General Terms & Conditions
These terms and conditions have been translated with DeepL Translate for reference and convenience purposes and in any case and for all the specific articles below the Dutch version is always leading.
Article 1: Applicability of these conditions
1. The present terms and conditions shall apply to all offers, orders and agreements of Apora B.V., hereinafter referred to as the contractor, both with regard to the delivery of goods and/or parts thereof and with regard to the performance of work and the provision of services, unless expressly agreed otherwise in writing.
2. Should the other party, at the conclusion of the agreement, refer to its own general terms and conditions, the contractor shall reject them now for then, except for the case in which the contractor explicitly states in writing to accept these terms and conditions.
3. The present terms and conditions shall also apply in favour of third parties by whom the contractor has the agreement executed in whole or in part.
Article 2: Offers
1. The offers, price lists and prices of the contractor are always entirely without obligation. Illustrations, descriptions, drawings, etc. in prospectuses and the like are always entirely free of obligation and do not bind the contracted party.
2. Unless otherwise stated, all offers made by the contractor in any form whatsoever will be valid for thirty days.
Article 3: Agreement
1. Orders shall be deemed to have been accepted by the contractor only when confirmed by the contractor in writing or when the contractor carries out the order. The order confirmation will be deemed to be correct, unless written objections to it are received within seven working days of its dispatch. The date of the confirmation is decisive in this respect.
2. Any arrangements or changes made, as well as (verbal) arrangements and/or promises made by staff, representatives, agents or intermediaries of the contractor shall only be binding on the contractor if and insofar as they have been confirmed in writing by the contractor.
3. Each agreement shall be entered into by the contractor under the suspensive condition that the other party turns out to be sufficiently creditworthy for the financial performance of the agreement, this solely at the discretion of the contractor.
4. On or after entering into the agreement, the contractor shall be entitled to demand an advance payment from the other party or to demand security that both the payment obligations and the other obligations will be met, before performing or continuing to perform.
5. In the event of cancellation by the other party of an agreement that has already been concluded, the work already carried out up to that point and/or costs incurred will be charged on.
Article 4: Cancellation
1. Cancellation of an order is in principle not possible.
2. If the other party cancels an agreement, cancellation costs will be charged, without prejudice to the contractor's right to reasonable compensation for damages, including compensation for loss of profit, except in cases where application of this provision would be unreasonably onerous.
3. If the other party nevertheless cancels the order, it shall moreover be obliged - to pay for what has already been performed; - to compensate the costs resulting from the cancellation and any exchange losses if the contractor has concluded an exchange rate agreement with a bank or other third party in connection with the order; - to indemnify the contractor against claims by third parties as a result of the cancellation of the order.
Article 5: Prices
1. Unless otherwise stated, all quotations by the contractor shall be subject to change in price.
2. Unless otherwise stated, the prices shall be:
- based on the purchase prices, wages, labour costs, social and government charges, insurance premiums and other costs applicable on the offer or order date;
- exclusive of VAT, import duties, government levies, duties and other taxes;
3. In the event of an increase in one or more of the cost price factors, the Contractor will be entitled to increase the order price accordingly, with due observance of any relevant statutory provisions, on the understanding that reasonably foreseeable price increases must be stated in the order confirmations. If the price increase takes place within three months of the conclusion of the agreement, the other party shall be entitled to dissolve the agreement, unless the contractor is obliged to increase the price on the basis of statutory provisions.
Article 6: Payment
1. Unless otherwise agreed in writing, payment must be made, without any discount, or by deposit or transfer into a bank or giro account designated by the contractor, within fourteen days of the invoice date. The value date indicated on the contractor's bank or giro account statement shall be decisive and shall therefore be regarded as the day of payment.
2. Each payment made by the other party shall primarily serve to pay the interest owed by it as well as the collection and/or administration costs incurred by the contractor and shall subsequently be deducted from the oldest outstanding claim.
3. In cases where the other party:
a. is declared bankrupt, cedes its assets, submits a request for a suspension of payments, or has all or part of its property attached;
b. dies or is placed under guardianship;
c. fails to comply with any obligation resting upon him by virtue of the law or this condition;
d. fails to pay an invoice amount or a part thereof within the stipulated period;
e. discontinues or transfers his business or an important part thereof, including the contribution of his business to a company to be incorporated, or proceeds to change the objective of his business.
The other party shall be in default by the mere occurrence of one of the aforementioned circumstances. All claims of the contractor on the other party shall in that case become immediately due and payable and the contractor shall be entitled to suspend the (execution of the) agreement in whole or in part or to regard the agreement as dissolved without further notice of default and without judicial intervention, without prejudice to the contractor's right to compensation for damage, costs and interest.
Article 7: Interest and costs
1. If the term of payment is exceeded, the other party shall be in default by operation of law and the contractor shall be entitled to charge the other party interest of 1.5% per month from the date of invoice, whereby part of a month shall be calculated as a whole month.
2. In the event of non-payment or late payment or non-fulfilment of one of the other party's obligations, the other party shall owe the contractor all collection costs, both judicial and extrajudicial, in addition to the purchase price and the interest, caused by the non-payment or non-fulfilment. The extrajudicial collection costs will amount to at least 15% of the amount owed by the other party, including the aforementioned interest, with a minimum of €250, and will be owed in each case in which the contractor has secured the help of a third party for the collection. The fact that a third party has been called in will already demonstrate the extent of the other party's obligation to pay extrajudicial costs, without the Supplier being obliged to demonstrate that he has actually incurred these costs.
Article 8: Delivery
1. The Contractor will deliver the software to be developed and/or adapted in accordance with the specifications given by the Other Party, ready to use.
2. Stated delivery times are approximate only and are not firm deadlines, unless explicitly agreed otherwise in writing. The Supplier shall not be liable vis-à-vis the other party on account of failure to deliver on specific dates. If a delay arises due to circumstances beyond the control of the contractor, the delivery period shall be extended accordingly, unless this is manifestly unreasonable, taking all circumstances into account. If delivery does not take place within a reasonable period of time, the other party will subsequently be entitled to cancel the order and to reclaim any amounts already paid.
3. The term of delivery shall be extended by the duration of the delay that arises on the part of the contractor as a result of the other party's failure to fulfil any obligation arising from the agreement or these terms and conditions, or as a result of the other party's failure to cooperate with regard to the agreement.
4. Subject to the provisions of the previous section, the Contractor can only be held liable for exceeding the term of delivery after the Contractor has been given a reasonable period in which to fulfil its obligations and after the Other Party has given it notice of default in writing.
5. The agreed term of delivery shall commence on the day on which the written confirmation of order is dated. If the contractor has stipulated an advance payment, the agreed term of delivery shall not commence before the day on which this advance payment is received by the contractor.
6. The contractor is entitled to deliver in parts (partial deliveries), which the contractor may invoice separately. If and as long as a partial delivery has not been paid for by the other party and/or the other party does not meet other obligations under the agreement concerned or earlier agreement(s), the contractor shall be entitled to suspend the other deliveries or to dissolve the agreement without further notice of default and without judicial intervention, all this at the contractor's discretion, without prejudice to the other party's right to compensation for damage, costs and interest.
7. The contractor shall be entitled - should he deem it necessary - to call in others for the correct execution of the agreement, the costs of which shall be passed on to the other party in accordance with the quotations provided. The other party will be entitled to terminate the agreement for that reason, subject to payment of that which has already been delivered or performed, if it has valid reasons for doing so.
8. The other party will have the right to test the software for a period of fourteen days after delivery in usable form.
9. If the Supplier has not received a written response from the other party giving a description of the defects fourteen days after delivery, the other party will be deemed to have accepted the software.
Article 9: Cooperation by the other party
The other party shall be obliged to cooperate fully and to provide all necessary and useful information that is relevant for the realisation of the assignment given by the other party. The other party guarantees the correctness and completeness of the data provided by it.
Article 10: Development and management of software
The Supplier shall carry out the development, adaptation and/or management of the software and/or application to be used by the other party to the best of his ability on the basis of the information to be provided by the other party.
Article 11: Other party's liability
If the application or the progress of the work is delayed by factors for which the other party is responsible, the resulting damage and costs must be compensated by the other party.
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.
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.
