TERMS
GENERAL DELIVERY CONDITIONS OF
Filed with the
A. GENERAL PROVISIONS
1 General
1.1 These general conditions apply to all tenders and agreements by which E-Bizzy BV (also trading under the name, ICT Trading, and hereinafter referred to as such) will provide goods and/or services of any sort whatsoever to the counter-party, as well as to the performance of such agreements, even if the goods or services in question are not specified or not further specified in these General Delivery Conditions.
1.2 In deviation from and/or in addition to these General Delivery Conditions, the conditions included in the
tender will apply. Other conditions will only apply insofar as agreed in writing between ICT Trading and the
counter-party.
1.3 If any provision of these General Delivery Conditions is null and void or is declared invalid, the remaining
provisions of these General Delivery Conditions will remain in full force. In that event, ICT Trading and the counterparty will enter into consultation in order to agree to a reasonable replacement of the null and void or invalid
provision that reflects the content, objective and purport of the null and void or invalid provision as accurately
as possible.
2 Creation of agreements
2.1 All tenders by ICT Trading in any form whatsoever are non-binding and only valid for a duration of fourteen (14) days, unless explicitly indicated otherwise in writing in the tender.
2.2 Unless agreed otherwise by ICT Trading and the counter-party, an agreement is only concluded after ICT Trading has accepted the counter-party’s order by means of a written confirmation (with the date of sending being the
operative date).
2.3 ICT Trading reserves the right to refuse any order without specifying reasons, and reserves the right to make any
deliveries postage due.
3 Prices and payment
3.1 Unless otherwise indicated, all ICT Trading prices are exclusive of VAT, other governmental levies and administrative costs, are stated in the agreed currency based on the delivery conditions between ICT Trading and the counterparty and can be converted at any time by ICT Trading into the currency desired by it.
3.2 ICT Trading is authorized to make adjustments to the agreed prices and rates for any performance to be rendered,
by means of written notification to the counter-party at least one month in advance of said performance.
ICT Trading is further authorized to make adjustments to prices and rates for any performance to be rendered, by
means of a written notification to the counter-party if between the time of the tender and the time of delivery
or performance, the exchange rate of the agreed currency changes in relation to the American dollar and
ICT Trading’ purchasing prices increase.
3.3 ICT Trading may make credit facilities available. The terms and conditions of the lending institution will apply to
such facilities.
3.4 All invoices must be paid by the counter-party in accordance with the payment terms indicated on the invoice.
If no payment term is indicated, payment must be made by the counter-party within 14 days of the invoice
date.
3.5 If the he amounts due are not received by ICT Trading within the agreed term, the counter-party will be charged
statutory interest on the outstanding amount, plus a surcharge of 4%, without notice of default being required. If the counter-party remains in default of payment after service of the notice, the claim may be issued to a collection agency, in which case the counter-party, in addition to the total amount due, will be required to completely reimburse all judicial and extrajudicial collection costs, with a minimum of 15% of the total amount due.
3.6 If the counter-party disputes an invoice, it is granted a period of 5 days after the invoice date to submit its
complaint to ICT Trading, failing which the counter-party is considered to have accepted the invoice. After this 5-
day period, no complaints regarding invoices will be addressed.
3.7 Payment must be made by the counter-party without the possibility of settlement or suspension on any
ground whatsoever, in which connection the counter-party will not block its payment obligation by attachment
of its own property or in another manner.
3.8 If, there is reason to do so in ICT Trading' judgement, it is entitled to demand payment before delivery or to
require an irrevocable and unconditional bank guarantee for performance of the counter-party's obligations.
Until that time, ICT Trading is entitled to suspend its obligations or rescind the agreement.
4 Retention of ownership and (other) security
4.1 Ownership of all goods to be delivered and delivered by ICT Trading to the counter-party only passes to the
counter-party at the time that it has performed all its obligations vis-à-vis ICT Trading regarding the particular, the
previous and subsequent deliveries with regard to additional activities performed or to be performed by ICT Trading, as well as regarding the claims of ICT Trading against the counter-party based on the counter-party's failure to perform its obligations vis-à-vis ICT Trading. All of this is subject to reservation of an undisclosed pledge for
security of the claims - still - existing at the time of performance or claims that will be obtained in the future
directly based on the legal relationships existing at that time. The counter-party is obliged to sign the private
or public deed and to cooperate with regard to recording this deed. At the time of delivery, the counter-party
will certify the goods as ICT Trading' property.
4.2 The counter-party is obliged to immediately inform ICT Trading of agreements with or attempts of third parties to
obtain control over goods which ICT Trading owns and/or use these to obtain recovery. For its part, the counterparty
is obliged to do everything to protect ICT Trading' property rights or rights of action.
4.3 In the event of the counter-party's non-performance of the obligations mentioned in this Article and/or in the
event of violation of the foregoing, ICT Trading is entitled to take back, after notice of default but without judicial
intervention being required, the goods which are –still – the property of ICT Trading based on the retention
of ownership or otherwise. The counter-party is obliged to indicate to ICT Trading the place where the goods are
located and grants ICT Trading permission in advance to enter the premises and buildings in question – or to cause
these to be entered – in order to take back the goods, as to which the counter-party will not impose any conditions
nor withhold its permission for any reason whatsoever.
4.4 If and as long as ICT Trading still owns the goods delivered to the counter-party, the counter-party will immediately
inform ICT Trading if the aforementioned goods are attached (or there is a threat that they will be attached)
or third parties otherwise make a claim on these goods. Moreover, the counter-party will inform ICT Trading at its
first request where the goods are located.
4.5 The goods provided by ICT Trading may be resold or used by the counter-party in the conduct of its normal business
operations, subject to the retention of ownership referred to in Article 4.1, but may not be furnished as
security for any third party claims.
4.6 As security for the correct payment of any of its claims on any basis whatsoever, - upon a claim arising - ICT Trading
is granted a non-possessory pledge on any and all goods into which the goods delivered by ICT Trading have been
processed or of which they make up a part. The order signed by the counter-party and the subsequent written
acceptance by ICT Trading constitute a private instrument.
4.7 Rights are only granted and/or transferred to the counter-party on condition that the counter-party pays the
compensation agreed upon completely and in a timely manner.
5 Confidential information
The counter-party is obliged to maintain confidentiality vis-à-vis third parties with regard to all information
which it learns from ICT Trading and will not use this information for purposes other than those related to the tender
or agreement.
6 Performance of the agreement
6.1 At all times, the counter-party will provide to ICT Trading any cooperation as well as all data and information useful
or necessary for the proper performance of the agreement.
6.2 The counter-party is responsible for the use and application with due care of the equipment, software and
other materials of ICT Trading. In addition, it is responsible for testing and security procedures and appropriate
systems management. In that regard, the counter-party will take out adequate insurance.
6.3 If it is agreed that the counter-party will make available any equipment, software, materials or data on information
carriers, these media will conform to the specifications required for the performance of the activities.
6.4 If ICT Trading employees carry out activities on the premises of the counter-party, the counter-party will provide
any reasonable facilities desired by these employees at no cost.
7 Delivery, packaging, risk, return shipping and terms
Delivery
7.1 Whether requested to do so by the counter-party or not, ICT Trading is authorised to make partial deliveries, for
which ICT Trading may invoice the counter-party individually.
7.2 Unless otherwise agreed, delivery will be made postage paid to the counter-party’s home/company. The
agreed manner of delivery must be interpreted in accordance with the Incoterms of the International
Chamber of Commerce as applicable at the time of delivery.
7.3 If the counter-party wishes to receive the goods under an agreement at a time later than the time agreed, it
will inform ICT Trading in writing in a timely manner. In that case the counter-party will be charged 1% of the
value of the goods to be delivered per month. In this respect, any part of a month is regarded as a full month.
7.4 The counter-party is obliged to check for any exterior flaws or damage immediately upon delivery, but no
later than within three working days. Any exterior flaws or damage must be immediately reported by the
counter-party to ICT Trading in writing, giving a detailed description of the goods in question and the flaws or
damage to them, and accompanied by the delivery receipt, invoice and transit documents. Failing this immediate
written notification, which must be received by ICT Trading within six working days after delivery to the
counter-party, the counter-party is considered to have accepted the delivery. The counter-party is not authorised
to register any complaints with regard to the delivered goods.
Packaging
7.5 The goods to be delivered will be packaged for delivery in accordance with ICT Trading’ normal packaging procedures. If the counter-party requires special packaging methods, any increased costs for this packaging will be
paid by the counter-party.
7.6 ICT Trading is authorised to charge compensation for non-disposable packaging, which will be indicated on the
invoice. This compensation will be deducted or credited after the non-disposable packaging is returned
undamaged.
7.7 Software packaging delivered by ICT Trading will be handled by the counter-party in accordance with applicable
law. The counter-party indemnifies ICT Trading against claims by third parties for non-compliance with applicable
law regarding packaging.
Risk, return shipping
7.8 The risk of loss or damage of the goods governed by the agreement transfers to the counter-party at the
moment the goods are delivered to the counter-party or its auxiliaries. If and insofar as the counter-party
transports the goods itself or has them transported, the risk of loss or damage of the goods governed by the
agreement transfers at the moment the goods are made available for transport.
7.9 If the goods are not taken by the counter-party after the delivery time agreed upon, they will be stored on
behalf of the counter-party at its own expense and risk.
7.10 ICT Trading is not obliged to accept return shipments from the counter-party unless it has agreed to do so in writing
in advance.
7.11 Under no circumstances does acceptance of receipt of a return shipment constitute any acknowledgement by
ICT Trading of the grounds for the return as stated by the counter-party. The risk for returned goods remains with
the counter-party until the equivalent has been credited by ICT Trading.
7.12 ICT Trading reserves the right to deduct any costs associated with the returned products from any credit on the
basis of returned products.
Terms
7.13 All terms (including delivery terms) specified by ICT Trading have been established to the best of its knowledge on
the basis of information known to ICT Trading upon concluding the agreement, and will be observed as far as possible; the simple failure to meet any term does not constitute default on the part ICT Trading. If any term is in danger of not being met, ICT Trading and the counter-party will conduct consultation as quickly as possible.
8 Installation
8.1 ICT Trading will only install the goods to be delivered if and insofar as agreed in writing and in accordance with
the specifications set forth in writing, and, in all cases, under the conditions set forth in this Article 8.
8.2 In all cases, before the delivery of the goods the counter-party will make available an appropriate installation
area with all required facilities, such as telecommunications facilities, and provide access to the place of installation
for the performance of the activities necessary for the installation during ICT Trading’ normal working
hours.
8.3 If an acceptance test has been agreed to in writing, the test period will be fourteen days from the date of
delivery, or, if installation by ICT Trading has been agreed to in writing, fourteen days after the installation is completed. Until acceptance, the counter-party is not permitted to use the goods for production or operational
purposes without the written permission of ICT Trading.
8.4 The goods will be regarded by the parties as having been accepted:
a) if no acceptance test has been agreed between the parties: upon delivery in the condition in which it is at
that moment, or if installation by ICT Trading has been agreed to in writing, upon completion of the installation,
or
b) if an acceptance test has been agreed to between the parties in writing: on the first day after the test period,
regardless of whether the acceptance test was started and completed within that term, or
c) if ICT Trading receives a testing report before the end of the test period: at the moment that the faults indicated
in the testing report have been corrected, without prejudice to the presence of imperfections not preventing
acceptance. Contrary to the preceding, if the counter-party makes any use of the goods for productive or operational purposes before the moment of acceptance, the goods will be regarded to have been unconditionally accepted
as from the commencement of that use.
8.5 If the performance of the agreed acceptance test shows that the goods contain faults that impede the progress of the acceptance test, the counter-party will inform ICT Trading in detail of these faults in writing, in which case the test period will be suspended until the goods are repaired to the extent that testing is not impeded. If and insofar as there are rights or obligations in these general conditions regarding 'faults', faults will be taken to mean not complying with the functional specifications indicated by ICT Trading in writing and, in the case of developing custom-made software, with the functional specifications expressly agreed on. A fault is only present if it can be demonstrated and can be replicated. The counter-party is obliged to immediately inform ICT Trading in writing of faults.
8.6 If the performance of the agreed acceptance test shows that the goods contain faults, the counter-party will
inform ICT Trading in writing no later than the last day of the test period, by means of a detailed testing report.
ICT Trading will do everything in its power to repair the faults within a reasonable term, and in doing so, ICT Trading
is authorised to implement interim solutions, software patches or workarounds.
8.7 Acceptance of goods may not be withheld on any grounds other than those relating to the specifications
explicitly agreed between the parties, nor on the basis of the presence of minor faults, being faults that do
not prevent reasonable use of the goods for productive or operational purposes, without prejudice to ICT Trading’
obligation to remedy these minor faults under the guarantee scheme of these General Delivery Conditions,
if applicable.
9. Delivery in phases or parts
9.1 If it is agreed that the deliveries will be made in phases, ICT Trading is entitled to postpone the commencement of
the deliveries which are included in a later phase or part until the counter-party has approved the prior phase
or part in writing and has satisfied all its financial obligations concerning the prior phase or part.
9.2 If the goods are delivered and tested in phases or parts, the non-acceptance of a certain phase or part does
not affect possible acceptance of an earlier phase or another part.
10 Maintenance
10.1 Maintenance of the goods will only be provided by ICT Trading if explicitly agreed in writing with the counterparty
under terms and conditions to be further specified between the parties.
10.2 A maintenance agreement is concluded between the parties for the duration to be mutually agreed upon. If
no duration is specified, the maintenance period is one year.
11 Intellectual property rights
11.1 All rights of intellectual property to all goods and services provided pursuant to an agreement, including
equipment, software or other materials such as demos, analyses, designs, documentation, reports, tenders
and any preparatory material for these materials rest exclusively with ICT Trading or its licensors. The counter-party
acquires only those non-exclusive rights of use and authorisations explicitly accorded by these General
Delivery Conditions or otherwise explicitly granted, and will not modify, disclose or copy the goods or services
delivered or any portion thereof.
11.2 Without ICT Trading' express prior permission, the counter-party is not entitled to use the goods or services provided
other than in the agreed manner or to make available to a third party in whole or in part the rights or
authorisations granted to the counter-party, or to transfer these in whole or in part or provide a licence for
these in whole or in part to a third party.
11.3 The counter-party is not permitted to remove or alter any indication regarding copyrights, trademarks, trade
names or other rights of intellectual or industrial property found on or in the equipment, software or materials.
This includes references concerning the confidential nature and confidentiality thereof.
11.4 The intellectual property rights with regard to any improvements concerning the software, equipment and
materials rest with ICT Trading.
11.5 If and insofar as differences of opinion arise between the parties over the ownership of the intellectual property
rights with regard to the software, equipment or materials, ICT Trading’ ownership of the rights will be assumed until such time as the counter-party can prove the contrary.
11.6 The counter-party agrees that no rights of third parties preclude ICT Trading’ access to equipment, software or
materials for the purposes of use or operation, and the counter-party indemnifies ICT Trading against all claims by
third parties resulting from infringements asserted by third parties of their intellectual property rights concerning
the items provided by the counter-party.
11.7 The counter-party accepts that ICT Trading may use the name and all associated intellectual property rights of the
counter-party for commercial purposes.
12 Liability for damage/Indemnification
12.1 ICT Trading accepts the (statutory) obligation to compensate damage insofar as such damage is evidenced under
this Article 12.
12.2 ICT Trading’ total liability is limited to compensation for direct damage up to at most the price stipulated for the
delivered good (excluding VAT). If the principal agreement is an agreement for providing services, the price
is set at the total of the compensation per year (excluding VAT). Under no circumstances will the total compensation
for damage amount to more than EUR 500,000.00 (five hundred thousand euros). A series of interconnected
events qualifies as one event. Direct damage is exclusively defined as material damage to goods as
a direct result of the failure and/or unlawful act of ICT Trading.
12.3 ICT Trading rejects liability for damage other than direct damage as defined in Article 12 (indirect damage), including
consequential loss, loss of income, lost savings and damage due to business interruption.
12.4 ICT Trading is not liable for damage arising from or caused by the injudicious, careless or improper use by the
counter-party or by third parties engaged at the counter-party's request, or the unsuitability of the objects
provided for the purpose for which the counter-party has acquired them, or for damage which arises as a
result of external causes, in any form whatsoever.
12.5 ICT Trading’ liability for attributable failure in the performance of the agreement is only established if the counterparty
gives ICT Trading proper written notice of default immediately, and in any event no later than one week
after the failure, with the stipulation of a reasonable term for remedying of the failure, and ICT Trading then continues
to be in default of the performance of its obligations after that term has expired. The notice of default
must contain as detailed a description as possible of the failure so that ICT Trading is able to respond adequately.
12.6 At all times, in order to have any right to damages the counter-party must report the damage in writing to
ICT Trading as quickly as possible, but no later than two weeks after they occur.
12.7 The counter-party indemnifies ICT Trading against any claims by third parties, including ICT Trading employees, suffering
damage in connection with the performance of the agreement arising from anything the counter-party
does or fails to do as well as from unsafe situations in the counter-party’s organisation.
12.8 The counter-party indemnifies ICT Trading against claims by third parties, including ICT Trading employees, due to product
liability as a result of a fault in a product or system that partly consists of equipment, software or other
materials provided to the counter-party by ICT Trading and then provided by the counter-party to a third party,
excepting if and insofar as the counter-party proves that the damage was caused by the equipment, software
or other materials provided by ICT Trading.
12.9 ICT Trading gives no guarantees to the counter-party or third parties, unless explicitly agreed upon with the
counter-party or third parties.
13 Suppliers
13.1 If necessary for the delivery, ICT Trading is entitled to deliver goods from third parties. At that time, the terms and
conditions of those third parties (including the general terms and conditions, the product descriptions and
the use conditions of those third parties for end users) will apply with regard to those goods, as will these
General Delivery Conditions, as a supplement thereto. The counter-party accepts these third-party terms and
conditions. In the event of a discrepancy between these General Delivery Conditions and the terms and conditions
of those third parties, the terms and conditions of those third parties will prevail. The terms and conditions
of those third parties will be available for inspection by the counter-party at ICT Trading’ premises and
ICT Trading will send them to the counter-party upon request. If and insofar as these third party terms and conditions
are deemed or declared to be inapplicable between the counter-party and ICT Trading for whatever reason,
these General Delivery Conditions apply.
13.2 ICT Trading’ liability and guarantee(s) with regard to the goods of third parties, including the suppliers of ICT Trading,
will under no circumstances be in excess of the guarantees and liability of those third parties.
13.3 With regard to the goods made available by ICT Trading’ suppliers, during the supplier’s guarantee period ICT T trading
will repair to the best of its ability any material and manufacturing defects in the goods, as well as in components
provided by ICT Trading in the context of guarantee or maintenance, if these defects are reported in
detail to ICT Trading in writing within this guarantee period. All replacement components are the property of
ICT Trading. The guarantee obligation expires if these defects are, in whole or in part, the result of incorrect, careless
or incompetent use, external causes such as fire or water damage, or if the counter-party has made alterations
to the goods or components provided by ICT Trading under the guarantee or maintenance.
13.4 Activities and costs of repair falling outside of the guarantee(s) will be billed by ICT Trading in accordance with
normal rates.
14 Digital
14.1 An e-mail or electronic message sent via ICT Trading’ extranet systems will constitute a written notice pursuant to
any agreements in the context of these General Delivery Conditions.
14.2 Upon any disputes over whether ICT Trading did or did not receive or send any message as defined in this Article
14, ICT Trading’ log file data will constitute conclusive proof.
14.3 Mail messages are regarded to have been received if they are accessible to the other party, which is in any
event considered to include the moment that they have reached the mailbox of the recipient.
15. Telecommunication
15.1 If use is made of telecommunications facilities, the counter-party is responsible for their sound selection and
timely availability. ICT Trading is not responsible for transmission errors not attributable to ICT Trading.
15.2 ICT Trading will designate access or identification codes for data processing using telecommunications facilities.
The counter-party will treat these access codes as confidential and only make them known to authorised personnel.
15.3 If ICT Trading uses telecommunications facilities, it, in cases of data corruption or delay in transmission, will only
be liable for any damage arising therefrom insofar as this damage can be recovered from the telecom operator
in question.
16 Access codes
16.1 If and insofar as access codes (including access codes in the form of biometric and public keys, digital certificates
and hardware and software tokens) are provided in connection with a tender by ICT Trading or an agreement
with ICT Trading, the provisions below apply.
16.2 The counter-party will exercise due care with regard to access codes and take all adequate measures to prevent
their abuse or any other use of them to ICT Trading’ disadvantage. The counter-party will keep these access
codes secret and take all measures necessary to that end. If and insofar as applicable, the counter-party is
obliged to create non-obvious access codes consisting of both numbers and letters. In cases of theft, loss, or
suspicion of abuse of access codes by third parties (including but not limited to the employees of the counterparty
or of other parties engaged by the counter-party), the counter-party is obliged to report this to ICT Trading
immediately, and no later than 12 hours after the incident, as well as to make a report to the police.
16.3 The counter-party and ICT Trading will agree on which employees of the counter-party will be granted access codes
nd right of inspection and/or be authorised to place on-line orders and/or have access to the property and
systems of ICT Trading.
17. Privacy and Security
The counter-party warrants that all statutory provisions regarding ICT services and the processing of data, in particular including the provisions of or under the Data Protection Act/Personal Data Protection Act and all associated implementation decrees, will be strictly observed and that all prescribed registrations have been made.
The counter-party will provide ICT Trading with all requested information in this area immediately upon request.
ICT Trading will provide adequate security systems for the protection of personal data, in accordance with the current
state of the art.
18. Export
The relevant export provisions apply to the export of equipment, components or software by the counterparty.
The counter-party indemnifies ICT Trading against all claims of third parties in connection with violations of the applicable export provisions attributable to the counter-party.
19 Transfer of rights and obligations
The counter-party is not authorised to transfer the rights and obligations under an agreement concluded
between ICT Trading and the counter-party to any associated companies or third parties, except with the express
written permission of ICT Trading.
20 Termination
20.1 Each of the parties will only be entitled to rescind the agreement if the other party, after a valid written
notice of default which is as detailed as possible and which includes a reasonable time period for rectifying
the failure, fails to perform fundamental obligations under the agreement due to reasons which are attributable
to it.
20.2 If an agreement which, by its nature, does not terminate as a result of completion is entered into for an indefinite
period of time, each of the parties may terminate it after proper business consultation and with a statement
of reasons through written notice. If the parties have not agreed on an express notice period, a reasonable
time period must be observed for the notice. The parties will never become liable to pay damages as
a result of termination.
20.3 In cases of a moratorium on payments, default on the part of the counter-party, bankruptcy, suspension of
payments, liquidation or winding up of the counter-party's company, or attachment being made on goods
delivered by ICT Trading (including, but not limited to the Objects referred to in Part F) and/or attachment being
made on goods, monies and/or balances of the counter-party - all of these regardless of whether provisional
or not -, ICT Trading is authorised to cancel an agreement in whole or in part with immediate effect without any
notice of default or juristic intervention, and reclaim the unpaid portion of the object(s) provided. The
counter-party shall cooperate fully to return the reclaimed items immediately and unconditionally to ICT Trading.
Cancellation and reclaiming of the object(s) provided does not diminish ICT Trading’ right to claim compensation
for loss or damage. In such cases, all claims by ICT Trading against the counter-party will be immediately due and
payable. In cases of termination on the basis of the above, ICT Trading will in no way be held to any compensation
of damage.
21. Anti-takeover
21.1 During the contract period and for a period of two years after the termination of the agreement with ICT Trading,
the counter-party is prohibited from making offers of employment, employing on any basis including temporary,
freelance or indirectly via third parties, or otherwise effecting the termination of the employment
agreements of employees of ICT Trading or its associated companies.
21.2 Upon violation of one or more provisions of this Article 21, the counter-party will forfeit to ICT Trading an immediately
due and payable penalty, not open to judicial mitigation, of EUR 10,000 (ten thousand euros) for each
day or portion thereof that the violation continues, without prejudice to the counter-party’s obligation to
compensate for damage arising therefrom.
22 Applicable law and disputes
22.1 Dutch law applies exclusively to all tenders by ICT Trading and to all agreements between ICT Trading and the counter-party,
as well as to the performance thereof. The Vienna Sales Convention is expressly declared to be inapplicable.
22.2 Any disputes arising between ICT Trading and the counter-party as a result of an agreement between ICT Trading and
the counter-party or any further agreements resulting from such agreements, or as a result of these General
Delivery Conditions and their interpretation or implementation, will be exclusively adjudicated by the competent
civil court in the District of Amsterdam, excepting on appeal, yet provided that the Minitrial Rules of
the Foundation for the Settlement of Automation Disputes in The Hague are followed, without prejudice to
the parties’ rights to demand provisional measures in preliminary relief proceedings. ICT Trading has discretion to
decide not to proceed under the Minitrial Rules of the Foundation for the Settlement of Automation Disputes
in The Hague.
B. SERVICES
Along with and in supplement to the General Provisions (A) of these General Delivery Conditions, the provisions
in this Chapter apply if ICT Trading provides services (such as IT services, but also other forms of services), and, in this
instance, with the term 'goods' referring to 'services' as well. If and insofar as ICT Trading provides IT services, this in
any case includes but is not limited to data processing with the aid of software and equipment managed by ICT Trading.
In cases of conflict arising from the special provisions in this Chapter, the provisions in this "Services" Chapter prevail over the provisions of the General Provisions (A).
23 Duration
23.1 If the agreement relates to the periodic or otherwise regular provision of services, the agreement is concluded
for the duration agreed upon by the parties. If no term is specified, the agreement is concluded for a term of
one year. The counter-party is not authorised to prematurely terminate the agreement.
23.2 Excepting insofar as ICT Trading and the counter-party explicitly agree otherwise in writing, upon expiry the agreement
is automatically extended by the same period of time as the original contract period for the purposes
of periodic or regular providing of services, unless the counter-party or ICT Trading terminates an agreement in
writing in observance of a notice period of three months before the end of the contract period.
24 Property
24.1 All equipment, software and other materials to be used by ICT Trading in the provision of services remain the
property of ICT Trading and/or the object of ICT Trading’ intellectual property rights, even if the counter-party pays
compensation to ICT Trading for their development or acquisition. ICT Trading is entitled to claim and/or remove the
aforementioned equipment, software and other materials (in good condition) at any moment it desires, without
the counter-party placing (being able to place) any further conditions on this.
24.2 ICT Trading may retain the products and data received from the counter-party in connection with the services to
be performed and/or performed and the results of processing until the counter-party has paid all amounts
due to ICT Trading.
24.3 Except insofar as necessary for performing an agreement, the counter-party will not perform any action in
any manner whatsoever which results in and/or could result in, or will take adequate measures to prevent,
the situation that the equipment and materials used by ICT Trading for the services become associated with the
objects of the counter-party or third parties to such an extent that the equipment and materials used by
ICT Trading lose or could lose their independence.
24.4 The risk of theft, damage or other manner of loss of equipment, software or other materials used by ICT Trading
rests with the counter-party until the time of return to ICT Trading.
25 Changes
25.1 ICT Trading may make changes in the nature, content or scope of the services. If such changes would result in a
change of procedures operated by the counter-party, ICT Trading will inform the counter-party as early as possible,
and the costs of these procedural changes will be at the counter-party’s expense. In such cases, the
counter-party may terminate the agreement in writing as of two months after the changes have been implemented,
unless these changes are the result of changes in applicable legislation or the provisions of the competent
authorities, or if the costs of these changes are paid by ICT Trading.
25.2 To the best of its ability, ICT Trading will reasonably endeavour to ensure that equipment, software, systems and
other materials it uses in the performance of its services are adjusted to any changes in applicable legislation
or provisions issued by competent authorities. Upon written request, ICT Trading will provide recommendations
to the counter-party regarding the consequences of these adjustments for the counter-party, at ICT Trading’ normal
consulting rates.
26 Instructions/Replacement personnel
26.1 In the performance of the services, ICT Trading is only obliged to follow instructions of the counter-party in a timely
and competent manner if this has been explicitly agreed to in writing. ICT Trading is not obliged to follow instructions
in deviation of or supplemental to the content, objective or scope of the agreed services; if, however, such
instructions are followed, the relevant activities will be paid for in accordance with Article 28.
26.2 If the agreement for the provision of the services is concluded with the intention of performance by a particular
person, ICT Trading will at all times be reasonably authorised to replace this person by one or more persons
with the same qualifications.
27 Services of third parties
If necessary for providing services, ICT Trading is entitled to have third parties perform services for the counterparty.
At that time, the terms and conditions of those third parties (including the general terms and conditions,
the product descriptions and the use conditions of those third parties for end users) will apply with
regard to those services, as will these General Delivery Conditions, as a supplement thereto. The counter-party
accepts these third-party terms and conditions. In the event of a discrepancy between these General Delivery
Conditions and the terms and conditions of those third parties, the terms and conditions of those third parties
will prevail. The terms and conditions of those third parties will be available for inspection by the counterparty
at ICT Trading’ premises and ICT Trading will send them to the counter-party upon request. If and insofar as these
third party terms and conditions are deemed or declared to be inapplicable between the counter-party and
ICT Trading for whatever reason, these General Delivery Conditions apply.
28 Invoicing and rates
28.1 The counter-party will verify and sign for accord the time sheets submitted by ICT Trading in connection with the
services. Unless agreed to otherwise in writing, invoicing will take place on the basis of days worked (by which
a portion of a day is counted as one day). One day is considered to be a working day of eight working hours.
28.2 Unless explicitly indicated otherwise, the rates agreed upon between the parties apply to the services for normal
work times, Monday through Friday for a maximum of 8 working hours per day, between the hours of
8:30 am and 5:30 pm. Insofar as not agreed otherwise by the parties, activities performed outside of these
normal working hours are subject to an overtime surcharge of 50% on weekdays up until 7:30 pm. For activities
performed at other times and on Saturdays, the surcharge amounts to 100% and for activities on Sundays
and holidays this surcharge is 150%.
28.3 Unless agreed otherwise, the rates for services are exclusive of travel and accommodation expenses.
28.4 If the nature or content of the activities, or the location in which the activities are performed, changes during
the period of an agreement, ICT Trading is authorised to set additional conditions and new hourly and daily
rates in supplement to the agreement.
29 Guarantee
29.1 To the best of its ability, ICT Trading will perform the services with care, and if necessary in accordance with the
arrangements and procedures arranged with the counter-party in writing.
29.2 The counter-party warrants that all materials, data, software, procedures and instructions it provides to
ICT Trading for performing the services will at all times be complete and correct, and that all information carriers
provided to ICT Trading meet ICT Trading’ specifications.
29.3 If ICT Trading undertakes to provide services on the basis of explicitly agreed specifications, ICT Trading further guarantees
that any faults will be remedied, provided that, within the guarantee period, the counter-party demonstrates
to ICT Trading in writing, giving reasons, that these faults are due to the failing of the services to meet or
fully meet the agreed specifications, and the extent to which the services fail to do so. Unless explicitly indicated
otherwise in writing, in all cases the guarantee period is three months after actual delivery.
29.4 Restoration of corrupted or lost data does not fall under the guarantee.
29.5 The guarantee obligation expires if the counter-party makes changes in the results of the services or has such
changes made without ICT Trading' written permission.
29.6 The counter-party indemnifies ICT Trading against all claims by third parties that may be brought against
ICT Trading in connection with the services with regard to violation of the Data Protection Act/Personal Data Protection Act and/or statutory retention of data periods.
30 Changes and additional work
30.1 Unless explicitly agreed otherwise, ICT Trading will under no circumstances be considered to be committed to performance in connection with the services other than or further to what is indicated in an agreement between
ICT Trading and the counter-party. Any recommendations or opinions expressed by ICT Trading verbally or in writing
will not entail an extension of its obligations.
30.2 If ICT Trading has performed activities or carried out other duties outside of the content, purpose or scope of the
services agreed upon at the request of or with the prior consent of the counter-party, ICT Trading will be compensated for these activities or duties at ICT Trading’ normal rates. ICT Trading is not, however, obliged to comply with such requests and may require that an independent written agreement be concluded for its performance.
30.3 The counter-party acknowledges that the performance of activities or duties as defined in paragraph 1 of
Article 30 may affect the completion time expected or agreed upon for the services, as well as the mutual
esponsibilities of the counter-party and ICT Trading.
30.4 Insofar as a fixed price has been arranged for the services and the parties intend to conclude an independent
agreement regarding the extra activities or performances, ICT Trading will inform the counter-party in writing of
the financial consequences of these extra activities or performances in advance.
C. SECONDMENT
Along with and in supplement to the General Provisions (A) of these General Delivery Conditions and the provisions
of Chapter (B) "Services," the provisions in this Chapter apply if, at the instruction of the counter-party,
ICT Trading provides personnel (hereinafter: "experts") to be generally available under the supervision and management of and/or employed within the counter-party’s organisation (hereinafter: "secondment"), and, in this
instance, with the terms 'goods' and 'services' referring to 'secondment' as well. In cases of conflict arising from
the special provisions in this Chapter "Secondment" on the one hand and the General Provisions of the General
Delivery Conditions (A) and/or the "Services" Chapter B on the other, the provisions in this Chapter prevail.
If and insofar as an expert is then seconded by the counter-party to a third party, which is only permitted with the
explicit consent of ICT Trading and only under conditions to be explicitly agreed between the parties, the term
"counter-party" will be understood to include the third party in question.
31 Availability
For secondment agreements by which the counter-party wishes to make use of the services of a ICT Trading expert
for a fixed number of days in a certain period, ICT Trading will endeavour to provide the secondment on the
desired days and in the desired period and to achieve satisfactory completion in mutual consultation.
32 Termination by operation of law; extension
32.1 If a secondment agreement is concluded for a fixed period, this agreement terminates by operation of law
without notice of termination being required. Extension of the period of the secondment agreement can only
be brought about by signing a new secondment agreement.
32.2 Unless explicitly agreed upon by the parties in writing, premature termination of the agreement is not possible.
33 Employment
33.1 The expert will perform the activities to be carried out in connection with the services to the best of his
knowledge and ability.
33.2 The counter-party will assign the expert to activities in accordance with the provisions of the order and of the
General Delivery Conditions.
33.3 The counter-party may only assign the expert to activities in deviation of Article 33.2 with the prior written
consent of ICT Trading and the expert. Conditions may be attached to this consent.
33.4 Employment of the expert abroad is only possible for limited periods and if this has been agreed upon in writing
at the time of the order, and with the expert’s consent.
34 Supervision/management
34.1 The counter-party will observe the same care in the exercise of supervision or management of the expert and
his performance of the activities as it is obliged to observe same with regard to that of its own employees.
34.2 Unless explicitly agreed otherwise in writing, the counter-party is not permitted to make the expert available
to third parties for the performance of duties under the supervision or management of third parties. This is
also understood to include making the expert available to a (legal) person with which the counter-party is
affiliated.
35 Guarantee
35.1 The counter-party will set up and maintain the workspaces, implements and instruments in which or with
which work is performed, take measures for the performance of the work, and give instructions as reasonably
necessary in order to prevent the expert from suffering injury, in the broadest sense of the word, during
performance of the work. The counter-party explicitly declares that it is aware of the contents of paragraph
4, Section 658, Book 7, Dutch Civil Code.
35.2 If the expert suffers an industrial accident or occupational illness, the counter-party will immediately inform
the competent authorities of this and ensure that a report is drafted without delay, establishing the facts of
the incident such that a reasonable degree of certainty can be obtained into whether and to what extend the
incident is the result of insufficient measures being taken to prevent such an industrial accident or occupational
illness.
35.3 The counter-party will compensate the expert for all damage (including costs, encompassing the actually
incurred costs of legal counsel) suffered by the expert in the performance of the work, unless the client proves
that it has fully complied with the aforementioned obligations or that to a significant degree, the damage
was the result of intent or wilful negligence on the part of the expert.
35.4 The counter-party will compensate the expert for all damage (including costs, encompassing the actually
incurred costs of legal counsel) suffered by the expert due to equipment belonging to the expert and used
by him in connection with the assigned activities is damaged or destroyed. The counter-party will indemnify
ICT Trading against all claims arising therefrom.
36 Other liabilities
36.1 Unless explicitly agreed otherwise in writing, the responsibility for the expediency, objective, scheduling,
progress and results of the expert’s activities rests with the counter-party, and ICT Trading accepts no liability for
these aspects of the expert’s activities.
36.2 The liability for direct damage in connection with a secondment agreement is limited to 50% of the compensation
incurred on the basis of the secondment agreement for the contract period (excluding VAT), per
incident per contract period, to a maximum of EUR 50,000 (fifty thousand euros). A series of interconnected
events qualifies as one event.
36.3 The counter-party indemnifies ICT Trading against all liability (including costs, encompassing actually incurred costs
of legal counsel), as direct or indirect employer of the expert, arising from damage or loss inflicted by the
expert to the counter-party or third parties.
36.4 The counter-party indemnifies ICT Trading against all liability (including costs, encompassing actually incurred costs
of legal counsel), as direct or indirect employer of the expert, arising from commitments entered into by or
on behalf of the expert vis-à-vis the counter-party or third parties, whether or not with the permission of the
counter-party or these third parties.
36.5 The counter-party will take out adequate insurance in connection with the secondment of experts by ICT Trading
to the counter-party.
D. TRAINING
Along with and in supplement to the General Provisions (A) of these General Delivery Conditions and the provisions
of Chapter (B) "Services," the provisions in this Chapter apply if ICT Trading provides training at the counterparty’s
request, with, in this instance, the terms 'goods' and 'services' referring to training as well. In cases of conflict
arising from the special provisions in this "Training" Chapter on the one hand and the provisions of the
General Delivery Conditions and/or the "Services" Chapter B on the other, the provisions in this Chapter prevail.
37. Registration
37.1 Unless explicitly agreed otherwise in writing, the counter-party must register for training in writing by completely
filling in and returning to ICT Trading a registration form, available upon request from ICT Trading.
37.2 A registration is only confirmed if the registration form is received by ICT Trading and ICT Trading confirms receipt to
the counter-party.
38. Cancellation
38.1 Cancellation of the registration for training must be made by the counter-party in writing.
38.2 Upon cancellation up until two weeks before the commencement of the training, 50% of the agreed training
fee will be refunded. Upon cancellation less than two weeks before the commencement of the training,
the entire training fee will be non-refundable. Interim cancellation of multi-day training is not permitted.
39 Participants
39.1 No later than two weeks before the commencement of the training, the counter-party will inform ICT Trading of
the persons who will be participating in the training.
39.2 The counter-party is authorised to send replacements for the specified participants, as long as ICT Trading receives
notice of this in writing and in a timely manner.
39.3 Regardless of the reason, ICT Trading is authorised to cancel the training, combine it with another training or postpone
it. ICT Trading will notify the counter-party of any such decision before commencement of the training.
40 Rescheduling of training
40.1 The counter-party may submit to ICT Trading a written request to reschedule the training.
40.2 If the written request to reschedule training is received by ICT Trading two weeks or more before the commencement
of the training, ICT Trading is only authorised to charge the counter-party for administrative costs.
40.3 If the written request to reschedule training is received within the two weeks period before the commencement
of the training, ICT Trading will charge to the counter-party an additional rescheduling fee of 50% of the
agreed training fee.
41 Training fee/payment
41.1 Excepting insofar as agreed otherwise in writing by ICT Trading and the counter-party, the training fees listed on
the fee list and/or tender at the moment of registration are valid.
41.2 The invoice for the training must be paid by the counter-party before the end of the payment period indicated
on the invoice, and no later than the commencement of the training.
42 Training content/course materials
42.1 ICT Trading will make the course materials relevant to the training available to the counter-party. These course
materials will only be made available to the counter-party if the invoice for the training in question is paid in
full by the counter-party and only upon payment by the counter-party of any shipping and administration
costs.
42.2 ICT Trading reserves the right to adjust the content of the training at any time, in any way whatsoever, whether
or not at the counter-party’s request and for any reason whatsoever.
E. SOFTWARE
Along with and in supplement to the other provisions of these General Delivery Conditions, the provisions in this
Chapter apply if ICT Trading manages, develops and/or provides software at the counter-party’s request, with, in this
instance, the terms 'goods', 'services', 'secondment' and 'training' referring to software as well. The rights and
obligations specified in this Chapter relate exclusively to computer software set out in computer-readable form on
computer-readable media, as well as the corresponding documentation, regardless of the computer’s physical
location (including, but not limited to interactive applications). In cases of conflict arising from the special provisions
in this "Software" Chapter on the one hand and the other provisions on the other, the provisions in this
Chapter prevail.
43 Software development
Specifications
43.1 ICT Trading and the counter-party will specify in writing what software is to be developed and in what manner
this will take place. ICT Trading will carry out the software development carefully on the basis of the data and specifications
provided by the counter-party. The counter-party warrants the accuracy, completeness and consistency
of these data and specifications.
43.2 ICT Trading is authorised, but not required, to investigate the accuracy, completeness or consistency of the data
and specifications provided to it, and, upon observation of any deficiencies, suspend the activities agreed
upon until the counter-party has remedied the deficiencies in question.
Source code
43.3 Unless specifically agreed upon otherwise, the source and object code will be placed in escrow under terms
and conditions to be stipulated by ICT Trading.
43.4 The counter-party is not permitted to disseminate or in any way disclose the source and object code.
44 Delivery of software
44.1 ICT Trading will deliver the software to the counter-party in accordance with the specifications set forth in writing,
and install this software or have it installed if the performance of installation by ICT Trading has been agreed
upon in writing.
44.2 Prior to the delivery of the software, ICT Trading will inform the counter-party of the time it intends to make the
delivery.
45 Test software
45.1 If and insofar as ICT Trading uses test software, the following applies.
45.2 Before the software to be delivered by ICT Trading is produced and delivered, the counter-party will test and
approve the software manufactured by ICT Trading. ICT Trading will inform the counter-party that and when the test
software can be tested. ICT Trading must approve the test equipment used by the counter-party. The counterparty
must inform ICT Trading of the approval of the test software in writing. If no time is stated in the tender
or the acceptance of the tender for the aforementioned test and approval, this must take place within 14
days after ICT Trading has stated that the test software can be tested. If this does not occur, ICT Trading is not liable
for delays in the delivery.
45.3 If the order which ICT Trading receives concerns the development of prior software, ICT Trading is entitled to demand
in the interim that the counter-party present a test copy for acceptance. ICT Trading is entitled to demand an
interim written acceptance confirmation from the counter-party with regard to the form, concept, content
and quality contained in the test copy. Further copying of the software based on the aforementioned
approved test copy is at the counter-party's risk and expense.
45.4 ICT Trading does not guarantee that the manufactured (test) software operates equally well on other equipment
as on the test equipment used.
46 Protection of software
46.1 ICT Trading may take technical measures in order to protect the software. If ICT Trading has protected the software
by technical means, the counter-party is not permitted to remove or circumvent this protection.
46.2 If the protection measures result in the counter-party not being able to make a backup copy of the software,
ICT Trading will make a backup copy of the software available to the counter-party upon request of the
counter-party. Unless ICT Trading has provided a backup copy of the software to the counter-party, the
counter-party has the right to keep one backup copy of the software, so long as this backup copy is clearly
recognisable as such.
46.3 If the counter-party develops software or software is developed for the counter-party by third parties, or if
the counter-party intends to do so or have this done, and due to compatibility issues between this new
software and software provided by ICT Trading, the counter-party requires information in order to achieve compatibility, the counter-party will submit a detailed written request for the required information. ICT Trading will
then respond within a reasonable time frame, indicating whether the required information can be provided
to the counter-party and under what conditions, which may include financial terms and terms for any third
parties whose services may be required by the Counter-party. In these General Delivery Conditions, "compatibility"
ncludes: the ability of software to exchange information with other components of a computer
system or software, and to communicate by means of this information.
47 Right of use to software
47.1 ICT Trading grants the counter-party a non-exclusive right of use to the software. The counter-party will at all
times strictly observe the limitations set to use as agreed between the parties. Without prejudice to the
remaining provisions of these General Delivery Conditions, the counter-party’s right of use only extends to
the right to install and use the software.
47.2 The counter-party may only use the software in its own company or organisation for the limited number
or type of users or connections to which the right of use applies. Insofar as not agreed otherwise, the
counter-party’s working group in which the software is first used and the number of connections active
in that working group at the moment of first use qualifies as the working group and number of connections
for which the right of use is granted. Upon service interruptions or disturbances of the relevant
working group, the software may be used in another working group for the period of the interruption or
disturbance. The right of use may extend to multiple working groups insofar as that is explicitly stated in
an agreement.
47.3 The non-exclusive right of use is non-transferrable. The counter-party may not sell, lease out, (sub-)licence
or alienate the software or the media on which it is recorded, nor grant limited rights thereon or make the
software or the media on which it is recorded available to a third party in any way or for any purpose whatsoever,
even if the third party in question would be using the software exclusively on behalf of the counterparty.
The counter-party is not authorised to make changes in the software without the written permission
of ICT Trading and in accordance with the attendant instructions. The counter-party will not make changes in the
software, will not remedy any faults, and will not use the software for data processing on behalf of third
parties ('time-sharing').
47.4 Immediately following the termination of the right of use to the software, the counter-party will unconditionally
return all copies of the software in its possession to ICT Trading. If the parties have agreed that upon the
termination of the right of use, the counter-party is to destroy the copies in question, the counter-party will
immediately report such destruction to ICT Trading in writing.
47.5 ICT Trading is entitled to use its name and/or logo on the software developed by it at any time.
48 Software guarantee
48.1 For a period of two months after the delivery date, ICT Trading guarantees that the software will function essentially
in accordance with the functional requirements as explicitly described in the applicable information
and documentation. ICT Trading does not guarantee that the software will work faultlessly or without interruption,
or that all faults will be remedied or that there will be no minor differences in the description of the
functionality and the final functioning of the software in question.
48.2 For a period of two months after the delivery date, or, if an acceptance test has been agreed upon between
the parties, two months after the first day after the test period, regardless of whether the acceptance test
has been started and completed, ICT Trading will correct any faults in the software to the best of its ability, insofar
as these faults could not reasonably have been discovered during the acceptance tests and provided a
detailed account of these faults is given to ICT Trading in writing within this period. These faults will be remedied
at no cost, unless the software has been developed for the client for other than a fixed price, in which
case ICT Trading will charge its normal rates and costs of repair. ICT Trading may charge its normal rates and the costs of repair if faults are caused by user error or improper use by the counter-party or other causes not attributable
to ICT Trading, or if the faults should have been observed during the performance of the agreed acceptance
test. Recovery of corrupted or lost data does not fall under the guarantee. The guarantee obligation
expires if the counter-party makes changes in the software or has changes made without the written permission
of ICT Trading.
48.3 The remedying of faults will be carried out at a location to be designated by ICT Trading. ICT Trading is authorised to
implement interim solutions and/or software patches or workarounds in the software.
48.4 After expiry of the guarantee period, ICT Trading is not obliged to remedy any faults unless a maintenance agreement
covering such activities has been concluded between the parties.
49 Software maintenance
49.1 If a maintenance agreement has been concluded between the parties, the counter-party will report all faults
in the software to ICT Trading in detail, in accordance with ICT Trading’ normal procedures.
49.2 If a maintenance agreement has been concluded, ICT Trading will make any upgrades of the software available
to the counter-party. Three months after an upgrade is made available, ICT Trading is no longer obliged to
remedy any faults in the previous version or provide any support with regard to the previous version. ICT Trading
may require that the counter-party conclude a new agreement with ICT Trading for an upgrade with new functionality,
and that new compensation be paid for such an upgrade.
49.3 If the counter-party does not conclude a maintenance agreement with ICT Trading at the same time as the software
is made available, ICT Trading cannot be obliged by the counter-party to conclude a maintenance agreement
at a later date.
F. LEASE
Along with and in supplement to the General Provisions (A) of these General Delivery Conditions, the provisions
in this Chapter apply if the counter-party leases objects from ICT Trading ("Objects"), and, in this instance, with the
terms 'goods' and 'services' referring to 'lease' as well. In cases of conflict arising from the special provisions in
this Chapter "Lease" on the one hand and the provisions of the General Delivery Conditions (A) on the other, the
provisions in this Chapter prevail.
50 Ownership
50.1 The counter-party undertakes to take all steps and measures which are necessary to enforce and to protect
ICT Trading' ownership rights regarding the Object in question, on the understanding that the counter-party will
always completely inform ICT Trading ahead of time regarding the steps and measures to be taken. Except insofar
as ICT Trading and the counter-party expressly agree otherwise, the ownership always remains with ICT Trading in
respect of (replacements of) the Object.
50.2 The counter-party undertakes to place pictures or other identifying marks on the Object or otherwise to
indicate in a clearly recognisable manner on the Object that the Object is the property of ICT Trading as well as
to ensure that those pictures, identifying marks or other distinguishing marks remain affixed in a clearly
recognisable manner.
50.3 The counter-party will immediately inform ICT Trading in a detailed manner – and to confirm this by registered
post – if and as soon as:
a) A third party asserts claims on the Object or any part thereof, including placing an attachment on it;
b) The Object or any part of it has been lost or damaged;
c) The Object is involved in any way in an accident which results in any injury/damage to persons or goods; or
d) The Object is moved, stating the new location where the Object is being used.
After the end of each financial year, the counter-party is obliged to send its annual accounts to ICT Trading as
well as to provide interim and additional information at ICT Trading' request concerning the state of affairs
within the counter-party's Company. In addition, the counter-party undertakes to immediately and fully
inform ICT Trading in writing of occurrences which (could) substantially harm the counter-party's Company.
51 Use/Maintenance
51.1 The counter-party acknowledges that it selected the Object without ICT Trading' assistance and undertakes to
immediately and completely inspect the Object on the delivery date. ICT Trading does not accept any liability at
all for the use and the functionality of the use of the Object or parts thereof and excludes all damage in that
connection.
51.2 The counter-party will keep, use and maintain the Object or parts thereof in perfect condition and will act
in accordance with the directions and instructions of ICT Trading, its suppliers and/or government bodies. The
counter-party will act with due care. Costs arising from and related to the use and maintenance of the
Objects are borne by the counter-party.
51.3 With regard to maintenance of the Object, the counter-party and ICT Trading will conclude a maintenance agreement
to be agreed on later for the lease period.
51.4 The counter-party will maintain the Object in such a way that the Object remains in the state it was in at the
start of the lease, with the exception of normal wear and tear resulting from normal use of the Object. If
and insofar as repair or replacement of the Object is necessary in that regard, the counter-party will only do
this after having obtained express permission from ICT Trading. The costs of such repair or replacement are completely at the counter-party's risk and expense.
51.5 ICT Trading is entitled to inspect the Object (or have the Object inspected) at any time, regardless of the reason
and regardless of the location of the Object. The counter-party will provide all necessary cooperation in that
regard.
51.6 Except insofar as expressly agreed otherwise, the counter-party will:
a) Retain control over the Object at all times;
b) Not perform any action in any manner whatsoever which results in and/or could result in, or will take adequate
measures to prevent, the situation that the Object becomes associated with the objects of the
counter-party or third parties to such an extent that the Object loses or could lose its independence;
c) Not transfer ownership of the Object to third parties;
d) Not remove the Object from the location where the Object has been placed;
e) Not lease and/or sub-lease the Object;
f) Not encumber the Object in any manner or create restricted rights on it in another manner;
h) Keep the Object free from attachments and/or other encumbrances of any nature whatsoever.
52 Price and payment
52.1 The lease instalments are paid net by the counter-party to ICT Trading. All rights, taxes and other costs in connection
with leasing the Object are borne by the counter-party.
52.2 All payments owed by the counter-party to third parties arising from or connected with the leasing of the
Object are always paid directly by the counter-party to the third parties in question.
53 Liability and insurance
53.1 From the start of the lease until the return of the Object by the counter-party to ICT Trading or to a third party
designated by ICT Trading, the counter-party is liable vis-à-vis ICT Trading for all damage of whatever nature arising
from or connected with the loss of the Object or otherwise caused in connection with the Object, including,
but not limited to, consequential loss, inconvenience or damage due to loss of profits, damage by third parties
or persons working for the counter-party. In respect of damage arising from or connected with a defect
of (any part of) the Object, the counter-party will, if and insofar as applicable, turn directly to the manufacturer
of the Object and/or part of the Object. With regard to damage to and/or loss of the Object, the
counter-party will take out adequate insurance.
53.2 The counter-party indemnifies ICT Trading against all third-party claims caused by or in connection with the
Object. If ICT Trading, for whatever reason, makes any payment to third parties for amounts owed by the
counter-party, the counter-party will reimburse ICT Trading irrevocably and unconditionally for this payment at
ICT Trading' first request. The counter-party will take out adequate insurance in this regard.
53.3 The counter-party indemnifies ICT Trading against all claims (including, but not limited to, court costs and legal
assistance costs) with regard to making (a part of) the Object available, or removing or using it, or its condition
or storage, arising from or in connection with an agreement.
53.4 If and as soon as the Object is lost or damage to the Object arises, the counter-party will fully inform ICT Trading
in writing of the loss and/or the damage and the cause thereof.
53.5 If the Object is lost, the agreement in question will only end after all the amounts mentioned below have
been fully paid by the counter-party to ICT Trading. In the event the Object is lost, the counter-party is obliged
to reimburse ICT Trading irrevocably and unconditionally for the following amounts at ICT Trading' first request, without
any notice of default being required:
a) The cash value of all lease instalments owed for the remaining term of the lease, in which connection part
of a month will be considered one entire month and the statutory interest will be used as the nominal interest
rate; and
b) The rebuilding costs of the Object. The counter-party also undertakes to pledge to ICT Trading (with regard to
the claim against the insurance company), without disclosure, the possible insurance proceeds to be paid out
in respect of the Object.
53.6 As security for the performance of the counter-party's obligations in connection with the lease, the counterparty
grants ICT Trading an irrevocable power of attorney, to be substituted in respect of the aforementioned
insurance as to all rights and obligations of the counter-party regarding that insurance. The policies in question
will indicate that ICT Trading is the co-insured. The insurance policies will state that all payments arising
under these policies will be made to ICT Trading, if and insofar as the counter-party has not otherwise repaired,
at its own expense, the loss or the damage to the Object to ICT Trading' satisfaction before the aforementioned
payments are made. If and insofar as ICT Trading suffers or may suffer damage as a result of the Object not being
or not adequately being insured, the counter-party will irrevocably, unconditionally and fully indemnify
ICT Trading for the damage suffered by ICT Trading at ICT Trading' first request.
54 Term
54.1 In the event the period for which the lease was entered into has elapsed in a manner other than that
described below in this Article, the counter-party undertakes to make the Object available to ICT Trading at a
place to be indicated by ICT Trading within 10 days after that period ends, in the same condition which the Object
was in at the start of the lease, with the exception of normal wear and tear arising from normal use of the
Object, on pain of forfeiture of a penalty of EUR 500 (five hundred euros) for each day that the counterparty
continues to not return the Object.
54.2 In the event of early termination as referred to in Article 20, ICT Trading or third parties engaged by ICT Trading are
entitled to enter the building and grounds where the Object is located and to take the Object with them,
in which connection the counter-party will provide all necessary cooperation and without it being possible
to hold ICT Trading liable for damage caused by its taking control as such.
54.3 In the event of early termination as referred to above, the counter-party will pay for all damage suffered
and/or to be suffered by ICT Trading, including, but not limited to, the damage referred to in Article 50 and
costs incurred in that connection for return, transport, storage, repairs, maintenance, insurance and court
costs.
54.4 The counter-party is entitled to extend a lease agreement only if and insofar as expressly agreed between
ICT Trading and the counter-party.