GENERAL TERMS AND CONDITIONS CTOUCH EUROPE B.V.
1.1 These General Terms and Conditions apply to all offers, quotations and agreements and obligations resulting therefrom in respect of delivery of products, services and/or user (licenses) established by the private company CTOUCH Europe, located and having its office in Eindhoven, referred to as CTOUCH Europe B.V., to or on behalf of Client. CTOUCH Europe is also engaged under the trade names Communicator Nederland, Communicator Europe, CTOUCH, CTOUCH International, C-Lift, Communicator and Leddura.
1.2 If specific provisions of the Agreement are inconsistent with these Terms and Conditions, the provisions of the Agreement shall prevail.
1.3 Any deviations of the provisions of these General Terms and Conditions shall be valid only if agreed in writing. Deviations are only related to the Agreement to which they are made.
1.4 General purchase conditions or other terms and conditions of the Client shall not apply to the legal relationship between the Client and CTOUCH Europe and are hereby expressly disclaimed.
Under the following with any indicated initial capital concepts, the following will be defined:
Equipment: the equipment, including the system software, which is used on the location of the client for the benefit of the service is used by CTOUCH Europe.
Services: all established services based on an agreement between CTOUCH Europe and the Client;
Documentation: technical and functional specifications, user manuals in any form whatsoever.
User: employee of the Client who has authorization for the use of the Services.
Intellectual Property: patent, copyright, trademark, design and model rights and/or other (intellectual property) rights and, whether or not patentable, technical and/or commercial know-how, methods and concepts.
Materials: the media on which the Software is saved.
Inadequacies: the failure of the Services to the specifications or Service Levels as defined in the Agreement.
Client: the contractor who enters into an agreement with CTOUCH Europe.
Agreement: an agreement with annexes concluded between CTOUCH Europe and the Client.
Staff: The employees and/or agents of CTOUCH Europe who will work under responsibility of CTOUCH Europe for the execution of an Agreement.
Software: computer programs also including system software, application software, and user interfaces with associated documentation and materials.
Supplier: third party engaged by CTOUCH Europe for the execution of the Agreement.
Confidential Information: any information provided verbally or in writing by either party of which is absolutely clear that it is confidential and any information that the party indicates that it should be treated as confidential; under confidential information will in any case be understood. This list can't be considered exhaustive:
- the identity of the Client and other business relationships or potential clients and business partners; names, addresses and telephone numbers of individual contacts;
- substantive information, whether or not detailed, the services, ongoing contracts and quotations;
- messaging and computer data;
- personal data;
- price fixing, marketing strategies, product strategies and internal and external processes;
- technical and commercial know-how;
- set budgets, made budgets and other non-public financial information;
- management policy and other business strategies.
Goods: the goods to be delivered to the Client by or on behalf of CTOUCH Europe under an agreement.
3. Offers and development of agreements
3.1 All offers made by CTOUCH Europe are valid for thirty (30) days and are offered without any obligations. CTOUCH Europe reserves the right to revoke an offer that is made within seven (7) days after acceptance.
3.2 If the acceptance of the offer made by CTOUCH Europe is deviated, this acceptance will be considered by CTOUCH Europe as an invitation to make an offer. If she wants to accept it, CTOUCH Europe will do a new offer, to which Articles 3.1 and 3.2 will apply again.
3.3 Unless CTOUCH Europe withdraws its offer, a contract is established by written acceptance by the Client for the offer of CTOUCH Europe. The Agreement may be concluded electronically. The electronic signed agreement is concluded after CTOUCH Europe has expressly confirmed the assignment by email.
3.4 The Client is bound after he has given CTOUCH Europe an assignment or has accepted an offer made by CTOUCH Europe. By deviation from the provisions of article 6:225 paragraph 2 of the Dutch Civil Code also doesn't bind a an offer on minor points deviating acceptance of the Client CTOUCH Europe, but an Agreement is concluded on the terms and conditions of the offer.
3.5 CTOUCH Europe is not bound by the content of advertising material, brochures, printing or any other form of expression, unless the Agreement concluded between the parties have expressly referred this.
3.6 The Client must notice CTOUCH Europe of any changes in the information that he has completed in the Agreement.
4. Obligations CTOUCH Europe
4.1 To the extent that the Agreement or otherwise expressly stipulated in writing, CTOUCH Europe will endeavor that the delivered Goods that are sold by him, are free from defects in materials, design and workmanship.
4.2 CTOUCH Europe will endeavor to ensure that the services provided by him comply with the agreed conditions specified in the Agreement.
5.1 Complaints about improper or incomplete delivery of Goods and Services must be submitted in writing to CTOUCH Europe immediately after discovery of the defect. Complaints about inadequate or incomplete delivery of Goods shall be submitted in writing to CTOUCH Europe within eight days of receipt of the services and/or goods.
6. Modification of the Services
6.1 The Client has at all times the right to request to CTOUCH Europe to change reasonably the scope of the services to be provided by CTOUCH Europe in accordance with the Agreement,
6.2 CTOUCH Europe will specify in writing what are the consequences of the modification with respect to the Services and Service Levels and the cost of the work within a reasonable time after such modification instruction. The Client is entitled until eight (8) calendar days after receipt of the specification, to withdraw or modify the change order.
6.3 CTOUCH Europe is entitled to change the Services in reasonable judgment. CTOUCH Europe is not responsible for the resulting costs for the Client. An adverse modification for the client of the applicable Services must be announced in writing at least one month prior to the initiation of the change. When the agreement or these conditions do not provide the modification of the Services, the client has the right to terminate the current agreement within eight days after such adverse modification takes effect.
6.4 A modification in the reasonable judgment of CTOUCH Europe which requires a significant modification on the part of the Client, will be communicated to the Client as soon as possible. The client cannot claim compensation for damages.
6.5 CTOUCH Europe is entitled to put (temporarily) out of use without prior notice the System and/or the Services or to limit the extent necessary for the required reasonable (urgent) service to improve the system's use and/or Services and/or to limit (further) damage to the Client, User and/or CTOUCH Europe and without being entitled to any compensation from the Client or User towards CTOUCH Europe. CTOUCH Europe will inform the Client and/or user about this afterwards.
6.6 If, following the conclusion of the agreement, CTOUCH is not in a position to deliver the product and/or service offered by it, for example because the relevant product is no longer available, CTOUCH is instead entitled to deliver a reasonable alternative of the same value without requiring an amendment to the remainder of the order. If this alternative has a different price, the Client is bound to that price.
7. Obligations Client
7.1 The Client is obliged within the offer(s) or resulting contract(s) specified term(s) to provide all necessary reasonable cooperation, required for the delivery of the Goods and Services.
7.2 The Services, Goods, and use that are provided or supplied by CTOUCH Europe under the Agreement may be used only for lawful and legitimate purposes. Moreover, this may only be used in a way that does not infringe the rights of third parties, including but not limited to intellectual property rights.
7.3 The Client guarantees that third parties who are within its sphere of influence will always comply strictly and faithfully the obligations under the Agreement and these terms and conditions. To the extent that the obligations of these third parties are also the obligations of the Client himself.
7.4 The Client is always responsible for any use, also including unauthorized use, which is made of the Goods and Services.
7.5 The Client will inform CTOUCH Europe as soon as possible in writing any changes about relevant information concerning the Client.
7.6 The Client must adhere to the (technical) rules, conditions and procedures, which are provided by or on behalf of CTOUCH Europe or as defined in the Agreement or these General Terms and Conditions.
7.7 The Client shall refrain from interfering with CTOUCH Europe and other users of the services of CTOUCH Europe and/or damaging the service transactions of CTOUCH Europe. The client can't use processes or programs of which the Client knows or could reasonably suspect that this may interfere with or cause damage to CTOUCH Europe or users of the services of CTOUCH Europe.
7.8 The Client and/or User is not allowed to use the Goods and Services for (sending or posting) unlawful content or other illegal messages, codes or content or any actions and/or behaviors that are contrary to applicable laws, self-regulation, the generally accepted standards of the Agreement or these Terms and Conditions.
7.9 The Client and/or User is not allowed to transfer the manual or other rights arising from the Agreement to third parties or give it in use to third parties, unless CTOUCH Europe has given express written consent to third parties to use the manual.
7.10 The Client is obliged to follow reasonable instructions of CTOUCH Europe concerning the use of the Goods and Services. The Client is expressly prohibited to make available the Goods and Services as well as the Software issued by CTOUCH Europe to third parties. The Client is liable for any (un)authorized use of Goods and Services by third parties.
8.1 Agreed deadlines for the supply of Goods and Services CTOUCH Europe start first, after the Client has provided all the necessary information and Goods to CTOUCH Europe for the performance of the contract.
8.2 Unless expressly agreed otherwise, these dates are agreed target dates.
8.3 CTOUCH Europe is never in default by the mere expiry of the agreed deadlines. There is always a written notice of default required. CTOUCH Europe will be granted a reasonable period which is still to fulfill, which will amount at least 14 days.
8.4 If CTOUCH Europe provides that she will not be able to comply the obligation under the Agreement within the prescribed period, she will inform the Client immediately concerning the delay in the execution of the Agreement on written notice, specifying the cause of the delay, as well as the proposed action by CTOUCH Europe to prevent or undo the (imminent) delay.
9.1 Unless otherwise agreed, the by CTOUCH Europe offered and/or by the parties agreed prices are excluded from turnover tax, ex Works (Article 11.1).
9.2 CTOUCH Europe will be entitled to modify his rates if the market conditions and external factors result CTOUCH Europe that the agreed prices cannot be maintained. An adverse modification for the client of the applicable rates must be announced in writing at least one month prior to the initiation of the modification.
10.1 Unless otherwise agreed, the agreed compensation shall be paid by the Client within the period specified in the Agreement, but in no event later than 30 days after the invoice date. The client is never entitled to deduct the pretended liabilities of CTOUCH Europe with the bills of CTOUCH Europe. If necessary, the Client must renunciate his rights in that regard. Any dispute between the Client and CTOUCH Europe will never lead to empowerment to rescind the Client's incumbent (paying) commitments.
10.2 Billing and payment are made in Euros.
10.3 CTOUCH Europe will send single invoices to the Client, specifying the items to which the invoice relates.
10.4 If CTOUCH Europe cannot deliver the Goods and Services according to the Agreement by CTOUCH Europe by not attributable conditions (including the conditions referred to in Article 18), the payment obligations of the Client will be maintained.
10.5 If the Client has not paid the invoice after the expiry of the period referred to in Article 10.2, the Client shall be in default and he will be owed an interest charge, calculated on an annual basis, equal to the composite statutory commercial interest, and he will also pay be the actually extrajudicial costs, at least according to the report Voorwerk II of the Dutch Association for the Judiciary.
11. Delivery and Reservation of title
11.1 Unless expressly agreed otherwise CTOUCH Europe delivers the goods to the Client at the premises of CTOUCH Europe (storage, shed, factory). The client is responsible for all costs and risks associated with the packing, loading, transport from the premises of CTOUCH Europe to the desired destination. The Client is therefore also responsible and liable for loading and customs clearance as well as the insurance of the goods.
11.2 Any products supplied by CTOUCH Europe shall not become the property of CTOUCH Europe until after Purchaser has fully complied with all the payments, including any interest and collection costs.
11.2 If the supplied (also) contains a right to use Intellectual Property Rights, as in the case of software, the client will be owner after payment of the physical medium (USB-stick, CD-ROMs, etc.) and the client will receive a license for the duration of the Agreement and subject to the conditions contained in the Agreement.
12. Intellectual property
12.1 Unless otherwise agreed in writing, the Intellectual Property regarding any Software, Documentation and/or that is made available by CTOUCH Europe, will remain with CTOUCH Europe or its Supplier.
12.2 Where applicable, the Client will only receive a non-exclusive and non-transferable right for the use of the Software, Documentation and/or Materials. The license may be used in the context of the use of the Services.
12.3 The license is given for the duration of the Agreement (including any extension thereof). The fee for the right to use the Software, Documentation and/or Materials shall be considered to be included in the price the Client will pay to CTOUCH Europe, which is payable according to the Agreement.
13.1 Notwithstanding the granted responsibilities to the Client according to the Agreement and Terms, both parties will keep confidential any Confidential Information, whether it is written or communicated verbally.
13.2 Except with the prior written consent of the other party, every party won't make available information and data carriers which are at his disposal, not what beyond the bounds of the Agreement and/or Terms and Conditions is permitted, to third parties and its staff and extent according to the Agreement and/or Terms and Conditions is permitted only to them, to the extent permitted and required to perform the agreed services.
13.3 The Parties will obligate their staff and any third parties to comply with these confidentiality provisions.
13.4 Neither party will make mention without written consent of the other party in publications or advertising the details of the Agreement and/or Terms and Conditions.
14. Transfer of rights and obligations; subcontracting
14.1 Parties are not entitled to the rights and obligations under the Agreement and / or Terms and Conditions without the written permission of the other party to third parties, except the right to payment. Parties may alienate such right to payment and objections and will therefore, if necessary, give each other consent in advance.
14.2 However, CTOUCH Europe is authorized to transfer to a third party his rights and obligations under the Agreement and/or Terms and Conditions, on which it exercises control or with which it enters into a joint venture, if and insofar this not prejudice the interests of the Client in reasonableness and that they notify the Client in writing.
14.3 CTOUCH Europe is responsible for the execution of an Agreement and/or Terms to use the services of subcontractors and other third parties.
14.4 CTOUCH Europe exercises the greatest possible care in the selection of its Suppliers.
15.1 If either party fails to fulfill any of its obligations under the Agreement and/or Terms and Conditions, therefore the other party will put him in default, unless fulfillment of that obligation is permanently impossible, in which case the defaulting party is immediately in default. The notice of default shall be in writing, giving reasonable time to the defaulting party to allow fulfilling its obligations.
15.2 If CTOUCH Europe is liable, the compensation obligation (including the possible reversal obligations) of CTOUCH Europe is limited to a maximum of € 1000, - For this compensation, the following damages will be taken into consideration:
- damage to hardware, software, data carriers, data files and configuration data of data communication equipment within the domain of CTOUCH Europe, which will mean:
– material damage and malfunction;
– material damage to (other) properties of the other party or third parties;
- costs of necessary changes and/or changes in the domain of CTOUCH Europe in hardware, software, specifications, materials or documentation caused for direct damage or repair;
- reasonable costs incurred by the Client for the prevention or mitigation of direct damage that may be expected as a result of the event in which the liability rests with CTOUCH Europe;
- reasonable expenses incurred to determine the cause of damage, liability, damages and direct the manner of recovery rests with CTOUCH Europe;
- reasonable expenses incurred to determine the cause of damage, liability, direct damages and the manner of recovery;
- insofar as the Client has made a backup of the concerning files and to the extent that the insurer of CTOUCH Europe compensates the damage.
15.3 Any liability of CTOUCH Europe for consequential damages is excluded. In this case consequential damage also means:
- loss of profits;
- costs incurred to prevent, limit or determination of consequential damages;
- other damage than direct damages referred to in Article 16.3, including, but not limited to consequential loss or damage of data.
15.4 Emergency and/or maintenance work, both to improve the services to be announced in advance as much as possible. CTOUCH Europe is not liable for damages resulting from failure and/or unavailability due to reasonably required maintenance or related to Services.
15.5 The Client is liable for all use made by the Client of the Services or other services rendered or provided by CTOUCH Europe.
15.6 Damage referred to in this article will, as soon as possible but no later than two weeks after its occurrence be reported in writing to CTOUCH Europe. Damage that has not been noticed to CTOUCH Europe within that period, is not recoverable unless the Client makes plausible that he was unable to report the damage earlier.
15.7 All claims and actions against CTOUCH Europe become prescribed, except mandatory provisions of law, after half a year after the day on which the relevant event occurs or the relevant obligation of CTOUCH Europe becomes due.
16.1 The Client will indemnify CTOUCH Europe for all claims of third parties for any reason whatsoever related to or arising from the use of Goods and Services or other services and/or Goods provided by CTOUCH Europe (including liability for infringing the (intellectual property) rights, infringement privacy and transborder data flows, and will reimburse CTOUCH Europe for all the costs, damages and fines of those claims.
17. Force Majeure
17.1 If after the conclusion of the Agreement circumstances arise with CTOUCH Europe or his subcontractor, which at the moment of conclusion of the Agreement CTOUCH Europe didn't know about these, as a result that CTOUCH Europe cannot (timely) fulfill his obligations towards the Client CTOUCH Europe will not be in default and will be entitled to suspend his obligations. The Client is entitled to suspend its obligations until CTOUCH Europe has met the payment obligations.
17.2 If as a result of the above conditions, fulfillment is permanently impossible by CTOUCH Europe, he will have the right to demand that the Agreement shall be modified so that the execution is still possible, unless the circumstances can't require the fulfillment anymore and termination is justified. In the latter case, the Agreement shall be dissolved without the Purchaser can assert any right to compensation.
17.3 Under the aforementioned circumstances is also understood each independent circumstance of the will of CTOUCH Europe that temporarily or permanently prevents the fulfillment of the Agreement, including but not limited to malfunctions in the connections to the Internet and other failures or interruption of telecommunication connections or other telecommunication facilities, cable break, slow connections, power outages, war (danger), terrorist attacks, riots, strikes, (natural) disasters, accidents, governmental action, delayed/lack of supply to CTOUCH Europe (including fuel, energy and water), transport difficulties , fire and failures in the company of CTOUCH Europe and other circumstances beyond the control of CTOUCH Europe, which are or are not reasonably foreseeable to him.
17.4 If one of the parties cannot fulfill for a period exceeding 30 days as a result of force majeure in which case he imputably fails in his obligations under the Agreement, the other party may terminate the Agreement by means of a registered letter with immediate effect without dissolvement, without any right to compensation. If the non-compliance by CTOUCH Europe doesn't distort seriously the continuity of services, the aforementioned period will be extended by another 30 working days.
18. Right of suspension
18.1 CTOUCH Europe has the right to suspend, putting out of operation and/or limit (temporary) the use of the use rights, if the Client and/or user don’t fulfill any obligation to CTOUCH Europe fails or acts contrary to the Agreement and/or these Terms and Conditions. CTOUCH Europe will notice the Client in advance, unless this cannot be reasonably required from the CTOUCH Europe.
18.2 For the effects of the previous paragraph, CTOUCH Europe shall never be liable to the Client and/or third parties.
19. Personal data
19.1 Insofar as the Customer and CTOUCH are responsible for the processing of personal data pursuant to or in connection with the Agreement, they must each comply with the regulations insofar as this is required by the laws of each of the parties. The Customer guarantees to CTOUCH that he has obtained all the powers necessary for the lawful processing of personal data before the personal data is passed on to CTOUCH.
19.2 To the extent that CTOUCH processes personal data for the Customer, CTOUCH must ensure that adequate protection measures are in place to safeguard such personal data. CTOUCH will make reasonable efforts to assist the Customer in fulfilling his obligations as a data controller and responding to requests for inspection of the Customer's files by persons to whom the personal data relates, whereby the Customer shall owe a reasonable professional reimbursement to CTOUCH for the time that its staff spends doing this.
19.3 The Customer grants CTOUCH the authority to collect, use, store and transfer the personal data that he provides to CTOUCH to enable CTOUCH to comply with its obligations under the law and the Agreement and any specified purposes in accordance with Agreement.
19.4 During the course of normal business operations, CTOUCH may transfer personal data in its enterprise systems to other entities, representatives or subcontractors worldwide within the same group or to other relevant business partners who may occasionally have access to personal data. In the event of such a transfer, CTOUCH shall ensure that adequate security is in place to secure the personal data transferred under or in connection with this Agreement.
19.5 CTOUCH is not liable for any claim that the Customer or the person concerned brings due to an act or omission by CTOUCH insofar as such act or omission is the result of compliance on the part of CTOUCH with the law or the instructions of the Customer.
20. Duration and termination of the Agreement
20.1 The term of the Agreement shall commence on the date specified in the Agreement or for a period also specified therein. Unless expressly agreed otherwise in writing, the Agreement will be valid for a period of one calendar year. After the expiry of the term, the Agreement shall be extended by another calendar year unless the contract is terminated with a notice period of three months. Early termination does not lead to a refund of funds already paid to CTOUCH Europe and let the payment of Client unaffected. If a contract for a specified period or for a specific service is entered into this Agreement, it can't be terminated by the Client. In the event a contract for a fixed period is extended, it is implicitly concluded on the same terms as agreed in the initial contract, with the exception of the possibility of price adjustment by CTOUCH Europe as referred to in Article 9 of these conditions.
20.2 Notwithstanding the other provisions, the parties are entitled without notice or judicial intervention, by registered writing with immediate effect to terminate the Agreement:
a. each party, if and when:
- to the other party (provisional) suspension of payment is granted and the (provisional) moratorium period exceeding one-third of the then current term of six months' duration;
- the other party is declared bankrupt;
- the business of the other party is liquidated or ceases;
- the other is not (any longer) able or not willing to fulfill its obligations under the Agreement and/or the Terms of commitments;
b. CTOUCH Europe, if the Client:
- fails to fulfill (timely) payment or any other obligation under the Agreement, or fails to fulfill it promptly; CTOUCH Europe is nevertheless entitled to the funds that he has received or would receive if properly executed;
- acts contrary to intellectual (property) rights of third parties or applicable legal rules;
- makes improper use of the services of CTOUCH Europe.
20.3 Upon termination of the Agreement, the Client will return to CTOUCH Europe all the information in possession of CTOUCH Europe concerning the Agreement, except for the Agreement itself, and won't retain any copies. Furthermore, the Client will no longer use the Services.
20.4 If the Client is in default and fails to fulfill (timely) payment or any other obligation under the Agreement or fails to strictly comply with CTOUCH Europe and for that reason the Agreement terminates or is terminated, CTOUCH Europe is entitled without prejudice to its other rights under the Agreement:
- to suspend its participation in the transition of the Services to another supplier or to connect terms (including full payment and/or collateralization);
- in the case of domain registration: to eliminate the registration of the internet domain name of the Client.
20.5 Obligations which by their nature will continue even after the termination of the Agreement will be valid even after the termination of the Agreement.
21. Dispute settlement
21.1 The Agreement and its commitments are controlled exclusively by Dutch law.
21.2 In respect of any disputes, the Judge 'in s-Hertogenbosch will be authorized, unless the law mandatorily appoint another judge.
22. Final Provisions
22.1 Changes and additions to the Agreement and/or Terms and Conditions are only valid if the parties have agreed this in writing. .
22.2 Notices to Parties under the Agreements and/or Terms have to be done in writing:
22.3 Oral statements, promises or agreements have no legal effect unless confirmed in writing. The nullity or non-validity of any of the provisions of the Agreement and/or Terms and Conditions shall not affect the validity of the remaining provisions. Parties commit themselves to enter into consultation about new provisions to replace the invalid or non-legal provisions, maintaining the utmost of the tendencies of the invalid or non-legal provisions.
22.4 In case of mergers, reclassifications and/or privatizations on the part of the Client, the parties will consult about the consequent impacts on the Agreement.
22.5 During the term of the Agreement, the parties shall not hire, without the prior written consent of the other party, the employee(s) of the other party, or otherwise to work for themselves.
22.6 If one or more provisions of these terms and conditions are void or voidable, the validity of the remaining provisions won't be affected. In the event of invalidity of one or more provisions of these terms and conditions, the parties are bound by rules with the similar effect, which is not subject to nullity.