Terms and conditions Klien-IT-Systems BV

The general terms and conditions (25 October 2021) of Klien-IT-Systems BV (hereinafter ‘Klien IT Systems’) can be found at https://klien-it-systems.com/algemene-voorwaarden/.
The customer expressly agrees to this electronic delivery and declares to have received a copy of these general terms and conditions:

Article 1: Applicability

1.1
These general terms and conditions apply to all requests, offers, quotations, orders, order confirmations, (legal) acts, transactions and agreements concluded and to be concluded – with regard to the delivery of goods and/or services of whatever nature and under whatever name – between the Customer and the Supplier, being Klien IT Systems.

1.2
The Customer is the company with whom the Supplier concludes or wishes to enter into an agreement, to whom the Supplier makes an offer or to whom the item and/or service is provided by the Supplier.

1.3
Deviations from these general terms and conditions are only legally valid if agreed in writing, including by email.

1.4
The applicability of purchase conditions, general conditions or other conditions of the Customer is expressly rejected.

Article 2: Quotation and conclusion of the agreement

2.1
All quotations from the Supplier are without obligation and are valid for a maximum of thirty (30) calendar days, unless stipulated otherwise in writing.

2.2
The agreement is concluded as soon as the written acceptance of the quotation or order has reached the Supplier.

2.3
The Buyer cannot hold the Supplier to a quotation if the Buyer knows or should reasonably understand that the quotation issued by the Supplier contains an obvious (qualitative or quantitative) error or clerical error.

2.4
Quotations and offers do not automatically apply to future and/or follow-up orders.

2.5
A composite quotation or offer does not oblige the Supplier to perform part of the assignment for a corresponding part of the stated price.

2.6
If the Supplier’s quotations and price offers are based on the information provided by the Buyer, the Buyer warrants that it has provided all essential information for the order in a timely and truthful manner. The Supplier cannot be held liable for the information provided by the Buyer.

2.7
Deviations of minor significance between the delivered work and the original design cannot constitute a reason for rejection, discount, dissolution of the agreement or compensation.

2.8
Changes and reservations in acceptance with regard to the quotation are not binding on the Supplier unless it expressly agrees therewith.

Article 3: Delivery, cooperation and execution

3.1
Agreed dates of delivery in these general terms and conditions always apply to the Supplier as target dates, are not binding on the Supplier, are indicative and never apply as a deadline. Exceeding the delivery time therefore does not entitle the Customer to dissolution or compensation on any ground whatsoever.

3.2
The way in which goods – specifically in the case of hardware – are packaged is determined by the Supplier.

3.3
The Supplier will make every effort to the best of its knowledge and ability to perform the agreement optimally.

3.4
No additional work will be performed by the Supplier, unless the Customer has requested this in advance in writing and the Supplier has agreed to this in writing.

3.5
The Customer may only use the goods and/or services offered for the benefit of its own company or organization and this exclusively in accordance with the intended use of the goods and/or services offered.

3.6
The Supplier may make changes to the content or scope of the items and/or services offered.

3.7
The Supplier may temporarily put the items and/or services offered out of use in whole or in part for maintenance or other form of services.

3.8
If the Buyer wishes to postpone the delivery by the Supplier of the goods offered and have them stored by the Supplier, the storage of these goods will at all times be at the expense and risk of the Buyer.

Article 4: Price and payment
4.1
The prices stated by the Supplier are in euros and exclude transport costs, travel costs, VAT, other levies and/or government charges.

4.2
The Customer can never derive any rights or expectations from the cost estimate, budget or budget issued by the Supplier, unless the parties have agreed otherwise in writing.

4.3
In the event of several natural persons and/or legal persons on the side of the Customer, each of those (legal) persons is jointly and severally liable towards the Supplier in compliance with these general terms and conditions.

4.4
After a period of one (1) month after the acceptance of the quotation by the Purchaser, the Supplier is entitled to adjust the price as a result of changes in price-determining factors.

4.5
The Supplier has the right to deliver the goods and/or services by means of partial deliveries and to invoice partial invoices. The Supplier also has the right to request advance payment for the delivery and/or service.

4.6
The payment term is fourteen (14) calendar days after the invoice date, unless otherwise agreed in writing. After the expiry of this payment term, the Customer is in default by operation of law; from the moment of default, the statutory commercial interest is due on the amount due.

4.7
All costs that the Supplier must incur to settle the claim in and out of court are for the account of the Customer. These extrajudicial collection costs are calculated in accordance with the graduated scale from the Decree on compensation for extrajudicial collection costs applicable pursuant to Article 6:96 paragraph 5 of the Dutch Civil Code, with a minimum of €250 per claim.

4.8
If an invoice is not paid on time, the Supplier is entitled to suspend its deliveries without any reminder or notice of default being required, also for orders from the Customer other than those to which the unpaid invoice relates. The Supplier is not liable for any damage resulting from such suspension.
4.9
If the Supplier has reasonable doubts about the Customer’s payment capacity, the Supplier is authorized to postpone deliveries until the Customer has provided security for the payment. The Buyer is liable for the damage suffered by the Supplier as a result of this delayed delivery.

4.10
The Customer is not entitled to suspension or set-off.

Article 5: Transfer of risk
5.1
The risk of loss, theft, damage or misappropriation of items, data (files), data, user names, passwords, codes, documents, software that have been/will be produced in the context of the execution of agreements for , are/are delivered to or are/are used by the Customer, transfers to the Customer at the moment when these are placed in the actual possession of the Customer or auxiliary person of the Customer.

Article 6: Retention of title
6.1
As long as the Buyer has not fully fulfilled all its payment obligations towards the Supplier under the agreement or related or subsequent or preceding agreements, the Supplier retains title to all delivered goods. Ownership of all delivered goods transfers to the Buyer as soon as the Buyer has fulfilled all its obligations towards the Supplier.

6.2
In the case referred to above, the Supplier may retain the information, documents, data files or software received or realized within the framework of these general terms and conditions until the Customer has paid all amounts owed to the Supplier.

6.3
The Customer shall at all times cooperate in the exercise of the Supplier’s retention of title, including granting access to the Customer’s establishment(s), building(s) or location(s), for the repossession of the goods delivered by the Supplier.

Article 7: Warranty
7.1
The Supplier will perform the Services to the best of its knowledge and ability and in accordance with good industry practices.

7.2
The Supplier guarantees for a period of a maximum of three (3) months from delivery that the goods and/or services developed by the Supplier will function, within which the Buyer has the option to inform the Supplier in a timely manner, but at the latest within ten (10) working days. in writing of any errors.

7.3
Defects that are the result of deviant use or of other incidents or factors that are attributable to the Customer or are for the account and risk of the Customer, are not covered by this guarantee.

7.4
This warranty extends – at the sole discretion of the Supplier – only to repair, replacement or compensation by or on behalf of the Supplier. The warranty does not entail any right to compensation or reimbursement of other claims or compensation. Article 8 of these general terms and conditions also applies to these guaranteeing commitments.

Article 8: Liability and indemnification
8.1
Any liability, for whatever reason, of the Supplier towards the Customer is limited to the amount (excluding VAT) paid by the Supplier to the Customer in the six months prior to the occurrence of the liability in charged, with a maximum of € 5,000 (five thousand euros) per event or series of related events.

8.2
The Supplier can only be held liable if the Supplier is in default. Default does not take effect until the Supplier has been given written notice of default by the Buyer and has been given a period of 30 days to repair the defect found by the Buyer.

8.3
Any liability for indirect damage is expressly excluded, including consequential damage, delay damage, lost profit, lost savings, fines from third parties, loss of data/data, damage due to hacked applications or (computer) systems and damage due to business interruption and idleness.

8.4
Reimbursements based on the warranty obligations are also subject to the limitation of paragraph 1.

8.5
The Customer indemnifies the Supplier against all claims and other claims from third parties and the resulting damage as a result of a shortcoming by the Customer of this agreement or any other act or omission of the Customer, without prejudice to the provisions of the previous paragraphs.

8.6
The Supplier is entitled to accept liability limitations of the third parties engaged by the Supplier in the context of the agreement on behalf of the Customer.

8.7
The Customer must immediately, but within fourteen (14) calendar days after the claim has arisen or after the Customer should reasonably have been aware of (the occurrence of) the claim, a written notification of the damage to the Supplier.

8.8
The liability of the Supplier is not excluded for damage that is the result of intent or wilful recklessness on the part of the Supplier or its managerial subordinates.

Article 9: Force majeure
9.1
In addition to the provisions of article 6:75 of the Dutch Civil Code, a failure by the Supplier in the fulfilment of any obligation towards the Customer cannot be attributed to the Supplier in the event of a circumstance independent of the will of the Supplier, as a result of which the fulfilment is prevented in whole or in part from his obligations towards the Buyer or as a result of which the fulfilment of his obligations cannot reasonably be expected of the Supplier. These circumstances include pandemics or epidemics, government intervention, weather conditions, power failures, internet failures, data communication failures, computer viruses, hacked applications or (computer) systems, cyber-attacks, strikes, work stoppages.

9.2
If a situation as referred to in Article 9.1 arises as a result of which the Supplier cannot fulfil its obligations towards the Customer, those obligations will be suspended as long as the Supplier cannot fulfil its obligations. If the situation referred to in the previous sentence has lasted thirty (30) calendar days, the Supplier has the right to dissolve the agreement in whole or in part in writing. If the situation has lasted longer than ninety (90) calendar days, the Customer has the right to dissolve the Agreement in whole or in part. In that case, the Supplier is not obliged to pay compensation for any damage, even if the Supplier enjoys any advantage as a result of the force majeure situation.

Article 10: Confidentiality
10.1
The Customer will not disclose the information it receives (in whatever form) from the Supplier and any other information concerning the Supplier that it knows or can reasonably suspect to be secret or confidential or information that it can expect to the distribution thereof, the Supplier will keep the damage involved secret and take the necessary measures to ensure that its personnel will keep the said information secret.

10.2
The duty of confidentiality referred to in paragraph 1 does not apply to information:
a- which was already public at the time the Customer received this information or has subsequently become public without a breach by the Customer of its duty of confidentiality;
b- which the Customer can prove that it was already in its possession at the time of delivery by the Supplier;
c- which the Customer has received from a third party, whereby this third party was entitled to provide this information to the Customer;
d- which the Customer makes public on the basis of a legal obligation;
e- which the Customer has developed itself without using the confidential information.

10.3
The duty of confidentiality described in this article remains in effect for a period of five years after the end of the legal relationship.

Article 11: Software and user license
11.1
The Supplier makes the software available to the Customer on the basis of a user license. The right to use the software is inextricably linked to the goods and/or services and is non-exclusive, non-transferable, non-pledge able and non-sublicensable.

11.2
The obligation to make available by the Supplier and the right of use of the Customer extend exclusively to the object code of the software. The right of use does not extend to the source code. The source code and the technical documentation created during the development will not be made available to the Customer, even if the Customer is prepared to pay financial compensation for this.

11.3
The Supplier is entitled to take measures to protect the software against unlawful use and/or against use other than that agreed between the parties. The Customer will never remove or have circumvented technical provisions that are intended to protect the software.

11.4
The Customer is not permitted to copy, adapt, sell, rent, alienate or grant limited rights to software or make it available to a third party in any way, for any purpose or under any title. Nor will the customer give a third party access to the software.

Article 12: Intellectual Property Rights
12.1
All intellectual property rights with regard to the goods and/or services are vested in the Supplier, even if the Supplier has manufactured, developed or created the goods and/or services with due observance of specifications or instructions from the Customer.

12.2
Under no circumstances does the delivery of goods and/or services include an (implicit) transfer of any intellectual property right with regard to the goods and/or services delivered to the Customer. Without the prior written consent of the Supplier, the Customer is not permitted to imitate, reproduce and/or make public the goods and/or services in whole or in part.

12.3
The Customer indemnifies the Supplier against any claim by third parties regarding an infringement of an intellectual property right, which may be the result of specifications or instructions from the Customer. In that case, the Supplier is entitled to discontinue the production and/or delivery of the relevant goods and/or services with immediate effect. The Customer is obliged to compensate all damage and costs resulting from this, including any legal costs.

Article 13: Audit
13.1
The Supplier has the right to test the use of the Software by the Customer by means of an audit, in which computers and systems may be examined by an IT specialist. The costs of the audit will be borne by the Supplier.

13.2
Supplier must announce an audit at least five (5) working days in advance, and the audit will take place on working days between 9:00 AM and 6:00 PM Central European Time (CET).

13.3
If the audit shows that more fees were owed than the Customer has reported, the Customer will immediately pay the excess with a fine of 300%, plus the statutory commercial interest from the moment the fees were due.

Article 14: Penalties
14.1
If the Customer violates Article 10 Confidentiality or Article 11 Intellectual Property Rights, the Supplier forfeits, irrespective of whether the violation can be attributed to the Customer and without prior notice of default or legal proceedings, a non-settable immediately due and payable fine of €100,000 (one hundred thousand euros) for each violation and an additional amount of €10,000 (ten thousand euros) for each day or part of a day that the violation continues, without there having to be any form of damage and without prejudice to the other rights of the Supplier, including its right to claim compensation in addition to the fine if the damage is higher.

14.2
The provisions of this agreement that are intended to remain in force after the end of the legal relationship, including but not limited to Article 8, Article 11, Article 12, Article 13, Article 19 and in this Article, shall remain after termination of the agreement remains in full force.

Article 15: Termination
15.1
If the Buyer imputably fails or threatens to fail in the fulfilment of any agreement with the Supplier, the Supplier is entitled to dissolve the agreement in whole or in part, without notice of default, without judicial intervention, by means of a registered letter or by e-mail, without being obliged to pay any compensation to the Customer.

15.2
The Customer is liable for all damage suffered by the Supplier as a result of the failure by the Customer referred to in the previous paragraph or the dissolution of the agreement.

Article 16: Termination
16.1
In the event of (an application for) bankruptcy, (provisional) suspension of payments or dissolution of the Customer, partial or complete transfer or closure of its business, change of control of the Customer, commencement of a WHOA process regarding the Customer or if the Customer knows that one of these situations will (probably) occur, the Customer is obliged to immediately inform the Supplier of this in writing.

16.2
If one of the cases referred to in the previous paragraph occurs, all claims of the Supplier against the Customer are immediately and fully due and payable and the Supplier is entitled to terminate the agreement with immediate effect, Without being obliged to pay any compensation or other compensation to be.

16.3
The Supplier is entitled to terminate the agreement in writing at any time, with due observance of a term of at least one month.

Article 17: Forfeiture and assignment
17.1
All rights of action of the Buyer against the Supplier, whether on account of a failure to perform an agreement, or on account of an unlawful act, or on any other ground, lapse as soon as a period of one year has expired after the day on which the Customer became aware or could reasonably have become aware of the existence of those rights of action and the Supplier has not brought a legal claim in this regard within that period of one year.

17.2
Buyer’s rights under the agreement cannot be transferred without the prior written consent of the Supplier.

Article 18: Partial binding and amendment
18.1
The Supplier has the right to amend these general terms and conditions. In that case, the Supplier will inform the Customer of the changes in good time. The amended general terms and conditions will apply after the amendment takes effect.

18.2
If any provision of these general terms and conditions is or becomes non-binding, the other provisions will remain in full force and effect. The parties undertake to replace the non-binding provision with a provision that is binding and that deviates as little as possible from the non-binding provision in terms of content and scope.

18.3
The Supplier reserves the right to transfer the rights arising from this agreement to any of its affiliates.

Article 19: Privacy
19.1
In order to act in accordance with the General Data Protection Regulation (“GDPR”), the Customer is obliged to observe strict confidentiality with regard to all information relating to the Supplier, and its affiliates, its customers, suppliers, relations employees, in the broadest sense of the word. No information may be shared in any way by the Customer without the prior consent of the Supplier. This duty of confidentiality applies expressly to all personal data within the meaning of the GDPR, regardless of who they relate to. In the event of any suspicion of loss, infringement or misuse of personal data, the Customer is obliged to report this immediately to the Supplier.

19.2
In the performance of its work, the Supplier will process data for the benefit of the person responsible for the data (i.e. the Customer) and not for purposes other than those explicitly agreed in the agreement. The Supplier acts as a Processor within the meaning of the AVG and the Customer acts as a Controller within the meaning of the AVG. The supplier will apply a high degree of care in the processing in accordance with the legal obligations arising from the GDPR.

19.3
The Supplier will process data for the purpose of executing the agreement. This processing concerns personal data such as name, address, e-mail address, telephone number and IP address. No special personal data will be processed. The processing relates to personal data of employees and customers of the Customer.

19.4
The Supplier will process personal data on behalf of the Customer for the duration of the agreement.

19.5
The Buyer has the right to give the Supplier reasonable instructions with regard to the processing of personal data. In principle, the processing takes place exclusively on the basis of specific instructions from the Customer.

19.6
The Supplier imposes the same obligations on any sub-processors in a separate sub-processor agreement as the Supplier has towards the Customer. If the Supplier wishes to engage sub-processors, the Supplier will request written permission from the Customer for this.

19.7
The Supplier assists the Customer in complying with its obligations if data subjects exercise their privacy rights under the GDPR. These privacy rights include the right to inspect personal data, the right to correction, the right to be forgotten and the right to data portability. In addition, the Supplier will help the Customer to comply with other legal obligations with regard to the processing of personal data.

19.8
The Supplier is obliged to maintain the confidentiality of the personal data it receives from the Customer, unless a statutory regulation obliges the processor to disclose the personal data. The Supplier guarantees that those who process personal data under its management and supervision (‘sub-processors’) are bound by the confidentiality of the personal data.

19.9
Upon termination of the agreement between the Supplier and the Buyer, the Supplier shall return and/or destroy the data processed by the Buyer during the execution of the agreement.

19.10
The Buyer shall provide the Supplier with all information necessary to demonstrate compliance with the obligations laid down in this article. The controller has the right to monitor or ensure compliance with the obligations laid down in this article at any time.

Article 20: Applicable law and dispute settlement
20.1
The legal relationship between the Supplier and the Customer is exclusively governed by Dutch law. Applicability of the Vienna Sales Convention (CISG) is excluded.

20.2
Disputes will be submitted to the Central Netherlands Court (Utrecht). However, the Supplier has the right to also submit the matter to the court of the Customer’s place of business.