1.1 These general terms and conditions apply to schurq. Customer means the contractual other party of schurq.
1.2 These terms and conditions apply to all obligations and legal relationships, by whatever name, between schurq. and Customer (hereinafter: agreement) under which schurq. supplies, rents out and/or otherwise makes available to Customer products and/or (online) services (hereinafter: services), including the licensing of software, whether or not produced by schurq. (hereinafter: software), from the moment Customer asks schurq. for an offer or schurq. makes an offer, whether or not requested.
1.3 These terms and conditions shall at all times prevail over any other terms or conditions of Customer or third parties, unless these terms and conditions provide otherwise. Customer shall never be able to invoke different conditions, customs or practices.
1.4 If any provision of these terms and conditions is null and void or is annulled, the other provisions of these terms and conditions will remain in full force and schurq. and Customer will consult in order to agree new provisions to replace the null and void or annulled provisions, taking into account as far as possible the purpose and purport of the null and void or annulled provisions.
1.5 These conditions also apply to follow-up work resulting from the agreement.
2. Offer and acceptance
2.1 All offers are made without obligation. Offers in which a term of acceptance is stipulated do not serve to bind schurq. to that term.
2.2 Acceptance of an offer by schurq. must be made in writing.
2.3 If the offer or the quotation is based on information provided by the Customer and such information turns out to be incorrect or incomplete, or is subsequently amended, schurq. will be entitled to adjust the prices, rates and/or delivery dates given.
2.4 schurq. cannot be held to its quotations or offers if the Customer can reasonably understand that the quotations or offers, or any part thereof, contain an obvious mistake or clerical error.
2.5 schurq. is entitled to charge Customer for the costs associated with an offer.
2.6 Offers or quotations do not automatically apply to future legal relationships between schurq. and Customer.
2.7 schurq. is not bound by the following until it has been confirmed in writing to the Customer:
(a) An order without a prior offer;
b) Verbal agreements;
c) Supplements or amendments to these terms and conditions;
d) Supplements to or amendments of the agreement in question.
3.1 Where the agreement is for the development of software for the Customer, the parties will specify in writing the functionalities of such software by means of a 'Schedule of Requirements'. schurq. will develop the software solely on the basis of the Schedule of Requirements.
3.2 Customer warrants that all materials, data, software, procedures and instructions made available by it to schurq. for the performance of the agreement are at all times correct and complete and that all data carriers provided to schurq. comply with schurq. specifications.
3.3 schurq. is entitled, but not obliged, to examine the correctness, completeness or consistency of the materials, data, software, procedures and instructions made available under the agreement and, in the event of any deficiencies, to suspend the agreed work until the Customer has remedied the deficiencies in question.
3.4 schurq. is entitled to engage third parties in the performance of the agreement. Customer is obliged to pay invoices from these third parties to schurq.
3.5 To the extent that a third party is involved in the performance of the agreement and, whether or not through the mediation of schurq., a legal relationship is established between Customer and that third party, Customer will be solely responsible for compliance with its obligations to that third party. Customer can never hold schurq. liable for fulfillment of or compensation for damages in connection with obligations arising from legal relationships that Customer has entered into with a third party, whether through schurq. or otherwise.
3.6 Customer shall owe the advertising costs arising from the advertising budgets agreed with schurq. (hereinafter: advertising costs) directly to the advertising provider and Customer undertakes to pay the advertising costs to the advertising provider, whether by direct debit or otherwise, in full and on time. schurq. shall never be liable for the manner of execution of the advertising campaigns agreed with Customer and/or for the manner and/or extent of expenditure of advertising budgets agreed with Customer.
3.7 Insofar as the agreement concerns the execution of an order, schurq. is the sole contractor. Assignments are accepted and executed exclusively by schurq. The applicability of articles 7:404 and 7:407 paragraph 2 of the Civil Code is expressly excluded.
4.1 If a maintenance agreement has been concluded between the parties, Customer shall report any defects to schurq. in accordance with the procedures contained therein or customary procedures.
4.2 schurq. shall charge its usual rates and its costs of repair to Customer if there are user errors, otherwise careless use or other causes not attributable to schurq. or if the software has been modified by others than schurq. Recovery of mutilated or lost data, design and programming work and work related to tele- and data communication failures do not fall under maintenance.
5. Delivery terms
5.1 All (delivery) dates mentioned by schurq. have been determined to the best of their knowledge on the basis of the information known to schurq. when the agreement was concluded and they will be adhered to as far as possible; the mere exceeding of a stated (delivery) date will not put schurq. in default.
5.2 If there is a risk of any term being exceeded, schurq. and Customer will consult as soon as possible about the consequences of the excess.
5.3 schurq. is entitled to deliver in parts or perform the agreement in parts, whereby each partial delivery or performance may be invoiced separately or periodically. 5.4 schurq. is entitled to a reasonable extension of the (delivery) period and to compensation for the costs and damage involved, if commencement, progress, delivery or provision, of the work, software or services or the agreed delivery of products is delayed because: (a) schurq. has not received all necessary data and information from the Customer in good time; (b) schurq. has not received any agreed (advance) payment from the Customer in good time; (c) there are other circumstances which are for the account and risk of the Customer.
6. Cooperation and obligations of Customer
6.1 Customer shall provide all necessary cooperation and information required for the proper performance of the agreement. Information shall include specific quality requirements of Customer, and at schurq.'s request, the intended application of the software to be licensed by schurq. or products and/or services to be supplied by schurq.
6.2 Customer is responsible for the use and application in its organization of the software and products and/or services made available to Customer by schurq. as well as for adequate system management and the necessary control and security procedures.
6.3 If it is agreed that Customer will make available software, materials or data on information carriers, these will meet the specifications necessary for the performance of the work and be free of viruses and defects.
6.4 If data necessary for the performance of the agreement are not available to schurq., are not available in time or are not available in accordance with the arrangements made, or if Customer fails to meet its obligations in any other way, schurq. will in any case be entitled to suspend the performance of the agreement and will be entitled to charge Customer for the costs incurred as a result at its usual rates.
6.5 Customer warrants that, to the extent necessary, all statutory requirements relating to the data to be processed under the agreement, including in particular the requirements under or pursuant to the Personal Data Protection Act, have been and will be strictly complied with and that all notifications prescribed in that context have been made. Customer will provide schurq. with all information requested in this respect in writing without delay. Customer shall ensure state-of-the-art security of personal data records.
6.6 If Customer fails to comply with its purchase obligation, it will immediately be in default. schurq. will then be entitled to dissolve all or part of the agreement with immediate effect by means of a written statement, without schurq. being under any obligation to compensate damage, costs and/or interest. The foregoing is without prejudice to Customer's obligation to compensate for any costs, loss of delay, loss of profit or other damage or schurq.'s right to still claim performance.
7. Right of use of software.
7.1 If software is made available to Customer under the Agreement, this provision is limited to the non-exclusive right of use of this software.
7.2 The Customer is not allowed to make copies of the software, transfer the right to use the software to third parties, sell, rent out, otherwise offer third parties the possibility to use the software, transfer the software as security, modify it. The source code of the software made available to Customer by schurq. will not be made available to Customer.
7.3 Immediately after any termination of the right to use the software, Customer shall return to schurq. all copies of the software in its possession. If the parties have agreed that upon termination of the right of use Customer shall destroy the copies in question, Customer shall notify schurq. of such destruction in writing without delay.
7.4 Rights of use to software shall always be granted or, as the case may be, transferred to Customer under the condition that Customer shall pay the fees agreed upon for that purpose promptly and in full.
8. Use of third-party software
If the third-party supplier of the software has contractually restricted the right to use this software or if maintenance of this software is only permitted in accordance with the provisions of a maintenance agreement entered into between schurq. and the third-party supplier, Customer will also be bound by these restrictions. schurq. will then inform Customer accordingly.
9.1 All prices will be exclusive of turnover tax (VAT) and other government levies, any costs to be incurred in connection with the agreement, including travel, accommodation, shipping and administration costs, additional hours (of travel), invoices from third parties that have been engaged and other special costs connected with the performance of the agreement.
9.2 In the case of an agreement involving amounts payable periodically by Customer, schurq. will be entitled to adjust the applicable prices and rates by giving at least one month's notice in writing.
10.1 If the performance of the agreement has to be expedited at the request of Customer, schurq. is entitled to charge for the overtime hours and other costs involved.
10.2 Where schurq. performs, at the request or with the prior consent of Customer, services which fall outside the content or scope of the agreement, these will be paid for by Customer to schurq. in accordance with schurq.'s usual rates for this purpose. schurq. may always require that a separate written agreement be concluded for such work or performances.
11. Invoicing and payment
11.1 Payment shall be made in cash upon delivery, or as indicated on the invoice and in any event no later than 14 days after the invoice date.
11.2 If the invoice amount is not paid in full on the agreed date, or, failing that, within 14 days of the invoice date, Customer will be deemed to be in default by operation of law and schurq. will be entitled, without any notice of default being required, to charge Customer interest from the due date in the amount of the statutory interest rate plus 3%, as well as all judicial and extrajudicial costs related to the collection of its claim. All claims of schurq. against Customer shall at that time become immediately due and payable.
11.3 schurq. and Customer will be deemed to have agreed that these extrajudicial collection costs will be set at 15% of the invoice amount, including any credit limitation surcharge, unless schurq. proves that these costs have amounted to more, in which case it will also be entitled to that excess.
11.4 All amounts charged to Customer must be paid without discount or deduction. Customer is not entitled to set off claims, on any account whatsoever. Customer is not entitled to suspend any payment to schurq.
11.5 schurq. is entitled to suspend all its obligations in the absence of timely payment without being liable to pay any compensation to Customer. If schurq. nevertheless performs work during this period at the Customer's request, schurq. may charge a separate fee for this in accordance with its usual rates.
11.6 If there are good grounds for assuming that the Customer will not punctually perform its obligations under the agreement, the Customer will be obliged, at schurq.'s first request, to immediately furnish (additional) security, sufficient and in the form desired by schurq., and if necessary to supplement this security, for the purposes of the proper performance of all its obligations under the agreement.
12. Retention of title
All products delivered by schurq. and/or any result of services rendered by schurq. remain the property of schurq. until the moment of full payment of all claims made by schurq. at the time of delivery, on any account whatsoever, and including interest and costs. In case of a current account relationship with Customer, the retention of title remains in place until the moment of settlement.
13. Claims and warranty
13.1 All products and/or services provided and/or made available by schurq. (delivered and/or made available by schurq. must be used in accordance with the applicable laws and regulations and the (user) instructions provided by schurq. If in doubt as to application or use, Customer should consult the specialists available at schurq.
13.2 Subject to the restrictions set out below, schurq. guarantees the soundness and quality of the products and/or services it has delivered and/or made available, as well as the performance to the best of its ability of maintenance services it has performed, for a period not exceeding six months after delivery. 13.3 The warranty does not cover the delivery or installation of software (updates) or the consequences of injudicious or incorrect use.
13.4 The warranty for products and/or services delivered or supplied and/or made available is limited to material and writing errors, in which case schurq. will only be obliged to repair or replace defective parts on the understanding that schurq. will be entitled to charge the Customer for the working time required for the replacement in question.
13.5 Complaints must be made in writing and as soon as possible, but no later than 14 days after delivery, provision, installation and/or completion of the work, products and/or services or, if a delivery protocol has been drawn up, after the date of drawing up, or - in the case of non-visible defects - within 14 days after the defects could reasonably be ascertained, but in any event no later than 14 days after the expiry of the guarantee period.
13.6 Failure to meet the deadline set in the previous paragraph will result in the lapse of all claims against schurq. in respect of the warranty obligation.
13.7 schurq. is at all times entitled but not obliged to correct errors in the software it has produced and/or made available.
13.8 Complaints shall not suspend Customer's payment obligations.
13.9 Customer must enable schurq. to investigate a complaint and provide schurq. with all relevant information for this purpose. If the investigation of the complaint requires costs to be incurred, these will be borne by Customer unless the complaint is subsequently found to be justified.
14. Liability of schurq.
14.1 The liability of schurq. under the agreement is expressly limited to the guarantee obligation described in the previous article. Any additional or substitute damages in any form whatsoever, including consequential damages, lost profits, lost savings and damages due to business interruption, are excluded.
14.2 Without prejudice to the provisions of the previous paragraph, schurq. will only and exclusively be liable for damage to persons or property incurred in or as a direct consequence of performing the agreement up to the amount paid by the Customer to schurq. for the products and/or services provided or made available under the agreement in question, subject to a maximum of €10,000 (in words: ten thousand euros) per event per year, with a series of successive related events being regarded as a single event. The aforementioned maximum amount does not apply to the extent that the damage is the result of schurq. intent.
14.3 A condition for any right to compensation is always that Customer reports the damage in writing to schurq. as soon as possible after it occurs.
14.4 schurq. is never liable for loss or destruction of the information received from Customer, whether or not caused by failure or malfunction of software developed by schurq. or an attack by hackers, unless this is due to intentional misconduct by schurq. Customer must always ensure that it keeps an original or copy of the information provided to schurq.
15.1 schurq. will indemnify the Customer against any legal claim based on the allegation that software or materials supplied and/or made available to the Customer by schurq. infringe an intellectual or industrial property right applicable in the Netherlands, on condition that the Customer immediately informs schurq. in writing of the existence and substance of the legal claim and leaves the handling of the case, including the conclusion of any settlements, entirely to schurq. To this end, Customer shall provide schurq. with the necessary powers of attorney, information and cooperation to defend itself, if necessary in Customer's name, against these legal claims. This obligation to indemnify shall lapse if and to the extent that the infringement in question relates to changes made by Customer to the software or materials or caused them to be made by third parties. schurq. shall not be liable for damage arising from such infringement. Any other or further-reaching liability or indemnification obligation on the part of schurq. on account of infringement of intellectual or industrial property rights of third parties is excluded, including liability and indemnification obligations on the part of schurq. for infringements caused by the use of the software or materials supplied and/or made available in a form not modified by schurq., in connection with products or software not supplied or provided by schurq. or in a manner other than that for which the equipment, software and/or materials were developed or intended.
15.2 The Customer warrants that no rights of third parties preclude the provision to schurq. of equipment, software, materials or data for the purpose of use or processing and the Customer will indemnify schurq. against any legal action based on the allegation that such provision, use or processing infringes the rights of third parties.
15.3 Customer shall indemnify schurq. - including schurq. employees - for claims by third parties who, in connection with the performance of the agreement, suffer damage resulting from the acts or omissions of the Customer or from unsafe situations in its organization.
16. Force majeure
16.1 schurq. is not obliged to fulfill any obligations under the agreement if it is prevented from doing so as a result of force majeure. Force majeure means all that which reasonably arises outside schurq. Occurs, including but not limited to: fire, war(-threat), (threat of) terrorism or hacking, wild or organized strikes, blockades, riots or other disturbances, lack of fuel, lack of energy, transport restrictions, industrial accident, weather conditions, natural disasters including flooding, earthquake epidemic, (computer) virus, quarantine regulations, restrictions in the granting of permits, non-performance of obligations by suppliers, whether or not attributable, electricity, internet, telecommunications and/or (computer) network failure, DDoS or other cyber attacks.
16.2 As soon as force majeure occurs, schurq. will be unilaterally authorized to extend agreed deadlines to such an extent as is reasonable in connection with the force majeure factor(s) that have occurred, as well as - at its discretion - to fulfill agreements pro rata.
16.3 Customer shall not be entitled to demand the dissolution of the concluded agreement in the event of force majeure.
16.4 In the event of force majeure, schurq. will make every effort to find a solution to meet Customer's need for the product and/or service. schurq. will be entitled to charge Customer for the additional costs associated with delivering and/or making the product and/or service available to Customer despite the force majeure situation.
17. Rights of (intellectual and industrial property)
17.1 All intellectual or industrial property rights to all software developed and/or licensed under the agreement and services provided and equipment, software and other materials to be used for those services, including but not limited to: websites, data files, equipment, reports, quotations as well as preparatory materials thereof, will at all times during and after the termination of the agreement be vested exclusively in schurq. or its licensor.
17.2 Customer is not allowed to remove or change any indication concerning copyrights, brands, trade names or other rights of intellectual or industrial property from the software and the services provided, including indications concerning the confidential nature and secrecy of the software and services provided. 17.3 Without prejudice to the provisions of Article 20.1, the Customer undertakes to keep (the contents of) the software and the services provided secret, not to disclose them or give them for use to third parties and only to use them for the purpose for which they have been made available. Third parties also include all persons working in Customer's organization who do not necessarily need to use the software and services provided.
17.4 schurq. is permitted to take technical measures to protect the software. If schurq. has secured the software by means of technical protection, Customer is not permitted to remove or evade this security.
18.1 Except with the prior written consent of schurq., Customer shall be bound to keep secret all information obtained directly or indirectly in connection with the agreement in the broadest sense. In any case, information will be kept secret by Customer if such information has been designated as confidential by schurq.
18.2 Customer is aware that the software and other software made available contain confidential information and trade secrets of schurq. or its licensors.
18.3 Customer will take reasonable precautions to comply with its duty of confidentiality and warrants that its employees and other persons involved in the performance of the agreement under its responsibility will also comply with this duty of confidentiality.
18.4 This duty of confidentiality shall not apply if Customer or one of its employees is obliged to disclose the confidential information as a result of legislation and/or regulations or a court ruling and cannot invoke a statutory or court-ordered right to privilege.
19. Non-employment clause
During the term of the agreement and for one year after its termination, Customer shall not employ schurq. employees or otherwise have them work for it, directly or indirectly. If Customer breaches the provisions of this Article, Customer will forfeit to schurq. an immediately payable penalty equal to one gross monthly salary of the employee concerned for each day that the breach continues, without prejudice to Customer's obligation to compensate schurq. for damage actually suffered by schurq. Damages shall in any case include the training and recruitment costs to be incurred by schurq.
20. Duration of the agreement
20.1 Insofar as there is a term agreement, it shall be entered into for a term as included in the agreement . In the absence of a term included in the agreement, the agreement shall be deemed to have been entered into for a term of 12 (twelve) months. Customer cannot terminate the agreement prematurely.
20.2 After expiry of the term referred to in the previous paragraph, the agreement shall be extended each time for the same term unless it has been terminated by one of the parties by registered letter to the other party at least 1 (one) month prior to the expiry of that term.
20.3 If the agreement has been extended for the indefinite period referred to in the previous paragraph, the agreement may be terminated by either party by registered letter to the other party, subject to a notice period of 1 (one) month.
21. Termination and cancellation
21.1 Each of the parties is entitled to terminate the agreement only if the other party, after a detailed and reasoned written notice of default, in which a reasonable period is given to remedy the deficiencies, imputably fails to comply with essential obligations under the agreement.
21.2 If an agreement, which by its nature and content does not end in completion, has been entered into for an indefinite period of time, it may be terminated by either party, after proper businesslike consultation and stating reasons, by written notice of termination. If no express notice period has been agreed between the parties, three months' notice of termination shall be observed. The parties shall never be liable for any compensation on account of lawful termination.
21.3 Without prejudice to any further conditions agreed in writing, schurq. may terminate all or part of the agreement without notice of default and without judicial intervention by giving notice in writing with immediate effect if the Customer is granted a suspension of payments - provisional or otherwise - if a petition is filed for the Customer's bankruptcy, if the Customer's products are seized or threatened with seizure, or if products of schurq. or its licensors or if its business is wound up or terminated other than because of reorganization or amalgamation of businesses, if the control of (the business of) the Customer changes or if a request is made for the Customer to be declared subject to the debt rescheduling regulations under Article 284 of the Dutch Civil Code. schurq. will never be liable for any compensation on account of such termination.
21.4 In all cases in which the agreement ends (prematurely) pursuant to any provision in the agreement or these terms and conditions or by the intervention of a court or an arbitrator, the agreement and these terms and conditions will continue to govern the legal relationship between the parties insofar as this is necessary for the settlement thereof.
21.5 In the event of seizure or imminent seizure by Customer of products in or on which products of schurq. or its licensors are located, Customer shall immediately notify schurq. by telephone and in writing.
22. Transfer of rights/obligations
22.1 Customer is not permitted to transfer rights and/or obligations under the agreement to third parties without schurq.'s prior written consent.
22.2 schurq. is entitled to subcontract part or all of its obligations under the agreement to a subcontractor it appoints for that purpose.
22.3 schurq. is entitled to assign all claims against Customer arising from the agreement to a third party.
23. Extinction of rights of action
All rights of action and other powers of Customer on any grounds whatsoever against schurq., in connection with the performance of work performed by schurq. and licensed software, shall be brought to the attention of schurq. in writing as soon as possible and shall in any event expire one year after the time when Customer was aware or could reasonably have been aware of the existence of such rights and powers. In all cases, the aforementioned rights and other powers shall expire two years after schurq. has performed the work.
24. Applicable law and disputes.
24.1 The agreement between schurq. and Customer is governed by Dutch law.
24.2 All disputes arising from the agreement and/or these terms and conditions will be submitted exclusively to the District Court of Amsterdam.