Article 1: Definitions
SCREENSUPPLY: SCREENSUPPLY bv located Noord Parallelweg 24, 5707AW Helmond, registered with the Chamber of Commerce under number:
Client: Any legal or natural person who has concluded or wishes to conclude an agreement with QIOX.
Article 2: General
The applicability of the following general terms and conditions applies to every quotation, sales contract and service provided by QIOX.
In case of nullity of one or more provisions of these general terms and conditions of QIOX, the other provisions of these general terms and conditions will remain in full force and effect. Parties will then consult on the void provisions in order to reach a substitute arrangement.
By entering into an agreement with QIOX, Client expressly waives any terms and conditions used by it, however named, so that all agreements are exclusively subject to these terms and conditions of QIOX.
Amendments and deviations from these general terms and conditions shall be effective only if agreed upon in writing between the parties.
Article 3: Offers and agreements
Unless explicitly stated or agreed otherwise in writing, all quotations by QIOX are valid for 30 days from the quotation date. If an offer or quotation contains a non-binding offer and this offer is accepted by Client, QIOX shall be entitled to revoke the offer no later than 2 working days after receipt of the acceptance.
An agreement is concluded in the case of an offer made by QIOX as soon as QIOX has reached Client's acceptance of this offer and in the case of an order issued by Client as soon as QIOX has confirmed this order to Client in writing.
If in the acceptance in response to the quotation sent, changes and/or additions are reserved, in deviation from what is stated in the previous paragraph of this article, the contract will only be concluded if QIOX has notified Client in writing to agree to these deviations and/or additions to the quotation.
Verbal agreements shall not be binding on QIOX until confirmed in writing by QIOX to Client.
If and to the extent required for the proper performance of the contract, QIOX has the right to have certain deliveries and/or services and/or work carried out by third parties. All this at the discretion of QIOX.
Article 4: Obligations of QIOX and Client
For QIOX's obligations, the contents of the written order confirmation shall be binding and, in the absence thereof, the quotation.
Client shall ensure that:
all data required for the performance of the contract are made available to QIOX in good time and in the form required by QIOX. Client shall ensure that this data is correct and complete and shall indemnify QIOX against any consequences arising from such data being incorrect and/or incomplete;
the information carriers, files, software, etc. provided by Client to QIOX are free of viruses and/or defects;
the equipment, software and the (results of the) services to be provided by QIOX are properly used and applied within its organization;
All Client data is adequately secured;
QIOX has access on the agreed dates and times to the location where QIOX is to perform the agreed work. This location must in any case comply with the relevant working conditions legislation and regulations and the other facilities agreed upon between parties;
in case the work takes several days, a secure lockable room is available on site for the temporary storage of the materials, equipment, etc. needed by QIOX to perform the work.
If the Client fails to meet the obligations set forth in the previous paragraph of this article or fails to do so in a timely manner, or if the Client fails to meet its obligations in any other way, this may result in the suspension of the performance of the Agreement and any additional costs may be charged to the Client.
Article 5: Delivery time
QIOX shall endeavour to deliver the goods, or to perform the services commissioned, within the term indicated on the order confirmation. This period has been determined to the best of QIOX's ability, but can never be regarded as a deadline, unless parties have explicitly agreed on this in writing. Should the delivery period be exceeded, QIOX will notify Client thereof as soon as possible.
The delivery period shall commence after the conclusion of the contract and after QIOX has received all data required for the execution of the order and/or payment of an agreed payment term.
The delivery time will be extended if changes are made to the order by Client in the interim. The delivery time will be extended for the duration of the delay caused by that change. The additional costs shall be borne entirely by Client.
If execution of an order takes place by delivery in installments, each delivery will be considered a separate transaction with all legal consequences. Each partial delivery shall be invoiced separately.
QIOX shall be entitled to suspend fulfillment of its obligations if, after the conclusion of the agreement, circumstances come to its knowledge which should cause it to fear that Client, for its part, will be unable to fulfill its obligations.
Article 6: Force Majeure
- If performance of the contract is hindered by force majeure on the part of QIOX and/or its suppliers, QIOX's obligations will be suspended. The delivery time will be reasonably extended by the duration of the force majeure delay, without QIOX being obliged to compensate any damage.
For the purposes of this article, force majeure means all circumstances as a result of which, according to rules of fairness and reasonableness, performance or timely performance of the contract, or part thereof, cannot be required of QIOX. This also includes the situation arising as a result of third parties making it impossible for QIOX to obtain from third parties the information essential to the fulfilment of the contract, as well as war, threat of war, riots, revolutions, sabotage, natural disasters (storms, cyclones, earthquakes, etc.), regardless of whether or not these circumstances were foreseeable.
QIOX shall also be entitled to invoke force majeure if the circumstance preventing (further) fulfillment occurs after QIOX should have fulfilled its commitment.
Article 7: Prices
Unless the quotation or order confirmation states otherwise, prices are quoted ex QIOX's place of business. All prices are exclusive of sales tax and any other government levies.
The prices set by QIOX are based on the level of labor wages, raw materials, materials and parts as well as the level of all other costs including taxes and social security charges as they apply on the date of quotation/order confirmation.
Prices quoted by QIOX are always exclusive of VAT, import duties, excise duties, levies and duties unless explicitly stated otherwise.
QIOX shall be entitled to increase prices if a change occurs in the amount of the factors mentioned in paragraphs 2 and 3 of this article between the time of offer/order confirmation, and the time of delivery, obviously with due observance of statutory regulations and after notifying Client. QIOX shall notify Client of the articles at least one month before the changes take effect.
All written quotations issued by QIOX are binding on it only if a written order from counterparty is received by QIOX within the quotation's validity period. The period of validity of an offer is 14 days unless otherwise indicated in the offer. If contracting party does not submit the order in accordance with the quotation, but makes additions or changes to it, these will only be binding on QIOX if these additions or changes are accepted by QIOX in writing.
Price increases are permitted if due to legal provisions. If a company implements a price increase, the seller or user of the conditions must notify the customer in a timely manner. The customer is then entitled to rescind the contract.
All prices and quotations are based on delivery ex company/warehouse of QIOX and or a third party. The prices listed on the front page do not include VAT. The prices shown on the product detail page and in the shopping cart do not include VAT.
Forwarding of documentation, price lists and/or quotations outside the framework of a written quotation does not oblige QIOX to deliver or accept an order.
Article 8: Transfer of risk and retention of title
The risk of goods delivered and/or made available by QIOX shall pass to Client at the moment of delivery. In this context, the moment of delivery means the moment the goods to be delivered are actually available to Client.
QIOX retains title to all goods delivered or to be delivered until the following claims have been extinguished by payment by Client:
claims regarding consideration for those items;
claims relating to work performed or to be performed by QIOX in performance of the agreements between the parties also on behalf of Client;
the claims for failure of Principal to perform the said agreements.
Client shall be obliged to show the items to QIOX at QIOX's first request and, in the event of default of payment, to return them to QIOX if so requested. For items taken back pursuant to this article, Client will be credited for the market value of these items to be determined at the time they are taken back.
Client is not authorized to alienate or encumber the items subject to retention of title. However, Client shall be permitted to sell and transfer the said goods to third parties in the normal course of its business. This permission shall lapse by operation of law at such time as the Customer fails to meet any of the claims to which the retention of title applies, is granted a provisional suspension of payments or is declared bankrupt. Client may in no case use the goods subject to retention of title as security for claims of third parties.
Client is obliged to insure the items referred to in paragraph 2 against the risks of fire, theft, storm and water damage, in such a way that the insurance policy concerned includes the stipulation that the insurance also covers items of (potential) interested third parties. The Client is not permitted to pledge any claims against its insurer under the insurance policies referred to in this paragraph, insofar as these relate to the goods referred to in paragraph 1, to third parties or to have them serve as security in the broadest sense of the word. Payments in respect of damage and loss of the items referred to herein shall take the place of these items.
Article 9: Shipping
Shipping shall be at the expense and risk of Client unless otherwise agreed in writing.
If it proves impossible to carry out the work or to deliver the goods to Client due to a cause attributable to Client, QIOX reserves the right to store the goods and/or documents and/or materials purchased for the performance of the agreement at Client's expense and risk. After storage, a period of 1 month shall apply, within which Client shall enable QIOX to perform the work or deliver the goods. All this, unless QIOX has expressly stipulated another term in writing.
If Client continues to fail to comply with its obligations even after the expiry of the period referred to in paragraph 2 of this article, Client will be in default and QIOX will be entitled to dissolve the contract in writing in full or in part with immediate effect, without prior or further notice of default, without judicial intervention and without being obliged to pay compensation for damage, costs and interest. QIOX will then be entitled to sell the goods and/or materials to third parties.
The foregoing shall not affect Client's obligation to pay the agreed or stipulated or due price, as well as any storage and/or other costs.
Article 10: Payment
All invoices shall be paid by Client to QIOX without any deduction within 14 days of the invoice date, unless otherwise agreed. A payment will be considered received by QIOX once the amount due has been credited to one of its business bank accounts.
QIOX shall be entitled to demand advance payment of one or more instalments if the size of the order so requires. If the requested payment is not made within the period set by QIOX, QIOX shall be entitled to suspend performance of the contract. It will notify Client of this and again request Client to comply with his/her obligations within a period to be determined by it. If payment is not made within that period, QIOX will be entitled to dissolve the contract, without prejudice to its other rights, including the right to claim damages.
Any complaints by Client shall not suspend Client's payment obligations.
If an order is issued by more than one Client, all Clients are jointly and severally liable for the fulfillment of the obligations specified in this article, regardless of the name of the invoice or agreement.
In case of non or late payment, Client will be in default by the mere expiry of the payment term without any summons or notice of default being required. From the moment payment should have been made, Client will owe QIOX interest of 1.5% per month or part of a month on the outstanding amounts.
The extrajudicial costs relating to collection, including the costs of the party to whom QIOX has issued the order for collection (e.g. bailiff's, collection agency's, lawyer's costs) shall be entirely for Client's account. The extrajudicial collection costs shall amount to at least 15% of the amount to be claimed, with a minimum of € 200.00.
All agreements are entered into by QIOX under the suspensive conditions that the contracting party can be deemed sufficiently creditworthy at QIOX's discretion. In those cases where QIOX does not require payment in advance, payment shall be effected no later than 14 days after the invoice date, by means of legal tender at the offices of QIOX, or at a bank to be designated by QIOX. After the expiry of 14 days from the invoice date, contracting party will be in default; from the moment of default, contracting party will owe interest on the due and payable amount equal to the legally due interest.
In case of liquidation, bankruptcy or suspension of payment of the other party, the obligations of the other party shall be immediately due and payable. Payments made by the other party always serve firstly to settle all interest and costs due, secondly to settle payable invoices that have been outstanding the longest, even if the other party states that the payment relates to a later invoice. Payment shall be made without discount or offsetting unless otherwise indicated by QIOX.
Article 11: Claims and complaints
Complaints about directly observable defects, imperfections, errors, etc. relating to the delivered goods should be reported to QIOX within 2 working days of delivery followed by a written confirmation thereof.
Other complaints relating to the goods delivered should be reported by Client to QIOX immediately after discovery, also followed by a written confirmation thereof. All consequences of failure to report immediately are at Client's risk. Such claims shall in any event be reported to QIOX within the warranty period agreed for the items in question.
Client should also report complaints about the services provided or work performed by QIOX to QIOX immediately upon discovery, but at the latest within 15 days of delivery of the services or performance of the work, followed by a written confirmation thereof. All consequences of not immediately reporting are at Client's risk.
If the above-mentioned claims or complaints have not been reported to QIOX within the periods specified in the preceding paragraphs of this article, the goods will be deemed to have been delivered in good condition and in accordance with the agreement or to be free of defects or the services and/or work will be delivered or performed in accordance with the agreement.
QIOX has to be enabled to investigate the complaints. This means, in any case, that when reporting the claims or complaints, Client has to state all facts relevant to the assessment of those claims or complaints and - if necessary - give QIOX the opportunity to assess the claims or complaints on site. All related costs shall be for Client's account, unless the complaint turns out to be justified.
Article 12: Dissolution
If Client does not fulfil one or more of his obligations, does not fulfil them on time or does not fulfil them properly, dies, is declared bankrupt or applies for a suspension of payment, proceeds to liquidate his company, is placed under guardianship, his goods are seized in full or in part, or appears insolvent in any other way, QIOX shall be entitled to unilaterally terminate the contract in respect of the part not yet performed by means of a written statement to Client, without any judicial intervention being required, and to reclaim the goods supplied but not yet paid for, without prejudice to its right to full compensation. In all these cases, any claim against Client shall be immediately due and payable at once.
Client agrees to indemnify QIOX against any third party claims resulting from the dissolution of the contract.
The other party waives all rights to dissolution of the contract pursuant to Section 6:265 et seq. of the Civil Code or other legal provisions unless cancellation pursuant to the following article has been agreed upon.
Cancellation by the other party is only possible if QIOX agrees. In that case the other party will be obliged to QIOX, in addition to payment of at least 25% of the purchase price (contract price), to take delivery of goods already ordered against payment of the cost price plus processing costs if applicable. The other party shall be liable to third parties for the consequences of the cancellation and shall indemnify QIOX in this respect.
Article 13: Liability and warranty
- QIOX shall not be obliged to pay any compensation other than under the provisions of this article, unless otherwise agreed upon conclusion of the contract. Any further claims of whatever nature or purport, including compensation for consequential loss, are excluded, with the exception of liability pursuant to the statutory regulations on loss of profits. Client has to notify QIOX of such defects in accordance with the provisions of article 11 of these general terms and conditions, and also to do everything possible to limit damage as much as possible.
Client shall be required to enable QIOX to provide warranty services.
- QIOX cannot be held liable for damage, by whatever name, caused by it or its subordinates and persons employed by it, unless there is intent and/or deliberate recklessness. This exclusion applies not only to Client and its personnel, but also to third parties. Client shall indemnify QIOX against any third party claims in this respect.
If damage has occurred due to any cause, each of the parties is obliged to take damage-limiting measures as far as possible.
QIOX is partly dependent for its services on the internet, internet browsers, new updates windows, android, linux and IOS software, service providers and telecommunication suppliers. The related operation of these systems, availability and/or accessibility is beyond QIOX's control. QIOX shall not be liable for any damage of Client resulting from this.
QIOX is not liable for the security of Client's data being stored.
QIOX shall not be obliged to provide any guarantee if Client fails to comply, fails to comply properly or fails to comply on time with any obligation arising for it from the agreement in question.
When using the materials required for the performance of the agreement, QIOX will base the properties of these materials on the information provided by the manufacturer or supplier of these materials in this regard.
To the extent that goods supplied by QIOX are provided with a warranty by the manufacturer or supplier, such warranty shall apply equally between parties. QIOX will inform Client in this regard.
In case of defective hardware products, which defects occur within the previously agreed warranty period, the costs of sending the defective product to QIOX will be at Client's expense. The costs of returning the products to Client shall be borne by QIOX.
If errors, defects and malfunctions are attributable to inexpert handling by Principal or his staff or third parties, QIOX's obligation to provide a warranty lapses. This also applies if, during the guarantee period, Client, its personnel or third parties carry out repairs or use the delivered goods for purposes other than normal business operations. Client will give QIOX the opportunity to carry out repairs and maintenance without hindrance.
If QIOX provides new equipment, parts or services in fulfillment of its warranty obligation, such equipment, parts or services will be subject to all provisions of these terms and conditions. Replacement of parts or performance of work will not affect the duration of the warranty.
Article 14: Restrictions and unauthorized use.
Client is prohibited from posting content on the systems managed by QIOX that qualifies as or performing actions that qualify as:
illegal material. This includes in any case any content that infringes on the intellectual property rights of third parties, commercial audio files or commercial image material and/or content that violates the laws and regulations applicable in the Netherlands. This also includes plated software, ROMS, emulators, phreaking, hacking, password cracking, IP spoofing, etc. as well as the encryption of the above. The term "warez etc." is entirely at QIOX's discretion;
Sending unsolicited email and/or spam to large numbers of users, at QIOX's discretion;
Using QIOX's connection for criminal conduct;
the unauthorized intrusion of other computers on the Internet whereby the Client breaks through any security and/or gains access by technical intervention using false signals or a false key or by assuming a false capacity, hereinafter referred to as "hacking";
in violation of the so-called "Acceptable Use Policies" drafted for Usenet and the Internet in general.
QIOX shall have the right to monitor the content posted by Client on the system and data traffic generated for what paragraph 1 of this article prohibits if QIOX reasonably sees reason to do so.
QIOX reserves the right to temporarily or permanently block servers or connections or other services provided by QIOX if QIOX decides that these are being or have been used in contravention of paragraph 1 or have otherwise been used incorrectly or unlawfully, without entitling Client to refund of prepaid user fees and without prejudice to QIOX's right to terminate the agreement with Client without judicial intervention by means of a written statement to Client. QIOX also reserves the right to recover from Client any damage suffered in this connection. Client shall also indemnify QIOX against any third party claims that may arise as a result.
QIOX shall also be entitled to temporarily block and/or restrict access to QIOX's systems if Client otherwise fails to fulfill its obligations under the Agreement vis-à-vis QIOX, or fails to do so properly or in full, or if Client otherwise acts in violation of these terms and conditions.
Blocking or restricting access to QIOX's systems shall not affect Client's obligation to pay.
The blocking or restriction will only be lifted if Client has fulfilled its obligations within a term set by QIOX or has ceased its actions in violation of this article within a term set by QIOX.
QIOX reserves the right to adjust the limitation on the use of data traffic and storage capacity at any time. Client will be notified of this as soon as possible.
Article 15: Confidentiality
Each of the parties undertakes to keep confidential all information obtained from the other party within the framework of the conclusion and execution of the agreement and of which he knows or could reasonably have known that this information must be treated confidentially. This applies unless a party is required to disclose the confidential information of the Client under laws and/or regulations or a court ruling to a third party and that party cannot invoke a legal or judicial right.
Article 16: Disputes and applicable law
The agreements concluded with Client are governed exclusively by Dutch law.
Any disputes arising from or relating to the agreement(s) concluded between the parties and its performance will be subject to the judgment of the competent court in the district of Eindhoven, unless QIOX prefers another competent court at Client's place of residence or domicile.
Software offers and deliveries are also subject to the following special terms and conditions in addition to the above general provisions.
Article 17: Completion and acceptance
The delivery of software/software shall be deemed to have been completed when the software/software is made available to the Customer ready for use. After delivery, the software will be deemed to have been accepted if no acceptance test takes place or - if such a test has taken place - the acceptance test has been passed successfully.
Immediately after QIOX has made software/software available to Client, Client will, in consultation with QIOX, perform an acceptance test if required. In the event that it has been agreed that QIOX will install and/or implement supplied software, Client will perform an acceptance test in consultation with QIOX immediately after installation or implementation.
Acceptance of the delivered software/software may not be withheld on any grounds other than those related to the specifications expressly agreed upon between the parties and, furthermore, not on account of the existence of minor defects, being errors that do not reasonably prevent operational or productive commissioning of the software, without prejudice to QIOX's obligation to repair these errors under the warranty scheme, if applicable.
Any errors in the delivered hardware shall be reported in writing to QIOX by Client within 8 days after delivery and - in case QIOX has taken care of installation - within 8 days after installation.
Any errors in the supplied software/software have to be reported to QIOX in writing by Client within 90 days of delivery and - in case QIOX has taken care of installation or implementation - within 90 days of the installation or implementation. An error in the software is deemed to exist only if it can be reproduced before QIOX and it can be objectively demonstrated that the said software does not comply with the functional specifications notified in writing by QIOX and, in case of the development of custom software, with the functional specifications expressly agreed upon.
If no error is reported by the Customer within the periods mentioned in paragraphs 4 and 5, the hardware or software delivered will be deemed to have been accepted by the Customer, without prejudice to the provisions in Article 13 (Liability and Warranty).
For software development work, QIOX will issue an estimate of the completion date of the software based on the data available to it upon acceptance of an order. If on the basis of this data and/or on account of any cause whatsoever, the estimated completion date will be exceeded, QIOX will notify Client thereof as soon as possible. QIOX will make every reasonable effort to comply with the specified delivery dates or estimates of delivery dates, but these may never be regarded as deadlines. Failure to meet a deadline will not entitle Client to full or partial termination of the contract or to compensation, unless there has been intent and/or deliberate recklessness on the part of QIOX.
Article 18: Software delivery and installation
Unless otherwise agreed, QIOX will take care of delivery of the (customized) software/software referred to in the agreement, and Client will be responsible for installation on the equipment intended or indicated in the agreement and for implementation of the software/software.
Article 19: Intellectual property rights and provision of user rights
The copyrights and all industrial and intellectual property rights to (custom-made) software/software developed and/or supplied by QIOX are vested in QIOX or the supplier who has granted QIOX the right to make this software/software available to third parties, unless the parties have agreed otherwise. Client shall never acquire intellectual property rights to (custom-made) software/software developed and/or supplied by QIOX, including analyses, designs, computerization advice and other items supplied or made available by QIOX to Client.
QIOX guarantees that the software it has developed does not infringe any third-party right applicable in the Netherlands, nor that its use is unlawful vis-à-vis third parties. With respect to the software developed by QIOX, QIOX indemnifies Client against claims from third parties regarding (alleged) infringements of their rights. If, despite the above, a third party informs Client that it is claiming intellectual property rights or that there is any infringement thereof, Client shall inform QIOX of this as soon as possible. If it has been irrevocably established in law that the software, equipment or materials developed by QIOX itself infringe any copyright or other intellectual or industrial property right belonging to a third party, or if, in QIOX's opinion, there is a good chance that such an infringement has occurred, QIOX will take back the goods supplied, crediting the acquisition costs less a reasonable user fee, or ensure that the client can continue to use the goods supplied or functionally equivalent other software, equipment or materials without interruption.
QIOX grants Client the right to use the software or customizations developed by QIOX with the associated documentation. The right of use applies exclusively to the object codes of the software or customizations in question. The right of use is non-exclusive, non-transferable and non-sublicensable.
Client shall pay a license fee for the right of use of said software or customizations. The right of use for the said software or customizations shall commence at the time of implementation of the software on the said equipment, on the understanding that in no event shall the right of use commence at an earlier date than the date of receipt of the fees owed by Client to QIOX.
The right of use for the software or custom work developed and delivered by QIOX is for an indefinite period of time, unless QIOX has agreed a periodic license fee with Client. In such a case, the right of use shall be granted exclusively for those periods, for which Client has paid the license fee.
The right of use for updates and releases of the software developed by QIOX and already made available (with the exception of custom-made software) shall be granted exclusively pursuant to a separate agreement concluded by Principal with QIOX for that purpose, under the terms and conditions included in that agreement.
Unless expressly agreed otherwise in writing, the following further applies to the use of the (customized) software/software made available to the Client:
Client shall use the said software or customizations exclusively for its own benefit in the normal course of its business and shall not in any way provide, rent, lend or in any way make the software or copies thereof available for inspection to third parties, or transmit the software via a network with the application of information technology, or in any way give third parties the opportunity to violate the (conditions of use) mentioned in the agreement;
Client shall use said software only in accordance with the purposes and instructions described in the documentation and the agreement;
Client shall in no way make copies of the software or customizations, except copies for backup purposes to the extent necessary;
Client shall in no way alter, remove or render illegible any indication of copyright, trademark or proprietary rights;
If the agreement states that the software is intended to function on specific equipment or location, the right of use shall be limited to use on that equipment and/or location. During a breakdown of the said equipment, Client will be entitled to use the software on other equipment, provided QIOX is notified immediately and only during that breakdown;
unless otherwise stated in the agreement, the Client is not entitled to use or have the software used by more than one user simultaneously;
Client is not entitled to decompile, disassemble or reverse engineer the (custom) software/software developed by QIOX in whole or in part, insofar as this is not expressly permitted under the European Software Protection Directive (91/250/EEC);
Client shall not be entitled to write, develop or have developed derivative (custom) software or other software on the (custom) software/software developed and/or provided by QIOX, except to the extent permitted in advance by QIOX in writing;
Client is not entitled to make the software accessible to persons involved in the development and/or sale of software or software other than that supplied or to be supplied by QIOX;
Client shall in no way make changes, adjustments or additions to the (custom) software (or cause them to be made);
if other applications can be generated using the (custom) software/software, Client acknowledges that the applications generated in this manner are incorporated into the (custom) software/software provided by QIOX or part of the (custom) software/software provided by QIOX. The copyright in respect of the applications generated in this manner (excluding the incorporated (customized) software/software of QIOX) shall then be vested in Client. Client shall pay QIOX the customary fees in respect of the (custom) software/software supplied by QIOX and incorporated in the applications generated by Client, unless expressly agreed otherwise in writing.
In the event of violation of the provisions of paragraph 7, Client shall forfeit to QIOX, without prejudice to QIOX's other rights, an immediately payable penalty of € 10,000.00 (ten thousand) per violation, as well as a penalty of 10% (ten percent) of the said penalty amount for each day that the violation has lasted and/or continues; all this without prejudice to QIOX's obligation to pay full compensation for the violation, in the event that the damage should amount to more than the aforementioned penalty amounts. Any fines paid will then be deducted from the compensation due.
To protect its software, QIOX is free to take technical measures. In addition, Client shall grant QIOX access to the location(s) where the software is in use so that QIOX can satisfy itself of the proper compliance with the provisions of this article.
If and insofar as the software has been developed by QIOX, QIOX will retain full and exclusive access to all knowledge, expertise and skills underlying such development. QIOX will always be entitled to use the knowledge, expertise and skills referred to in the previous sentence for other assignments or projects, without owing Client any remuneration or compensation in any form whatsoever.
All intellectual (property) rights, explicitly but not exclusively including copyrights and design rights, which can or will be exercised - wherever and whenever - in respect of the Products, explicitly including the Products designed at the request of the Customer and/or of all other performances to be delivered by QIOX for the benefit of the Customer pursuant to the agreement or related agreements, are vested in QIOX.
To the extent that a further deed would be required for the transfer of such rights, Buyer hereby irrevocably authorizes QIOX, now for then, to draw up such deed and sign it on behalf of Buyer, without prejudice to Buyer's obligation to render its cooperation to the transfer of such rights at QIOX's first request, without being able to impose conditions.
The Customer shall not be permitted to make any changes to the Products, unless it follows from the nature of the Delivered Products or is agreed otherwise in writing.
Any designs, sketches, drawings, films, software and other materials or (electronic) files produced by QIOX in the context of the order shall remain QIOX's property, regardless of whether they have been made available to the Customer or to third parties, unless otherwise agreed.
Any documents provided by QIOX, such as designs, sketches, drawings, films, software, (electronic) files, etc., are intended exclusively for use by the Customer and may not be reproduced, disclosed or brought to the notice of third parties by the Customer without QIOX's prior consent, unless the nature of the documents provided dictates otherwise.
QIOX reserves the right to use any knowledge gained from the execution of the work for other purposes, to the extent that no confidential information is brought to the knowledge of third parties.
For each violation of these provisions, Customer will owe QIOX a penalty of €1,000 per day. This penalty may be claimed in addition to damages under the law.
Article 20: Development of custom and application software
If QIOX produces custom work or applications for Client, QIOX will perform this work with due care on the basis of information to be provided by Client. Client warrants the accuracy and completeness of this information and indemnifies QIOX against any consequences resulting from such information being incorrect and/or incomplete.
Unless otherwise specified in the order confirmation or license agreement, the production of custom work or applications takes place in several phases namely:
written inventory by the parties of the functionalities and properties of the custom work or applications to be realized and - if necessary - the production by QIOX of the functional design or elaboration of the functionalities of the custom work to be realized;
manufacture by or on behalf of QIOX of the custom work or application in accordance with the written specifications or functional design;
if and to the extent agreed upon, the installation and implementation of the customization or application by QIOX;
Each phase may be concluded, if so desired, with Client's approval of the services performed to date or the custom work or applications produced. QIOX shall be entitled to suspend the execution of the next phase(s) as long as Client has not approved the preceding phase(s).
The documents that are the result of the inventory referred to in paragraph 2 under a and the functional design or elaboration of the functionalities of the customization to be realized will, after approval by the Client, form part of the agreement.
If the Client desires a change or expansion of the documents mentioned in the previous paragraph or otherwise a change to the assignment, this shall be considered additional work and the parties shall record this change or expansion in a new inventory or functional design, which shall then form part of the agreement, while the original functional design, insofar as modified, shall be deemed to have lapsed.
With regard to custom work, the provisions of Article 19 (intellectual property rights and provision of rights of use) shall apply in like manner. Unless expressly agreed otherwise in writing, the Client shall not acquire the source codes and/or development documentation.
Article 21: Software warranty
Unless otherwise agreed in writing by the parties, only the warranty obligations of QIOX set forth below shall apply.
A warranty period of 90 days commencing on the date of delivery of the software/software to Principal as referred to in Article 17 of these General Terms and Conditions shall apply to software/software supplied by QIOX. QIOX's liability under this warranty is limited to taking the reasonably relevant measures to eliminate or limit the fault and to detecting and repairing shortcomings with respect to the functional specifications agreed in writing to the best of its ability, provided that the faults have been reported in writing to QIOX by Client within the aforementioned period. As shortcomings (defects), only serious deviations from the functional specifications, to be demonstrated by Client, will be considered. Recovery of data that may have been lost is never covered by the warranty.
Parties acknowledge that it cannot be guaranteed that (custom) software/software will work without interruption and/or minor defects or that all detected defects will (can) be remedied.
To the extent that software/software supplied by QIOX are provided with a warranty by the manufacturer or supplier of such software/sofware, such warranty shall apply equally between the parties. QIOX will inform Client in this regard.
In case Client, without QIOX's prior written consent, makes changes or has changes made to the software/software supplied by QIOX, any right to warranty will lapse. Furthermore, QIOX will then be entitled to terminate the agreed maintenance without any obligation to refund maintenance fees or any right to compensation.
Article 22: Supplier software
If and to the extent that QIOX makes third-party software/software available to Client, the conditions of those third parties will apply to that software, setting aside the provisions of these conditions. QIOX will ensure that the terms and conditions of these third parties will also be made available to Client. Client accepts the said terms and conditions of third parties. If and to the extent that the said third party conditions are deemed inapplicable or declared inapplicable to the relationship between Client and QIOX for whatever reason, the provisions of these General Terms and Conditions shall apply.
QIOX shall notify Client as soon as possible if any change or addition to the agreed work to be agreed between the parties will affect the time of completion of the work.
If a fixed price has been agreed for software development, QIOX will inform Client in advance if the further agreed change or addition to the work will result in the agreed price being exceeded.
Article 24: Prices and rates for delivery of software
If it has been agreed that QIOX will perform the maintenance and/or support described in Article 25, Client will owe a fee which will be determined in more detail.
If it has been agreed with Client that the latter will obtain a release of the software/software from QIOX, if said release is not provided under a maintenance agreement, QIOX shall be entitled to charge an additional user fee for this.
For all other development work to be performed by QIOX on behalf of Client, including the development of (custom) software/software or applications and the performance of installation and implementation work, Client shall owe a fee to be calculated on the basis of subsequent calculation on the basis of the hourly rates customary at the time, unless expressly agreed otherwise in writing. The hourly rates apply to normal working days, which is understood to mean: Monday through Friday (with the exception of generally recognized holidays) and between 08:00 and 18:00. For work to be performed outside these times, QIOX will charge a surcharge to be determined.
With regard to the rates and the cost estimates based thereon, the quotation will state whether it includes secretarial costs, travel time, travel and accommodation costs and other assignment-related costs. Insofar as these costs are not included or stated, they may be charged separately.
Maintenance and support
Maintenance and support are also subject to the following special terms and conditions in addition to the above general provisions.
Article 25: Maintenance and support
Provisions regarding the performance of maintenance and support shall only apply if the parties have agreed to this in writing. Agreements for maintenance and/or support work are initially valid for a period of three years and terminate by operation of law at the end of this period. After this period a new agreement can be concluded for a period of one year.
Unless explicitly agreed otherwise, maintenance and/or support shall relate exclusively to the software/software developed and supplied by QIOX of the latest update or release. If it has been agreed that QIOX will perform maintenance work with regard to custom work or applications, the provisions of this article shall apply equally to it.
Within the scope of the maintenance and/or support work and if agreed upon, QIOX will to the best of its ability:
inform client of the availability of extensions and improvements to the software/software developed by QIOX in the form of updates and releases;
Provide Customer with new releases of the Software. Client shall install (have installed by QIOX) these new releases upon receipt;
at the request of Customer's contact person as mentioned in the agreement, provide telephone support to Customer in the use of the software/software;
attempt to identify and correct defects in the delivered software identified by Customer and recognized by QIOX in a subsequent update;
notify Client of releases to enable it to enhance the functionality of the software by purchasing those releases
Excluded from maintenance is work other than that described in paragraph 3 and, in particular, work resulting from:
incorrect functioning of the software as a result of imperfections in equipment, or (system) software on which or in connection with which said software is used;
incorrect functioning of the software if used in conjunction with software not supplied or recommended by QIOX;
use of the software contrary to the associated documentation or instructions of QIOX;
failure of the software to function properly as a result of careless management by Customer;
If desired, QIOX may (after agreement has been reached at the time) perform maintenance work other than that referred to in paragraph 3 of this article on the basis of subsequent calculation, at the rates applicable at the time.
If Client did not enter into a maintenance and/or support agreement simultaneously with entering into the agreement to make the software/software available, QIOX cannot be obliged by Client to enter into such an agreement at a later time.
Parties may agree on a response time within QIOX's normal working hours after notification of failure. Within this time, QIOX will start performing the agreed (maintenance) work. Outside these times, QIOX will make every effort to respond as quickly as possible, but cannot guarantee a response time.
The work included in the service agreement with respect to the equipment will be performed exclusively in the Netherlands and will consist of preventive and corrective maintenance.
Preventive maintenance consists of periodically cleaning, checking and adjusting the described equipment, lubricating mechanical parts if necessary, adjusting and testing and making any changes deemed necessary by QIOX.
Corrective maintenance consists of repairing the described equipment if it does not function or if it functions impaired due to normal wear and tear.
QIOX is entitled to combine preventive maintenance with corrective maintenance.
A service report will be provided to the other party after each maintenance. The contents of that report shall be binding unless the other party has protested in writing by registered letter within eight days of the date of the report.
The maintenance work will be performed within the working hours applicable to QIOX, namely, Monday through Friday from 8:30 a.m. to 5:00 p.m., excluding holidays and mandatory days off.
If the QIOX employee is unable to commence the work at the agreed time, or is unable to perform it continuously due to causes attributable to the other party, the resulting additional costs, including time overruns/waiting times, will be charged to the other party.
Article 26: Assembly
If QIOX and the other party have agreed on assembly, installation or commissioning of the goods to be delivered, or have concluded a separate agreement in this respect, the other party shall ensure that the necessary provisions are made in good time and at its own expense, and that all necessary safety and other precautions are taken, in order to enable QIOX to assemble, install or commission the goods to be delivered in such a way that the work can be carried out in good time and that the implementation thereof is not delayed. The other party shall also provide QIOX with all facilities, such as workshop facilities and auxiliary materials, power supply, heating, storage space and the like, when performing the aforementioned work.
The other party will take all measures to prevent damage to other equipment, items and manufacturing processes and injury to persons that could occur as a result of the work to be performed by QIOX.
The other party will take care of any necessary lifting and towing, cutting, masonry, carpentry, painting and plastering work. If the other party does not take care of this itself, QIOX will charge for this work separately.
Delays in the commencement or continuation of the work due to insufficient or untimely provisions on the part of the other party, or due to other causes reasonably at the risk of the other party, shall be for the latter's account. C. matters relating to sale.
Article 27: Delivery
The scope of the delivery is determined exclusively by the description given in the order acceptance issued by QIOX with due observance of article 1.7. Delivery takes place ex company/warehouse of QIOX or from a storage place designated by QIOX. From the moment the goods, ready for delivery, are placed there, they stand and travel at the risk of the contracting party, insofar as they are not covered by insurance taken out by QIOX, unless there is intent and/or gross negligence on the part of QIOX. QIOX reserves the right to have the ready goods stored at the other party's expense and risk.
The other party must examine the purchased goods or have them examined as soon as possible upon delivery or afterwards. In this respect the counterparty should verify whether the delivered goods comply with the agreement, namely: whether the correct goods have been delivered; whether the delivered goods correspond with the agreed quantity (e.g. the number and the amount); whether the delivered goods meet the agreed quality requirements or, if these are lacking, the requirements that may be set for a normal use and/or trade purpose. Visible defects or shortages should be reported to QIOX in writing within 14 days of delivery. Even if the other party complains in time, its obligation to pay and take delivery of the order remains in force. Goods can only be returned to QIOX with prior written consent.
The distance buying law establishes that, the maximum delivery time is 30 days unless otherwise agreed upon. If the delivery time is not achievable, QIOX is responsible to inform the customer in time and offer the possibility to dissolve the agreement or agree on a new delivery time. On this webshop portal, delivery times differ from minimum by 4 to 6 weeks because QIOX delivers custom furniture.