1.1) These terms and conditions shall use the following definitions:
a) “Conditions” means these conditions;
b) “Divitel” means the limited liability company under Dutch law “Divitel B.V” and/or the limited liability company under German law “Divitel Deutschland GmbH”;
c) the “Customer” means the legal entity to whom Divitel makes a Quote and/or the legal entity who undertakes to purchase Products and/or Services of Divitel;
d) “Products” means matters offered and/or to be supplied by Divitel and/or (user) rights specified in the Tender;
e) “Services” means work offered and/or to be delivered by Divitel, which is specified in the Tender;
f) “Works” means a combination of products offered and/or to be delivered by Divitel and/or by Divitel and/or to be delivered in detail in the Tender;
g) “Tender” means Divitel’s document to the Customer in which Divitel offers Products and/or Services to the Customer;
h) The “Agreement” means the Conditions and the Tender together;
i) “Intellectual Property Rights” means a patent, copyright, datalaw, moral law, design law, registered design, trademark, service mark, domain name, metatag, use model, trade name or, where applicable, an application for such a right or any other industrial or intellectual property right existing in any place in the world and intellectual property rights to know-how, documentation and techniques relating to the Products and/or Services;
j) “Confidential information” means any information, data, product plans, diagrams and know-how programmes provided by a Party (the “Disclosing Party”) to the receiving Party (the “Ontvanging Party”); either in oral, written, graphic or machine-readable form, including but not limited to current or projected components, components, software, hardware, technical and other data, research material, inventions, discoveries, designs, drawings, concepts, procedures, ideas, diagrams, marketing plans, brochures, photographs, processes, test equipment, test data, specifications, operational data, models, prototypes, materials, methods and techniques.
2.1) The Conditions apply to all legal relationships between Divitel and the Customer, in particular to the Tender and the Agreement.
2.2) The applicability of any general (purchase)-terms of the Customer is excluded.
2.3) The Conditions are also available in a Dutch and German version. If the content of the English and/or German version differ from the Dutch version, the Dutch version shall apply.
3. Tender, realisation agreement, prices and payment
3.1) A Tender shall be valid for 30 days, unless otherwise specified in the Tender.
3.2) The Agreement is concluded by the customer accepting the Tender. Acceptance of the Tender can be made by the Customer signing the Tender and returning it to Divitel. In this case, drawing and return can (also) be done by electronic means. The Tender is (also) considered accepted in case the Customer agrees, or gives the impression that Divitel provides products and/or services and/or works that fall within the Products and /or Services and/or Works.
3.3) In the event that the Products and/or Services and/or Works are delivered in parts or phases, the prices as stated in the Tender may be adjusted due to exchange rates, taxes, duties, levies, freight prices and purchase costs.
3.4) The prices indicated in the Tender shall not include VAT and any other taxes, charges and transport costs, unless otherwise indicated in the Tender.
3.5) Divitel will send an invoice to the Customer for all amounts due. Divitel is hereby entitled to invoice electronically. However, at the customer’s request, Divitel will send a written invoice.
3.6) Payment for Products and/or Services and/or Works must be received by Divitel without deduction, discount or settlement within 30 days of the date of invoice, unless otherwise indicated in the Tender.
3.7) Payment must be made by transferring the invoiced amount to the (bank) account indicated by Divitel.
3.8) If the Customer has not paid the invoice within the term referred to in Article 3.6, and, after being formally called to act by Divitel, has not paid the invoice, Divitel is entitled to charge the customer the statutory interest for the period from the day the payment should have been received to the day of full payment without further notice and without prejudice to its other duties.
3.9) All reasonable costs incurred in connection with Customer’s non-timely compliance with her payment obligations are at Customer’s expense.
3.10) If the Customer has not paid within the time limit referred to in Article 3.6 and, after being summoned by Divitel, has not yet paid, Divitel shall have the power to suspend the performance of its obligations under the Agreement without further notice and without prejudice to its other duties.
4. Duration, extension and termination of the Agreement
4.1) Unless otherwise specified in the Tender, the Agreement shall be entered into on the day of acceptance of the Tender and the Agreement shall have a duration of one year. After this period, the Agreement shall be tacitly extended for new periods of one year, unless either party terminates the Agreement in writing prior to an extension. A notice period of three months should be observed.
4.2) Either Party may terminate the Agreement in writing immediately if: the other Party attributably fails to meet her obligations under the Agreement and does not fulfill them within a reasonable period of time after written default, taking into account the nature and extent of the shortcoming; whether its business ceases or threatens to cease; declared bankrupt.
4.3) Divitel may terminate the Agreement in writing immediately if the Customer defaults on the payment of uncontested amounts due to Divitel under the Agreement.
4.4) Articles which, by their nature and content, are intended to remain in force after the termination of the Agreement shall continue to apply after the termination of the Agreement.
5. Changes in Products and/or Services and/or Works
5.1) Changes may be made to Products and/or Services and/or Works between the time when
an Agreement is concluded and the time at which Products and/or Services and/or Works are delivered. In so far as it concerns only minor changes which do not affect the agreed functionality and operation of the relevant Products and/or Services and/or Works, Divitel has the right to supply the products and/or Services and/or Works thus modified and these changes are not to be regarded as any deficiencies on the side of Divitel.
6.1) Divitel will deliver the Products and/or Services and/or Works in the manner indicated in the Tender.
6.2) Delivery dates indicated in the Tender are indicative. Unless otherwise stated, they are neither binding nor strict. In the event that no delivery date is indicated in the Tender, the delivery will take place within a reasonable period of time.
6.3) Divitel is not liable for loss (including loss of profit), costs or damage as a direct or indirect result of a delay in the delivery of the Products and/or Services and/or Works (even if this was caused by Divitel’s negligence). Customer does not have the right to terminate the Agreement due to a delay.
6.4) Divitel is in default only after it has been defaulted in writing with regard Products and/or Services and/or Works not yet delivered and has been granted a reasonable period of time of at least 30 days, as of the date of receipt of the default, to comply with the Agreement.
6.5) Unless otherwise indicated in the Tender, the Products and Works are for risk of the Customer or her representative as of the time of delivery.
6.6) All Products and Works supplied by Divitel shall remain the property of Divitel until the customer has fully fulfilled all of its payment obligations to Divitel under the Agreement or any other agreement. Until full payment is received, the Customer therefore retains the Products and Works only as a custodian of Divitel and Customer shall store the Products and Works separately from all other goods of the Customer or any third party in such a way that they are immediately identifiable as the property of Divitel.
7. Special provisions relating to Products (software)
7.1) To the extent that Divitel provides software and/or (user) rights with regard to software (hereinafter referred to as “Software”) to the Customer pursuant to the Agreement, the following applies;
7.1a) The Software may be the subject of separate software licensing agreements, product manuals, operating manuals, or other documentation. If that is the case, these will be provided to the Customer prior to the delivery of the Software;
7.1b) If no separate licensing agreements apply, Divitel grants the Customer a non-exclusive licence to access and use the Software only during the term of the Agreement;
7.1c) The Customer is not permitted: (1) to copy, modify, license or sub-license the Software, sell it, cede rights of use, give it to third parties or to object; or (2) use the Software for more than the permitted number of places licensed for concurrent users, locations or other conditions specified in the Tender;
7.1d) Divitel may need to perform planned or unplanned repair or maintenance or to remotely correct or upgrade the Software. This may temporarily reduce the quality of Products and/or Services provided or partially or completely fail. A failure or interruption of (the functioning of) Products and/or Services as intended does not entitle the Customer to any refund or compensation.
7.1e) Divitel may cancel or suspend the delivery of Software to the Customer if required to do so (1) by law, (2) by judgment of a competent court or (3) if it has reasonable grounds to believe that the Customer (or the customer’s users) are involved in fraudulent or other unlawful activities.
7.1f) The Customer grants Divitel the right to carry out a check on the use of the Software and will cooperate fully with it.
8.1) The Customer should check as soon as possible, but at least within 10 days of receipt, the delivered Products and/or Services and/or Works for any missing, wrong or damaged Products and/or Services and/or Works. The Customer should also test the operation of the delivered Products and/or Services and/or Works as soon as possible, but at least within 10 days of receipt.
8.2) When it comes to checking and testing Works, Divitel will indicate when the Works are ready. The aforementioned term (-s) of 10 days starts on the day indicated by Divitel.
8.3) In the event the above mentioned checks and tests prove irregularities, they shall be notified in writing to Divitel within 5 days of their detection.
8.4) In the event that irregularities as referred to above have not been detected within 10 days of receipt of the Products and/or Services and/or Works, the Customer must still report such irregularities to Divitel without delay and in writing as soon as the Customer finds such irregularities. In addition, the Customer must demonstrate that it has not been able to detect the irregularities before.
8.5) The Customer is not entitled to suspend its payment obligations because of complaints, whether justified or not.
8.6) If the Customer has not complaint within the terms described above and in accordance with the manner described above or otherwise has not complied with the provisions of this article, all its rights and claims under this article shall expire.
8.7) If, and to the extent that a complaint is, in Divitel’s judgment, justified Divitel shall be entitled to either adjust the invoice or – at its own account – adjust, restore, replace or re-export the Products and/or Services and/or Works.
9.1) To the extent that Products and/or Works supplied by Divitel consist of movable items, Divitel shall ensure that they will comply with the specification indicated in the Tender (the “Guarantee Period”) (1) during the period indicated in the Tender, (2) will be free of material defects and that (3) spare parts will be free of defects for 90 days after the delivery date or the remainder of the Guarantee period if it is longer.
9.2) To the extent that Products and/or Works supplied by Divitel consist of Software, Divitel guarantees that it will meet the specification indicated in the Tender during the period indicated in the Tender (the “Warranty Period”). Divitel does not guarantee that the Software will be free of minor errors. This guarantee shall (only) ensure that Divitel is required to make efforts to repair any defect in the Software in such a way that it functions in all essential respects in accordance with the relevant specifications.
9.3) The warranty referred to in the previous paragraph does not apply in the event that the defect in question can be traced back to open source software present in the Software.
9.4) If the Tender does not specify a Warranty period, a 90-day warranty period shall apply, which shall start on the day after the delivery date.
9.5) The applicability of title 1 section 2 of book 7 of the Dutch Civil Code is excluded.
9.6) Divitel shall not be liable under the guarantees provided for in this article: (a) for a defect caused by normal wear and tear, intentional damage, negligence, abnormal working conditions, non-compliance with Divitel’s’ (oral or written) directions, misuse or change, modification, repair or repair of the Products and/or Work and/or Software without Divitel’s approval; (b) if the Customer has not paid the payments due to Divitel; (c) for products, services and works not manufactured or produced by Divitel, in which case the Customer may only claim the guarantee as granted to Divitel by the manufacturer or supplier and to the extent that that guarantee is transferable to the Customer.
10. Special obligations of the Customer
10.1) The Customer will cooperate fully and make available to Divitel all documents and information that Divitel deems necessary for the proper implementation of the Agreement, in a timely and appropriate form and in the desired manner.
10.2) The Customer will immediately inform Divitel of facts and circumstances that may be relevant in connection with the proper implementation of the Agreement.
10.3) The Customer is responsible for accuracy, completeness, reliability and
legality of the data, documents and information made available to Divitel.
11. Intellectual property rights and use Products and/or Services
11.1) To the extent that on the Products and/or Services and/or Works intellectual property rights rest and/or come to rest, are/become the property of Divitel and/or its suppliers and/or its licensors unless otherwise stated in the Tender.
11.2) The provisions of Article 11.1 also apply in case the Products and/or Services and/or Works are made or developed on Customer’s specification.
11.3) Subject to full payment for the relevant Products and/or Services and/or Works, Divitel shall grant the Customer a non-exclusive, non-transferable, royalty-free right to use the intellectual property rights referred to above (exclusively)) for their own (internal) use and in the manner indicated in the Tender.
11. 4) During the implementation of the Agreement or in connection with the use of the Products supplied and/or Services and/or Works by the Customer, it may be useful or necessary for Divitel to obtain, receive or collect data and information (collectively called the “Data”). The Customer hereby grants Divitel a non-exclusive, worldwide, royalty-free, perpetual, irrevocable license to: 1) compile, distribute, display, store, process, multiplythedata, distill insights from it, to combine and/or compare the Data with other data and/or new products and services to be manufactured and/or developed; and 2) to use and develop derivatives and/or services anonymously for Divitel’s marketing and sales activities and to manufacture and/or develop derivatives and/or services of them; and 3) copy and maintain such Data during the term of this Agreement and subsequently on Divitel’s servers (or the servers of its suppliers).
11.5) To the extent that the insights, new products, services and works referred to in article 11.4 rest intellectual property rights and/or come to rest, are/become the property of Divitel.
11.6) To the extent that a separate non-disclosure agreement has been concluded between the Parties, article 11.4 shall constitute an exception insofar that it does not apply to the Data.
11.7) The functioning of the Products, Services and Works and the possibility of providing them may depend on the functioning of systems and devices (including (e.g.) telephone, computer, networks and internet), the functioning of these systems and devices are unpredictable and may periodically disrupt or prevent the access or use or operation of Products, Services and Works. Divitel shall not be liable for any such disturbance or foreclosure of the access, use or failure of the Products, Services and Works..
11.8) The Customer declares and guarantees that it has all rights, permits and consents necessary to use and transfer the Data within and outside the country in which it is established in connection with the implementation of the Agreement.
12.1) Divitel shall not be liable for: special, indirect or consequential damage; loss of profit, income or turnover; loss of performance of any Customer system or network; damage to goodwill or reputation; loss, degradation or damage of data or software; or recovery of data or programs.
12.2) To the extent that Divitel is liable for any damage on part of the Customer, this liability is limited to a maximum of 100% of the price agreed for the Products and/or Services and/or Works, provided that it only takes into account the price agreed for the Products and/or Services and/or Works in which the cause of the damage is located.
12.3) The above mentioned limitations of liability do not apply in cases of intentional or gross negligence.
13.1) Each party shall keep all confidential information received from the other party secret. The receiving party should treat the confidential information received in the same way as it would treat its own confidential information,taking at least a reasonable degree of care.
13.2) The existence and content of the Agreement are (also) considered confidential information.
13.3) The obligations arising from article 13.1 shall continue to apply even after the Agreement has ended.
13.4) To the extent that a separate non-disclosure agreement has been agreed between the Parties, the content of this confidentiality agreement should be regarded as inserted and repeated here. To the extent that the Agreement and the non-disclosure agreement differ in substance, the non-disclosure agreement shall prevail only in respect to confidential information and with the exception of article 11.4.
14. Force majeure
14.1) None of the Parties will be liable for delays in performing or not performing the Agreement as a result of causes which are not due to its fault, nor are accounted for by law, legal act or in-circulation views. Force majeure may include, but not exclusively, internet disruptions, disruptions in telecommunications infrastructure, (distributed) denial of service attacks, power outages, domestic disturbances, mobilisation, war, modified government measures, obstruction of transport, strike, exclusion, business disturbances, stagnation in supply, fire and flood.
14.2) In cases of force majeure, the obligations of the Parties under the Agreement shall be suspended until the force majeure situation has been settled. The Parties will endeavour to achieve the settlement of the force majeure as soon as possible.
15. Laws and regulations relating to customs and exports
15.1) What is (to be) delivered to the Customer under the Agreement may be subject to special customs legislation and export regulations laws. Under such laws and regulations, it is possible that what is (to be) supplied under the Agreement may be sold, leased or transferred to countries, end-users or end-use countries or end-use subject to restrictions. The Customer declares that she is familiar with such laws and regulations and is responsible for complying with them.
15.2) The Customer will, as a chain clause and to the extent applicable, impose the above obligation (also) on its customers.
15.3) Divitel reserves the right to suspend compliance with the Agreement if the laws and regulations referred to above obliges it to do so and in the event that it has indications that the Customer is not complying with the laws and regulations referred to above.
15.4) The Customer shall be required to compensate Divitel, to safeguard her and to defend her on behalf of claims and proceedings of any kind relating to a violation and/or the alleged violation of the laws and regulations referred to above by the Customer and / or its customers.
16. Processing and protection of personal data
16.1) To the extent that Divitel and/or the Customer processes personal data pursuant to or under the Agreement, they are obliged to comply with the applicable laws and regulations.
16.2) To the extent that the Customer provides personal data to Divitel, the Customer shall ensure that it has obtained all the necessary powers for the legitimate processing of such personal data.
16.3) To the extent that Divitel works on personal data under the Agreement, it shall take protective measures in this area.
16.4) Divitel will endeavour to assist the Customer in complying with its obligations as the “controller” to which the Customer owes a reasonable fee to Divitel.
16.5) To the extent necessary for the implementation of the Agreement and compliance with laws and regulations, the Customer shall give Divitel the power to collect, use, store and transfer the personal data provided.
17. Other provisions
17.1) The rights and obligations arising from the Agreement may betransferred to a third party only after the written consent of the other Party. Such authorisation may only be withheld on the basis of important business interests. Consent in the case of takeover or merger may be refused only if the third party in question is a direct competitor of the other Party. No authorisation is required in the event of transfer to a company belonging to the (company law) group of the transferring party.
17.2) Amendments to the Agreement shall apply only if they are agreed in writing.
17.3) Divitel is authorised to amend the Conditions. The terms and conditions amended by Divitel apply to the Customer 30 days after she has been notified in writing of the amendment, unless the Customer indicates in writing to Divitel to object to the amendment within that period. In the latter case, the Customer is authorized to terminate the Agreement at the time when the amended terms would apply to the Agreement, but only if the amendment substantially aggravates the obligations arising for the Customer from the Agreement. If the Customer has indicated in good time that he has objected to the amendment, without having competently terminated the Agreement, the Conditions between the parties will remain in force until the Agreement has been fully complied with or has been fulfilled, but not more than six months from the end of the aforementioned 30 day period. If the Agreement continues thereafter, the amended conditions shall apply from that date.
17.4) The Parties declare that they enter into the Agreement as independent parties and do not wish to form a general partnership, employer/employee, principal/agent or a similar relationship.
17.5) The destruction or impracticality of a provision of the Agreement shall lead only to the removal or amendment of the provision in question. The Agreement shall remain in full force for the rest. The Parties shall endeavour to draw up a new, valid provision which shall be as close as possible to the operation of the destroyed or unenforceable provision within the scope of the Agreement.
17.6) The headings/indications above the articles in the Agreement and in the Conditions are intended to be only informative and should not be used in the interpretation of any article.
18. Applicable law and choice of forum
18.1) All legal relationships between Divitel and the Customer to which the Conditions apply are governed by Dutch law.
18.2) The United Nations Convention on the law applicable to international purchase agreements relating to movable business 1980 (Vienna Convention) shall not apply to the Agreement.
18.3) All disputes relating to the legal relationship between Divitel and the Customer to which these Conditions apply are only referred to the competent court in the Netherlands, unless provisions of mandatory law require otherwise.
Last updated: 19-11-2020