsible for the proper use and proper application of the software delivered and also for the proper protection thereof. The other party will indemnify the user against any claims by third parties concerning information provided by the other party.
  3. In the event that it has been agreed that the other party will make available equipment, materials or information on information carriers, these must comply with the specifications necessary for the performance of the work.
  4. In the event that the information necessary for the performance of the agreement is not available to the user or not available in good time or in accordance with the agreements or in the event that the other party fails to comply with its obligations in this respect in some other manner, this may result in the suspension of the performance of the agreement and additional costs, based on the user’s usual rates, may be charged.

Article 17: Suspension and termination

  1. In the event that the other party fails to comply promptly and/or fully with any obligation whatsoever arising for it from the agreement or if it should become apparent during the performance of an assignment or at the end thereof that the other party has provided incorrect information or has withheld information or if the other party’s liquidation has been ordered or it has been declared bankrupt, or if the other party has applied for a suspension of payments or statutory debt management/adjustment or if the other party offers its creditors or some of them a settlement or composition or all or part of its assets have been seized, or if the other party proceeds to sell or wind up its business, or if the other party dies, is placed under guardianship or in some other manner loses the right to dispose of or manage all or part of its business or goods, the user will have the right to suspend the performance or further performance of all its obligations or the performance of the agreement in respect of the other party or to regard the agreement or agreements with the other party as wholly or partially terminated, without any notice of default and/or judicial intervention being required in this respect, while retaining its right to compensation.
  2. Should a circumstance as referred to in paragraph 1 arise, the user will also have the right to take back any software it has delivered and which have been left wholly or partly unpaid, by taking this software away from the other party at the other party’s expense. The other party will be obliged to render the user every assistance necessary in this respect, which must in any case be understood to mean the giving of permission to the user or to a third party designated by the user to obtain access to the location where the software is, without prejudice to the user’s right to compensation.

Article 18: More other parties; more signatories

In the event that several other parties have concluded an agreement together or several persons have signed an agreement with the user, each of them will be jointly and severally liable for each obligation of the other parties ensuing from such agreement.

Article 19: Applicable law and competent court

  1. All offers, quotations and agreements will be governed by Dutch law. Applicability of the Vienna Sales Convention is explicitly excluded.
  2. Any disputes which may arise as a result of an agreement concluded or yet to be concluded between the parties or any ensuing agreements will be settled by the court within whose jurisdiction the user has its registered office.

Specific provisions

The General Provisions of these terms and conditions apply in full. In the event of conflict between the General Provisions and the Specific Provisions and/or in the event of explicit departures from the General Provisions, the Specific Provisions will prevail.

Development of software

The following provisions will apply if the user develops customized software specifically for the other party. ‘Software’ is understood to mean the computer programs recorded on material that can be read by a computer and the related documentation.

Article 20: Development of software

  1. Which software will be developed and in what manner will be specified in writing. The user will carry out this software development with due care and based on the information provided by the other party, which the other party will guarantee to be correct and complete.
  2. If it has been agreed that the software development will take place in stages, the user may postpone the commencement of the work belonging to a following stage until the other party has approved the results of the previous stage in writing.
  3. The other party may make unlimited use of the software/stages delivered by the user, if and in so far as the relevant invoices sent have been paid.

Article 21: Delivery and acceptance

  1. The user will deliver the software to be developed to the other party ready for use, in accordance with the specifications drawn up in this respect.
  2. If this has been agreed in writing between the parties, the other party will be entitled to test the software for a period of fourteen (14) days after delivery. This acceptance test will consist of the carrying out of a collection of test cases put together by the other party, which will be made available to the user in good time before the turnkey delivery.
  3. As soon as it becomes apparent when the acceptance test is being carried out that the software has defects that impede the progress of the acceptance test, the other party will notify the user of this in writing and in detail, in which case the test period will be interrupted until the user has repaired the defects.
  4. If it becomes apparent when the acceptance test is being carried out that the software has defects and does not comply with the specifications laid down in writing, the other party will declare the user in default in writing immediately after the test period has ended and inform the user of the defects in a written and detailed acceptance report. The user will in that case repair the reported defects. The repairs will be carried out free of charge if the software was developed for a fixed price. In all other cases, the user will charge the other party the costs involved in the repairs.
  5. The user will not be obliged to repair, free of charge or otherwise, any defects caused by the other party itself, by third parties or due to altered circumstances which the user was not or ought not to have been aware of when the agreement was concluded.
  6. The software will be deemed to have been accepted after turnkey delivery. If an acceptance test has been agreed on, the software will be deemed to have been accepted after acceptance by the other party or fourteen (14) days after turnkey delivery, if and in so far as the other party has not informed the user in writing of the aforementioned defects, or after these defects have been repaired.

Article 22: Guarantee

During a period of three (3) months after acceptance/delivery, the user will repair any defects to the best of its ability, if and in so far as this software does not comply with the specifications laid down in writing. The user does not guarantee that the software will operate without interruption or defects or that all defects will be repaired. Such repairs will only be carried out free of charge if the software was developed for a fixed price, unless the other party has used the software incorrectly or other causes not attributable to the user apply or if the defects could in all reasonableness have been discovered when the acceptance test was carried out. Restoration of any lost data is never included in this guarantee. The guarantee does not apply if the software has been modified and/or processed by parties other than the user.

Right to use standard software

The following provisions apply if the user grants the other party the right to use generally available software that has not specifically been developed for the other party (standard software), even if the software was modified or added to for the other party. ‘Software’ is understood to mean the computer programs recorded on material that can be read by a computer and the related documentation, including any new versions to be provided.

Article 23: Right of use

  1. The user only grants the other party the non-exclusive right to use the standard software.
  2. The right of use is not transferable to third parties without the user’s written permission. The other party is not permitted to sell, hire out or dispose of the standard software or transfer it by way of security. The other party may not modify or allow third parties to use the standard software nor may the other party use it for the benefit of third parties. The source code of the standard software will not be made available to the other party.

Article 24: Standard software supplier

In the event that a supplier only grants the right to use a standard software in accordance with the provisions of its contract for use or licence agreement or if the maintenance is carried out in accordance with the provisions of the supplier’s maintenance agreement, the provisions of these agreements will apply. The user will inform the other party, at the latter’s request, of the provisions that apply.

Maintenance

Article 25: Maintenance

  1. In the event that a maintenance agreement has been concluded for the delivered software, the other party will report any defects discovered in accordance with the user’s customary procedures. After receipt of this report, the user will repair any defects to the best of its ability if the delivered software does not comply with the written specifications. The user does not guarantee that delivered software will operate without interruption or defects or that all defects will be repaired.
  2. The user may charge repair costs in the event of incorrect use by the other party or other causes not attributable to the user or if parties other than the user have carried out modifications or maintenance to the software. Restoration of any lost data never comes under maintenance.
  3. If a maintenance agreement has been concluded for a standard software, the user will put any improved versions of the standard software which have become available at the disposal of the other party. Three months after an improved version has been made available, the user will no longer be obliged to repair any defects in the old version. The user may request payment for making a version available with new possibilities and functions.