Postcode Service is a trade name of Total Internet Group B.V. CoC 34305376
Article 1 Definitions
In these terms and conditions the following terms shall have the following meanings:
Contract value: the sum invoiced by Postcode Service to the Client and paid by the Client to Postcode Service, excluding VAT, pursuant to a Contract, insofar as it relates to the hours worked by employees of Postcode Service or to the goods or services provided by Postcode Service;
Errors: failure to comply with the written functional specifications from Postcode Service and, in the case of custom software, failure to meet the functional specifications expressly agreed in writing;
Postcode Service: a service of Total Internet Group B.V., with its registered office in Amsterdam;
Delivery: the completion or delivery in accordance with the Contract or assignment of goods, services or work or combinations thereof at the agreed location (s);
Normal office hours: Monday to Friday office hours: – other than generally recognized public holidays – from 9:00 am to 5:30 pm; These general provisions have been drawn up and are valid for the companies: Total Internet Group, Total Request and Total Commerce.
Client: any natural or legal person who has requested a quotation from Postcode Service, or to whom Postcode Service has sent a quotation or with whom Postcode Service is negotiating about the formation of a Contract, or with whom Postcode Service has concluded a Contract;
Order: a purchase order from the Client;
Contract: any Contract between Postcode Service and the Client for the delivery of goods or the performance of work / services or the granting of (user) rights with regard to intellectual property, such as the copyright with regard to software or combinations thereof, on which these terms and conditions apply and any addition or amendment thereto ;
Article 2 Applicability
- These terms and conditions apply to all quotations, offers and Contracts to which Postcode Service is a party. The provisions of these terms and conditions can only be deviated from in writing.
- In the event of a conflict between a provision in these terms and conditions and a provision in a Contract concluded with the Client, the latter provision shall take precedence.
- If any provision of these terms and conditions is deemed to be invalid, destroyed or otherwise lose their legal validity, Postcode Service has the right to replace this provision and the other provisions will remain in effect as much as possible.
Article 3 Offers and formation of Contract
- All quotations, offers or price estimates from Postcode Service are without obligation and only constitute an invitation to make an offer unless explicitly stated otherwise in writing in the quotation.
- A Contract between the Client and Postcode Service is concluded if and insofar as Postcode Service accepts an Order from the Client in writing.
- If Postcode Service performs any service at the request of the Client before full agreement has been reached on the price and payment conditions for that service, the Client shall pay Postcode Service for this in accordance with the Post Code rates applicable at that time.
Article 4 Prices
- All prices of Postcode Service are exclusive of sales tax (VAT) and other levies imposed by the government. Unless otherwise agreed, the costs of packaging and shipping, any installation or assembly costs, the costs for carrying out work outside normal office hours, as well as travel and accommodation costs incurred in the context of the provision of services, are not included in the agreed price and those costs will be borne by the
- Changes in cost-increasing factors that occur more than three months after entering into the Contract may be passed on by Postcode Service.
- Unless the parties have agreed otherwise, the prices stated in the Contract will be increased in January and July of each year by the price index for CLA wages per hour, including special remunerations, business services personnel (70-74) as determined by the Central Bureau of Statistics. Such an increase will not take place if Postcode Service has already implemented a price increase in the previous six-month period (January to June or July to December) in accordance with Article 4.2 with a percentage equal to or higher than the percentage to which application of article 4.3 would result. If the percentage increase implemented on the basis of Article 4.2 is lower than the percentage that would result in application of Article 4.3, the percentage increase pursuant to Article 4.2 made in the previous six-month period will be deducted from the percentage increase under Article 4.3.
Article 5 Payment and default
- The Client must pay the invoices of Total Internet Group in accordance with the payment conditions stated on the invoice. If these payment conditions are not available, the Client must ensure payment within 14 days of the invoice date.
- In the event of late payment, the Client is in default without any (further) notice. In that case, the Client, without prejudice to the (other) rights of Postcode Service, owes the statutory commercial interest from the date of default until the day of full payment, as well as an immediately payable fine of 15% on the amount owed and others, with a minimum of € 75.00.
- The Client is not entitled to set off or suspend payment and / or obligations arising from Contracts or these terms and conditions.
- In the case of a late payment, the Postcode Service is entitled to suspend the delivery of its services until payment of the amount due has been received.
Article 6 Delivery periods
- All (Delivery) periods stated by Postcode Service are indicative, not fatal and based on the data and applicable circumstances known to Postcode Service at the time of the conclusion of the Contract. Postcode Service will observe the specified (Delivery) periods as much as possible.
- The mere exceeding of a specified (Delivery) period does not put Postcode Service in default. Postcode Service is not bound by (Delivery) periods that can no longer be met due to circumstances beyond its control that occurred after entering into the Contract. If any term is likely to be exceeded, the parties will enter into consultations as soon as possible.
- Postcode Service is entitled to perform the Contract in partial deliveries.
Article 7 Intellectual or industrial property rights
- All intellectual or industrial property rights to all goods, items, software, equipment or other materials such as analyses, drawings, designs, documentation, reports, quotations, developed under the Contract or made available by Postcode Service to the Client under the Contract, as well as preparatory material thereof, and everything that resulted directly from the agreed services, for example software, remain exclusively with Postcode Service or its licensors. As long as the agreement continues, the Client will only acquire the rights of use and powers with regard to the software made available that are explicitly granted under these terms and conditions or otherwise, and he will not be allowed to reproduce or make any further copies of the software or other materials. Postcode Service always has the right to use so-called Open Source Software when building a functionality requested by the Client. In such a case, the software is offered under the original license and the Client is obliged to observe these license conditions (so-called Third Party license conditions), both towards the licensor and towards Postcode Service.
- The Client is aware that the items, software, equipment and other materials made available contain confidential information and trade secrets of Postcode Service or its licensors. The Client undertakes to keep this information, items, software, equipment and materials secret, not to disclose or give for use to third parties and to use it only for the purpose for which they were made available. The Client will also impose this confidentiality on all persons working in his organization who use the goods, software, equipment and / or other materials.
- The Client is not allowed to remove or change any designation regarding copyrights, brands, trade names or other intellectual or industrial property rights from the goods, software, equipment or materials, including indications regarding the confidential nature and secrecy of the software.
- Postcode Service is allowed to take technical measures to protect the software. The Client is not allowed to remove technical security features.
- Postcode Service will indemnify the Client within the limits indicated in Article 7.7 against any legal claim based on the allegation that software, equipment or materials developed by Postcode Service infringe an intellectual or industrial property right valid in the Netherlands, under the condition that the client – under penalty of forfeiture of any claim against Postcode Service – immediately informs Postcode Service in writing about the existence and content of the legal claim and that the Client leaves the handling of the case, including making any settlements, entirely to Postcode Service . To this end, the Client will provide the necessary powers of attorney, information and cooperation to Postcode Service to defend itself against these legal claims, if necessary in the name of the Client.
- The obligation to indemnify lapses if and insofar as the relevant infringement is related to changes that the Client has made to the software, equipment or materials or has had made by third parties.
- If it is irrevocably established in law that the software, equipment or materials developed by Postcode Service itself infringes / infringe any intellectual or industrial property right belonging to a third party or if, in the opinion of Postcode Service, there is a reasonable chance that such an infringement occurs, Postcode Service will, at its choice, take back the delivered goods against crediting the Contract Value after deduction of a reasonable usage fee, or ensure that the Client can continue to use the delivered or functionally equivalent other software, equipment or materials undisturbed. In addition, Postcode Service will pay the Client compensation in money, if the Client appears to be obliged to pay compensation to the entitled party, on the understanding that the compensation in money to be paid by Postcode Service will never exceed the amount corresponding to the Contract value, unless there is intent or gross negligence on the part of Postcode Service.
- Any other or further liability or indemnification obligation of Postcode Service due to violation of intellectual or industrial property rights of third parties is excluded, including infringements caused by the use of the equipment, software and / or materials with equipment, software and / or materials not provided by Postcode Service or because of use in a manner other than that for which the equipment, software and / or materials were developed or intended.
- The Client guarantees that no rights of third parties preclude the provision to Postcode Service of equipment, software or materials for the purpose of use or processing. The Client guarantees that if the assigned work involves supplementing, expanding or changing computer software in use by the Client, the Client is entitled to have the necessary changes made to the (source of the) software, whether as owner / copyright holder, either on the basis of an authority that he has obtained from the owner / copyright holder for this purpose. The Client will indemnify Postcode Service against any action based on the allegation that making such provision, use or editing infringes any right of third parties.
Article 8 Retention of title
- Ownership of goods, items, software, equipment or other materials such as analyses, drawings, designs, documentation, reports, quotations, as well as preparatory material thereof, delivered by Postcode Service, and to everything that has directly resulted from the agreed services, notwithstanding the actual delivery, will only transfer to the Client after he has paid in full all that is due or will be due to Postcode Service under the Contract, including the purchase price, any surcharges due under these terms and conditions or the Contract, interest, taxes and fees.
- The Client is obliged to take good care of the goods, items, software, equipment or other materials delivered under retention of title and keep these as the recognisable property of Postcode Service, and to insure these against the usual risks such as fire, explosion, damage and theft.
Article 9 Cooperation of the Client
- The Client must make the equipment, materials, data, information or other means, including licenses for software, necessary for the performance of the Contract available to Postcode Service in a timely and proper manner. Hereby explicit reference is made to the provisions of article 7.9 of these general terms and conditions.
- At the request of the Client, Postcode Service can purchase specific software or apply for licenses. The costs thereof are not included in the price and are therefore borne by the Client.
- The Client is responsible for the use and application in his organization of the equipment, software and the services to be provided by Postcode Service, as well as for the control and security procedures and adequate system management. Postcode Service does not guarantee that a specific goal can be achieved by the client on the basis of the services provided and / or with the goods delivered and / or with the software made available, unless explicitly stated otherwise in the Contract.
- If 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 performance of the work.
- If information necessary for the implementation of the Contract is not available to Postcode service, on time or in accordance with the agreements or if the Client does not fulfill his obligations in any other way, Postcode Service has the right to suspend the implementation. of the Contract and to charge the costs incurred as a result – for example in connection with employee idle time – according to the usual rates.
- The Client may not use the goods, items, software, equipment or other materials made available by Postcode Service and anything that has been realised a direct result of the agreed services for any other purpose than for which these are made available. The Client must return the delivred items to Postcode Service at the end of the Contract in the same condition as initially delivered, except insofar as the condition of the item has changed through normal use.
- If the agreed activities are to be carried out in whole or in part at the offices of the Client, the Client will ensure, free of charge, that the space and other resources necessary for the performance of the activities are made available to the employees of Postcode Service. The workplaces must meet the health and safety standards. The Client will indemnify Postcode Service against claims from third parties, including employees of Postcode Service, who suffer damage in connection with the performance of the Contract as a result of the Client’s acts or omissions or unsafe situations in his organisation.
- The Client is liable for all damage, including any loss of profits and consequential damage, that Postcode Service, persons or companies recognised by it or any other third party, will suffer or has suffered as a result of a shortcoming attributable to the Client. The Client is in particular liable for all damage resulting from inaccuracies in the data and / or drawings provided by the Client to Postcode Service, or arising from defects in the work carried out by the Client itself or by third parties in the context of the implementation of activities performed under the Contract.
- The liability of the Client under this article is limited to the Contract Value, except in the case of intent or gross negligence on the part of the Client.
Article 10 Employees
- The Client recognizes that Postcode Service, as a “knowledge company”, makes high investments in the training of its employees and that, against this background, it has a great interest in ensuring that its employees will not be employed by the Client or a (legal) person associated with the Client without permission from Postcode Service. Postcode Service can only make its continuous investments in the knowledge of its employees if it can have justifiable confidence that those employees will remain with Postcode Service for a longer period of time. In this context, employees are persons who work on any contractual basis for the benefit of Postcode Service or a (legal) person associated with it. Postcode Service recognises a similar interest on the part of the Client. Against this background, the parties agree that Postcode Service and the Client will not mutually be permitted to use employees of the other party, other than in the context of an agreement between them (which must therefore always be understood to mean employees of Postcode Service) and to have the (legal) persons and employees of the Client directly or indirectly affiliated with it and the (legal) persons affiliated with it directly or indirectly) to work, on the basis of a direct contract or otherwise, for its benefit (or of (a) (legal) person (s) directly or indirectly related to it for a period of three years after the end of the (last) contract between the parties. The only exception possible is when the other party gives written permission, which can be subject to conditions, to do so. The prohibition does not only extend to Postcode Service and the Client, but also to all companies and legal entities directly or indirectly associated with them. The prohibition only extends to employees with whom the other party (or a (legal) person associated with it directly or indirectly) has had contact in the context of the performance of a Contract. If this contact has not existed for three years or more, the prohibition with regard to the employee in question no longer applies, even if there are other Contracts between the parties. If the prohibition is violated and if it is established that an employee as referred to above nevertheless performs work for the other contracting party (or a (legal) person) directly or indirectly associated with it during the prohibited period, whether or not on the basis of a direct agreement with this employee, this other contracting party forfeits to the party for whom the employee previously performed – directly or indirectly – work, therefore to Postcode Service or the Client, a fine of € 250,000 (say two hundred and fifty thousand euros), without any notice of default, without prejudice to the right of the party who is entitled to the fine to additionally demand compensation and performance. The claimed fine will be deducted from claimed compensation. The prohibition does not apply to employees with whom the employment contract has come to an end against the will of that employee, unless following seriously culpable conduct on the part of the employee.
- Postcode Service has the right to replace its employees who are responsible for carrying out the work for the Client.
- If the work is carried out at the Client’s, Postcode Service is not obliged to replace an employee who is unable to perform his work due to illness, unless the illness continues for more than a month. Any delay in the performance of the work caused by the provisions of this article will be at the expense and risk of the Client.
- If the work is carried out at the Client’s, Postcode Service has the right to withdraw one or more of its employees for 15 days from the work in progress for training courses or for other short-term work. Any delay in the performance of the work, which is caused by the provisions of this article, is at the expense and risk of the Client.
Article 11 Confidential information
- During and after the end of the Contract, the Parties are mutually obliged to observe secrecy of all confidential information that they have obtained in the context of the performance of the Contract. Parties will also impose this obligation of confidentiality on their subordinates, as well as on the third parties engaged by them.
Article 12 Force majeure
- Neither party is obliged to fulfill any obligation if prevented from doing so as a result of force majeure. Force majeure also includes a (attributable) shortcoming of suppliers or other contract partners of Postcode Service. If the force majeure situation has lasted longer than three months, both parties have the right to dissolve the Constract in writing. What has already been performed pursuant to the Contract will then be settled proportionately, without the parties owing each other anything else.
Article 13 Liability
- Postcode Service is not obliged to compensate for damage or to any other performance if the shortcoming of Postcode Service has not been reported in writing by the Client immediately after the Client has discovered or should reasonably have discovered the shortcoming. Postcode Service is also not obliged to pay compensation or to any other performance, if Postcode Service has not been properly declared in default.
- Liability of Postcode Service for indirect damage, consequential damage, for example in connection with damage suffered by third parties, lost profit, damage due to loss or corruption of data (files), damage in the form of missed savings, damage due to business interruption and damage due to malfunction of a business process or of an administrative organisation or damage due to exceeding a term and / or personal injury, is excluded.
- Except in the case of intent or gross negligence on the part of Postcode Service, Postcode Service is only obliged in the event of an attributable shortcoming, at the discretion of Postcode Service: a. To repair defects or; b. to deliver replacement software, goods or parts, but only after receipt of the defective software, goods or parts or; c. to pay a financial compensation to be determined in consultation with the Client or; d. to repay the Contract Value received, or to credit an invoice sent to the Client, this under (whether or not partial) dissolution of the Contract, whereby repayment or credit only needs to take place if and insofar as the Client demonstrates that the goods already delivered / performance cannot be used effectively. The Client does not have any further rights, nor the right to terminate a Contract.
- If Postcode Service, without prejudice to the provisions elsewhere in these terms and conditions, would nevertheless be obliged to pay compensation or a fine or any other financial support in connection with any shortcoming in the fulfillment of the obligations by Postcode Service or otherwise, the liability of Postcode Service is limited to a maximum of the Contract Value or to the sum that is actually covered by insurance on the part of Postcode Service in the appropriate case, being the lower of the two sums mentioned. If the contract is a (continuing) contract for the provision of services or work that has already lasted longer than one year at the time the damage-causing incident occurs, the Contract Value is set at the total of the invoices paid to Total Internet Group. (excl. VAT) for a maximum of one year.
- The Client indemnifies Postcode Service against all claims from third parties due to product liability as a result of a defect in a product or system supplied by the Client to a third party and that also consisted of equipment, software or other materials supplied by Postcode Service, except if and insofar as The Client proves that the damage was caused by that specific equipment, software or other materials.
- With regard to performances that have already been correctly delivered in the context of a (continuing) contract concluded between the parties, a dissolution has no effect, unless the Client can demonstrate that what has already been delivered cannot be used effectively as a result of the non-delivery of the remaining performances.
- Postcode Service can rely on the provisions of an Contract and these Terms and Conditions, such as limitation of its liability with regard to actions of third parties and the consequences thereof that are attributed to Postcode Service. The provisions of this article also apply to all (legal) persons that Postcode Service hires to execute the contract.
Article 14 Termination
- The Client is in default by operation of law and Postcode Service is entitled to dissolve the Contract in whole or in part without further notice of default or judicial intervention, such without prejudice to its right to compensation, if the Client is declared bankrupt, if the Client is granted (provisional ) suspension of payments, if the Client is admitted to statutory debt rescheduling or if the Client or his assets are in whole or in part placed under administration, or if an application for one of these cases is submitted, if the The Client transfers control of his company or a part thereof in whole or in part, if the Client liquidates or closes his company, if the Client’s business operations are discontinued in any other way or if prejudgment or executory attachment is imposed on the Client’s goods or parts thereof. Postcode Service shall never be obliged to pay any compensation due to the termination.
- Postcode Service is always entitled to terminate the Contract prematurely, without having to observe any notice period, if the Client allows another IT expert not employed by the Client to inspect or access software made available to the Client by Postcode Service. Postcode Service will never be obliged to pay any compensation to the Client because of such a cancellation.
- Amounts that Total Internet Group has invoiced prior to the dissolution in connection with what it has already performed or delivered for the performance of the Contract remain payable in full and become immediately due and payable at the moment of dissolution.
Article 15 Return at the end of the contract
- The Client is obliged to return, at the moment that the Contract between the Client and Postcode Service comes to an end, for whatever reason, everything that has been made available to the Client by Postcode Service, including software, equipment or other materials such as analyzes, drawings, designs, documentation, reports, quotations, as well as preparatory material thereof. These must be returned to Postcode Service without delay and without the Client being entitled to retain copies thereof. The provisions of the preceding sentences also apply to software that Postcode Service makes available to more than one client or uses in the context of its business operations in the development and / or maintenance of software, such as software that is part of the so-called « software development street » of Postcode Service. The provisions of this article – the contractual obligation to return – also apply with regard to resources, including software and licenses that Postcode Service has purchased at the request of the Client and which have been paid in full or in part by the Client. The foregoing does not apply if explicitly and unambiguously stipulated otherwise in the Contract.
Article 16 Governing law and Dispute resolution
- Dutch law applies to the Contract between the parties.
- All disputes arising from these terms and conditions and the Contracts will be settled at the discretion of Postcode Service by arbitration or by the court of the place of one of its offices or the place of residence of the Client.
The provisions stated in this chapter ‘Services’ apply, in addition to the General Provisions of these terms and conditions, if Postcode Service provides services, for example gives advice on organization and automation, conducts feasibility studies, performs consultancy activities, provides support or seconds staff. These provisions do not affect the articles included in the General Provisions regarding specific services, such as the development of software and the use and maintenance thereof.
Article 17 Implementation
- Postcode Service will endeavor to provide the services with due care, where appropriate in accordance with the agreements and procedures laid down in writing with the Client. All services of Postcode Service are performed on the basis of a best efforts obligation, unless and insofar as Postcode Service has explicitly promised a result in the Contract and that result is also described with sufficient determinability. As a main rule, Postcode Service is therefore not responsible for the progress or realization of a project. This is never the case if the project is also being worked on by employees of the Client or third parties.
- If it has been agreed that the services will take place in phases, Postcode Service is entitled to postpone the commencement of the services belonging to a subsequent phase until the Client has approved the results of the preceding phase in writing.
- Only if this has been expressly agreed in writing, Postcode Service is obliged to follow timely and responsibly given instructions from the Client in the performance of the services. Postcode Service is not obliged to follow instructions that change or supplement the content or scope of the agreed services; however, if such instructions are followed, the work in question will be reimbursed in accordance with Article 18.
- If the Contract for services has been entered into with a view to be performed by a specific person, Postcode Service will always be entitled to replace this person by one or more other persons with the same qualifications.
- The costs of the activities to be performed by third parties such as data entry and printing, as well as the machine time to be used on the computer made available by the Client for this purpose, are at the expense of the Client.
- If the Client cannot prove the contrary from his records, the times and amounts stated on the invoices of Total Internet Group are valid.
- For overtime, carried out on behalf of and after approval by the Client, an overtime surcharge will be billed. The overtime surcharge calculated on the hourly rate is 25% for work on Monday to Friday before midnight, 50% for work on Tuesday to Friday before 7 a.m. and on Saturday and 100% for work on Sundays and public holidays (until 7 a.m. the next morning ).
- The normal travel times and costs for commuting of the employees of Postcode Service are included in the agreed price, insofar as secondment takes place in the Netherlands.
- The duration of service contracts is indefinite, unless a specific period of time has been explicitly set. Unless otherwise agreed, a notice period of two calendar months applies. The cancellation must be made in writing and is only possible on the first day of a calendar month.
Article 18 Changes and additional work
- If Postcode Service has performed work or other services, at the request of or with the prior consent of the Client, that fall outside the content or scope of the agreed services, this work or services will be reimbursed by the Client to Postcode Service according to the usual rates of Postcode. Service. However, Postcode Service is not obliged to comply with such a request and may require that a separate written Contract is concluded for this.
- The Client accepts that work or services as referred to in Article 18.1 may affect the agreed or expected time of completion of the work. If a system analysis or design is expanded or changed then this will be considered as additional work.
- In the absence of an expressly agreed invoicing schedule, all amounts relating to services provided by Postcode Service are payable once per calendar month in arrears.
DEVELOPMENT, DELIVERY, INSTALLATION AND ACCEPTANCE OF SOFTWARE
In addition to the General Provisions of these terms and conditions and the special provisions of the chapter “Services”, the provisions stated in this chapter “Development of software” apply if Postcode Service develops software on behalf of the Client and installs it if necessary. The chapter “Use and maintenance of software” also applies to this software, except insofar as deviated from in this chapter. The rights and obligations referred to in this chapter relate exclusively to computer software in a form that is readable for a data processing machine and recorded on material that can be read by such a machine, as well as to the associated documentation. Where software is referred to in the following chapters, this also includes websites. This chapter does not relate to the provision by Postcode Service of software that Postcode Service makes available to more than one client or uses in the context of its business operations in the development and / or maintenance of software, such as software that is part of the so-called ‘software development street’ of Postcode Service.
Article 19 Development of software
- The parties will specify in writing which software will be developed and how this will be done. Postcode Service will carry out the software development with due care on the basis of the data to be provided by the Client and of which the Client guarantees the correctness, completeness and consistency.
- Postcode Service is entitled, but not obliged, to investigate the correctness and completeness of the data or specifications made available and, if any imperfections are found, to suspend the agreed work until the Client has removed the imperfections.
- The Client obtains the right to use the software in his company or organization. If and insofar as this has been expressly agreed in writing, the source code of the software and the technical documentation produced during the development of the software can be made available to the Client and the Client is entitled to make changes to this software. Such availability does not imply a transfer of intellectual property rights
Article 20 Delivery, installation and acceptance
- Postcode Service will deliver the software to be developed to the Client, in accordance with the specifications laid down in writing, on the agreed type and on the agreed format of information carriers and install it, only if an installation to be carried out by Postcode Service has been agreed in writing.
- If an acceptance test has been agreed in writing, the test period is fourteen days after delivery or, if an installation to be performed by Postcode Service has been agreed in writing, after completion of the installation. During that test period, the client will be able to carry out tests, the results of which will be recorded by the client in test reports. Postcode Service employees will be given the opportunity to attend the tests. During the test period, the Client is not permitted to use the software for productive or operational purposes. Postcode Service can always demand, even if this has not been expressly agreed, that the Client carries out a proper test of sufficient scope and depth on (intermediate) results of the development work with sufficiently qualified personnel and that the test results are provided in writing, in a clear and understandable manner, to Postcode Service.
- The software will be considered accepted between the parties:
- a. If an acceptance test has not been agreed between the parties: upon delivery or, if an installation to be carried out by Postcode Service has been agreed in writing, upon completion of the installation,
- or b. if an acceptance test has been agreed in writing between the parties: on the first day after the test period,
- or, c. if Postcode Service receives a test report before the end of the test period: the moment the Errors mentioned in that test report have been corrected.
- Contrary to the foregoing, if the Client makes any use of it for productive or operational purposes before the moment of acceptance, the software will already be considered fully accepted from the start of that use.
- If, when performing the agreed acceptance test, it appears that the software contains Errors that impede the progress of the acceptance test, the Client will inform Postcode Service about this in detail in writing, in which case the test period will be interrupted until the software has been adjusted in such a way that the problem has been solved.
- If during the performance of the agreed acceptance test it appears that the software contains Errors, the Client will inform Postcode Service about the Errors by means of a written and detailed test report no later than the last day of the test period. Postcode Service will – without being able to guarantee correction of the errors – make every effort to repair the reported Errors within a reasonable period of time, against payment by the Client of the rate applicable at Postcode Service for the employee who performs the work, where Postcode Service is entitled to install temporary solutions, program detours or problem-avoiding restrictions in the software. The costs of repair will be borne by Postcode Service if a fixed price has been agreed, on the understanding that in that case no more activities can be required from Postcode Service if the costs involved in those activities exceed ten percent of the Contract Value. Costs in the preceding sentence should be understood to mean the number of hours to be spent multiplied by the usual hourly rate for the employee engaged by Postcode Service.
- Acceptance of the software cannot be withheld on grounds other than those related to the specifications expressly agreed between the parties and furthermore not because of the existence of minor Errors, being Errors that do not reasonably impede operational or productive use of the software.
- If the software is delivered and tested in phases and / or parts, the non-acceptance of a particular phase and / or part does not affect any acceptance of an earlier phase and / or another part.
- Acceptance of the software in one of the aforementioned ways implies that Postcode Service is fully discharged of the fulfillment of its obligations with regard to the development and provision of the software and, if the installation by Postcode Service has also been agreed, of its obligations regarding the installation of the software.
USE AND MAINTENANCE OF SOFTWARE
The provisions stated in this chapter ‘Use and maintenance of software’ are, in addition to the General Provisions of these terms and conditions and the special provisions of the chapter ‘Services’, applicable to all software made available by Postcode Service, except insofar as such. there are deviations in this chapter. The rights and obligations referred to in this chapter relate exclusively to computer software in a form that is readable for a data processing machine and recorded on material that can be read by such a machine, as well as to the accompanying documentation, all including any new versions to be provided by Postcode Service.
Article 21 Right of use
- Postcode Service grants the Client the non-exclusive right to use the software on the basis of the resolutive condition that the Client fulfills its obligations to use the software as stated in a Contract. The Client will always strictly observe the usage restrictions agreed between the parties.
- The software may only be used by the Client in his own company or organization, on the processing unit and for the specific number or type of users or connections for which the right of use has been granted.
- The right of use is not transferable. The Client is not permitted to sell, rent, sublicense, dispose of or grant limited rights to the software and carriers on which it is recorded, or to make it available to a third party in any way or for whatever purpose, even if the relevant third party uses the software exclusively for the benefit of the Client.
- The Client will not change the software other than in the context of the rectification of Errors, and will not use it in the context of the processing of data for third parties (“timesharing”). The source code of the software will not be made available to the Client, unless otherwise agreed in the case of so-called open source code or shared source code.
- The Client may make back-up copies of the software for its own use, provided that trademarks and copyright notices are not changed.
- The Client’s right of use will end when the Contract between the parties ends, unless the Contrac provides otherwise.
- The Client is responsible for the management and security of all usernames and passwords, or access data, provided under a Contract.
- In the context of purchasing the Services, the Client will act as a professional user and in that context in any case: a. No make injudicious, unauthorized, illegal or improper use, abuse or use not in accordance with the purpose of use; b. not place data, scripts or Software on the servers of Postcode Service that could be in conflict with, or infringe on, or be contrary to the law, morality, public order, the Contract c. and these Terms and Conditions, the generally accepted standards applicable to the use of the internet (‘nettiquette’), the rights of Postcode Service or third parties, including, in addition to the intellectual property rights, all matters that are contrary to the law or morality , including, but not limited to, placing (child) porn sites, illegal games of chance, peer-to-peer networks intended or suitable for the exchange of copyright protected or infringing material, or bulletin boards or chat sites intended for that purpose, sexual harassment, discrimination , threat or otherwise bothering persons, the entry of other computers on the internet without permission (hacking) whereby the Client breaks through any security and / or gains access through a technical intervention using false signals and / or false keys or by assuming a false quality, et cetera; d. not distribute viruses, spybots, spam or other material that causes nuisance to internet users; e. not use any other equipment than recommended by Postcode Service and otherwise follow the instructions of Postcode Service with regard to preconditions for use; f. not allow third parties to make use of Postcode Service’s rights of use without its express prior written consent; g. not use the Postcode Service systems, or set up or parameterize them so that the system load increases substantially or the stability of the functionality decreases h. not cause any disruption to the functioning of the ICT infrastructure of Postcode Service, infrastructure of third parties and / or links between infrastructures due to (the content or intensity of) the data traffic or through the acts and / or omissions of the Client and not perform any actions such as starting up processes / programs on Postcode Service’s systems, of which it can be assumed that they could cause damage to its systems or hinder other internet users, all this at the sole discretion of Postcode Service; i. The Client itself is responsible for (the additional costs associated with) exceeding the agreed amount of data traffic (sending text or images to and from the Client’s website over the internet via the Postcode Service server). This will be done in accordance with the agreed conditions and rates as laid down in the list of rates accompanying the Contract or as published on the website of Postcode Service; j. respects the “fair use” policy of Postcode Service with regard to the use of its services to protect the interests of its users, meaning that the use is within reasonable proportions and a reasonable bandwidth of capacity utilisation.
- Postcode Service expressly reserves the right to immediately and without prior warning decommission the access to and use of systems of Postcode Service provided to the Client or to have them taken out of service if the Client acts contrary to the provisions of the previous paragraphs and does not, not properly or not fully fulfill its obligations in this respect. In that case, the Client remains liable for the costs arising from the Contract for the remaining term.
- Postcode Service is not liable for any damage to third parties, for whatever reason, caused by the conduct and / or actions of the Client described in this article. The Client indemnifies Postcode Service against claims from third parties on that account.
- The Client is not permitted to sell, rent or otherwise transfer or make available his Contract and / or rights arising from it to third parties, unless Postcode Service has given prior written permission for this.
Article 22 Support
- Postcode Service is not bound to any further performance towards the Client than stated in a maintenance contract, provided such a Contract is concluded. Postcode Service does not guarantee that the software will work without interruption or Errors or that all Errors will be corrected. Any obligation on the part of Postcode Service to provide support lapses if the Client makes or has made changes to the software without written permission from Postcode Service.
Artikel 23 Maintenance
- If a maintenance contract has been concluded for the software – neither the Client nor Postcode Service is obliged to enter into such a Contract – the Client will report Errors in the software in detail to Postcode Service in accordance with the usual procedures of Postcode Service. After receiving the notification, Postcode Service will try to correct Errors to the best of its ability – under the conditions stated in the maintenance contract. Depending on the urgency, the results will be made available to the Client in the manner and period to be determined by Postcode Service. Postcode Service is entitled to install temporary solutions, program detours or problem-avoiding restrictions in the software.
- Whenever Postcode Service is required to visit the Client for the performance of agreed maintenance work, the Client owes the call-out charges that Postcode Service usually charges.
- Postcode Service can always charge its usual rates and costs. Recovery of corrupted or lost data is not included in maintenance.
- If a maintenance contract has been concluded, Postcode Service will – unless the maintenance contract provides otherwise – provide the Client with improved versions of the software when these become available. Three months after making an improved version available, Postcode Service is no longer obliged to correct any Errors in the old version and to provide support with regard to the old version in question, regardless of whether the Client has purchased and installed the improved version. In order to make a version available with new options and functions, Postcode Service may require the Client to enter into a new Contract with Postcode Service and to pay a new fee for this new version. The obligation to provide such a new version does therefore not arise from the maintenance contract.
In addition to the General Provisions of these Terms and Conditions, the provisions stated in this chapter “Course Conditions” apply to all offers and contracts with regard to education, courses and training provided by Postcode Service.
Article 24 Education, courses and training
- Insofar as the service consists of providing education, a course or a training, Postcode Service can always require the payment due in this respect before commencement thereof.
- Postcode Service always has the right to supplement the number of participants up to a desired number of participants.
- With the permission of Postcode Service, the Client can replace a registered participant by another participant before the course starts. The Client does not owe any additional costs for replacing a participant.
- The rights and obligations under a contract to which these course terms and conditions apply cannot be transferred, except with written permission from Postcode Service.
- It is not permitted to make copies of the study material provided without the express written consent of Postcode Service.
- After completion of a course, Postcode Service will provide the participant with a diploma, certificate or proof of participation, depending on the nature of the course concerned, if he has successfully completed the course in question.
- Postcode Service has the right to stop or suspend agreed education, course or training or to deny the Client further access to a course if the Client is in default with any payment obligation towards Postcode Service.
- Postcode Service always has the right to refuse to enter into a contract with a Client or to refuse a registered participant for reasons of its own.
Article 25 Cancellation of courses with open timetable
- Cancellation can only be made in writing.
- In case of cancellation by the Client up to 10 working days or more before the start of the course with open timetable, the Client will not owe Postcode Service any cancellation costs.
- In case of cancellation by the Client on the 10th working day or from 10 working days before the start of the course with open timetable or in the event of no participation in the course with open timetable without a legally valid cancellation in accordance with Article 25.2 or a shift in accordance with Article 25.8, the Client needs to pay the full course fee to Postcode Service.
- Postcode Service is allowed to cancel a course with open timetable up to 7 working days before the start of it. The course fees already paid will be returned to the Client.
- Postcode Service is entitled to combine the course with one or more other courses up to 7 working days before the originally planned date or to have these take place at a later date or time.
- Postcode Service is allowed to change the date and time or the place of a course up to 7 working days before the start of the course with open timetable.
- If according to Postcode Service a prior education is required for following a course with open timetable, Postcode Service may refuse registration of a participant who does not have the required prior education.
- Instead of canceling, the Client can postpone the course date within 10 working days before the start of the course with open timetable. The Client will then owe Postcode Service 25% of the course costs as travel costs.
Article 26 Cancellation of customised courses
- Cancellation can only be made in writing.
- In the event of cancellation by the Client up to 20 working days or more before the start of the customised course, the Client does not owe Postcode Service any cancellation costs.
- In case of cancellation by the Client from 20 to 10 working days before the start of the customised course, the Client owes Postcode Service 50% of the course costs.
- Instead of canceling, the Client can postpone the course date from 20 to 10 working days before the start of the customised course. The Client will then owe Postcode Service 25% of the course costs as travel costs.
- In case of cancellation by the Client on the 10th working day or from 10 working days before the start of the customised course or in case of no participation in the customised course without a legally valid cancellation in accordance with Article 26.2 or 26.3 or a shift in accordance with Article 26.4, the Client owes the full course fee. In addition, the Client owes the costs incurred for reservations to facilitate the course, such as course rooms, materials and lunch.
- In the event of relocation of a customised course by the Client, invoicing takes place in advance.