General terms and conditions of the private company with limited liability Qweon B.V., with its registered office in Venlo, registered in the commercial register under number 55448399.
ARTICLE 1 APPLICABILITY
1. These terms and conditions apply to all offers, tenders, agreements and contracts provided to the private company with limited liability Qweon B.V. (further: "Qweon"), insofar as parties have not explicitly deviated from the present terms and conditions.
2. The natural or legal person who receives an offer from QWEON or who enters into an agreement with QWEON is referred to in these terms and conditions as "other party".
3. QWEON strives to make these terms and conditions available to the other party before or at the conclusion of contracts. If delivery by hand, however, has not taken place or is not reasonably possible, other party can request access from QWEON or turn to the Chamber of Commerce where these conditions are filed. On the first request of other party, the terms and conditions will be sent free of charge. The terms and conditions are available for free download on www.qweon.com.
ARTICLE 2 TERMS AND CONDITIONS OF OTHER PARTY AND ALTERNATIVE ARRANGEMENTS
1. The general purchase, delivery and/or payment terms by other party shall not apply to offers of QWEON and contracts arranged with QWEON. QWEON expressly rejects the conditions applied by other party.
2. Agreements between QWEON and other party that are different from these terms and conditions are only valid if QWEON has confirmed them in writing.
ARTICLE 3 OFFERS AND AGREEMENTS
1. All offers are without obligation and shall automatically expire after a period of thirty (30) days after the date of the offer. If an offer is accepted by other party, QWEON has the right to withdraw the offer within seven working days after receipt of the acceptance.
2. An agreement will only become effective, even after acceptance of an offer from QWEON by other party, after the agreement has been confirmed in writing to other party, or if QWEON has started with the implementation of the agreement.
3. A compound price quote does not require QWEON to execute part of the assignment for a corresponding part of the given price. Offers and tenders shall not apply automatically to future assignments.
ARTICLE 4 PRICES
1. QWEON reserves the right to increase the agreed prices if, after conclusion of the agreement but before the time of its implementation, changes to one or more cost factors warrant this.
2. QWEON shall inform other party in writing in good time, if and to the extent that he makes use of the right referred to above to effect price changes. QWEON gives other party the right, if the price change leads to a price difference with the agreed price of more than fifteen percent (15%), to dissolve the agreement in writing without QWEON owing any compensation to other party where appropriate.
3. Any operations and services that supplement or amend thereupon, commissioned by other party and delivered by QWEON, hereinafter referred to as "extra work", will be charged to other party on the basis of actual costs incurred
4. The following circumstances may give rise to additional work:
a. Work or other services which are outside the agreement, will only be undertaken by QWEON after having received prior written authority of other party, which assignment will be based on a tender released by QWEON;
b. Extension or modification of analysis, requirements and needs, or design, after these have been approved by other party;
c. Requirements, wishes, conditions or expectations of other party which, at the time of entering into the agreement were not, or not fully, or insufficiently made clear to QWEON;
d. Flaws and defects in products or services of third parties, which were not reasonably foreseeable by QWEON or over which QWEON has little or no influence;
e. Lack of cooperation of other party in the implementation of the agreement.
5. Other party shall be deemed to have agreed to the implementation of additional work and associated costs when other party has let the implementation of the extra work take place without having demonstrated in writing that such was not desired.
6. In the absence of an expressly agreed invoicing schedule, all amounts relating to the design and development of the website shall be owned per calendar month in arrears. QWEON is always entitled, prior to or in the continuation of its services by means of an invoice, to request one or more deductible advances, up to the size of the expected performance in a period of two months in advance.
7. Unless otherwise agreed in writing or otherwise expressed by QWEON, the price for the design and development work also includes the fee for the right to use the website.
8. Unless otherwise agreed in writing, the fee for the design and development of the website does not include a fee for software, 'content management system', installation services and maintenance and management of the website needed by other party. Nor does the license fee include the provision of support to the technical and substantive administrators of the website. This work and these services, where appropriate, will be charged separately at the usual QWEON rates.
9. All prices are specified in euros excluding VAT, other Government levies and expenses to be possibly made within the scope of the agreement, including travel and subsistence, shipping and handling, unless otherwise stated in the offer and if so agreed.
ARTICLE 5 PAYMENT TERMS
1. Payment will have to be made in Netherlands. Other party authorizes QWEON to collect monthly in arrears by means of direct debit. If the payments due cannot be collected, a second collection attempt will be made. If collection is not possible even then, other party is due € 25.00 administration costs to QWEON. In that case payment of the services and/or business provided by QWEON must still be made no later than fifteen (15) days after the invoice date, unless otherwise agreed in writing.
If payment abroad is agreed upon, QWEON will indicate to other party how and where payment should take place. Any costs as a result of the payment abroad, including cost of transfer to the Netherlands and exchange rate losses, shall be borne by other party. QWEON is entitled to charge a surcharge on the sales price, or to charge these costs separately.
2. Other party may not claim against QWEON the clearing and/or suspension of payment related to alleged shortcomings of QWEON or any other ground.
3. After the expiry of the period referred to in paragraph 1, the invoice amount is immediately due and payable. Other party will then, without a notice of default being required, automatically be in default.
4. With the expiry of the period referred to in paragraph 1, other party shall owe interest on the unpaid amount of 1% per month, up to the day of overall satisfaction, in which part of a month counts as a full month.
5. If other party is in default with regard to the timely performance of its payment obligations, it shall owe QWEON the extrajudicial collection costs which are set at 15% of the unpaid amount, with a minimum of € 250.00. In addition, other party is obliged to assume all extrajudicial costs, process costs and costs for legal assistance made by QWEON and pay in full.
Among these costs are also understood other and/or higher costs than estimated court costs pursuant to the law.
6. Without prejudice to paragraph 3, in the event of bankruptcy (application), (application for) suspension of payment, cessation or liquidation of the company of other party, or admission to a legal debt restructuring arrangement, without that notice is required, other party shall be automatically in default. The full amount of what is then claimable by QWEON is then immediately due and payable.
7. If other party is composed of several natural persons and/or legal entities, each of those persons is jointly and severally liable to comply with the amounts due under the contract.
ARTICLE 6 EXECUTION TIME
1. QWEON shall reasonably exert its best efforts to observe any delivery and/or execution time limits as much as possible. If for the performance of certain activities a term has been agreed or specified, then this is never an absolute deadline. Upon exceeding a term, other party should notify QWEON in writing of its default QWEON should be allowed a reasonable term to still implement the agreement.
2. When a delay or extension in the implementation of certain activities is not attributable to QWEON or third parties engaged by QWEON, QWEON has the right to pass on any additional costs to other party.
ARTICLE 7 COOPERATION OTHER PARTY
1. QWEON and other party shall recognize that the success of the agreed activities depends on a correct and timely cooperation. To make possible a proper implementation of the agreement by QWEON, other party will always provide QWEON in a timely manner with the data and/or information QWEON deems useful, necessary and desirable and provide any assistance.
2. If other party does not, not timely or not in accordance with the agreements provide the data, documents, equipment, software, materials or employees deemed useful, necessary or desirable by QWEON to QWEON, or if other party otherwise fails to comply with its obligations, QWEON has the right to total or partial suspension of the execution of the contract and QWEON also has the right to charge to the resulting costs according to its usual prices, without prejudice to the right of QWEON to exercise any other legal and/or agreed right.
3. If other party after having been requested in writing for that purpose by QWEON fails to cooperate, QWEON is entitled is to set other party a deadline in this regard. If other party after the expiry of that period remains negligent, then QWEON is entitled to terminate the agreement. QWEON in that case is not due any compensation or performance. However, other party is due the full price as agreed as if the agreement were fully carried out.
Article 8 DEVELOPMENT AND SERVICE WEBSITE, SAAS
1. If the parties expressly agreed such in writing, QWEON will develop and/or maintain the website which was agreed with other party. QWEON will provide the services as agreed in the agreement in the field of Software as a Service (SaaS) to other party.
2. If other party has not already before entering into the agreement provided specifications or a -global- design or prototype of the website to be developed to QWEON, parties will consult to specify in writing which website needs to be developed.
3. Unless otherwise agreed in writing, QWEON is not required to convert data.
4. Parties shall agree in good time what information and what material for inclusion or processing in the website shall be developed by QWEON, and what information and what
material by other party or a third party hired by other party shall be delivered to QWEON. In the event such an agreement fails, other party shall deliver the materials needed for inclusion or processing in the website.
5. Other party always ensures the accuracy, completeness and consistency of the
data, specifications and designs provided to QWEON, even if those data, specifications and designs are provided by a third party. Inaccuracies, incompleteness and inconsistencies are at the expense and risk of other party.
6. QWEON shall be entitled, but not obligated, to examine the accuracy, completeness or consistency of the data, specifications or designs made available to it and, on detection of any imperfections, to suspend the agreed work until other party has repaired the imperfections. Other party undertakes to always communicate imperfections in the specifications or design of the website to be developed, which are known or should reasonably be known to them, to QWEON as soon and as fully as possible.
7. If the content and/or design of the website in whole or in part depends on further choices to be made during the implementation of the agreement, QWEON will make these choices, taking the utmost account of the known ideas and starting points of other party.
8. QWEON will develop the website with care, as much as possible with due regard for
the specifications or design of the website and, where appropriate, taking into account the project organization, methods, techniques, appointments and/or procedures agreed with other party in writing. Before proceeding with the development work, QWEON can require other party to agree fully and unconditionally in writing with the specifications of the design. QWEON shall be entitled to suspend its activities until such time as other party agrees, fully and unconditionally in writing, with the specifications of the design.
9. Other party shall timely deliver the materials deemed necessary for inclusion or processing in the website, subject to the limits set out in the agreement and in a format to be determined by QWEON.
10. QWEON is entitled to develop a concept or prototype of the website on the basis of the issued specifications. QWEON can suspend the further development of the website until other party has approved the concept or prototype in writing.
11. The development work of QWEON are carried out on the basis of an obligation, unless and to the extent that in the written agreement QWEON has expressly promised a result and the result is also defined with sufficient determinacy.
12. If QWEON, for inclusion or processing of one or more text files in the website needs one or more translations, other party shall at its own expense take care of these translations, unless otherwise agreed in writing. If QWEON takes care of the translation, it will charge the related costs or let these be charged, to other party.
13. If it is agreed that the design and development services will take place in phases, QWEON is entitled to postpone the services belonging to a stage until the results of the preceding stage have been approved in writing by other party.
14. Within the limits of reasonableness to be determined by QWEON, QWEON will observe, in the implementation of the design and development work, reasonable and timely instructions on the part of other party, provided that QWEON deems those instructions to be technically and otherwise justified.
15. Unless otherwise agreed in writing, QWEON is not required to request a domain name
for the website from the appropriate authorities.
16. Under the agreement, QWEON will ‘host’ the website on its own computer system
for the benefit of other party, to which, in particular, the following article of these terms and conditions apply.
17. If parties have not agreed an acceptance test, other party accepts the website in the state it was in at the time of delivery ("as is"), therefore with all visible and invisible errors and defects, without prejudice to the obligations of QWEON under the warranty provisions of these terms and conditions.
18. If an acceptance test has been agreed in writing between parties, the provisions of paragraphs 20 to 27 of this article shall apply.
19. Where in this article any "errors" are mentioned, this is intended to mean substantially
not meeting the specifications expressly agreed in writing between the parties.
An error is only an error if other party can demonstrate it and if it is reproducible. Other party is obliged to notify QWEON of any errors without delay.
20. If an acceptance test has been agreed, the test period takes fourteen days after
delivery or, if installation by QWEON is agreed in writing, after the installation is completed. During the test period, other party is not entitled to use the website for productive or operational purposes. QWEON can always demand that other party perform a proper test of sufficient size and depth and with sufficiently qualified staff on the (interim) results of the development work and that the test results be reported to QWEON in writing, clearly and understandable.
21. If an acceptance test has been agreed, other party is obliged under its full and exclusive responsibility to check if the delivered website corresponds to the specifications agreed in writing between parties. Unless otherwise agreed in writing, the possible assistance provided by or on behalf of QWEON when performing an acceptance test is wholly at the expense and risk of other party.
22. The website will be considered accepted by the parties:
a. If parties have not agreed that other party does not perform an acceptance test: at the delivery or, if installation by QWEON has been agreed in writing, at the completion of the installation, or
b. If parties have agreed that other party performs an acceptance test: on the first day after the test period, or
c. If QWEON before the end of the test period receives a test report as referred to in paragraph 24: at the time that the errors referred to in that test report have been repaired, without prejudice to the presence of imperfections that do not stand in the way of acceptance in accordance with paragraph 25. By way of derogation, the website shall, if the opposite party makes any use thereof before the moment of express acceptance for productive or operational purposes, be considered fully accepted from the beginning of that use.
23. If during the agreed acceptance test the website is shown to contain errors, other party shall inform QWEON no later than the last day of the test period by means of a written and detailed test report on the errors. QWEON shall apply its best efforts to restore such errors within a reasonable period of time.
24. Acceptance of the website may not be withheld on grounds not related to specifications expressly agreed between parties and also not because of the existence of minor errors, which are errors that do not reasonably stand in the way of operational or productive commissioning of the website, without prejudice to the obligation of QWEON to repair these small errors in the framework of the guarantee scheme of these terms and conditions, where applicable. In addition, acceptance may not be withheld because of aspects of the website that can only evaluated subjectively, such as style, aesthetic aspects and aspects of the design.
25. If the website is delivered and tested in stages and/or parts, the non-acceptance of a particular stage and/or part shall not affect a possible acceptance of a previous stage and/or other part.
26. Acceptance of the website in one of the ways as referred to in this article causes QWEON to be discharged from the performance of its obligations regarding the design and development of the website and if, where appropriate, the installation by QWEON was also agreed, from its obligations concerning installation of the website. Acceptance of the
website does not diminish the rights of other party pursuant to paragraph 5 with regard to small errors and warranty.
27. QWEON shall put the website developed in on behalf of other party and the associated
user documentation for use as SaaS at the disposal of other party.
28. QWEON provides other party only a non-exclusive, non-transferable and non-sub-licensable right to use the website.
29. Any provision of user documentation shall be in paper or digital form. QWEON decides on the form and language in which the user documentation is provided.
30. If services to other party on the basis of the service agreement also includes user support, QWEON will advise by telephone or e-mail on the use and operation of the software listed in the agreement and on the use that is made of the service. QWEON can impose conditions on the qualifications and the number of contacts that are eligible for support. QWEON will honour duly substantiated support requests within a reasonable time. QWEON cannot guarantee the accuracy, completeness or timeliness of responses or provided support. Unless otherwise agreed in writing, support is only carried out on business days during the usual opening hours of QWEON.
31. If the service to other party under the agreement also includes making backups of data of other party, QWEON shall, taking into account the periods agreed upon in writing by parties, and failing that once a year, make a full backup of the data of other party in its possession. QWEON will retain the backup during a period to be agreed between parties, and in the absence of agreements in this regard, during the usual periods observed by QWEON. QWEON will handle and store the backup with due care.
32. The website developed on behalf of other party is made available to other party for the period agreed between the parties in the framework of SaaS. In the absence of a period agreed between parties, the period of use is not limited in time and QWEON can not terminate the right to use, provided that other party promptly fulfils all its obligations under the agreement towards QWEON.
33. Only if expressly agreed in writing is QWEON held to have a disaster recovery center or other alternative facilities.
34. QWEON does not warrant that the website works well in conjunction with all types or
new versions of web and internet browsers and any other software. Nor does QWEON
warrant that the website works well in conjunction with all types of equipment.
35. QWEON does not warrant that the website is suitable for the intended use by other party or purpose. Nor does QWEON warrant that the website will function without interruption, errors or other defects or that all errors and other defects shall be corrected. Other party accepts that errors and defects in the operation of a website may be due to the action of one or more third parties.
36. QWEON will endeavour to the best of its ability to repair imputable errors in the display of the content of the website or deficiencies in the technical operation of the website within a reasonable period of time, if these have been reported in writing to QWEON within a period of fourteen days after delivery, or, if an acceptance test has been agreed between parties, defined in detail in writing within fourteen days after acceptance.
37. QWEON is never obliged to repair mutilated or lost data.
Article 9 WEB HOSTING
1. QWEON will provide the with other party agreed hosting services.
2. Other party shall not exceed the agreed space, unless the agreement expressly regulates the consequences of this. The agreement only covers the provision of disk space on a server reserved exclusively and specifically for other party if this is expressly agreed in writing. All disk space usage, data traffic and other loading of systems and infrastructure is limited to the agreed limits and subject to the house rules of QWEON as drawn up on behalf of and for customers. Unless otherwise agreed in writing, the data traffic that is not used by other party in a certain period of time, cannot be transferred to the next period. For exceeding the agreed ceilings, QWEON will charge an extra fee in accordance with the usual rates.
3. If the agreement includes the provision of access to internet, QWEON will,
unless otherwise agreed in writing, to the best of its ability to provide connections to the internet through QWEON’s system, including the provision of the website hosted by QWEON. QWEON is not responsible for the infrastructure of other party or those of third parties.
4. Unless otherwise agreed in writing, other party is responsible for the management, including control of the institutions, the use of the service and the way in which the results of the service are used. Other party is also responsible for the instruction of and the use by users regardless of whether these users are in a relationship of authority to other party. Unless otherwise agreed in writing, QWEON is not required to convert data.
5. If under the agreement the services provided by QWEON also include support to users, QWEON will advise by telephone or email on the use and functioning of the hosted websites. QWEON can impose conditions on the qualifications and the number of contacts that are eligible for support.
QWEON will meet duly substantiated requests for support within an adequate term. QWEON cannot guarantee the accuracy, completeness or timeliness of responses or provided support. Support is, unless otherwise agreed, only carried out on work days during the usual opening hours of QWEON.
6. The agreement includes provision or making available of backup, disaster recovery and
recovery services only if this has been agreed in writing.
7. If QWEON under the agreement performs services for other party with regard to a domain name, such as application, renewal or disposal or transfer to a third party, then the rules and procedure of the appropriate body (bodies) must be considered. QWEON will, on request, provide a written copy of those conditions to other party. QWEON expressly accepts no responsibility for the accuracy or timeliness of the service or the achievement of the results intended by other party.
8. Other party is due all costs connected to the request and/or registration costs according to the agreed rates, or in the absence of agreed rates, at the usual rates obtaining at QWEON.
9. QWEON does not guarantee that a domain name desired by other party will be awarded to other party.
10. QWEON is not responsible for the content and composition of the domain name and the use that is made of the domain name. Other party warrants to QWEON that they are entitled to use the domain name and that the use thereof is not unlawful in relation to one or more third parties. Other party indemnifies QWEON for any claim of a third party relating to the domain name, even if the domain name of other party has not been registered by QWEON.
11. Only if agreed in writing the agreement also includes provision of email addresses to other party. Parties will agree the number of email addresses to be made available.
12. QWEON shall use its best efforts to carry out the service with care, where appropriate in accordance with the agreements and procedures recorded in writing with the other party. All services of QWEON are carried out on the basis of an obligation, unless and to the extent that in the written agreement QWEON has expressly promised a result and the result has also been defined with sufficient determinacy.
13. QWEON carries out the service only as commissioned by other party. If QWEON on the basis of a request or an authorised order from a public authority or in connection with a legal obligation carries out work concerning data of other party, its employees or users, all the associated costs will be charged to other party.
14. QWEON may modify the substance or scope of the service.
If such changes cause a change of procedures obtaining at other party, QWEON will inform other party as early as possible and the cost of this change are borne by other party.
15. QWEON can temporarily decommission the service in whole or in part for maintenance. QWEON will not prolong the decommission longer than necessary, let it take place outside office hours if possible and, depending on circumstances, begin after consultation with other party.
16. Other party shall adequately protect its systems and infrastructure and have anti-virus software operational at any time.
17. If QWEON has general rules of conduct in force for all its counterparts, QWEON will then provide these, on request, to other party and other party shall be required to comply with these rules of conduct promptly and in full. Always and in all cases, other party shall act carefully and not wrongful vis-à-vis third parties. Other party shall at all times, in particular, honour intellectual property rights and other rights of third parties, respect the privacy of third parties, not distribute data in violation of the law, not gain unauthorized access to systems, not spread viruses or other malicious programs and abstain from criminal acts and violation of any other legal obligation.
18. In order to avoid any liability to third parties or to limit their consequences, QWEON is always entitled to take measures with respect to an act or omission by or for the risk of other party. Other party is held, on first written request from QWEON, to remove information without delay, in the absence of which QWEON is entitled to either remove the information or disable access to it. Moreover, in case of violation or threatened violation of the provision of paragraph 17 of this article, QWEON is entitled to immediately and without prior notice deny other party access to systems of QWEON. The foregoing shall explicitly be without prejudice to any other measures or the exercise of other rights by QWEON towards other party. In that case QWEON is also entitled to terminate the agreement with immediate effect, without thereby being liable towards other party.
19. QWEON can't be required to assess the merits of claims of third parties or of the defence of other party or to be in any way be involved in a dispute between a third party and other party. Other party will in this respect have to come to an understanding with the relevant third party and inform QWEON in writing and properly substantiated with documents.
20. Any agreements concerning a service level (Service Level Agreement) will only be expressly agreed in writing. Other party shall always inform QWEON about all circumstances which may affect the provision of services and their availability. If a service level is agreed, availability will be measured while disregarding previously announced decommissioning due to maintenance as well as circumstances that are outside the sphere of influence of QWEON and subject to the services as a whole throughout the term of the agreement. Unless otherwise proven, the availability measured by QWEON will hold as full proof.
21. The agreement is entered into for the term agreed between parties, in the absence of which a one-year term obtains. The duration of the agreement shall be tacitly extended for the duration of the original period, unless other party or QWEON ends the agreement in writing subject to a notice period of three months before the end of the period in question.
22. Only if agreed in writing, QWEON will, at or after the end of the contract - against payment by other party of a then to be determined compensation as well as meeting by other party of all other conditions then to be determined by QWEON – contribute to transferring the domain name to other party or to another provider of web hosting services.
23. QWEON does not warrant that the service is provided without errors or without interruptions. QWEON cannot, due in part to the nature and operation of the internet, guarantee that the internet is available or accessible at all times and that the websites hosted by QWEON are continuously and without interruption available and accessible at all times.
24. QWEON is not responsible for verifying the accuracy and completeness of the service. Other party will regularly check the results of the services themselves.
25. Other party shall, on the basis of information provided by QWEON about measures
to prevent and reduce the impact of failures, defects in the services, mutilation or loss of data, or other incidents, inventory the risks to their organization and, where necessary, take additional measures. QWEON expresses its willingness to, at the request of other party, reasonably cooperate with further measures by other party at (financial) conditions to be set by QWEON. QWEON is never responsible for repair of mutilated or lost data.
26. Other party guarantees that they have met all requirements for the lawful processing of personal data that are imported or processed by other party or third parties in the website or otherwise hosted or processed by QWEON.
27. Other party has, under the legislation concerning the processing of personal data (such as the data protection Act) obligations vis-à-vis third parties, such as the obligation to disclose information, as well as giving access to, correcting and deleting personal data of the involved parties. The responsibility for the implementation of these obligations rests completely and solely with other party. Parties agree that QWEON, with regard to the processing of personal data, is a "processor" within the meaning of the data protection act. Other party shall as much as is technically possible, cooperate with regard to the obligations it must fulfil. The costs of this cooperation are not included in the agreed prices and fees of QWEON and are fully borne by other party.
Article 10 FORCE MAJEURE
1. A deficiency in the performance of the agreement by QWEON cannot be attributed to QWEON, among other things, if the causes of this deficiency are not due to the fault of QWEON or are outside the control of QWEON. Causes such as referred to in the previous sentence include weather conditions, war, danger of war, civil war, terrorism, riots, molest, fire, water damage, flood, strike, company occupation, import and export barriers, government measures, defects in machines, disruptions in the supply of gas, water and electricity, transport problems, traffic congestion, and the loss or damage of (computer) data necessary for the implementation of the agreement, and /or not or not timely fulfilment of obligations by suppliers of QWEON.
2. In case of force majeure QWEON shall be entitled to fulfil the contract after the conditions which have led to force majeure have been overcome. QWEON can, however, also choose to dissolve the agreement, in whole or in part if fulfilment is impossible and will not be possible within a reasonable period of time. In that case, QWEON is not obliged to any compensation or performance of any kind.
3. In the case of a non-attributable failure in the performance of the agreement by other party QWEON is entitled to dissolve the agreement in whole or in part, without other party in this case being able to exercise any claim to damages vis-à-vis QWEON.
Article 11 EXCLUSION AND LIMITATION OF LIABILITY
1. The total liability of QWEON due to an attributable failure in the performance of the agreement or any other basis, is limited to compensation for direct damage to one time the amount of the agreed price (excluding VAT). If the agreement is primarily a continuing performance contract with a term of more than six months, the stipulated price for the agreement shall be set at the total of the fees (exclusive of VAT) stipulated for six months. In no event shall the total compensation for direct damage however exceed €10,000.00 (ten thousand euros). Direct damage shall be understood to be exclusively:
a. reasonable costs that other party should have to make to let QWEON's performance meet the terms of the agreement; however, this replacement damage will not be reimbursed if the agreement is dissolved by or at the request of other party;
b. reasonable costs incurred by other party for being forced to keep their old system or systems and related facilities operational because QWEON on a final delivery date has not delivered, less any savings resulting from the delayed delivery;
c. the reasonable costs incurred to determine the cause and extent of the damage, insofar as the determination relates to direct damage within the meaning of these terms and conditions;
d. reasonable costs incurred to prevent or limit the damage, as far as other party demonstrates that these costs have led to the limitation of direct damage within the meaning of these terms.
2. QWEON's liability for indirect damages, consequential damages, lost profits, lost savings, loss of goodwill, damage due to business interruption, damage as a result of claims of customers or employees of other party, damage due to websites or data not being available or not accessible sites, damage as a result of incompleteness or inaccuracy of available data, damage relating to the use by other party of matters or data prescribed by QWEON, third party materials or software, and damage in connection with the involvement of third parties prescribed by other party to QWEON, is excluded. Also excluded is the liability of QWEON due to mutilation, destruction or loss of data or documents.
3. The exclusions and limitations referred to in this article shall lapse if and insofar as the damage is the result of gross negligence or wilful misconduct by QWEON.
4. Unless fulfilment by QWEON is permanently impossible, the liability of QWEON due to attributable failure to fulfil an agreement only arises If other party declares QWEON to be in default forthwith in writing, with a reasonable deadline for remedying the failure and QWEON after that period continues to fall short in the fulfilment of its obligations. The notice of default must contain as complete and as detailed a description as possible of the deficiency, so that QWEON is given the opportunity to respond adequately.
5. Condition for any right to compensation is always that other party reports the damage to QWEON in writing as soon as possible after it occurs. Any claim for damages against QWEON will expire by the mere lapse of a period of twelve months after the occurrence of the claim.
6. If the court should decide in a particular case that QWEON is not entitled to claim the exclusions and/or limitations of liability as mentioned in this article, the liability of QWEON for direct and indirect damage in each case shall be limited up to the amount (in which amount interest rates and costs are included) that qualifies on the basis of the industry's usual and market-based liability insurance taken out by QWEON, increased by the amount of the excess.
7. Other party indemnifies QWEON for all claims by third parties in connection with the services provided by QWEON for the benefit of other party. Other party is only held to a safeguard duty towards QWEON if and in so far as QWEON under the agreement could also avail itself of an exclusion or limitation of liability towards them.
8. The provisions of this article and any other limitations and exclusions of liability set out in these terms of business shall apply to all natural persons or legal entities employed by QWEON in the implementation of the agreement serves.
Article 12 INTELLECTUAL PROPERTY
1. All rights of intellectual property on the software, websites, databases, equipment or other materials, such as analyses, designs, documentation, reports, offers as well as preparatory material thereof developed or made available under the agreement, shall be based exclusively at QWEON, its licensors or its suppliers. Other party obtains only the usage rights assigned expressly by these conditions and the law. Any other further right of other party to reproduce software, websites, databases or other materials is excluded. A right to use attributable to other party is non-exclusive and non-transferable to third parties.
2. Other party is not allowed to remove or modify any indication concerning the confidential nature or concerning copyrights, trademarks, trade names or other intellectual property rights from the software, websites, databases, equipment or materials.
3. QWEON is allowed to take technical measures to protect the software or with a view to agreed restrictions in the duration of the right to use the software. Other party is not allowed to remove or avoid such a technical measure.
4. In these terms and conditions, any "errors" shall mean a substantial failure to meet the functional or technical specifications provided in writing by QWEON.
An error is only an error if other party can demonstrate it and if it is reproducible. Other party is obliged to notify QWEON of errors without delay, taking into account the provisions of article 10 of these terms and conditions.
5. Other party guarantees that no rights of third parties interfere with making available to QWEON equipment, software, websites intended for material (images, text, music, domain names, logos etc.), databases, or other materials, including draft material, with the purpose of use, adaptation, installation or incorporation (e.g. in a website). Other party shall indemnify QWEON against any action based on the claim that such provision, use, edit, install or incorporation infringes any right of third parties.
Article 13 CLAIMS
1. Claims do not suspend the payment obligations of other party.
2. Complaints related to the work carried out by QWEON or invoices posted by QWEON must be submitted in writing to QWEON within fourteen (14) days after the end of the work or within fourteen (14) days after receipt of the invoice. The written notice must give as detailed a description as possible of the deficiency, so that QWEON is able to respond adequately.
3. If a complaint is not made known within the time limit as mentioned in the previous paragraph of this article, all rights of other party in connection with this complaint expire.
Article 14 GUARANTEE
1. If QWEON has good reason to fear that other party will not entirely or not timely meet its obligations under the agreement, QWEON shall be entitled before or during the execution of the agreement to suspend performance of its obligations until other party on request and to the satisfaction of QWEON has guaranteed the performance of all its obligations under the agreement.
This provision shall also apply if the applicable payment period has not yet expired.
2. After the guarantee time limit set by QWEON has expired, other party shall automatically be in default and QWEON can dissolve the agreement without judicial intervention by means of a written declaration, without prejudice to QWEON's right to full compensation.
Article 15 RETENTION OF TITLE
1. Any goods delivered by QWEON remain the property of QWEON until other party has fulfilled all further obligations under all agreements concluded with QWEON:
-the consideration (s) relating to goods delivered or to be delivered;
-the consideration (s) with respect to services performed or to be performed under agreement by QWEON;
-any claims due to non-compliance by other party of (an) agreement(s) closed with QWEON.
2. Goods delivered by QWEON which under paragraph 1 come under the retention of title may only be used in the normal course of business. Other party is not entitled to pledge the delivered goods or establish any other right of use or security on them.
3. Other party is obliged to mark (have marked) its goods delivered subject to retention of title as submitted by QWEON and store these separately, or at least in a recognizable way as delivered by QWEON.
When other similar goods as those provided by QWEON are found at other party, these goods in respect of the retention of title shall be deemed to have been delivered by QWEON, unless other party can prove otherwise.
4. On matters of which, in compliance with paragraph 1, ownership has transferred to other party which continue in possession of other party, QWEON hereby already reserves the right of pledge such as referred to in article 3:237 BW as additional security for claims which QWEON might have on other party on any grounds whatsoever. This reservation of a right of pledge also applies to goods delivered by QWEON which have been prepared or processed by other party and which would cause the retention of title by QWEON to lapse.
Other party authorizes QWEON, where appropriate, to register this right of pledge by drawing up and signing a deed and registering it or communicating about it, partly on behalf of other party.
5. If other party fails to comply with its obligations or if there are legitimate concerns that they will not fulfil their obligations, QWEON is entitled to remove (have removed) the delivered goods to which the retention of title applies as referred to in paragraph 1 from other party or third parties that hold these goods for other party. Other party is obliged to provide all cooperation under penalty of an immediately due and payable fine of 10% per day of all that they owe to QWEON, with a minimum of €250.00 per day.
6. If third parties wish to establish any right to goods delivered subject to retention of title, other party is obliged to inform QWEON in writing immediately.
7. Other party undertakes:
? to insure and keep insured the goods delivered subject to retention of title against fire and water damage and provide the policy of this insurance to QWEON for inspection;
? to pledge all claims of other party on insurers with respect to goods delivered under retention of title at QWEON's first request as referred to in article 3:239 BW;
? to pledge the claims that other party obtains against its buyers at QWEON's first request as referred to in article 3:239 BW.
Article 16 RIGHT OF RETENTION
1. QWEON is entitled to keep in its custody goods of other party that QWEON has in its possession, until other party has paid in full all that it owes to QWEON under the agreement.
2. The risk for all matters under this right of retention will remain at all times vested in other party.
Article 17 STATUTE OF LIMITATIONS
Other party’s rights of action lapse after a maximum of one year after their occurrence.
Article 18 CONVERSION
If any provision of these terms and conditions is null or nullified , shall enter into force for this provision (as far as possible by operation of law) shall be replaced by a provision that most closely corresponds to the thrust of the null or nullified provision. Parties are bound to confer with each other on the text of this new provision, if necessary. The other provisions of the general terms remain valid without prejudice, unless mandatory rules oppose this.
Article 19 DISPUTES AND APPLICABLE LAW
1. To all offers and agreements with QWEON, Dutch law is applicable.
2. With regard to disputes that may arise between QWEON and other party, the court within whose jurisdiction QWEON is located is exclusively competent to hear, unless rules of mandatory nature oppose this.
