GENERAL TERMS AND CONDITIONS OF KEEYNS B.V. (2017 VERSION)
These general terms and conditions are used by Keeyns B.V., with its registered offices and principal place of business in ’s-Hertogenbosch, the Netherlands, at Pettelaarpark 102, registered with the Dutch Chamber of Commerce under number 67450202, as well as the (legal) persons designated by Keeyns B.V. These general terms and conditions have been filed with the Dutch Chamber of Commerce under number 67450202 and can also be found at www.keeyns.nl and www.keeyns.com.
Article 1. Definitions
In these general terms and conditions the terms given below are understood as follows: Keeyns:
Keeyns B.V., its legal successor(s) and/or the (legal) persons designated by Keeyns B.V.
Client: any (legal) person awarding an order or contract to Keeyns.
Software: the software developed by Keeyns which can be used by Client (online).
Article 2. Applicability
2.1 These general terms and conditions apply to all offers, quotations and contracts of Keeyns.
2.2 Keeyns will be the only party accepting the order, also when it is explicitly or tacitly understood that the order will be carried out by a specific individual. Contrary to articles 7:404, 7:407 section 2 and 7:409 of the Dutch Civil Code (Burgerlijk Wetboek), individuals working for or on behalf of Keeyns, whether not as employees within an employment contract, will not be bound or liable personally, even when an order is awarded with a certain individual in mind.
2.3 Without prejudice to the above, these terms and conditions will also apply to any third party who, whether or not operating within an employment contract, is contractually engaged for the realization of an order or who is or may be liable as a result of it.
2.4 The applicability of any general terms and conditions (of purchase) of Client is excluded.
2.5 Should any clause in these general terms and conditions be null and void or nullified and voided, the other clauses of these general terms and conditions will remain fully valid. In that case, Keeyns and Client will be obliged to replace, after mutual consultation, the null and void or nullified and voided clause in a way doing justice, as much as possible, to the purpose and meaning of the null and void or nullified and voided clause.
2.6 These general terms and conditions will be available in both the Dutch and English language. Should the interpretations given in these two versions differ, the Dutch version will prevail.
2.7 Any deviations from or modifications of these general terms and conditions or a contract to which they may apply, can only be agreed in writing.
Article 3. Conclusion and performance of the contract
3.1 An agreement will not be concluded unless Keeyns has accepted it in writing and notified Client of this.
3.2 Keeyns will always be entitled to refuse an order (in part) without further explanation without becoming liable for damages in any way, for instance in case Keeyns has a suspicion or reason to doubt that Client will not observe its obligations (of payment) resulting from the agreement.
3.3 Client will guarantee that it will supply all the information, on request as well as on its own initiative, that it knows or reasonably can suspect to be (possibly) necessary for the performance of the order. Client guarantees the accuracy and authenticity of the data and documents supplied by or on behalf of Client.
3.4 Keeyns will always be authorized and entitled to engage third parties to carry out the order in full or in part. Keeyns will be authorized to accept terms and conditions applying in its relationship with this third party or contractually agreed and stipulated by this third party on behalf of Client.
3.5 Keeyns will only accept obligations to perform, not to achieve a certain result. Keeyns cannot guarantee that the Software is faultless and functioning without interruptions.
3.6 The completion/delivery periods will not be regarded as final. Should they be exceeded, this will not be considered negligence and will not result in any liability for damages.
3.7 The performance of the accepted orders will only take place for the exclusive benefit of Client.
Article 4. Fees and payment
4.1 The fees included in quotations, order confirmations and contracts will be in euros, VAT excluded, travel, accommodation and other expenses excluded, unless explicitly mentioned otherwise.
4.2 Keeyns will always be entitled to demand advance payment and/or security for the contractual obligations of Client towards Keeyns and suspend the performance of its own obligations until Client has paid the charged advance or furnished the required security. Should Client be and remain in default regarding advance payment or the furnishing of security, Keeyns will have the right to dissolve the contract. Client will be liable for all damages resulting from this suspension and/or dissolution.
4.3 Unless agreed upon otherwise in writing, Keeyns will charge payments or fees to which it is entitled in advance to Client, on an annual basis.
4.4 Payments should always be effectuated within fourteen days after the invoice date. Should timely payment within this 14-day period not take place, Client will be in default by operation of the law, without the need for a notice of default. Client will not be entitled to any suspension or set-off.
Article 5. Complaints
5.1 Complaints regarding invoices should be submitted to Keeyns in writing, stating reasons, within fourteen days after the invoice date, in absence of which Client will lose its rights in this matter.
Article 6. Equipment, security, maintenance
6.1 Client is responsible for the selection, use and application of computer equipment and software in his organization and will be responsible for adequate back-ups, telecom and internet connections for the information that is exchanged or processed through this equipment, these connections and/or data files.
6.2 Keeyns is entitled to set requirements for the (configuration of the) equipment, necessary for the Software use. Client is held to set up or adapt the equipment at any time in a way satisfying the requirements of Keeyns, in the absence of which Keeyns will be entitled to suspend its obligations, without prejudice to the continuing obligation of Client to fulfil its payment obligations.
6.3 During the term of the agreement, Keeyns will be responsible for Software maintenance and realize modifications and improvements automatically. Client is obligated to report any Software problems to Keeyns immediately and provide Keeyns with all the information necessary for repairing any defects.
6.4 Keeyns is entitled to limit or block Software operations, without any prior notice, insofar as this is necessary for maintenance or modification of the Software. Client will in that case not be entitled to any compensation (for damages).
Article 7. Software use or license
7.1 During the term of the agreement, Keeyns will grant Client the non-exclusive and non-transferrable right to use the Software strictly for its own use within Client’s business for a limited number of users to be agreed with Keeyns. Making the Software available or allowing its use by third parties, at a later stage, including subsidiaries is not permitted without the prior written consent of Keeyns.
7.2 The Software may not be used for any purposes contrary to law and regulations. Client shall ensure that the registered users will comply with this clause and shall indemnify Keeyns against and compensate for any possible resulting third-party claims.
Article 8. Intellectual property rights
8.1 Nothing within this agreement between Keeyns and Client may be considered a transfer of (intellectual) property rights to Client. All intellectual and industrial property rights on the Software or other materials such as analyses, models techniques, designs, documentation, reports, quotations, educational material, including its preparatory material, remain exclusively with Keeyns.
8.2 Without prior written permission of Keeyns, Client is not permitted to publish, reproduce, transfer, sell or give in use any Software supplied to Client to third parties, nor may its ownership be burdened by any rights limiting the full ownership of this Software.
Article 9. (Personal) data
9.1 Client guarantees that all legal requirements regarding data to be processed, including regulations set by or through privacy legislation will be or have been strictly observed and that all the registrations mentioned above and other formalities have been satisfied and that the required permission has been given. Keeyns will, to the best of its ability, ensure an up-to-date state-of-the-art and adequate level of protection of personal data managed or processed by Keeyns.
9.2 Client indemnifies Keeyns against any third-party claims regarding Software use and the registration, processing of (personal) data of whatever nature within this agreement for which Client is responsible by law or on any other grounds or any third-party claims, be it for damages, fines of otherwise and will compensate Keeyns fully for any resulting damages.
Article 10. Term and termination of the agreement
10.1 Agreements between Keeyns and Client will be concluded for the term as indicated in the agreement. The agreement may be terminated with one (1) month prior notice before the end of the original or extended term. In the absence of a written notice of termination, the agreement will automatically be renewed. The renewed contract will have the same contractual duration.
10.2 The contract will commence the moment agreed upon between Client and Keeyns. In the absence of an agreed date of commencement, the contract will start the moment Keeyns begins the performance of its services.
10.3 If, during the realization of the agreement, the necessity becomes apparent that the contract requires change or modification for an adequate contractual performance, Client and Keeyns will consult each other timely and mutually to modify the agreement accordingly.
10.4 Changes in or supplements or additions to the contract will only be binding when mutual agreed upon in writing between Client and Keeyns. Any resulting cost will be charged to Client. Any work, performance or delivery by Keeyns to Client will be paid in accordance with the fees generally demanded by Keeyns.
10.5 Keeyns is entitled, without any prior notice of default and without in any way being liable for damages or costs and without waiving any other rights, to suspend its obligations or dissolve the contract (in part) or terminate it prematurely, when: a. Client does not comply with its (payment) obligations; b. The (imminent) bankruptcy of Client; c. Client has requested a moratorium (on payment) or intends to do so; d. Client has lost its right to dispose of its (liquid) assets freely because of, for instance, an attachment; e. The business of Client is dissolved or when there is an intention to do this; f. The property of Client is transferred to a third party or this third party has acquired any control in the business; g. Client acts contrary to public order or morality and may possibly damage the reputation of Keeyns.
10.6 In case the situations given above occur, any claims of Keeyns against Client are due and payable immediately and entirely.
10.7 Rights and obligations resulting from the agreement that by their nature are meant to last, will continue to apply as before after the termination or dissolution of the agreement.
10.8 If an agreement has been concluded for a definite period of time and Client terminates the agreement prematurely without prior written consent of Keeyns, be it through a notice of termination or factual termination, Client will be liable for any damages due and payable immediately, in as much this is in accordance with the law, equal to the total contractual sum/price, without prejudice to the obligation of Client to pay any additional damages, should the amount of damages exceed the compensation for damages described above.
10.9 In case Keeyns has already performed part of its obligations towards Client, it will not be subject to any cancellation, unless Keeyns is in default regarding this performance. Amounts invoiced by Keeyns before the dissolution connected to performed obligations or deliveries will remain due and payable and can be claimed immediately on the moment of dissolution. The above will apply mutatis mutandis for any performance that has not yet been invoiced.
10.10 After receiving notice of termination, irrespective of its grounds, Keeyns will cooperate as required on written request by Client with respect to the switch to a new system by Client, including, among others, converting and migrating files and data to that new system. The resulting costs will be compensated by Client. Article
11.1 Without prejudice to the other exonerations included in these general terms and conditions, any liability of Keeyns towards Client for any imputable fault or for any other reason will be limited to the amount that will be paid by the liability insurer in such an instance supplemented with the deductible excess. Keeyns has liability insurance in accordance with current and common amounts and conditions in the sector.
11.2 In case the liability insurance of Keeyns does not cover a certain case or a specific damage, the liability of Keeyns will be limited to the amount invoiced over the last six (6) calendar months prior to the liability causing event.
11.3 Keeyns will never be liable for business, consequential or indirect damages.
11.4 Without prejudice to what is stated in article 5 of these general terms and conditions regarding complaints, any liability claim against Keeyns will expire automatically after the passing of three (3) calendar months since the (reasonably to be expected) discovery of the damage by Client, except in case of wilful intent and recklessness and/or damages admitted by Keeyns, and in any case after the passing of twenty-four (24) months since the completion of the work by Keeyns.
11.5 Without prejudice to the other exonerations included in these general terms and conditions, Keeyns will not be liable for damages:
a. caused by third parties engaged for the performance of the order, unless that third party has been engaged by Keeyns and Client proves that Keeyns has not acted with due care when selecting this third party;
b. caused by incorrect or incomplete information supplied by Keeyns, unless its faulty or incomplete nature should have been clear to Keeyns without any doubt whatsoever and Keeyns failed to inform Client of its defective and incomplete nature;
c. caused by damage to or loss of data during the transferral of information;
d. caused by the unauthorized access by third parties to information regarding the agreement or the Client.
11.6 Client indemnifies Keeyns against any third party claims due to damages occurring during the performance of the agreement for Client, for which Keeyns cannot be held liable as stated in article 11.
11.7 Without prejudice to the above, terms and conditions limiting or excluding liability, that may be used by third parties against Keeyns, may also be used by Keeyns against Client. Client can never exercise more rights against Keeyns, than Keeyns can towards any third parties engaged by Keeyns for the performance of the agreement.
Article 12. Force majeure
12.1 Keeyns cannot be held to fulfil its contractual obligations, in case performance is not possible a result of circumstances beyond its sphere of influence (force majeure). Force majeure includes, among others but not exclusively, strikes, non- or untimely or incomplete delivery by suppliers, war (threats), terrorism, in/export bans, epidemics, traffic flow disturbances, loss or damage during transport, fire, theft, energy and communication interruptions.
Article 13. Applicable law and competent court
13.1 Dutch law will apply to all agreements covered by these general terms and conditions as well as any resulting disputes.
13.2 Disputes will always be submitted to the competent court of Oost-Brabant, location ’s-Hertogenbosch.