ARTICLE 1 DEFINITIONS
In these general terms and conditions, the following definitions shall apply:
General Conditions: these general conditions.
Coordinators: employees of the Client who are designated to communicate with CAS and will undergo training within that framework.
Services: the services of CAS are, non-exhaustively: the operation of products and services in the field of scanning, Optical Character Recognition (OCR) and document management.
Defect: failure of the Software to function in accordance with the user documentation provided.
Use: use of the Software as described in the Agreement.
Users: persons at the Client using the Software.
Client: any natural or legal person who accepts CAS Quality Control B.V. as the other party to an Agreement (of order).
Agreement (of Assignment): the Agreement between CAS and Client(s), including all Annexes.
Party(ies): CAS Quality Control B.V. (CAS) and / or Client.
Software: all Software with associated documentation and CAS's intellectual property rights thereon, as the subject matter of the Agreement.
Release: an update of the Software within a specific version of the Software, in which any Defects have been fixed and/or new or revised functionalities have been included.
Version: any version of the Software released from time to time by CAS that incorporates prior Releases and/or includes new or revised functionalities.
ARTICLE 2 APPLICABILITY
- a) The General Terms and Conditions apply to all offers, quotations, orders, deliveries of Services and invoices by/from CAS and to all Assignment Agreements between CAS and the Client, as well as to any request by the Client for the provision of Services, regardless of whether or not an Assignment Agreement has been concluded between CAS and the Client.
- b) General conditions or other terms used by the Client are not applicable. Deviating or additional clauses may be invoked by Client only if and insofar as they have been expressly accepted by CAS in writing. Such additional or different provisions do not affect the applicability of the other provisions of the General Terms and Conditions and apply only to the Agreement for which this has been expressly agreed in writing.
- c) By accepting these General Terms and Conditions, Client also agrees to the applicability of the General Terms and Conditions to all new Assignment Agreements to be concluded and to all follow-up and additional Assignment Agreements between CAS and Client.
ARTICLE 3 ORDER
- a) Each Assignment Agreement shall only come into effect if and as soon as CAS explicitly confirms the contents of the Assignment Agreement to the Client in writing following receipt of an order from the Client (either verbally or in writing, expressly including email), or, if earlier, when CAS begins to carry out the Services agreed with the Client. With the conclusion of the Engagement Agreement, Client unconditionally undertakes to pay the agreed fee in full.
- b) Every Client represents that it has valid authority to enter into Assignment Agreements with CAS.
ARTICLE 4 MULTIPLE CLIENTS
Where an Assignment Agreement with CAS is entered into by two or more Clients, each Client shall be jointly and severally liable to CAS for the proper and timely performance of the obligations of such Clients under such Assignment Agreement.
ARTICLE 5 SOFTWARE; RIGHT OF USE
- a) CAS grants to the Client the non-exclusive and non-transferable right to use the Software in accordance with the provisions of the General Terms and Conditions and the Assignment Agreement.
- b) The right of use includes the use of the standard functionalities present in the Software as described in the Software user documentation.
- c) The Customer may only use the Software within its own organization. The right of use shall be limited to the number of Users.
- d) The Client is required to use the Software only on computer systems and locations approved by CAS.
- e) The Use and right of use is not transferable in any way, including to related companies, such as a parent, or subsidiary company, except on the basis of written approval of the relevant conditions by CAS.
ARTICLE 6 RESPONSIBILITY WITH REGARD TO SPECIFICATIONS
Client shall ensure that the computer systems and infrastructure at Client's premises permanently meet the agreed specifications.
ARTICLE 7 DELIVERY AND POSSIBLE ACCEPTANCE TEST
- a) Client accepts the Software in the state as it is made available by CAS.
- b) The Client has the option of having an acceptance test performed. If the Client chooses to do so and requests CAS to provide all or part of the acceptance test, the Parties will agree on a fee to be agreed upon.
ARTICLE 8 WARRANTY
- a) For a period of 6 (six) months after delivery, CAS will repair any Defects in the Software to the best of its ability, provided that they are reported to CAS in writing and described in detail within the aforementioned period.
- b) CAS cannot guarantee that the Software will always work without interruptions or Defects or that all Defects will be repaired, but will always use its best efforts to do so.
- c) Recovery of mutilated or lost data is not covered by the warranty obligation.
- d) Restoration will take place at a location to be determined by CAS, after consultation with the Client.
- e) CAS is entitled to apply temporary solutions or program bypasses or problem avoiding restrictions in the Software.
- f) After the warranty period mentioned in this article has expired, CAS can repair any Defects in accordance with the agreed maintenance conditions.
ARTICLE 9 EXCEPTION OBLIGATION TO REPAIR DEFECTS
- a) Both during and after the warranty period, CAS is not obliged to repair Defects during the aforementioned warranty period, insofar as resulting from:
external extreme causes such as natural disasters;
careless acts or omissions by the Client;
incorrect use of the Software or use of the Software for a purpose for which the Software is not intended;
connections made by the Client to systems not approved by CAS;
changes made by the Client, without consultation with CAS, to the infrastructure after the installation or after delivery of the Software;
modifications, changes and/or adaptations to the Software made by the Client or on behalf of the Client by third parties without CAS' written permission, other than in the context of fixing errors.
- b) In all these cases, CAS is prepared to take care of repairing the relevant Defects for an additional fee, in accordance with the agreed prices and rates.
ARTICLE 10 BACK-UP
Client undertakes to CAS to carry out regular backup procedures with regard to the (data) files and Software in accordance with the standards customary in the industry and in such a way that recovery is possible with minimal effort.
ARTICLE 11 PRICES, RATES AND PAYMENT
- a) Prices and rates are stated in the quotation agreed and signed by the Parties.
- b) All additional work and activities requested by the Client to CAS that are not explicitly included in the Agreement with Annexes may be charged to the Client by CAS for an additional fee. CAS will at all times inform Client clearly and if possible in advance if additional work is involved, Invoicing of additional work will only take place after approval by Client.
- c) Prices and tariffs are exclusive of VAT and other government levies.
- d) The fee for maintenance will always be invoiced per calendar year and must be paid in advance. The agreed annual maintenance fee will be increased if the Software is expanded or modified.
- e) CAS has the right to adjust prices and fees annually due to indexation.
- f) All invoices shall be paid by the Client within 30 (thirty) days of the invoice date.
- g) If Client fails to pay the amounts due within the agreed period, Client shall owe statutory interest on the outstanding amount, without any notice of default being required. If payment is not made even after summons, Client shall further be liable to pay the extrajudicial and judicial costs incurred by CAS for collection of the claim.
ARTICLE 12 MAINTENANCE
CAS shall perform the agreed maintenance in accordance with the following conditions:
- a) CAS shall use its best efforts to carry out the maintenance with care.
- b) Maintenance includes the repair of Defects, the provision of new Releases of the Software as well as support in the use of the Software.
- c) The Client, more specifically its Coordinator, shall always report any Defects as soon and in detail as possible to CAS's helpdesk, via email (support@CASqc.nl) or another email account or telephone number as announced to the Client by CAS.
- d) After a Defect has been reported, CAS will start the remedial work as soon as possible, at CAS's professional discretion and in proper consultation with the Client.
- e) Repair Work, which cannot reasonably be performed other than at the Client's premises, will be performed at the Client's location. CAS will in that case charge travel and accommodation costs to the Client.
- f) For maintenance and repair work to be performed outside Business Days and Office Hours at the request of the Client, CAS will charge additional costs.
- g) If Defects are not caused by the Software, then CAS is entitled to invoice the Client for the work performed at the then current prices and rates.
- h) CAS shall notify the Client in advance if a new Release or Version of the Software is released. Customer can then indicate whether it wishes to use this new Release or Version. Administration, shipping and implementation costs of a new Release or Version are additionally charged to the Customer by CAS on an after-the-fact basis.
- i) If CAS terminates maintenance on a previous Version or Release, it will notify the Customer in a timely manner in writing in advance.
- j) The Customer may make wishes for modifications to the Software known to CAS. With regard to the possible implementation of those wishes in a subsequent Release or Version, the Parties will come to a decision in proper consultation.
- k) Support from CAS includes: telephone assistance from the Coordinator(s) in using the Software. Support can also take place by means of remote support. The standards generally used in the industry will be used for this purpose. Both Parties are responsible for their own equipment to enable this connection.
l) CAS will register every notification with the corresponding priority and status. Parties will mutually determine the priority of a notification. CAS will monitor the progress of action points as a result of notifications
ARTICLE 13 COORDINATORS
- a) Client will designate one Coordinator for the purpose of communicating with CAS to perform maintenance. In addition, Client will appoint a deputy Coordinator. For optimal cooperation between the Parties and proper understanding of the technical subject matter, the Coordinators will attend the agreed training courses. Additional education and training will be charged additionally.
- b) If the maintenance takes place at Customer's location, the Coordinators will be available as much as reasonably possible during the performance of the maintenance by CAS.
- c) Given the impact of actual changes, the Coordinator may make changes to the Software only after consultation with and approval by CAS.
- d) The Coordinators are responsible for the internal support of the Users of the Software at Client.
ARTICLE 14 COOPERATION OF CLIENT
- a) Client shall always provide CAS with all necessary and relevant data or information in a timely manner for the proper performance of the Agreement and provide all cooperation and a similar obligation rests with CAS towards Client.
- b) If the Client supplies CAS with data or files for the purposes of the agreed work, they will be supplied in copies. Original data or original files shall remain in the possession of the Client at all times and the Client shall remain responsible and liable in this regard.
- c) If information necessary for the execution of the Agreement is not made available to CAS, not in a timely manner or not in accordance with the agreements, or if the Client fails to meet its obligations in any other way, CAS may be forced to suspend the execution of the Agreement.
ARTICLE 15 THIRD PARTIES
- a) CAS is permitted to use third parties in the performance of its work, where CAS remains responsible to the Client, unless otherwise agreed.
- b) CAS is permitted to replace employees involved in the fulfillment of an order.
The deadlines mentioned by CAS are indicative and established to the best of its knowledge on the basis of the information known to CAS when the Agreement was concluded. If there is a risk of any deadline being exceeded, the Client and CAS will enter into consultations as soon as possible with a view to finding a mutually satisfactory solution.
ARTICLE 16 CONFIDENTIALITY
- a) Each Party warrants that all information received from the other Party before and after entering into the Agreement will be kept confidential, including the contents of the Agreement, unless disclosure would be required by law.
- b) In case of violation of this provision, the violating Party shall owe the other Party an immediately payable fine of €5,000, without prejudice to the latter Party's claims for damages.
ARTICLE 17 INTELLECTUAL PROPERTY RIGHTS
- a) All intellectual and industrial property rights to the Software, data files, equipment or other materials developed or made available under the Agreement, such as analyses, designs, (user) documentation, reports, quotations, as well as preparatory materials thereof, belong exclusively to CAS, its licensors or its suppliers.
- b) The Client is not permitted to remove or change any indications concerning intellectual and industrial property rights from the Software or other materials, including indications concerning the confidential nature and secrecy of the Software.
ARTICLE 18 PRIVACY / PROTECTION OF PERSONAL DATA
- a) Insofar as the Agreement involves the processing of personal data by CAS, CAS hereby acts as a processor.
- b) The Parties will comply with all their legal obligations in relation to privacy and personal data.
- c) CAS will ensure adequate state of the art security of personal data.
ARTICLE 19 TRANSFER OF RISK
The risk of loss of or damage to the items that are the subject of the Agreement shall pass to the Client at the time they are placed in the Client's actual control.
ARTIKEL 20 BEPERKTE AANSPRAKELIJKHEID
- a) De totale aansprakelijkheid van CAS jegens de Opdrachtgever voor directe schade is beperkt tot maximaal het bedrag gelijk aan het door de Opdrachtgever aan CAS in de 12 (twaalf) maanden voorafgaande aan het schadetoebrengend feit uit hoofde van de Overeenkomst betaalde bedrag.
- b) CAS is in geen enkel geval aansprakelijk voor indirecte en gevolg schade, daaronder begrepen winstderving, verlies van gegevens, (schade-)vorderingen van derden, gemiste opbrengsten of besparingen of andere indirecte schade of gevolgschade welke voortvloeit uit of in verband staat met het niet nakomen van enige verplichting van CAS, dan wel enig onrechtmatig handelen.
- c) Opdrachtgever vrijwaart CAS voor eventuele aanspraken van derden.
- d) De vorige leden van dit artikel zijn niet van toepassing indien de desbetreffende schade is veroorzaakt door opzet of bewuste roekeloosheid van CAS. Opdrachtgever is verantwoordelijk voor het controleren van de werking van de Programmatuur.
ARTICLE 20 LIMITED LIABILITY
- a) The total liability of CAS to the Client for direct damages is limited to a maximum amount equal to the amount paid by the Client to CAS under the Agreement in the 12 (twelve) months preceding the damaging event.
- b) CAS is in no case liable for indirect and consequential damages, including loss of profits, loss of data, (damage) claims of third parties, missed revenues or savings or other indirect or consequential damages arising from or in connection with the non-performance of any obligation of CAS, or any wrongful act.
- c) The Client indemnifies CAS against any claims from third parties.
- d) The previous paragraphs of this article do not apply if the damage in question was caused by intent or deliberate recklessness on the part of CAS. The Client is responsible for checking the operation of the Software.
ARTICLE 21 FORCE MAJEURE
- a) In case of force majeure of one of the Parties, the obligations will be suspended as long as the force majeure situation continues.
- b) If the force majeure situation lasts longer than ninety days, the Parties have the right to terminate the Agreement by registered letter, unless it is foreseeable that the force majeure situation will be resolved within a reasonable period of time. What has already been performed in accordance with the Agreement shall in that case be settled proportionately, without the Parties owing each other anything else.
ARTICLE 22 TERMINATION OF THE AGREEMENT
Parties are entitled to terminate the Agreement immediately by registered letter, without prejudice to the claims for damages of the terminating Party, if:
- the other Party, after a proper written notice of default in which a reasonable period for performance is given, continues to fail imputably in the performance of one or more essential obligations arising from the Agreement.
- suspension of payment is granted to the other Party, if bankruptcy is filed with respect to the other Party or if the other Party's business is liquidated or terminated.
ARTICLE 23 ATTACHMENTS
In case of any conflict between certain conditions in the contract and the General Conditions, the provisions of the contract shall prevail.
ARTICLE 24 CONVERSION AND INTERPRETATION
- a) The nullity, destruction or ineffectiveness of one of the provisions of these General Terms and Conditions does not affect the validity of the remaining provisions. In the event that one or more provisions are found to be void, nullified or non-binding, replacement provisions will be agreed between CAS and Client which are valid and which most closely approximate the content and scope of the provision(s) found to be void, nullified or non-binding.
- b) The titles and chapters in the General Terms and Conditions serve only for ease of reading and cannot affect the content and meaning of the provisions in the General Terms and Conditions.
ARTICLE 25 APPLICABLE LAW AND CHOICE OF FORUM
- a) Every relationship and every obligation between CAS and Client including every Agreement of Engagement between CAS and Client is exclusively governed by Dutch law.
- b) Disputes shall be submitted exclusively to the competent court, without prejudice to CAS's authority to submit a dispute to a court which would have jurisdiction in the absence of this provision.
ARTICLE 26 OTHER PROVISIONS
- a) The Parties are not permitted to assign rights and obligations under the Agreement to a third party without the prior written consent of the other Party.
- b) Provisions regarding intellectual property, liability, force majeure, confidentiality, payment and dispute resolution shall continue to apply after the end of the Agreement.
- c) Destruction or nullity of one or more of the provisions of the Agreement shall not affect the validity of the remaining provisions.
- d) Deviations and/or additions to this Agreement are valid only if expressly agreed upon in writing by legally valid representatives of the Client and CAS.
- e) Insofar as the Parties are confronted with issues not regulated in the Agreement, they shall discuss such issues in good consultation and make every effort to reach a mutually acceptable solution.