General terms and conditions of the private company with limited liability SOCRATES AUTOMATISERING EN ADVIES BV, hereinafter referred to as: “Socrates”, having its registered office and principal place of business in Amsterdam. Please contact us if you would like to receive a PDF file.
A. GENERAL PROVISIONS
1.1 These general terms and conditions apply to all agreements concluded by Socrates, the realization thereof and furthermore to all quotations and order confirmations issued by Socrates.
1.2 The applicability of the general terms and conditions used by the client, buyers, potential buyers, or the Other Party, together and / or each separately hereinafter referred to as: “the Other Party”, is expressly excluded.
1.3 In the event of a textual meaning difference between the different language versions of the general terms and conditions, the Dutch text is always binding, unless the negotiations and correspondence, prior to and in connection with the quotation and / or the agreement, have taken place in one of the languages. in which these conditions are translated. In that case, the text of the relevant translation is binding.
2.1 Changes to the agreement concluded between the parties, of any nature whatsoever (including changes to the text of the general terms and conditions), are only valid if agreed in writing by Socrates and the Other Party.
2.2 Socrates is entitled at all times until the moment of delivery to increase the (purchase) price of goods sold and / or services provided to the Other Party by the additional costs that Socrates is faced with at any time due to an increase in import and / or export duties. and / or levies of any nature whatsoever on the goods sold and / or services provided, or costs caused by currency changes.
2.3 If digital facilities are used in the communication between the parties, the Other Party is responsible for any incorrect transmission of information. In the event of a dispute in this regard, the original sent by Socrates or the original / copy received by Socrates is binding for the parties.
3 QUOTES AND ORDERS
3.1 All offers and / or quotations issued by Socrates are valid up to 30 days after the date of the quotation, unless the quotations and / or quotation explicitly indicate otherwise.
3.2 All data / information provided with an offer remains the (intellectual) property of Socrates and must be returned upon request.
3.3 Socrates reserves the right to refuse orders without stating reasons or to deliver them cash on delivery.
4.1 The prices quoted by Socrates are exclusive of VAT, transport, operation and installation, unless stated otherwise in the quotation.
4.2 The prices quoted by Socrates for buying and selling, renting and letting, providing services and contracting work are based, among other things, on the price-determining factors referred to in the following paragraph.
4.3 If the price quoted by Socrates therefore cannot be maintained on the day of delivery at the time of purchase and sale, during and during the performance of assigned services or work, due to causes beyond Socrates's control, such as an increase in purchase prices of purchased items, cause therefore, further increases in the costs of transport, of material prices, of production costs including wage increases, of import duties, taxes, government levies and the like, anywhere in the world, Socrates reserves the right to pass on these price increases.
4.4 If a quotation price is exceeded, Socrates reserves the right to adjust the final invoice amount on the basis of a subsequent calculation to be submitted by Socrates.
4.5 Socrates is at all times entitled to demand full or partial advance payment.
5 DELIVERY AND DELIVERY TIME
5.1 Delivery time is understood to mean the time within which Socrates will carry out the assignment. The delivery time starts as soon as the Other Party has accepted the quotation or has placed an order, all this subject to any down payment required by Socrates from the Other Party, after which the delivery time will only commence after receipt of the down payment.
5.2 The delivery time will / can be extended by the time that the Other Party is late with payment of any amount owed by it, as well as by the time during which any delay occurs in the delivery over which Socrates cannot reasonably exercise any influence.
5.3 Delivery takes place ex Socrates' company / warehouse, unless otherwise agreed in writing. Free delivery only takes place if and insofar as this is indicated by Socrates on the invoice or otherwise. The stated delivery times are approximate and are not binding on Socrates. Socrates is not liable for any excess.
5.4 As soon as delivery has taken place, the goods delivered or the results of services performed are at the risk of the Other Party. The moment of transfer of ownership of the goods to be delivered is regulated in Article 9.1.
5.5 The Other Party is obliged to check the delivered goods and the packaging immediately upon delivery for any shortages or visible damage, or to carry out this check or have it carried out after Socrates has notified that the goods are available to the Other Party.
5.6 Any shortages or damage to the delivered goods and / or the packaging that are present on delivery, must be stated by the Other Party on the delivery note, the invoice and / or the transport documents, failing which the delivered goods are deemed to comply with the agreement and therefore complaints in this regard will no longer be dealt with.
5.7 Socrates is entitled to make partial deliveries. Socrates is entitled to invoice separately for partial deliveries. In that case, the Other Party is obliged to pay in accordance with the provisions below regarding “payment and default”.
5.8 Delays in delivery - for whatever reason - do not entitle the Other Party to suspend the performance of any obligation on Socrates and / or to dissolve the agreement.
6. FORCE MAJEURE
6.1 In the event of force majeure Socrates is at its option entitled to cancel the concluded agreement or to suspend the moment of delivery until the moment at which the force majeure has ceased to exist, without the Other Party being able to claim any compensation from Socrates.
6.2 Force majeure on the part of Socrates will in any case apply if, after the conclusion of the agreement, it is prevented from fully and / or timely fulfilling its obligations under this agreement, or the preparation thereof, as a result of war, terrorism. , riots, acts of war, fire, water damage, floods, natural disasters, strike, company occupation, import and export barriers, government measures, disruptions in the supply of energy or the availability of the internet, all in Socrates' company and at third parties whose must obtain goods and / or services and / or the required materials in whole or in part, as well as during storage or during transport, whether or not under own management and furthermore due to all other causes, through no fault or risk of Socrates.
6.3 In the event of force majeure, the Other Party will continue to owe the consideration due to Socrates after deduction of that part that can be considered to be the consideration for the canceled or the suspended part of the agreement.
6.4 If Socrates later executes the suspended part of the agreement, the Other Party will owe the fully agreed consideration, without any discount.
7.1 Subject to mandatory law, including (product) liability, Socrates is not obliged to pay any compensation for damage of any kind, direct or indirect, including trading loss - such as but not limited to lost income - to movable or immovable property, or to persons, both at the Other Party and at third parties.
7.2 With due observance of the provisions elsewhere in this article, Socrates is in any case not liable for damage caused by improper use of the delivered goods or by the use thereof, for a purpose other than for which it is suitable according to objective standards.
7.3 In the event that Socrates should be considered liable for any damage suffered by the Other Party, including consequential damage, Socrates' liability will not extend beyond compensation of the amount that the Other Party owes Socrates under the relevant agreement with the Other Party. Socrates does not provide any other guarantees than those expressly stated in the individual agreement with the Other Party.
8.1 Complaints about the quantity delivered and visible damage must be noted in writing on the invoice and / or the transport documents and / or the delivery note immediately upon delivery of the goods.
8.2 Complaints as referred to in Article 8.1 and / or other complaints relating to the quality of the delivered goods or the implementation of the agreement must be submitted to Socrates in writing within eight days after delivery.
8.3 Exceeding the above terms means that Socrates has delivered in accordance with the agreement and the Other Party has received and accepted the delivered and that complaints will no longer be handled.
8.4 Submitting a complaint never relieves the Other Party from its payment obligation towards Socrates, nor does this give the Other Party the right to suspend or set off its payment for the time being.
8.7 A return shipment must be made carriage paid and will only be accepted by Socrates after Socrates has given prior written permission for this.
9. RESERVATION OF PROPERTY
9.1 All items, goods and services delivered and to be delivered by Socrates to the Other Party remain the property of Socrates as long as they still have to claim any amount from the Other Party in connection with the delivered and yet to be delivered items, goods and / or services provided. has.
9.2 The Other Party is not permitted to alienate, lend, pledge, rent or donate the delivered goods, goods and services, as long as no full payment of that which is due to Socrates has taken place, in any way or under any title under its power. unless expressly permitted in writing by Socrates.
9.3 In the event that Socrates wishes to take back the goods and goods as a result of violation of the preceding articles, the Other Party will grant Socrates access to its office or company for that purpose. The Other Party is liable for all costs associated with taking back and storing the goods and goods. Socrates is only obliged to deliver the goods again after full payment or adequate security has been provided.
9.4 In the event that Socrates takes back the goods and goods, it will hold them at the expense and risk of the Other Party.
10. PAYMENT AND DEFAULT
10.1 Payment must be made within thirty days after the invoice date, unless other payment conditions have been agreed in writing.
10.2 Payment will first be deducted from the costs, then against the interest that has appeared and then against the oldest outstanding principal and the current interest.
10.3 If the term referred to in article 10.1 or the further agreed term is exceeded, the Other Party is in default by operation of law and owes 1,5% interest per month, whereby parts of a month are counted as a whole month, on the full amount. invoice amount, commencing on the date on which the invoice amount becomes payable.
10.4 The Other Party is not authorized to deduct any amount from Socrates on account of a counterclaim made by it from the invoice amount.
10.5 All costs of collection, after the Other Party is in default, both judicial and extrajudicial, will be borne by the Other Party. The extrajudicial costs are set at at least 15% of the principal sum and statutory commercial interest with a minimum of Eur 250 excluding VAT, without prejudice to Socrates' right to claim the actual extrajudicial costs that exceed the established amount from the Other Party, as these may appear. from invoices to be submitted by Socrates from, among others, its counsel.
10.6 If the Counterparty does not comply with any of its obligations towards Socrates under the agreement, related agreements, agreements concluded before or afterwards, or if Socrates may reasonably suspect that the Counterparty will not comply with any obligation as referred to above in the future , or will be able to comply, Socrates has the right:
to demand payment in advance, or proper security of payment, or immediate payment upon delivery for payment obligations under all current and yet to be concluded agreements:
b. to suspend deliveries (as well as the production and processing of goods and services intended for delivery), without prejudice to Socrates' right to simultaneously or later demand security for payment;
c. to dissolve the relevant agreement in full, insofar as it has not been performed, with immediate effect;
d. to dissolve one or more or all current agreements in respect of which the Counterparty is not in default, in whole or insofar as not performed, with immediate effect, without prejudice to Socrates' right to claim full compensation for damage from the Counterparty.
10.7 In the event that the Other Party is declared bankrupt, assigns an estate, submits an application for a moratorium on payments, or if all or part of its property is seized, it dies, is placed under guardianship, any fails to comply with his obligation under the law or under these conditions, fails to pay an invoice amount or part thereof within a specified period, transfers his business or an important part thereof, including the contribution of his company to a company to be established or a pre-existing company, or proceeds to change the objective of its company, Socrates has the right, by the mere occurrence of one of the aforementioned circumstances, to dissolve the agreement extrajudicially without any judicial intervention being required, or to owe any amount by the Other Party on the basis of what has been done by Socratesto claim work and / or deliveries immediately and without any warning and / or notice of default being necessary and to reclaim the delivered but not (fully) paid as property of Socrates, all without prejudice to Socrates' right to reimbursement of costs , damage and statutory commercial interest.
11.1 The Other Party undertakes to maintain confidentiality towards third parties with regard to (i) the content of all agreements between the parties and (ii) all information regarding Socrates' company.
11.2 The Other Party shall ensure - and will instruct its personnel to this end - in such a way that the software supplied to it by Socrates and the know-how applied therein is not made known to third parties.
12. DISPUTES. APPLICABLE LAW. COMPETENT COURT
12.1 The agreement with the Other Party is exclusively governed by Dutch law.
12.2 All disputes, to the exclusion of another court, will be settled by the competent Dutch court, even if the Other Party is established abroad and a treaty provision designates a foreign court as competent. Socrates reserves the right to nevertheless have a dispute with a foreign Counterparty decided by a foreign competent court.
12.3 If a dispute falls within the absolute competence of the court, the court in Amsterdam has jurisdiction.
B. SPECIAL CONDITIONS RELATING TO SOFTWARE
13.1 Articles 1 to 12 of these terms and conditions apply in full to the delivery of software for computer equipment, unless stated otherwise below.
13. STANDARD PROGRAM, CUSTOMIZATION AND RIGHT OF USE
13.1 Standard software comprises all software that has been or will be offered as such by Socrates to the Other Party, including all related documentation.
13.2 Custom software is software which has been designed and manufactured in its entirety by Socrates on the order of the Other Party and according to its specifications.
13.3 If in the case of Custom software the parties have not agreed that an acceptance test will be performed, the Other Party will accept the software in the condition it is in at the time of delivery ('as is'), therefore with all visible and invisible errors and defects. . If an acceptance test has been agreed, the test period is fourteen days after delivery or, if an installation to be performed by Socrates has been agreed in writing, after completion of the installation. During the test period, the Other Party is not permitted to use the software for productive or operational purposes. The software will be considered accepted between the parties: a. If the parties have not agreed an acceptance test: upon delivery or, if an installation to be carried out by Socrates has been agreed in writing, upon the completion of the installation, or b. if the parties have agreed on an acceptance test: on the first day after the test period, insofar as the Other Party has not explicitly rejected acceptance in writing. If the Other Party rejects acceptance, Socrates will make every effort to repair the errors referred to within a reasonable period of time, whereby Socrates is entitled to apply temporary solutions or problem-avoiding restrictions in the software.
13.3 All standard software and custom software to be delivered by Socrates remains the property of Socrates, unless the agreement provides otherwise. If Socrates retains ownership, the Other Party obtains a right of use (license) on this. In the event of a right of use, the Other Party is not authorized to dispose of this software, or to hand it over to third parties under any title for any purpose, or to have it used by third parties. The Other Party is only entitled to use this software for its own use.
13.4 Only for its own back-up purposes, provided no changes or omissions are applied with regard to brands, names, numbers and other identifying marks that determine the ownership and origin of the software, the Other Party is entitled to make copies of the software.
13.5 If (parts of) Socrates software has come into the possession of third parties through the actions or omissions of the Counterparty, Socrates will be entitled to forfeit a due and payable fine by the Counterparty in favor of Socrates, which the right of use of all software delivered has been agreed, without prejudice to Socrates' right to sue the Other Party for damages.
13.8 After expiry of the agreed period of use, the license agreement is deemed to continue for an indefinite period under the same conditions and at the rates then applicable at Socrates. The Other Party can terminate this agreement with a notice period of three months.
14. INDEMNIFICATION AND EXCLUSIONS
14.1 Socrates indemnifies the Other Party against claims by third parties on the basis of intellectual property right, or copyright or patent law with regard to the software and / or documents supplied by Socrates.
14.2 Socrates is not liable for costs and damage as a result of non-functioning, late or incorrect functioning of the software and / or documents to be delivered and / or delivered by Socrates, unless there is gross negligence on the part of Socrates. The Other Party is aware that custom software may also contain software errors (bugs and errors), which malfunctions can never lead to Socrates being liable for damage. The Other Party accepts the risk and the consequences, including damage, of these software errors.
14.3 Socrates is not liable for costs and damage as a result of mutilation, destruction or loss of files and other information carriers of the Other Party.
15. ADDITIONAL WORK
15.1 The occurrence of additional work will be communicated to the Other Party in writing as early as possible, but in any case prior to the execution thereof. The Other Party is deemed to agree with the execution of the additional work and the costs thereof, unless the Other Party objects to the additional work in writing within five days of written notification by Socrates. Additional work can never lead to termination of the agreement.
16.1 The provision of maintenance by Socrates on the goods purchased and / or software to be delivered by the Other Party takes place (possibly) by means of a separately concluded maintenance agreement.
17. INTELLECTUAL PROPERTY
17.1 With regard to all software delivered by Socrates, the intellectual property rights accrue to Socrates or the producer of the software.
17.2 The Other Party acknowledges and accepts that all intellectual property rights to the products delivered by Socrates belong to Socrates, respectively the producer from whom Socrates obtains this software.
17.3 The aforementioned rights of custom software developed by Socrates also rest fully with Socrates, unless explicitly agreed otherwise. Socrates will, if agreed, deposit the source code of such software with an independent third party. The costs of the deposit will be borne by the Other Party.
17.4 In the event of violation of any provision of this article, the Other Party will forfeit an immediately due and payable fine of Eur 50.000, not subject to judicial moderation, for each violation to be increased by a fine of Eur 500 for each day that this violation continues, all this. without prejudice to Socrates' rights to claim damages actually suffered.
C. SPECIAL TERMS AND CONDITIONS RELATING TO RENTAL
18.1 These general terms and conditions also apply to agreements for rent and lease with tenants or the Counterparty of Socrates equipment, hereinafter referred to as “tenant”, if and insofar as these terms and conditions are not expressly deviated in writing in those individual rental agreements.
19. DURATION OF RENTAL AGREEMENT
19.1 The term of hire and lease is agreed in writing.
19.2 The tenant will ensure the timely return of the rented property or - depending on what has been agreed - enable Socrates to return the rented items or have them retrieved in a timely manner. It is not permitted to exceed the rental period without the written consent of Socrates.
19.3 In the event of a written exceeding of the lease terms, the tenant will owe a fee in accordance with the generally applicable daily rate stated in the Socrates price list.
19.4 In the absence of timely return of the rented property, without agreement of extension of the rental period, the tenant will owe an immediately payable penalty per day, in addition to the aforementioned daily price, without notice of default, equal to double the daily price, regardless of the right to further compensation, if the actual damage suffered should be higher, in particular if the items rented to the tenant are let by Socrates to a third party.
19.5 Rental days include 24 hours, starting at 9.00:XNUMX am.
20. RENTAL RATES
20.1 Rental prices are based on payment within thirty days, excluding operation, transport, setting up and connecting the equipment, excluding VAT, and ex-Socrates location, where the equipment will be checked for correctness in the presence of the Other Party or a third party designated by him. operation.
20.2 If the Other Party so desires, instructions will be given against payment. In principle, standard equipment is rented out.
20.3 Rental prices for follow-up days only apply for an uninterrupted rental period. In case of late return, the daily rate applies to rental of one day.
20.4 If services are provided by Socrates for the benefit of the (operation of) rented equipment, these will be charged on the basis of subsequent calculation. Socrates is not bound to such services without written agreement.
21.1 The equipment to be hired out is in a good state of repair. Socrates is not liable for damage as a result of standstill, malfunction or malfunctioning of the rented property or a part thereof, or for damage caused by the services of personnel made available, except in the case of intent or gross negligence on the part of Socrates management. In all cases, any liability of Socrates for consequential damage - including but not limited to lost income or costs of replacement equipment hired by the Other Party on its own initiative from a third party - is excluded. If Socrates is nevertheless held liable by a competent court for damage that has occurred, its liability will never exceed the agreed rental sum with regard to the defective device in question, or, at Socrates' choice, the time to be agreed upon in mutual consultation. making available equivalent, or at least adequate, equipment.
22.1 The tenant or the Other Party indemnifies Socrates in the event that third parties hold the tenant or the Other Party or Socrates liable as a result of the use or the arrangement of the rented property by or for the benefit of the Other Party or the tenant.
23.1 The other party or tenant is liable for all damage and / or losses to the rented object that occurs during the rental period due to whatever cause.
23.2 The other party or tenant is itself responsible for the effective insurance of the rented property, unless explicitly agreed otherwise in writing.
23.3 The other party or tenant is liable towards Socrates for an amount at least equal to the purchase costs of replacement equipment, the costs of replacement, possible loss of rental income during the lack of the rented property for Socrates as well as possible damage that Socrates will suffer in this respect as a result of this loss. .
23.4 In the event of loss, damage or any defect in the rented object, the other party or tenant will immediately inform Socrates in the fastest way and confirm this in writing to Socrates in any case within 24 hours after discovery. The other party or tenant will at all times give Socrates the opportunity to inspect the rented property, while Socrates has the right to take back the rented property - during the rental period - for technical inspection / maintenance.
24. EQUIPMENT HANDLING
24.1 The other party or tenant undertakes to treat the rented object carefully in accordance with Socrates' technical regulations. The Counterparty or tenant is not permitted to change or repair any part of the rented property and / or to use software other than that prescribed by Socrates.
25.1 The rights of the Other Party or tenant from the rental agreement are not transferable. The other party or tenant may use the rented property on the basis of the rental agreement at the location indicated in the rental agreement, unless otherwise agreed in writing.
26.1 Without prejudice to the provisions of article 10 of these terms and conditions, Socrates is entitled in the event of non-compliance, late or improper fulfillment by the Other Party or tenant of any obligation of the lease, to dissolve the lease without any reminder or judicial intervention extrajudicially, or for the whole or for the part that has not been complied with, in which case Socrates is entitled to take back the rented goods on its own authority, without prejudice to the liability of the Other Party or tenant of any remaining rent and without prejudice to the right to full compensation.
27.1 In the event of full or partial cancellation of the lease by the Other Party or tenant less than 24 hours before the agreed commencement time, the full agreed amount remains payable for the full lease term, unless otherwise agreed in writing in an individual case.
Amsterdam, July 2015