Algemeiner Geschäfts Bedingungen Consolidate IT GmbH
1. Offer, agreement and scope
1.1 These general conditions apply to all offers and agreements whereby Consolidate IT GmbH delivers goods and/or services of whatever nature to the client, also if these goods or services are not (further) described in these conditions.
1.2 Deviations from these general conditions are only valid if they have been expressly agreed to in writing.
1.3 The applicability of possible purchase or other conditions from the client are expressly rejected, unless and insofar otherwise explicitly agreed upon in writing.
1.4 Verbal promises or agreements will only form a part of the agreement after Consolidate IT GmbH has confirmed them in writing.
1.5 All offers from Consolidate IT GmbH are without engagement, unless otherwise explicitly agreed upon in writing in the offer.
2. Ordering and delivery procedure
2.1 Orders are only accepted if they have been placed in writing by people that the client has authorised for this purpose and while mentioning the order number.
2.2 If Consolidate IT GmbH has stated delivery periods in offers, order confirmations and/or agreements, Consolidate IT GmbH will always endeavour to deliver in time. The mere expiry of a delivery period is not regarded as default on the part of Consolidate IT GmbH Expiry of the period does not entitle the client to compensation or a suspension of any obligation pursuant to the agreement.
2.3 In the event that a period might be exceeded, Consolidate IT GmbH and the client will consult with each other as soon as possible.
2.4 Deliveries to the client can be suspended temporarily in the event that the balance of the outstanding invoices plus the balance of the outstanding order amount is more than the authorised credit limit. Consolidate IT GmbH will timely inform the client of this.
2.5 Deliveries to the client can also be suspended temporarily in the event that there are overdue payments of invoices that the client has not disputed with Consolidate IT GmbH
3 Price and payment
3.1 All prices are excluding Mehrwertsteuer (“ BTW” in Dutch) and other government levies.
3.2 Consolidate IT GmbH is in all cases entitled to adjust the agreed prices and rates by notifying the client in writing at the moment that one of its suppliers has decided to change a price. The term within which the price change will take effect depends on the term that is used by the supplier concerned.
3.3 Consolidate IT GmbH is in all cases entitled to adjust the agreed prices and rates by notifying the client in writing in the event of currency changes.
3.4 In the event that the client does not wish to agree to a change in price or rate that Consolidate IT GmbH has made known as referred to in article 3.2 or 3.3, the client is enti-tled to terminate the agreement in writing within seven working days of the notification as referred to in those articles as from the date stated in Consolidate IT GmbH’s notification on which the change in price or rate should take effect.
3.5 All invoices will be fully paid by the client within 30 days of the invoice date on the account indicated by Consolidate IT GmbH, unless otherwise agreed upon in writing beforehand.
3.6 In the event that the client does not pay the amounts due within the term referred to in 3.5, the client, without a notice of default being required, will owe the statutory commercial interest on the outstanding amount. In the event that the client still does not pay the debt after a notice of default, the claim can be passed on for collection, in which case the client is obliged to fully compensate legal and other costs besides the total amount already due at that moment. The other costs amount to at least 12 % of the amount due by the client, without prejudice to Consolidate IT GmbH’s right to claim the actual other costs in the event that these amount to more than the aforementioned per-centage.
3.7 Payment takes place in the currency in which the price has been agreed and invoiced. Consolidate IT GmbH uses the Euro as its standard currency.
4. Retention of title and rights
4.1 Consolidate IT GmbH retains the ownership of the goods that are delivered now and in the future until all current and future charges, for whatever reason, as well as the amounts as referred to in article 3.6, including interest and collection charges, have been fully paid to Consolidate IT GmbH
4.2 Rights are granted each time to the client or, where appropriate, transferred under the condition that the client pays the fees that were agreed for this in full and in time.
5. Risk
The risk of loss of or damage to the goods that are the subject of the agreement will pass to the client at the time when the client or an auxiliary person from the client has been given actual possession of them.
6. Intellectual or industrial property rights
6.1 All intellectual or industrial property rights on all software, equipment or other materials such as analyses, designs, documentation, reports, offers, as well as preparatory material for this, which have been developed or made available pursuant to the agreement, are only vested in Consolidate IT GmbH or its licensors. The client only obtains the non-exclusive rights of use and powers that are expressly granted with these conditions or otherwise.
6.2 Consolidate IT GmbH will take all reasonable precautions to prevent that intellectual property rights from a third party that apply in the Netherlands are infringed. Consolidate IT GmbH cannot be held liable in the event that the violation is related to changes in the software, equipment or materials that the client has made or ordered third parties to make. Every other or further liability from Consolidate IT GmbH due to a violation of in-tellectual or industrial property rights of third parties is excluded.
6.3 The client warrants that no rights of third parties oppose the provision to Consolidate IT GmbH of equipment, software or materials with the goal of using or processing them. The client expressly indemnifies Consolidate IT GmbH against all claims from third parties that could arise as a result of this.
7. Cooperation from the client
7.1 Each time, the client will timely provide Consolidate IT GmbH with all the data and information necessary for a proper performance of the agreement and cooperate fully. All consequences of incorrect or insufficient information from the client will be for the account of the client.
7.2 The client is responsible for the correct use and application in his organisation of the goods, equipment, and software to be delivered by Consolidate IT GmbH and the services to be rendered by Consolidate IT GmbH as well as for the control and security procedures and an adequate system management.
7.3 In the event that it has been agreed that the client will make software, materials or data available on information carriers, these will meet the specifications necessary for the execution of the activities.
7.4 In the event that data necessary for the execution of the agreement is not or not timely available to Consolidate IT GmbH or not in accordance with the agreements or in the event that the client does not meet his obligations in any other way, Consolidate IT GmbH is in any case entitled to suspend the execution of the agreement and charge the costs incurred because of this according to its customary rates.
8. Confidentiality
The parties will observe strict confidentiality as regards all information with respect to each other’s organisation, files and software and the working of equipment, which they obtain knowledge of due to the legal relationships governed by these conditions and they will not disclose information to third parties, unless in court, if they are obliged to do so pursuant to the law.
9. Force majeure
9.1 In the event that one of the parties, partially or fully and whether temporarily or not, cannot meet his obligations due to circumstances that cannot be imputed to him, we can speak of force majeure on the part of that party. Force majeure also includes a non-attributable shortcoming from Consolidate IT GmbH’s suppliers.
9.2 Consolidate IT GmbH is not liable for damages if the situation, as referred to in the previous paragraph, arises on the part of Consolidate IT GmbH
9.3 When the force majeure situation has lasted longer than ninety days, the parties are entitled to terminate the part of the agreement that cannot be implemented by means of dissolution in writing. The performance already delivered pursuant to the agreement will be settled proportionally, without the parties owing anything to each other after that.
10. Liability
10.1 With due observance of the other provisions of this article and the other provisions of these general conditions, Consolidate IT GmbH is liable for direct damage suffered by the client as a result of attributable shortcomings or a wrongful act on the part of Consolidate IT GmbH Direct damage is only understood to mean:
a. reasonable costs that the client would have to incur to make the performance from Consolidate IT GmbH conform to the agreement. However, this damage is not com-pensated in the event that the client has dissolved the agreement;
b. reasonable costs incurred to determine the cause and scope of the damage, insofar as this assessment relates to the direct damage within the meaning of these conditions;
c. reasonable costs, incurred to prevent or limit damage, insofar as the client demon-strates that these costs have led to a limitation of direct damage within the meaning of these conditions.
10.2 Consolidate IT GmbH’s liability due to an attributable failure to perform an obligation under the agreement only applies in the event that the client gives Consolidate IT GmbH an immediate and proper notice of default in writing, giving a reasonable term to cure the shortcoming, and Consolidate IT GmbH continues to fail to perform its obligations also af-ter that term in a manner attributable to Consolidate IT GmbH The notice of default must contain a proper description of the shortcoming so that Consolidate IT GmbH is able to re-spond adequately. In this regard, the client is obliged to check the soundness of the ac-tivities that Consolidate IT B.V. has carried out to cure the default situation and give Consolidate IT GmbH the opportunity, in the event that there still appear to be faults, to still solve remaining and/or additional faults that have arisen through a notice of default and giving a reasonable further term.
10.3 Consolidate IT GmbH’s total liability due to an attributable failure to perform an obligation under the agreement is limited to compensation of the direct damage to the maximum amount of the price that was stipulated for that agreement (excl. Mehrwertsteuer). In the event that the agreement is primarily a continuing performance contract with a duration of more than one year, the stipulated price is set to the total of the fees (excl. Mehrwertsteuer) that were stipulated for 6 months.
10.4 Consolidate IT GmbH’s liability for every other type of damage, such as indirect or consequential damage, including loss or mutilation of data, loss of profit, lost savings and loss due to business interruption, is excluded.
10.5 Apart from the cases stated in this article, Consolidate IT GmbH does not carry any liability whatsoever to pay damages, irrespective of the reason on which an action for damages would be based. However, the maximum amounts stated in this article will not be appli-cable in the event that and insofar as the damage is the result of an intentional act or gross negligence on the part of Consolidate IT GmbH
10.6 The client indemnifies Consolidate IT GmbH against all claims from third parties due to product liability as a result of a fault in a product or system that the client has delivered to a third party and that also consisted of equipment, software or other materials delivered by Consolidate IT GmbH, except if and insofar as the client proves that the damage has been caused by that equipment, software or other materials.
10.7 Unless otherwise explicitly agreed upon in writing, Consolidate IT GmbH cannot be held liable for damage caused by use in violation with the common apparent intention of the goods delivered by Consolidate IT GmbH and Consolidate IT GmbH does not warrant the suitability of such different use, also not if Consolidate IT GmbH is aware of the client’s different use.
11. Termination
11.1 Either party only has the authority to dissolve the agreement in the event that the other party, after a proper notice of default in writing whereby a reasonable term is set for curing the shortcoming, is in breach of his essential obligations under the agreement.
11.2 Consolidate IT GmbH can terminate the agreement partially or completely without a notice of default or judicial intervention being required by giving notice in writing with immedi-ate effect or suspend the performance of its obligations if the client – whether or not temporary - is granted a moratorium on payments, if bankruptcy is filed for the client, if the client’s company is wound up or terminated other than for a reconstruction or merger of companies, or in the event that a change is made in its legal form or control re-lation. This without prejudice to Consolidate IT GmbH’s right to claim a compensation of the costs, damage and interest from the client. Consolidate IT GmbH will never be obliged to pay any compensation due to the aforementioned termination.
11.3 In the event that the client, at the moment of the dissolution as referred to in 11.1, has already received a performance to implement the agreement, this performance and the related payment obligation will not be subject to cancellation, unless Consolidate IT GmbH is in default as regards this performance. Amounts that Consolidate IT GmbH has invoiced before the dissolution in connection with what they have already performed or delivered to execute the agreement, remain fully due with due observance of the provisions of the previous sentence and will become immediately due and payable at the moment of the dissolution.
12 Other provisions
12.1 If any provision of these general conditions is null and void or is voided, the other provisions of these general conditions will remain fully in effect and Consolidate IT GmbH and the client will consult with each other to agree new provisions to replace the void or voided ones. In doing so, the purpose and meaning of the void or voided provision will be taken into account as much as possible.
13 Applicable law and disputes
13.1 The agreements between Consolidate IT GmbH and the client are governed by European law.
13.2 Disputes that might arise between Consolidate IT GmbH and the client as a result of an agreement that Consolidate IT GmbH has entered into with the client or as a result of further agreements that might follow from it, will be settled by the competent Dutch court in Zwolle-Lelystad, unless the parties have otherwise explicitly agreed upon in writing.
