Article 1: Definitions
- Seller: Nedsoft bv – Loca and its legal successors.
- Buyer: natural and legal persons who enter into an agreement with Nedsoft bv – Loca.
Article 2: General
- These terms and conditions apply to all offers, quotations and agreements between the seller and the buyer, unless explicitly amended in writing.
- Seller explicitly excludes the applicability of any terms and conditions of the buyer.
- If any condition should be wholly or partially null and void or annulled, the remaining conditions shall continue to apply in full. Seller shall replace the void or annulled condition by a new condition in consultation with the buyer. The new condition shall be drawn up according to the purpose and tenor of the condition to be replaced.
- These terms and conditions shall also apply to agreements whereby seller engages third parties for the performance of the agreement.
- If a condition is unclear, then it must be interpreted in the spirit of these terms and conditions. This interpretation shall also be applied when an event arises which has not been provided for by these terms and conditions.
- Seller may depart from or implement these terms and conditions variously solely for the benefit of buyer. However, this shall not imply that these terms and conditions do not apply. Seller retains the right to demand compliance with these terms and conditions.
Article 3: Offer
- The offer is made without obligation and is valid for one month from the date of the offer.
- In the event that the potential purchaser has not accepted the offer or quotation in writing within the said period, then the offer or tender shall lapse and seller shall be entitled to amend or withdraw it.
- Seller shall be entitled to modify or withdraw an offer or quote if it is based on incorrect or incomplete information provided by the buyer.
Article 4: Agreement
- The agreement is entered into electronically or in writing and is for an indefinite period of time, unless the nature or content of the agreement dictates otherwise.
- The agreement shall describe the services and products to be performed and supplied and shall include the hourly rate or the agreed price. If, in the meantime, the agreement proves to be inadequate or if one of the parties wishes to amend it, this may be effected by mutual agreement. The agreed price may then also be amended. The amendment shall be agreed upon in writing.
- In executing the agreement, seller shall observe the requirements of good workmanship. Seller shall execute the agreement to the best of his/her knowledge and ability. This shall be based on the current state of knowledge at that time. Seller shall only have a best-endeavour obligation and shall not provide any guarantees with respect to the attainment of an intended result.
- If the agreement can be broken down into individual parts, seller may elect to invoice these parts separately. Seller may suspend parts of the agreement if payment is required for the previous part.
- Seller shall be entitled to amend or withdraw the agreement if it is based on incorrect or incomplete information provided by the buyer. Seller shall be entitled to suspend the agreement or to impose additional charges if required information has not been provided on time, or has been provided incorrectly or incompletely.
- Seller can terminate or change the agreement prematurely with a notice period of one month. Seller shall be authorised to terminate or amend the agreement prematurely without prior notice if there are circumstances rendering the execution of the agreement impossible or due to which seller cannot be required to maintain the agreement unaltered. The agreement cannot be terminated or amended prematurely by the buyer.
- At seller’s discretion, all or part of the agreement may be performed by third parties.
- Seller may suspend or terminate the agreement with immediate effect if client fails to fulfil obligations arising from the agreement or these terms and conditions or fails to do so on time, or if seller has a well-founded reason to believe that this may occur and this failure to fulfil obligations justifies suspension or termination. In that event, seller shall not be under an obligation to pay damages or compensation while the buyer shall be under an obligation to do so due to non-performance.
- Seller shall be entitled to terminate the agreement with immediate effect without prior warning or notice of default being required where the buyer applies for a suspension of payments, is granted a suspension of payments, applies for bankruptcy or a debt rescheduling arrangement, is declared bankrupt or a debt rescheduling arrangement is pronounced, or if buyer’s company is wound up.
Article 5: Right of withdrawal for consumer purchases
- A consumer making a remote purchase is entitled to a cooling off period of 14 calendar days in which he/she can dissolve the agreement without providing any reason, unless it concerns products or services that are excluded from the right of withdrawal. During the cooling-off period, the consumer shall take care of the product and may examine and test the product as he/she would in a shop.
- The cooling off period starts when the consumer or a previously designated third party has received the product or the last product or part in a contract for multiple products or parts or after receipt of the first product in a contract for repeated delivery of products over a certain period. In the case of a contract for the supply of digital content not supplied on a tangible medium and services, the cooling-off period shall start one day after the date of the contract.
- If the consumer wishes to exercise the right of withdrawal, he/she shall notify seller thereof in an unequivocal manner within the cooling-off period. The consumer shall then return the product within 14 calendar days following the notification, in accordance with seller’s instructions. The costs of returning the product shall be borne by the consumer.
- The consumer must be able to demonstrate that he/she has exercised his/her right of withdrawal in the stipulated manner.
Article 6: Change of conditions
- Seller reserves the right to amend these terms and conditions. The amended terms and conditions shall not take effect until they have been communicated to the buyer.
- The buyer reserves the right to terminate the agreement within two weeks after the amended terms and conditions have been communicated to him/her.
- If the buyer has not responded to the notification within two weeks, seller shall be entitled to assume that the buyer has accepted the amended terms and conditions.
Article 7: Pricing and payment
- The agreed prices are exclusive of sales tax, unless explicitly stated otherwise.
- Payment shall be made immediately online or, as the case may be, within 14 days from the date of invoice, into a bank account designated by seller in the currency in which the goods were invoiced.
- Any objections to the invoice amount must be made in writing to seller within 14 days of the invoice date.
- The buyer shall be in default by law if he/she fails to pay within the term of payment. The private buyer shall be in default when he/she fails to pay within the term of payment or within a reasonable period following a demand for payment. The buyer shall owe statutory interest on the outstanding amount from the time of default until the time of full payment.
- If the buyer remains in default, all reasonable extrajudicial and customary judicial costs related to the collection shall be borne by the buyer. Statutory interest shall also be charged on these costs.
- Payments made by the buyer shall first serve to pay the costs of collection, subsequently all interest and lastly the principal sum, even where the buyer indicates otherwise at the time of payment.
- The buyer shall not be entitled to set off a debt to the seller against an invoice, without the consent of the seller. Complaints by the buyer regarding the services and products delivered or regarding the amount on the invoice, do not defer the payment obligations. The buyer may not suspend payment for any other reasons unless he/she can invoke one of the articles in Section 6.5.3. of Book 6 of the Dutch Civil Code.
- Seller shall be entitled to demand advance payment by the buyer. The buyer shall be obliged to supplement this advance payment if so required by the seller.
Article 8: Retention of title
- Seller shall retain ownership of all goods and items delivered to buyer until buyer has fulfilled all obligations as stipulated in the agreement. The buyer shall not be entitled to sell, exchange, give away, pledge, encumber etc. the products delivered for so long as seller retains ownership.
- The buyer shall inform seller if third parties seize the delivered products or wish to establish or assert rights over them. The buyer is liable for any and all damage to the products delivered. The buyer is obliged to effect insurance to cover such damage. The buyer shall make every effort to prevent or limit any damage.
- Seller reserves the right to repossess the delivered products and to enter the premises of buyer or third parties engaged by buyer.
Article 9: Liability
- In the event that the seller is liable for any damage, then such liability of seller shall be limited to the direct damage. The liability of seller is limited to a maximum of the invoice value of the agreement at least limited to that part of the agreement to which the liability relates. The liability of seller shall in any event be limited to the sum for which seller is insured.
- Seller shall not be liable for indirect damages, such as consequential loss, loss of profit, loss of savings and damages due to business interruption. Furthermore, seller shall not be liable for damages arising from the fact that seller has operated on the basis of incorrect or incomplete information provided by or on behalf of the purchaser.
- Direct damages shall be strictly interpreted as: the reasonable costs incurred to establish the cause and the volume of the damage, the reasonable costs incurred to continue to perform the agreement correctly and the reasonable costs to prevent or limit the damage. These costs shall only fall under direct damage if it is established that the damage can be attributed to seller.
- The limitation of liability of seller shall only be valid where there is no question of damage being caused as a direct consequence of intentional act or omission or gross negligence on the part of seller, one of its subordinates or any third parties engaged.
- If seller cannot or cannot properly fulfil the agreement due to the fault of purchaser, then purchaser shall be liable for all direct and indirect damage suffered by seller.
- The buyer shall indemnify seller against possible claims filed by third parties who may sustain damage in connection with the execution of the agreement, the cause of which is attributable to parties other than seller. If for that reason seller should be held liable by third parties, the buyer shall be held to assist seller in legal proceedings and otherwise and to do forthwith all that may be expected of him in that event. Should the buyer fail to take adequate measures, the seller will be entitled to do so, without notice of default being required. All costs and damages incurred by seller and third parties as a result will be fully at the expense and risk of the buyer.
Article 10: Intellectual property
- Seller reserves all intellectual property rights.
- All knowledge acquired by seller as a result of the execution of the agreement entered into may be used by seller for other purposes, unless such knowledge relates to client’s confidential data.
Article 11: Force Majeure
- In the event of force majeure, the obligations of seller arising from the agreement entered into with buyer shall be suspended. Seller shall inform buyer as soon as possible about the circumstances surrounding such force majeure.
- In addition to the definition of force majeure in law and in case law, force majeure shall also include all external causes, foreseen or unforeseen, over which seller cannot exercise any control and as a result of which seller is unable to meet its obligations. Such circumstances may include, inter alia: strikes, technical disruptions, illness of personnel deployed, government measures, breakdowns, etc.
- Seller shall be entitled to suspend its obligations during the period of force majeure. Seller shall have no obligation to compensate for any damages arising from such force majeure circumstances.
- Parties are entitled to dissolve the agreement where the state of force majeure exists in excess of 60 days. The parties shall not be obliged to pay any damages as a result of the dissolution.
- If seller has already partially fulfilled the agreement or is still able to fulfil the agreement and this part has independent value, seller shall be entitled to invoice this part separately. Since this is a separate agreement, the buyer shall be obliged to pay this invoice.
Article 12: Applicable law and disputes
- Dutch law shall apply exclusively to all legal relationships to which seller is a party, even when an agreement is fully or partially implemented abroad or if the party involved in the legal relationship has their place of residence there. The applicability of the Vienna Sales Convention is excluded.
- The Court in seller’s place of business shall have exclusive jurisdiction to hear actions, unless the law prescribes otherwise. Nevertheless, the seller shall be entitled to submit the dispute to the court that has jurisdiction according to the law.
12.3. The parties shall only appeal to the court after they have made every effort to reach a mutually acceptable agreement.