Article 12: Guarantee
1. Guarantees on work carried out by the contractor extend to three months after completion of the work. All claims to guarantees will lapse if third parties, without the contractor's prior knowledge and consent, have carried out work that can be related to the work carried out by the contractor for which the guarantee is invoked.
2. The warranty will not apply if - the defects are the result of injudicious use by the other party and/or third parties called in by him, the other party and/or third parties called in by him have carried out changes and/or modifications to the delivered goods, or had these carried out, on his own initiative during the guarantee period; - the other party fails to fulfil any obligation arising from this or other agreements with the contractor, or fails to do so properly or in time; - the contractor has delivered goods used in accordance with the agreement.
3. The guarantee of the contractor shall entail that during the guarantee period, the contractor shall, at his sole discretion, either repair faults or take back the delivered goods in whole or in part at his expense and replace them by a new delivery, or credit the other party for the relevant invoice amount. The contractor shall never be obliged to pay compensation for costs exceeding the original value of the goods found to be faulty in and/or under the agreement. If the contractor replaces items in order to meet its guarantee obligation, the replaced (parts of) items will become the contractor's property.
4. The Contractor cannot guarantee that the software will operate without interruption or defects or that all defects will/can be corrected.
5. Restoration of any lost data is not covered by the guarantee under any circumstances.
Article 13: Non-attributable failure to perform
1. A non-attributable failure in performance shall be understood to mean: a failure which is not attributable to fault on the part of the contractor and which should not be attributed to him by virtue of law, legal act or generally accepted practice.
2. In the event of a non-attributable failure in performance, the contractor shall have the right, in consultation with the other party, to agree upon a period within which performance may still take place. If performance is no longer possible, the parties shall be entitled to regard the agreement as dissolved. In that case, they must inform the other party of this in writing; they shall not be obliged to pay any compensation, insofar as existing statutory provisions permit this.
3. The Contractor shall be entitled to demand payment for any performance rendered in the execution of the agreement concerned before a situation as referred to in this article has become apparent.
Article 14: Liability
1. Subject to the contractor's liability under mandatory provisions of law and generally applicable rules of reasonableness and fairness, the contractor's liability shall be limited to the guarantee obligation mentioned in article 12. Consequently, the contractor shall not be liable for and shall therefore never be obliged to compensate any damage of any nature whatsoever, whether directly or indirectly, including trading losses to movable or immovable property, or to persons, both at the other party's and at third parties' sites, caused by defects in the products supplied and/or services rendered.
2. The contractor shall not be liable for damage resulting from the failure of items delivered by the contractor to comply with statutory or other government requirements in respect of (the use of) such items, unless such damage is attributable to intent or gross negligence.
3. The contractor shall not be liable for damage arising or caused by the use of the items delivered or by their unsuitability for the purpose for which the other party has purchased them.
4. The contractor shall not be liable for damage resulting from errors or omissions by third parties charged by the contractor with carrying out work.
5. The other party shall indemnify the contractor against all third party claims relating to goods delivered or activities carried out by the contractor, unless it has been established by law that these claims are a direct consequence of gross negligence on the part of the contractor and the other party moreover proves that it is not at fault in this respect.
6. The contractor's liability shall at all times be limited to the amount for which the contractor is insured.
Article 15: Intellectual property rights
1. The intellectual property rights vested in the software programs developed by the contractor or by third parties on the contractor's instructions shall remain the property of the contractor, unless expressly agreed otherwise in writing.
2. The Contractor shall indemnify the Other Party against any action by third parties based on the allegation that the software developed by or on behalf of the Contractor infringes a copyright valid in the Netherlands.
Article 16: Confidentiality/competition clause
1. The contractor shall keep secret all confidential business-related information obtained by the other party and shall impose the same obligation on all who work for the contractor on any account whatsoever.
2. The other party shall not be allowed to enter into an employment agreement with any of the contractor's employees or to employ these (former) employees in any other way, during and/or within 12 months of the expiry of the agreement with the contractor, unless with the written consent of the contractor. If the provisions of this article are violated, the other party shall forfeit an immediately payable fine of € 25,000 to the contractor.
Article 17: Reservation of ownership
1. The ownership of goods shall only be transferred to the other party upon full payment of all claims of the contractor in consideration of goods delivered or to be delivered by and/or for the account of the contractor to the other party by virtue of an agreement, as well as for any failure in the fulfilment of such an agreement.
2. In the event of non-payment of an amount receivable, suspension of payment, moratorium, bankruptcy, placement under guardianship, liquidation of the other party or death, the contractor shall be entitled to cancel the order or the part still to be delivered without judicial intervention and to reclaim the goods delivered but not yet paid or not paid in full as the contractor's property, taking into account any payments already made and without prejudice to the contractor's rights to demand compensation for any loss or damage. In those cases, each claim which the Supplier has against the Other Party shall be immediately due and payable.
Article 18: Applicable law
Dutch law shall apply to all offers and agreements of the contractor and the execution thereof.
Article 19: Disputes
All disputes, including those which are only considered as such by one of the parties, resulting from or related to the agreement to which these conditions apply or the conditions in question themselves and their interpretation or execution, both of a factual and legal nature, shall be decided by the competent Civil Court in the district where the Supplier has its registered office, to the extent that statutory provisions permit this.