General terms and conditions
GENERAL TERMS AND CONDITIONS CASHDESK
ARTICLE 1. | DEFINITIONS
In these General Terms and Conditions, the capitalized terms set out below have the following meanings:
- CashDesk: the user of these General Terms and Conditions, with its registered office in Hoofddorp, listed in the Commercial Register under Chamber of Commerce number 69913439.
- Other Party: the natural or legal person, acting in the course of a profession or business, with whom CashDesk has concluded or intends to conclude a Contract.
- Contract: any agreement or Continuing Performance Contract concluded between CashDesk and the Other Party, by which CashDesk has undertaken to supply products, to provide services and/or perform work.
- Continuing Performance Contract: The Contract by which the parties undertake to deliver continuing, recurring or consecutive performances for a definite or indefinite period, such as with CashDesk software, VoIP telephony and maintenance contracts.
- Products: all matters, products and applications to be supplied to the Other Party under the Contract, including hardware and (cash desk) software, websites, mobile applications and/or VoIP.
- Services/work: all work and services which CashDesk has undertaken to perform under the Contract, including, but not limited to, the installation of hardware and/or software, design work and support.
- In Writing: both using traditional written communication and communication by e-mail.
ARTICLE 2. | GENERAL PROVISIONS
- These General Terms and Conditions shall apply to any offer made by CashDesk and any Contract concluded.
- These General Terms and Conditions shall also apply to any Contracts for the performance of which third parties are involved.
- The applicability of any general or other terms and conditions of the Other Party is explicitly excluded.
- The provisions in these General Terms and Conditions may only be derogated from in writing. If that which the parties have expressly agreed in writing derogates from the provisions in these General Terms and Conditions, that which the parties have expressly agreed in writing shall apply.
- If any of the present provisions are void or voidable, this will not bar the validity of the remaining stipulations. Should this be the case, then the parties shall be obliged to consult each other in order to make alternative arrangements in respect of the affected stipulation. In doing so, they shall observe the purpose and purport of the original provision as closely as possible.
ARTICLE 3. | OFFER AND CONCLUSION OF THE CONTRACT
- Unless a period for acceptance is stipulated, any offer made by CashDesk is free of obligation.
- The Other Party cannot derive any rights from any offers made by CashDesk which contain an obvious mistake or error, or which are based on incorrect or incomplete information provided by the Other Party.
- A combined quotation does not oblige CashDesk to perform part of the offer for a corresponding proportion of the quoted price.
- The Contract is concluded by offer and acceptance. If the acceptance of the Other Party derogates from the offer made by CashDesk, the Contract is not concluded in accordance with this derogating acceptance, unless indicated otherwise by CashDesk.
- If the Other Party concludes the Contract (partly) on behalf of another natural or legal person, he declares that he has the authority to do so by entering into the Contract. The Other Party, in addition to this natural or legal person, is jointly and severally liable for the obligations arising from that Contract.
ARTICLE 4. | CONTINUING PERFORMANCE CONTRACTS: (DURATION OF CONTRACTS AND TERMINATION)
- A continuing performance agreement is concluded for a definite period which is expressly agreed between the parties. If the Continuing Performance Contract is not expressly concluded for a definite period, it is deemed to have been concluded for an indefinite period.
- After the expiry of the agreed period, unless expressly agreed otherwise, a Continuing Performance Contract will be automatically renewed by the originally agreed period each time, unless the Continuing Performance Contract has been cancelled in accordance with the following paragraphs of this article.
- Unless otherwise agreed, a notice period of two months applies to Continuing Performance Contracts. Notice of termination takes effect at the end of the month. Notice of termination must be given in writing.
- If notice of termination is not given in time, the Continuing Performance Contract will end on the first possible end date.
- After expiry of the originally agreed period, CashDesk shall have the right to change the agreed prices every time. CashDesk will notify the Other Party of this price change before it takes effect, at least one month prior to that, plus the notice period which applies to the Contract.
ARTICLE 5. | PERFORMANCE OF WORK AND SERVICES
- Without prejudice to the specifications agreed between the parties, CashDesk shall perform the work and services as it sees fit.
- The Other Party must provide all the information that is relevant for the set-up and performance of the work and/or services, including the job specifications, to CashDesk in good time, correct and complete. The Other Party must also provide any requested assistance to CashDesk in the performance of the Contract. The Other Party shall take all reasonable measures to optimize the performance of the Contract. In addition, the Other Party is obliged to inform CashDesk of any facts and circumstances which may arise after conclusion of the Contract or not and which facts or circumstances can reasonably be expected to influence the timely and/or proper performance of the Contract.
- In the performance of the Contract CashDesk shall take the information provided by the Other Party as a basis. If CashDesk performs the Contract on the basis of incorrect or incomplete information provided by the Other Party, this can never be considered a failure by CashDesk and any damage or loss arising from this, including any additional costs incurred by CashDesk, is to be borne by the Other Party.
- If the work or services are performed at a location of the Other Party, the Other Party must ensure the correct and timely provision of any furniture, facilities and other conditions required for the proper performance of the work or services. In addition, the Other Party must make sure, at its own risk and expense, that the people employed by CashDesk can gain access to the place of work at the agreed time and carry out the work and services during normal working hours.
- If the work or services are carried out at a location of the Other Party, CashDesk must be able to use all the facilities at the location of the Other Party which can reasonably be required for the performance of the Contract, free of charge.
- If the work or services are carried out at a location of the Other Party, the Other Party shall guarantee that there is free parking available in the immediate vicinity of the place of work. If the parking facilities are not free of charge, these costs will be passed on to the Other Party.
- If the Other Party fails to fulfil his obligations as referred to in the previous paragraphs, CashDesk, without prejudice to the other provisions in these General Terms and Conditions, shall have the right to suspend performance of the agreement and pass any extra costs incurred, any delay/waiting hours and damage/loss suffered on to the Other Party.
ARTICLE 6. | DELIVERY OF PHYSICAL PRODUCTS
- If, within the framework of the Contract, physical products are supplied, this article will apply.
- If dispatch of the products has been agreed, CashDesk shall determine the means of dispatch and packaging of the products, unless expressly agreed otherwise.
- The dispatch costs will be charged to the Other Party by CashDesk, unless expressly agreed otherwise.
- The Other Party shall be obliged to take possession of the purchased products as soon as these are made available or delivered to him. If the Other Party for whatever reason refuses or fails to provide information or instructions necessary for delivery, the products will be stored at the risk and expense of the Other Party after having been warned about this by CashDesk. In that case, the Other Party shall owe all additional costs on top of the purchase price.
- The risk of loss and damage of the products shall transfer to the Other Party as soon as the products have actually been placed in the possession of the Other Party or a third party designated by him.
- CashDesk shall be allowed to deliver orders in consignments. If orders are delivered in consignments, CashDesk shall be entitled to invoice every consignment separately.
ARTICLE 7. | TERMS AND THIRD PARTIES
- If the Contract states a completion or delivery period, this is always an indicative, non-final deadline. CashDesk shall not be in default until after the Other Party has issued CashDesk with a written notice of default which states a reasonable period within which CashDesk is to perform the Contract, and performance has still not been forthcoming after the expiry of the latter period. The stated completion and delivery periods shall only commence once CashDesk has received all the information required for performance of the Contract from the Other Party.
- CashDesk shall be entitled at all times to have a third party perform all or part of the Contract. Sections 7:404 and 7:407(2) of the Dutch Civil Code do not apply.
- The obligations of the Other Party as referred to in these General Terms and Conditions shall also apply for the benefit of any third parties brought in by CashDesk.
ARTICLE 8. | EXAMINATION, COMPLAINTS AND WARRANTY
- As soon as the products are delivered, and as soon as the work or services are completed, the Other Party must examine whether that which has been delivered conforms to the Contract. If that which has been delivered, in the opinion of the Other Party, does not conform to the Contract, he must notify CashDesk of this without delay at the time of delivery.
- If the Other Party fails to complain in time, such a complaint from the Other Party will not result in any obligations for CashDesk and the delivered products/ work /services will be considered to conform to the Contract.
- The warranty on delivered products will be limited at all times to any manufacturer’s warranty, which is transferred to the Other Party.
- Complaints will be unfounded if a defect is the result of an external cause or cannot be attributed to CashDesk or its suppliers. This includes but is not limited to defects as a result of damage, incorrect or incompetent use and use contrary to the operating instructions, recommendations or other directions given by CashDesk or its suppliers.
- CashDesk reserves the right not to handle complaints if the Other Party has failed to fulfil all its claimable (payment or other) obligations towards CashDesk.
- If any (research or other) costs are incurred to establish a defect, these costs shall be borne by the Other Party, unless the complaint was submitted in time and considered well-founded by CashDesk.
- If a promptly submitted complaint is considered well-founded by Cash-Desk, CashDesk shall repair the faulty delivery without charge. In the event that delivered products cannot be repaired, CashDesk shall replace the faulty products without charge.
- Any complaints in respect of part of the delivery do not give the right to reject the entire delivery or refuse to accept delivery or performance of the undelivered part. Complaints will not affect any sound products, services or work already delivered or performed by CashDesk.
- Complaints will never suspend the payment obligation of the Other Party.
ARTICLE 9. | SOFTWARE AND SERVER MAINTENANCE
- CashDesk shall be entitled at all times to take any delivered software and services of which the use by the Other Party depends on the servers or other systems of Cashdesk, or any third party, out of use temporarily, entirely or partially, if this is appropriate for the maintenance, adaptation or improvement of the services, software, these servers or systems.
- The Other Party can never claim any damage as a result of the user and access restrictions as referred to in the previous paragraph.
- Non-urgent maintenance work will be carried out as much as possible at times at which this will cause minimum nuisance to the Other CashDesk can never offer any guarantee in this matter, however.
ARTICLE 10. | FORCE MAJEURE
- CashDesk shall not be obliged to fulfil its obligations under the Contract if and in so far as it is impeded in doing so by circumstances that are not its fault, nor if it is not accountable by law, legal act or according to generally accepted standards.
- If the force majeure situation renders performance of the Contract permanently impossible, or continues or will continue for more than three months, both the Other Party and CashDesk shall be entitled to terminate the Contract with immediate effect.
- If, when the force majeure situation occurs, CashDesk has already fulfilled part of its obligations, or can only fulfil part of its obligations, it shall be entitled to invoice the already performed part of the Contract or the part that can be performed separately, as if it were a separate Contract.
- Damage or loss caused by force majeure will never qualify for compensation.
ARTICLE 11. | SUSPENSION AND TERMINATION
- If the circumstances justify this, CashDesk shall be entitled to suspend performance of the Contract or terminate the Contract with immediate effect, if the Other Party fails to fulfil its obligations under the Contract properly, promptly or completely, or if circumstances which have come to the attention of CashDesk after concluding the Contract give good cause for concern that the Other Party will not fulfil its obligations.
- If the Other Party is in liquidation, any of his goods have been seized, or in cases where the Other Party otherwise cannot freely make use of his property, CashDesk shall be entitled to terminate the Contract with immediate effect, unless adequate security has been furnished for all payments that are and will be payable.
- CashDesk shall furthermore be entitled to terminate the Contract if circumstances arise which are of such a nature that performance of the Contract is rendered impossible or the Contract cannot reasonably be expected to be maintained in unmodified form.
- The Other Party can never claim any form of compensation in connection with the right of suspension and termination exercised by CashDesk under the terms of this article.
- Unless it is not attributable to him, the Other Party shall be obliged to compensate any damage or loss suffered by CashDesk as a result of the suspension or termination of the Contract.
- If CashDesk terminates the Contract under the terms of this article, all claims against the Other Party will be immediately due and payable..
ARTICLE 12. | PRICES AND PAYMENTS
- The offer will provide an estimate that is as accurate as possible of the price factors, which may include, but are not limited to, subscription rates, installation and other non-recurring costs, hourly rates and product prices.
- Unless expressly stated otherwise, all prices listed will be exclusive of VAT and delivery charges in respect of products.
- CashDesk shall always be entitled to claim full or partial payment of the agreed price in advance. If payment in advance has been agreed, CashDesk shall only be obliged to perform or continue to perform the Contract after that payment has been made in full. Unless expressly agreed otherwise, the product prices must be paid before or on delivery of the products in any case. The preceding sentence will apply equally to any installation costs.
- Payments must be made by transfer within the period stated on the invoice, in the manner prescribed by CashDesk, unless cash payment or payment by direct debit has been agreed.
- If payment by direct debit has been agreed, CashDesk shall be entitled to charge reasonable administration costs if a payment due could not be collected automatically. In that case, the Other Party shall be obliged to make the payment, including administration costs, by transfer within the period stated on the invoice and in the manner prescribed by CashDesk.
- If payment is not made in time, default of the Other Party will commence by operation of law, without further notice of default being required. From the day the default commences, the Other Party shall owe interest on the outstanding amount at 1 % per month, with part of a month being considered a full month.
- All reasonable costs, judicial, extra-judicial as well as enforcement costs, incurred to obtain the amounts owed by the Other Party, will be borne by the Other Party. If the default of payment of the Other Party concerns one or more instalments and the Contract is not terminated pursuant to article 11, the future instalments for the remaining Contract period will become immediately due and payable.
ARTICLE 13. | LIABILITY
- Intent and deliberate recklessness by CashDesk excepted, it shall never be liable for any damage or loss caused by data and other information being lost, switched or damaged. CashDesk shall never be liable for any damage or loss resulting from infringements by third parties on websites, applications and other software supplied by CashDesk, whether or not as a result of insufficient security.
- CashDesk shall never be liable for any damage or loss for which the product manufacturer bears product liability.
- CashDesk shall not be liable for any damage or loss resulting from a failure by the Other Party to perform the obligations arising from the law or the Contract, including damage caused by CashDesk using incorrect or incomplete information provided by the Other Party.
- CashDesk shall never be liable for any defects in the delivered products, work or services, or for any other results of a failure to perform of the agreed service properly, if this is the result of force majeure, or cannot otherwise be attributed to CashDesk.
- CashDesk shall not be liable for any damage or loss resulting from maintenance to be carried out on servers and other systems on which the services provided by CashDesk depend.
- Intent and deliberate recklessness by CashDesk excepted, CashDesk shall never be liable for any damage or loss resulting from programming errors within the applications, websites and other software. CashDesk shall also not be liable for any viruses or other harmful components that cause damage to the hardware or software of the Other Party or third parties.
- CashDesk shall make every reasonable effort to protect the delivered software and its systems against any form of unlawful use by third parties. CashDesk shall never be liable for any infringement of any (intellectual property or other) rights of the Other Party by third parties.
- CashDesk shall not be liable for any indirect damage or loss, also including any lost profit, incurred loss and loss due to business interruption. If CashDesk is liable despite the provisions of these General Terms and Conditions, only direct damage or loss may qualify for compensation. Direct damage or loss will be exclusively understood to mean:
- any reasonable costs to assess the cause and extent of the damage, in so far as the assessment relates to the damage or loss which qualifies for compensation within the meaning of these General Terms and Conditions;
- any reasonable costs incurred to make the inadequate performance by CashDesk comply with the Contract, in so far as these can be attributed to CashDesk, and;
- any reasonable costs incurred to prevent or limit damage or loss, in so far as the Other Party demonstrates that these costs have led to a limitation of the damage which qualifies for compensation within the meaning of these General Terms and Conditions.
- If the Other Party, in spite of the provisions of these General Terms and Conditions, claims compensation, any liability will be limited to the invoice amount of the Contract, at any rate to the part of the Contract to which the liability of CashDesk relates. If the Contract has a duration longer than six months, only the invoice amount for the last six months of the Contract will be taken into account in the calculation as referred to in the preceding sentence. The liability of CashDesk will never exceed the amount which is paid out to CashDesk in the given circumstances on the basis of any liability insurance taken out for this purpose.
- Without prejudice to the other provisions of these terms and conditions, the time limit for all claims and defenses against CashDesk will amount to one year.
- Except in the event of intent or deliberate recklessness by CashDesk, the Other Party shall indemnify CashDesk against any claims from third parties, for any reason whatsoever, in respect of compensation for damage, loss, costs or interests, directly or indirectly related to the services, work or products provided by CashDesk.
ARTICLE 14. | RETENTION OF TITLE
- CashDesk retains title of all the products it has sold and delivered until the Other Party has properly fulfilled all the obligations under the purchase agreement.
- The Other Party is not allowed to sell, pledge or otherwise encumber the delivered products in which CashDesk has retained title.
- If any third party seizes the products in which CashDesk has retained title, or intends to establish or exercise rights on these, the Other Party shall be obliged to notify CashDesk of this as soon as possible.
- The Other Party grants CashDesk or or any third party designated by CashDesk unconditional permission to enter all those places where the products subject to the retention of title are held. If the Other Party is in default, CashDesk shall be entitled to repossess the products referred to herein. All reasonable costs incurred in connection with this will be borne by the Other Party.
ARTICLE 15. | INTELLECTUAL PROPERTY
- CashDesk or its licensors retain industrial and intellectual ownership of all software and software components produced or delivered by them. The Other Party only obtains the non-exclusive right to use the software produced or delivered by CashDesk or its licensors, unless expressly agreed otherwise. The Other Party is not allowed to copy or reproduce the software or parts of it (or have this done), or use it in any other way than provided for by the Contract.
ARTICLE 16. | CONFIDENTIALITY
- CashDesk shall be entitled to use new knowledge, based on the relationship with the Other Party, for other purposes. In doing so, it shall take into consideration that confidential information of the Other Party must never end up with any third party. Confidential information is information as defined in paragraph 2.
- Confidential information means any information of which it can reasonably be assumed that it is of a confidential nature. This information does not only concern written information, but also information obtained from other sources. This may include, for example, software, company strategies, address files and trade secrets.
- Confidential information may only be disclosed with the prior written consent of the Other Party, except in the event that the power to disclose follows tacitly from the Contract, or a party is bound to disclose certain confidential information pursuant to a court ruling or statutory regulation.
ARTICLE 17. | CONCLUDING PROVISIONS
- All Contracts and the legal relationships arising from these between the parties are exclusively governed by Dutch law.
- Before appealing to the court, the parties are obliged to make every effort to resolve the dispute in joint consultation.
- The competent court in the district where CashDesk has its registered office has sole jurisdiction to hear any disputes.
If these General Terms and Conditions have been drawn up in multiple languages, the Dutch version of these General Terms and Conditions will always take precedence in their interpretation.