General sales and delivery conditions of NoorderSoft B.V.
Article 1 Applicability
These conditions are applied to all offers, agreements and contracts of NoorderSoft b.v., hereafter to be called NoorderSoft.
Article 2 Rates
a. Offered of agreed rates imply delivery by mail from NoorderSoft and include all taxes, emballage, forwarding and other delivery costs unless it is specified that one or more of these are excluded.
b. Installation costs, special assembly costs and other special expenses of the delivery are only included if they are explicitly specified in the offer.
c. Offered rates must explicitly specify their applicability as such; in other cases they are to be considered as price indications.
Article 3 Cancellation
Orders can be cancelled within 14 days of delivery, but only after notifying Noordersoft. The buyer has to pay the cost for returning the physical goods. In case of a cancellation of an order the buyer is bound to full compensation, inclusive loss of profit. This compensation will at least equal the full amount of the suffered loss.
Article 4 Delivery
Indications of delivery terms in offers, agreements and contracts are made up in good faith and will be met optimally; yet NoorderSoft cannot be held to them. When a delivery term is extended NoorderSoft will contact the buyer. NoorderSoft can only be held responsible by means of a written claim.
Article 5 Obligation to buy
a. Buyer is obliged to cooperate with the delivery of the goods or services, in which the obligation to accept the bought goods or services is implied.
b. Failure to accept the goods or services is supposed to have occurred if deliveries have appeared impossible. The day delivery has been attempted is considered as the day of delivery.
c. Delivery by ordinary mail executed by an habitual mail service provider in the country where the delivery takes place will be considered as a delivery even without proof unless the mail service provider will have duely returned the delivery to NoorderSoft, or unless the buyer can proof that he has not received the goods or services. It is the explicit obligation of the buyer to provide this proof.
d. If the buyer insists on a juridically guaranteed delivery (e.g. by registered mail or by registered parcel service) he will have to express this wish to NoorderSoft and he will be charged for the extra costs.
e. In case of a refusal to accept delivery buyer owes NoorderSoft an amount of money equal to the price of the refused goods or services, increased by the legal interest from the delivery day and by NoorderSoft’s expenses caused by the refusal. This does not implicate that any possible claim that NoorderSoft may have on buyer as a consequence of the refusal will be affected.
Article 6 Reclamations
a. The check of the amount, the state and the good working order of the delivery is up to the buyer. If the buyer does not inform NoorderSoft of any faults or errors as soon as possible, but ultimately within 14 days after the acceptance of the delivery, the delivery is considered to be according to the offers, agreements and contracts as far as the amount, the state and the good working order of the goods is concerned.
b. Other reclamations will have to be forwarded in writing and by registered letter not later than 14 days after the delivery of the goods.
Article 7 Payment
“Off the shelf” software is sent only after payment in advance of the full sum due. Other products and services can, unless agreed otherwise, be invoiced as soon as the delivery of the goods or services has been accomplished, or as soon as the buyer fails to accept the delivery. Payment is due within 30 days after the invoice date, in a way NoorderSoft must reasonably specify. NoorderSoft is entitled to require advance payments and to forward by “cash-on-delivery” mail and to require guarantees for a correct and timely payment. As of the due date buyer owes legal interests over his debts. Expenses of the collection of payments and of legal action to claim due payments, inclusive all expenses of external experts will be charged to the buyer. NoorderSoft is entitled to assess these expenses at 10 % of the due payments with a minimum of € 125,00.
Article 8 Honoration and bankruptcy
If the buyer does not honour an obligation which he has according to an agreement with NoorderSoft, or if the buyer is subject to a bankruptcy, moratorium, or letter of license or to a termination of activities or liquidation of the company, or if buyer hands over his company to others, or if the banks suspend his transfers, or if a seizure is laid upon him or his company, buyer is considered to neglect his obligations and NoorderSoft is entitled to cancel or postpone the concerned agreement without any obligation to compensate or indemnify and without prejudice to her rights, even if no notice of default or juridical intervention is applied. In those cases all claims NoorderSoft has on the buyer become collectible immediately.
Article 9 Proviso of property
a. All goods and products delivered by NoorderSoft remain her property until due payment of all claims resulting from the agreements concerned, included interests and expenses.
b. Until the moment full payment has been received buyer is not entitled to pawn or transfer or convey the goods or products to a third party or to move the products or goods outside of his company. Within the context of his normal practice buyer is entitled to sell the goods and products to third parties in conformity with their normal use.
c. Until full payment has taken place and as long as the buyer is in debt towards NoorderSoft or as long as NoorderSoft has good grounds to believe that the buyer will end up in debt, NoorderSoft may claim back the delivered goods or products within any prior notice. Buyer grants NoorderSoft the right to enter his properties and buildings. The agreements concerned may be cancelled without juridical intervention by NoorderSoft, not withstanding NoorderSoft’s rights to claim costs, damages and interest.
Article 9a Licences and copyrights
All copyrights of the standard software products are owned or managed by NoorderSoft. Even after the sale and due payment of the standard software products NoorderSoft will keep the ownership of these copy rights and all intellectual properties with regard to the software, the used data and the used data compression technologies.
The buyer is granted a license right by the sale and the due payment of the software. This license right is personal and cannot be passed on without explicit written consent of NoorderSoft. The license right provides the right to ONE simultaneous usage of the software by the holder of the license.
For the standard software products in which the license is contained in a so called “dongle” (license key), this dongle represents the TOTAL VALUE of the license! In case of damage or malfunctioning of the dongle, it will be replaced against payment of the replacement costs. In case of loss or theft of the dongle, or in all other circumstances where the dongle cannot be handed in, no replacement of the dongle is possible unless the license holder buys a completely new license.
Article 9b Licences and supporting services
Licence holders to one of the software products of NoorderSoft are entitled to a range of services that form an integral part of the software during the year for which their version is developed:
•access to downloads of so called “patches” (repair software for reported and repaired bugs and data inconsistencies),
•access to the downloads of stoppages in the network of navigable waterways;
•access to technical support, either by telephone or on line, with which problems, malfunctions and connection questions van be solved;
•access to yearly updates of the software at reduced rates, which are defined by the number of “bridged” year versions.
Although access to these services is not made impossible after the end of the year for which a version had been licenced, there’s no technical support anymore in case of problems or malfunctions with the use of these services, unless the software is updated to its most recent version. No guarantee can be given for the correct working of the stoppage lists, due to changed in the infrstructure. Stoppage lists are not maintained for software versions older than two years. Licence holders of software that has not been updated for two consecutive years will be charged if they require technical support.
Article 10 Exoneration
a. If NoorderSoft, due to shortcomings, become liable towards the buyer, the buyer must allow her to resolve these shortcomings or, if this is not possible, to take back the delivered goods or products with acquittal of the buying price. NoorderSoft can fully comply with the obligation to compensate the damage by paying the total of the true expenses of the buyer with a limit of 5 % of the buying price.
b. NoorderSoft will never be liable for more than the invoice total of the invoice concerning the delivery that caused her liability, increased with the 5 % mentioned in sub a. NoorderSoft does not recognize any liability for damages resulting from the use of her software or for the accuracy of the data therein.
c. NoorderSoft’s liabilitiy is explicitly limited to what is described in sub a. and sub b. of this article, so NoorderSoft can never be held responsable for any other damages, consequential damages and damages caused by or to third parties included.
d. Any right to compensation of damages ends in case of unjudicious use of the delivered goods or products or in case of service or maintainance executed by third parties.
Article 11 Force majeure
In case of force majeure or shortcomings for which NoorderSoft cannot be held responsible, NoorderSoft has the right to postpone execution of the agreement concerned or to fully or partially cancel the agreement with the buyer.
Article 12 Evidence
The administration and books of NoorderSoft are full evidence of buyer’s financial obligations towards NoorderSoft, unles buyer proves otherwise.
Article 13 Applicable law
In all matters concerning these conditions only Dutch laws are applicable. In case of nullity of one or more articles of an agreement between parties, those parties will be held to maximally corresponding rules, that are nót void.
Article 14 Disputes
All disputes in mattersto which these conditions apply, with the exception of the rights of the concerned parties to evoke decisions of the President of the County Court in summary proceedings, are subject to common justice in the district of Amsterdam or, if both parties require, to arbitration in conformity with the rules of the Nederlands Arbitrage Instituut in Rotterdam.