1.1 The present General Terms and Conditions of INCONTROL Simulation Solutions (hereafter ISS) apply to all quotations and agreements with the individual legal entities:
1.2 The present General Terms and Conditions apply to all quotations and agreements in which ISS supplies goods and/or services of any nature whatsoever to principal, even if such goods or services have not been specified (in detail) in the present conditions, unless expressly agreed upon otherwise between parties in writing. All quotations will be without engagement. Possible conditions of purchase or any other conditions of principal will not apply, unless the same has expressly been accepted by ISS in writing.
2.1 All prices will be exclusive of sales tax (VAT) and other impositions which are charged by the government.
2.2 All invoices will be paid by principal in conformity with the conditions of payment stated on the invoice. In the absence of specific conditions, principal will pay within 30 days after date of invoice. Payment will be made without deduction, compensation or postponement for any reason whatsoever.
2.3 If principal fails to pay the amounts due within the period agreed upon, ISS retains the right to increase the amount invoiced by charging contractual interest at a rate of one and a half percent (1.5%) per month or part thereof on the outstanding amount, without any notice of default being required. If, after notice of default, principal still fails to pay his debt, it will be possible for the case to be surrendered in which event, in addition to the total amount then due, principal will also be bound to pay extra-judicial fees, if any.
2.4 If the solvency of principal so requires, ISS will be entitled to demand additional security failing which ISS will be free to suspend the execution of the agreement.
Every party undertakes to preserve the confidentiality of all Confidential Information and will keep secret the information of a confidential nature received from the other party. Confidential Information shall not be used for any purpose other than the performance of the contract.
Until such time as payment has been made in full by principal, ISS retains ownership of all matters delivered to principal under the contract. Rights will be granted or assigned to the client under the suspensive condition that all sums owed by principal to ISS in connection with the contract have been paid in full.
5.1 By reason of the necessity that principal grants his cooperation in the execution of the agreement, the principal will always timely provide ISS with all useful information and required data or information.
5.2 Principal will be responsible for the use and a correct application in his organization of the hardware, software and of the services to be rendered by ISS as well as for administration and calculating methods to be applied and for the safeguarding of data.
5.3 If it has been agreed upon that principal will furnish hardware, materials or data on data carriers, they will be up to the specifications required to the execution of the operations.
5.4 If any data required for the execution of the agreement will not be available to ISS or not be available in good time or not be in accordance with the engagements or if principal does not fulfill his obligations in any other way, this may lead to suspension of the execution of the agreement and extra expenses may be charged in accordance with the usual rates of ISS.
All terms (of delivery) stated by ISS will be approximate and have been fixed to the best of his knowledge. If there might be an extension of the term (of delivery), ISS will notify principal to this effect as soon as possible.
7.1 In case of non-performance, ISS will only be liable if, after proper notice of default, principal prematurely terminates the agreement or if at his request dissolution of the agreement is effected. Premature termination as well as any dissolution effected at principal’s request will not have retroactive effect but will have as a result that fulfillment of the agreement will no longer be compulsory. However, any payment liabilities being due prior to the time of termination or dissolution and/or relating to goods and services already delivered/rendered will remain due. Should the case arise, ISS’s liability will be limited to the extra expenses of principal being the direct consequence of the unfinished order being completed by a third party or of goods or services being delivered/rendered as substitutes by a third party, but not exceeding the amount mentioned in article 7.5. The provisions laid down in articles7.2 up to and including 7.4 will remain applicable without restriction.
7.2 With the exception of the provisions of article 7.1 ISS’s liability for any damage or loss sustained by principal will be excluded, irrespective of the manner in which legal proceedings are instituted either on account of non-performance or tort or otherwise. ISS will by no means be bound to pay damages on account of late delivery or execution of the operations. ISS will not be liable for the accuracy or completeness of information or advice provided before the agreement is realized. Supplier will not be liable either for any loss if principal fails in his responsibilities or if principal supplies incorrect, inadequate or incomplete information or materials.
7.3 Principal will hold ISS harmless in respect of claims from third parties. Principal will never begin an action against staff members of ISS or against third parties called in by ISS.
7.4 Any liability of supplier for consequential loss or other indirect losses, including loss on account of lack of profit, non-realized saving or loss of data will be expressly excluded.
7.5 The total liability of ISS will by no means exceed an amount equal to the lower of the following two amounts: € 50,000.- or the amount equal to the total price stipulated (exclusive of VAT) of the operations and deliveries ordered to ISS, said price in the event of long -term agreements being equal to the price of the operations ordered during the period of three months prior to the termination. Maximum liability will apply subject to deduction of any amounts credited by ISS.
ISS will not be bound to fulfill any obligation if this is reasonably impossible for him in consequence of changes in the circumstances existing when the obligations were entered into and which have arisen through no fault of ISS’s.
9.1 All quotations and agreements between ISS and principal will be governed by and construed in accordance with the substantive laws of the Netherlands.
9.2 All disputes arising shall be adjudicated solely in the applicable court within the Netherlands, even if the principal is established abroad. However, ISS will be entitled to have a dispute with a foreign principal settled by the competent Court in such foreign country.
The following provisions will apply if ISS grants principal the right to use generally available and not for specific principal developed software (standard package) even if the standard package has been modified or extended in behalf of principal. The term software will be understood to mean the computer programs recorded on material readable for the computer and the documentation belonging thereto, all this inclusive of new versions possibly to be supplied.
10.1 ISS grants principal only the non-exclusive right to use the standard package.
10.2 The standard package can exclusively be used by principal at one processing unit. In case of a possible breakdown, the software can temporarily be used at a different processing unit.
10.3 The right of use will not be transferable to third parties. Principal will not be allowed to sell, let out, alienate or transfer the standard package by way of security. Principal will neither modify the standard package nor put it at the disposal of third parties or use it on behalf of third parties. The source code of the software will not be made available to principal.
11.1 Title to and all rights of industrial and intellectual ownership with the respect to the standard package will remain with ISS. Principal will not remove any indication of copyright.
11.2 In order to protect the rights of ISS, principal will take care that the standard package is kept secret and is not disclosed to third parties. Principal knows that the standard package contains confidential information and industrial secrets of ISS.
11.3 ISS will be allowed to take technical measures for the protection of the software.
During a period of three months after delivery ISS will repair defects, if any, to the best of his ability if the software does not meet the written specifications of the standard package (user’s manual). ISS does not guarantee that the standard package will operate without interruption or defects or that all defects will be remedied. Only if a maintenance agreement has been concluded or if there is a user’s allowance which includes the maintenance, such repair will be carried out free of charge. ISS may charge the costs of repair in the event of errors made by principal in using the standard package or from other causes for which ISS cannot be blamed. Recovery of data which may have gone lost will not be covered by the guarantee. The guarantee will not apply if the standard package has been modified by parties other than ISS.
ISS will hold principal harmless in respect of any action based on the allegation that the standard package developed by ISS himself infringes a copyright valid in The Netherlands. ISS will pay the costs and loss irrevocably fixed by final judgement provided principal will immediately notify ISS in writing and will leave the handling of the case exclusively in the hands of ISS and will grant any cooperation in this respect. The provision of article 7.5 will apply without restriction. If any legal proceedings are instituted or if there is a possibility to do so, ISS may replace the standard package or modify it to such an extent as ISS considers to be correct.
14.1 If a maintenance agreement has been concluded for the standard package or if there is a user’s allowance which includes the maintenance, principal will notify ISS, in accordance with the usual procedures of ISS, of defects found in the software. After receipt of such notification, ISS will repair defects, if any, to the best of his ability if the software is not up to the specifications of the standard package (user’s manual) laid down in writing. ISS does not guarantee that the software will operate without interruption or defects or that all defects will be remedied.
14.2 ISS may charge the costs of repair in the event of errors made by principal in using the standard package or from other causes for which ISS cannot be blamed or if the software has been modified or is maintained by parties other than ISS. Recovery of data which may have gone lost will not be covered by the maintenance.
14.3 If a maintenance agreement has been concluded, ISS will make available to principal improved versions of the standard package if such versions become available. Three months after an improved version having been made available, ISS will no longer be obliged to repair any defects in the old version. ISS may ask for a compensation for making a version with new possibilities and functions available
INCONTROL_GeneralConditions – INCONTROL Simulation Solutions – 13 May 2014 - version: 1.0