General conditions.

These general terms and conditions apply to all offers and agreements resulting therefrom between De Computerman Twente in Hengelo, Kamer van Koophandel 68103751 and its counterparties (“Principal”).

Terms or conditions set by the Customer that deviate from, or do not appear in, these general terms and conditions are only binding on De Computerman Twente if and insofar as this has been expressly accepted in writing.

1. Quotation and acceptance
   • De Computerman Twente will prepare an offer in which De Computerman Twente will indicate what work (“the Services”) De Computerman Twente offers to perform, what is included in the Services and what amount will be due for it. Only the description of the Services specified in the quotation is binding.
   • In general, the Services include maintenance of hardware and software, configuration and installation of hardware , configuration and installation of software, provision of hardware, remote support, on-site support, and anything related thereto. Other work will be performed only if specified in the quotation.
   • A quote is entirely without obligation and valid until withdrawn by De Computerman Twente, unless otherwise indicated in the quote. De Computerman Twente can never be obliged to accept an acceptance after this period, but if De Computerman Twente does so, the offer is still accepted.
   • The agreement is concluded at the moment the communication containing acceptance of the offer by the Client is received by De Computerman Twente. This communication may be made by e-mail.
   • If Client does not explicitly indicate his agreement with the quotation, but nevertheless agrees, or gives that impression, that The Computerman Twente performs work that falls within the description of the Services, then the quotation is considered accepted. This also applies when Client requests De Computerman Twente to perform certain work without waiting for a formal quotation.
   • Changing the Services is only possible with the agreement of both parties, except as otherwise provided elsewhere in these terms and conditions.De Computerman Twente will perform requested additional work at the usual hourly rate. Additional work will be indicated in advance.
2. Completion and acceptance
   • De Computerman Twente will deliver the result after execution of work or parts of it when it meets the specifications or is suitable for use in its professional opinion.
   • Client must then evaluate and approve or disapprove the deliverable within five working days of completion. If the Client does not reject the deliverable within this period, the deliverable shall be deemed accepted.
   • If work is delivered in phases, upon completion of each phase, Client shall give approval or disapproval of the portion of the work of that phase in the manner provided in the preceding paragraph. Client may not base an approval or disapproval at a later stage on aspects approved at an earlier stage.
   • If the Client disapproves of the deliverable in whole or in part, De Computerman Twente will make every effort to remove the reason for disapproval as soon as possible. The Computerman Twente can do this by revising the result or giving a reasoned explanation as to why the reason is not valid. Client then has another five business days to approve or disapprove the revision or motivation.
   • If, after the revision or motivation, the Client continues to reject all or part of the deliverable, De Computerman Twente is entitled to charge additional costs for all subsequent revisions. The Computerman Twente will indicate at the time of a revision whether additional charges will be due for subsequent revisions.
   • If a party indicates that it considers further revisions not useful (any more), both parties shall be entitled to terminate the agreement for the relevant Service. In that case, Principal will reimburse the actual hours incurred by De Computerman Twente, up to a maximum of the amount quoted for the rejected. However, this does not entitle Client to use the rejected in any way.
   • After acceptance of the work delivered, any liability for defects in the work delivered lapses unless De Computerman Twente knew or should have known of the defect at the time of acceptance. In any case, any liability for defects shall expire after the expiration of one year from the termination of the Agreement for any reason.
3. Provision of Services.
   • After the agreement is established, the Services will be performed by De Computerman Twente as soon as possible in accordance with the offer, taking into account reasonable wishes of the Customer.
   • The Client is required to do and omit to do all that is reasonably desirable and necessary to enable proper and timely performance of the Services. In particular, the Client shall ensure that all data, which De Computerman Twente indicates are necessary or which the Client should reasonably understand are necessary for the performance of the Services, are provided to De Computerman Twente in a timely manner.
   • Client will provide De Computerman Twente with access to all places, services and accounts under its control (such as web hosting accounts) that De Computerman Twente reasonably needs to provide the Services.
   • The Computerman Twente guarantees that the Services will be performed carefully, thoroughly and to the best of its ability. If a proper execution of the Services requires it, The Computerman Twente has the right to have certain activities performed by third parties. De Computerman Twente is and remains the responsible party towards the Client.
   • De Computerman Twente is entitled, but never obliged, to examine the correctness, completeness or consistency of the source materials, requirements or specifications made available to it and, if any imperfections are found, to suspend the agreed work until such time as the Customer has removed the imperfections in question.
   • Unless otherwise agreed, De Computerman Twente is not a party to the provision of third-party services, such as software licenses or hosting required by Services, even if De Computerman Twente purchases these services on behalf of the Customer.
   • De Computerman Twente has the right to (temporarily) not provide or limit the Services if the Customer fails to fulfill an obligation towards De Computerman Twente with respect to the agreement or acts in violation of these general terms and conditions.
   • De Computerman Twente will endeavor to respond to a request from the Client as soon as possible, but cannot make concrete commitments on times, unless otherwise agreed upon in the quotation.
4. Provisions on maintenance
   • Maintenance is defined as keeping existing hardware and/or software functioning in accordance with the quotation or further agreement, and more generally, repairing errors.
   • De Computerman Twente will make every effort to perform maintenance to the best of its ability, but is often dependent on its supplier(s) and third parties for updates, error repair software (“patches”) or spare parts. De Computerman Twente is entitled not to install certain updates or patches if, in its judgment, this does not benefit a correct operation of the software or is not in the interest of the Client.
   • As part of the maintenance, De Computerman Twente will make every effort to repair errors in the Works, such as websites, data files, software, documentation, advice, reports, analyses, designs, texts, photographs, films, sound recordings, images, audiovisual material, logos or house styles (hereinafter: “Works”) and associated software. However, the Computerman Twente is dependent on supplier(s) and third parties for this. In case of new functionality or changes that may substantially change the functioning of the software, De Computerman Twente will consult with the Customer in advance.
   • De Computerman Twente will make every effort to add changes to the software as requested by the Client. De Computerman Twente is always entitled to refuse a request if, in its judgment, it is not feasible or may hinder proper operation or availability of the software.
   • If, in the opinion of De Computerman Twente, a requested change may negatively affect the functioning or security of the software, De Computerman Twente will notify the Client in writing. If Customer nevertheless insists on the change and De Computerman Twente makes it, it will be done at Customer’s own risk and without any liability for De Computerman Twente.
   • If the Customer independently wishes to make a change to results delivered by De Computerman Twente, this will be done entirely at the Customer’s own risk and responsibility, unless the Customer has reported the desired change to De Computerman Twente in advance and De Computerman Twente has approved it in writing. The Computerman Twente may attach conditions to this approval.
5. Provisions on remote support
   • Remote support is provided by telephone, e-mail and other mutually agreed upon channels.
   • The Computerman Twente will, at the request of the Client, propose software by which computers to be supported can be remotely accessed. It is Client’s responsibility to ensure that its network and security environment allows this software to operate.
6. Sale of equipment
   • No warranties are given on equipment supplied under the Services, except to the extent done by the manufacturer or importer. Client should invoke these guarantees directly from this party. De Computerman Twente will mediate these claims upon request, but will not be liable if the manufacturer or importer refuses to repair or replace or charges for doing so.
7. Installation and configuration
   • De Computerman Twente will proceed in accordance with the quotation or further specification to configure and install equipment and software for the benefit of the Client in order to achieve a working environment.
   • The choice, purchase and management of the environment in which the configuration and installation will take place is solely and entirely the responsibility of the Client, except for equipment supplied under article ‘Sale of Equipment’. The Computerman Twente will provide instructions on the desired configuration. If the designated environment does not meet De Computerman Twente’s requirements, De Computerman Twente is entitled to refuse installation or configuration.
   • Client will, at the request of De Computerman Twente, grant employees and auxiliary persons of De Computerman Twente all necessary access to the environment to enable installation, configuration, maintenance and adjustments. Physical access to Client’s equipment will only occur when necessary, and only after prior consultation with Client.
   • If third-party software is installed, Client must have adequate licenses for it and ensure that the provisions contained therein are strictly observed. Customer indemnifies De Computerman Twente for claims of third parties regarding installation and licenses of the software, except insofar as the claims are the result of information or licenses provided by De Computerman Twente.
8. Development of works
   • If a Service extends to the development, configuration and/or adaptation of Works, De Computerman Twente has, unless otherwise agreed, the right to use images, software and components of third parties in the development, configuration or adaptation of Works.
   • The Computerman Twente is allowed to use open source software whose rights are held by third parties. This means, among other things, that De Computerman Twente may provide open source software to the Client and may incorporate open source software into Works that De Computerman Twente creates or modifies as part of a Service. If the license of certain open source software entails that Client can only distribute (parts of) the software as open source, De Computerman Twente will adequately inform Client about all applicable license conditions.
   • After delivery, the responsibility for proper compliance with the relevant third-party licenses when using the developed Works lies with Client.
9. Intellectual property rights
   • All intellectual property rights to all Services or Works developed or provided under the Agreement are vested exclusively in De Computerman Twente or its licensors. Only if explicitly stated in the quotation or separately explicitly agreed upon can rights be transferred to Client.
   • Client shall acquire only the rights of use and powers arising from the scope of the Agreement or granted in writing, and otherwise Client shall not reproduce or disclose the Works or other results of Services materials.
   • Client is not entitled to make changes to Works that it is granted the right to use, unless necessary for the intended use or to correct errors.
   • Client is not entitled to a copy of source files (such as image, website or software source code) of delivered Works unless explicitly and unambiguously agreed upon in writing.
   • The Client is not permitted to remove or alter any indication of copyright, trademarks, trade names or other intellectual property rights from the materials from Works licensed to it, including indications of the confidential nature and secrecy of the materials.
10. Prices and payment
    • Client shall pay for the Services the fixed amount(s) stated in the quotation. Client shall pay the entire amount upon completion of the work. Other amounts will be charged only if stated elsewhere in these terms and conditions.
    • De Computerman Twente will send an electronic invoice to Customer for the amounts owed by Customer.
    • The payment period for invoices is eight days from the date of the invoice, unless a longer payment period is indicated on the invoice. If Client fails to pay on time, he shall be in default by operation of law after the expiry of this period without notice of default being required. If an amount due is not paid within the payment period, statutory interest is due on the outstanding invoice amount.
    • If Customer believes that (part of) an invoice is incorrect, he must report this to De Computerman Twente within the payment term. The payment obligation of the disputed (but not the remainder) will be suspended until The Computerman Twente has investigated the report. If, after investigation by De Computerman Twente, it appears that the dispute was unjustified, the Customer must still pay the disputed amount within seven days.
    • In the event of late payment, in addition to the amount due and the interest accrued thereon, Client shall be liable for full compensation of both extrajudicial and judicial collection costs, including the costs of lawyers, bailiffs and collection agencies. In particular, in this case, The Computerman Twente is entitled to charge an administrative fee of €50.
    • The claim for payment is immediately due and payable in the event that Client is declared bankrupt, applies for a suspension of payments or a general attachment is levied on Client’s assets, Client dies, goes into liquidation or is dissolved.
11. Secrecy
    • The parties will treat information they provide to each other before, during or after the execution of the agreement as confidential when the information is marked as confidential or when the receiving party knows or should know that the information was intended to be confidential. The parties shall also impose this obligation on their employees as well as on third parties engaged by them in execution of the agreement.
    • De Computerman Twente will make every effort to avoid taking cognizance of data that the Customer stores and/or distributes through the hardware or software to which the Services relate, unless this is necessary for the proper performance of the agreement or De Computerman Twente is required to do so under a legal provision or court order. In that case, De Computerman Twente will make every effort to limit the knowledge of the data as much as possible, to the extent within its power.
    • De Computerman Twente may use the knowledge gained in the execution of the agreement for other assignments, as long as no information of the Customer in violation of confidentiality obligations becomes available to third parties.
    • The obligations under this Article shall survive termination of the Agreement for any reason for as long as the party providing the information can reasonably claim confidentiality.
12. Liability
    • De Computerman Twente is only liable to Principal in case of an attributable failure in the fulfillment of the agreement and only for substitute damages, i.e. compensation of the value of the omitted performance.
    • Any liability of De Computerman Twente for any other form of damage is excluded, including additional damages in any form whatsoever, compensation for indirect damage or consequential damage, damage due to loss of turnover or profit, damage due to loss of data as well as damage due to exceeding deadlines as a result of changed circumstances.
    • In case of liability under the first paragraph, the maximum amount De Computerman Twente is obliged to compensate will be equal to the amount owed for the relevant Service. This maximum amount will lapse if and insofar as the damage is the result of intent or gross negligence on the part of De Computerman Twente.
    • The liability of De Computerman Twente due to attributable failure to fulfill the agreement only arises if the Customer immediately and properly puts De Computerman Twente in default in writing, whereby a reasonable period is set to eliminate the failure, and De Computerman Twente continues to fail imputably in the fulfillment of its obligations even after that period. The notice of default must contain as detailed a description of the shortcoming as possible, so that De Computerman Twente is able to respond adequately.
    • In case of force majeure, which in any case includes malfunction or failure of the Internet, telecommunications infrastructure, power failures, civil unrest, mobilization, war, traffic congestion, strike, lockout, business disturbances, supply congestion, fire, flood, import and export barriers and in the event that De Computerman Twente is not enabled by its own suppliers, regardless of the reason, is not able to deliver as a result of which compliance with the agreement cannot reasonably be required of De Computerman Twente, the execution of the agreement will be suspended or the agreement will be terminated when the force majeure situation has lasted longer than ninety days, all without any obligation to pay damages.
13. Duration and termination
    • The agreement is entered into for the term necessary for delivery of the Services. The agreement may be terminated prematurely only as provided for in these general terms and conditions, or by agreement of both parties. Client may terminate the agreement prematurely upon payment of a lump sum equal to the hours incurred at the hourly rate applicable within De Computerman Twente.
    • After cancellation, termination or dissolution for whatever reason, De Computerman Twente is entitled to erase all data stored on his own premises for the benefit of the Customer as of the date the agreement expires. The Computerman Twente is not obliged in that case to provide Client with a copy of these data.
    • The agreement shall terminate automatically if a party is declared bankrupt, applies for a suspension of payments or general attachment of assets, dies, goes into liquidation or is dissolved.
14. Changes in agreement
    • After acceptance, the agreement may only be modified by mutual consent.
    • However, if the agreement is a continuing contract, De Computerman Twente is entitled once per calendar year to unilaterally modify or extend these general terms and conditions. To this end, it must give notice to Client at least two months before the adjustments or expansions will take effect. However, changes in the general conditions can never set aside a specific agreement.
    • If the Client objects within this period, De Computerman Twente will consider whether or not to withdraw the objectionable modifications or enhancements. The Computerman Twente will notify the Client of this decision. If De Computerman Twente does not wish to withdraw objectionable modifications or extensions, the Customer has the right to terminate the agreement as of the date they will take effect.
    • De Computerman Twente may at any time make changes to these terms and conditions if they are necessary due to changed legal regulations. Client cannot object to such changes.
    • The above rule also applies to prizes. De Computerman Twente may at all times pass on price changes imposed on him by suppliers to the Customer. Proof of the price change will be provided upon request.
15. Final Provisions
    • Dutch law applies to this agreement. To the extent not otherwise prescribed by the rules of mandatory law, all disputes that may arise from this agreement will be submitted to the competent Dutch court for the district in which De Computerman Twente is located.
    • If any provision of this agreement is found to be void, this shall not affect the validity of the entire agreement. The parties will in that case determine (a) new provision(s) as a replacement, which will give shape to the intention of the original agreement and these general terms and conditions as much as legally possible.
    • In these terms and conditions, “in writing” includes e-mail and communications by fax, provided that the identity of the sender and the integrity of the content are sufficiently established. The parties will endeavor to confirm the receipt and content of communications by e-mail.
    • The version of any communication received or stored by De Computerman Twente is deemed authentic, subject to proof to the contrary to be provided by the Customer.
    • Each party shall only be entitled to assign its rights and obligations under the agreement to a third party with the prior written consent of the other party. Notwithstanding this, De Computerman Twente is always entitled to transfer its rights and obligations under the agreement to a parent, subsidiary or sister company.