General conditions BTS
General conditions for telecommunication services, For licensing of software and for sale, lease and hire-purchase of terminal equipment by Koninklijke Verenigde Scheepsagenturen Van Halverhout & Zwart & Zurmühlen B.V. ("KVSA") also trading as BTS Business Telecom Solutions
| 1. Applicability | ||
| All activities | ||
| 1.1 | These conditions are applicable to all offers to, and all agreements with, any Customer with respect to the following activities of KVSA: | |
| - | Mobile Telecommunication Services; | |
| - | Other Telecommunication Services; | |
| - | Granting of (Sub) Licence Rights relating to use of Software; | |
| - | Leasing, Sales and Hire-Purchase of Terminal Equipment. | |
| 1.2 |
The Customer may only invoke deviating and/or additional provisions if and to the extent that these have been explicitly accepted in writing by KVSA. |
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| 1.3 |
The applicability of general and/or other conditions of the Customer is expressly rejected by KVSA. |
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| 1.4 |
A copy of these conditions shall be sent to the Customer at his request. |
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| 2. Offer and Acceptance | ||
| All activities | ||
| 2.1 |
All offers made by KVSA shall be without commitment and non-binding. |
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| 2.2 | If KVSA requests such in relation to its offer, the Customer is obliged to send to KVSA an application form accompanied by all such supporting information as requested therein. | |
| Mobile Telecommunication Services | ||
| 2.3 | An agreement with respect to mobile telecommunication services between KVSA and the Customer shall exist once the Customer has received from KVSA acceptance in writing and a SIM-card and KVSA has notified the Customer of a telephone number which KVSA has made available for use by the Customer. | |
| Other Telecommunication Services | ||
| 2.4 | An agreement with respect to other telecommunication services between KVSA and the Customer shall exist once the Customer has delivered its first message to KVSA after KVSA has provided the Customer with access codes (original code and password and/or pincode, if applicable) and, if relevant, access numbers to KVSA's network system. | |
| Licence Rights relating to Software | ||
| 2.5 | A licence agreement between KVSA and the Customer regarding the use of software by the Customer shall exist once the Customer has broken the seal of the software which the Customer received from KVSA. | |
| Sales of Terminal Equipment | ||
| 2.6 | A sales agreement between KVSA and the Customer shall exist once KVSA has confirmed the Customer's order in writing, or, if sooner, once the Customer opens the package containing the ordered terminal equipment. | |
| Lease of Terminal Equipment | ||
| 2.7 | A lease agreement between KVSA and the Customer shall exist once KVSA has handed the terminal equipment to the Customer at the place specified by the Customer. | |
| Hire-Purchase of Terminal Equipment | ||
| 2.8 | A hire-purchase agreement between KVSA and the Customer shall exist once both KVSA and the Customer have signed the hire-purchase agreement and KVSA has handed the terminal equipment to the Customer at the place specified by the Customer. | |
| 3. KVSA's obligations | ||
| Mobile Telecommunication Services | ||
| 3.1 | At the request of the Customer and depending on the technical and commercial possibilities, KVSA shall provide the Customer with a mobile telecommunication connection and shall provide the Customer with a telephone number. | |
| 3.2 | If an agreement with respect to mobile telecommunication services has been entered into in conformity with article 2.2, KVSA shall provide the Customer with a SIM-card. KVSA shall at all times remain the legal owner of the SIM-card. The Customer shall be authorized to use the SIM-card to accept and make telephone calls. | |
| Mobile and Other Telecommunication Services | ||
| 3.3 | Access to and options for other telecommunication networks shall be possible only insofar as the network selected is operationally accessible. | |
| 3.4 | If the Customer notifies KVSA in accordance with article 4.2 during business hours, KVSA shall within 30 minutes block said connection after receipt of such notification, provided this is technically practicable. In all other cases, KVSA shall block said connection as soon as practicable after receipt of such notification. KVSA shall deliver new access codes, and passwords (if applicable) and a new SIM-card (if applicable) as soon as possible after having received said notification from the Customer. | |
| Software | ||
| 3.5 | If KVSA delivers software to the Customer, KVSA shall grant the Customer a non-exclusive licence right to use the software on the terminal equipment indicated by KVSA. | |
| Lease, Sale, Hire-Purchase of Terminal Equipment and Terminal Equipment otherwise made available | ||
| 3.6 | With respect to all terminal equipment leased from, sold, hire-purchased or otherwise made available by KVSA, KVSA shall not give any further or guarantees other than those the manufacturer of the terminal equipment has given to KVSA. The guarantee period shall be limited to the period during which the guarantee of the manufacturer is in force and provided that the Customer has observed all conditions with respect to the use of the terminal equipment imposed by the manufacturer. | |
| 4. Customer's obligations | ||
| All activities | ||
| 4.1 | The Customer shall promptly notify KVSA of any changes to its name, corporate address or invoice address, legal form or bank number. | |
| 4.2 | In all cases, except when terminal equipment has been sold by KVSA to the Customer and the price has been paid in full by the Customer, the Customer shall be obliged to promptly report to KVSA: theft or other types of loss and/or misuse of mobile terminal equipment, of software supplied by KVSA or of access codes, SIM-card, passwords, pin codes or telex numbers by fax or telephone, stating name, address, access codes, password and telex number (if applicable), as soon as possible after the theft, loss or misuse was discovered by the Customer. | |
| Mobile and Other Telecommunication Services | ||
| 4.3 | The Customer shall ensure that the terminal equipment available for receipt of KVSA's services is used in a correct manner and is approved by the Dutch Department of Transport and Public Works or any other institution approved by the European Community. The Customer shall be liable for any damage sustained by the network operator as a result of the use by the Customer of non-approved terminal equipment or of misuse of approved equipment. | |
| 4.4 | KVSA reserves the right to temporarily restrict the services if necessary as a result of capacity bottlenecks in the network of the network operator used by KVSA. | |
| 4.5 | The Customer shall at all times be required to notify KVSA of the type of terminal equipment it uses to access the KVSA services. | |
| 4.6 | With respect to mobile telecommunication services, the Customer shall not be authorized to make the SIM-card available to any third party, nor to dispose of it in any manner, unless the Customer has obtained KVSA's prior written approval. | |
| 4.7 | With respect to other telecommunication services, the Customer shall be obliged to deliver each message to KVSA in a format as required by KVSA. | |
| Software, Sale, Lease and Hire-Purchase of Terminal Equipment | ||
| 4.8 | The Customer shall be obliged to take good care of the software in respect of which KVSA granted the Customer a right of licence and the terminal equipment that KVSA has leased to or sold to or otherwise made available to the Customer, in the latter case until the Customer has paid the sales price in full. | |
| 4.9 | The licence right provided to the Customer by KVSA is not transferable to any third party without KVSA's prior written approval. | |
| 4.10 | The Customer shall use the software for its own use and in accordance with its proper purpose only; the Customer is allowed to make a maximum of one copy for back-up purposes only. | |
| 4.11 | The Customer shall not remove or alter brand names, other names, numbers and other identification marks indicating the original source of the software without KVSA's prior written approval. | |
| 4.12 | The Customer shall be obliged to take good care of all terminal equipment that is leased from KVSA or otherwise made available to KVSA and shall keep it properly insured throughout the period of the lease. | |
| 4.13 | In case of loss or theft of the software and/or the terminal equipment the Customer shall be obliged to reimburse to KVSA the replacement value of the software and/or the terminal equipment as it appears from time to time in KVSA's most recent price list. | |
| 4.14 | In case of damage to the software and/or terminal equipment as a result of misuse of the terminal equipment by the Customer, the Customer shall be obliged to reimburse to KVSA the costs of repair, or if this were to exceed the replacement value, the replacement value of the software and/or terminal equipment. | |
| 5. Prices | ||
| All activities | ||
| 5.1 | The prices are set out in the price list in effect at the time the agreement is entered into. The Customer shall be charged by KVSA at the prices stated in the price list, provided that payment by the Customer is made within the term set forth in the same price list. If payment of three subsequent invoices takes place after expiration of the term mentioned on the respective invoice concerned, KVSA shall be entitled to increase all its tariffs by an additional 15%. | |
| 5.2 | If changes occur in cost-determining factors, including but not limited to increase in the price of telecommunication services provided to KVSA by a network operator, labour costs, social security contributions, taxes, transportation costs, supplier's factory costs, as well as changes in currency exchange rates, KVSA shall be authorized to pass on these additional costs in its prices, provided KVSA shall have given notice thereof to the Customer one month in advance. | |
| 6. Payment | ||
| All activities | ||
| 6.1 | Unless specifically agreed in writing otherwise, the Customer shall be invoiced, at the option of KVSA, either on a monthly basis in arrears or after any service has been delivered or the terminal equipment has been sold, leased, hire-purchased or otherwise made available by KVSA to the Customer. | |
| 6.2 | The Customer must give KVSA written notice of complaints concerning the invoice within four (4) weeks of receipt of the invoice. Failure to do so shall be construed as unconditional acceptance of the invoice. | |
| 6.3 | Payment shall be made by the Customer without discount or
rebate, within the payment term (the number of days as of the date of the
invoice) which is indicated in the price list. This payment term is to be considered
final. Payment shall be considered to have taken place at the time that the amount due has been credited in full to the account number specified by KVSA. |
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| 6.4 | In the event that the Customer fails to meet one or more of its payment obligations, or fails to meet them on time or in full, the Customer shall, as from the expiration date, owe KVSA interest on all overdue payments of 1.5% per month or part of a month. The Customer shall in addition be liable for all judicial as well as extrajudicial collection charges. The latter shall amount to a minimum of 15% of the outstanding amount. | |
| 6.5 | If the Customer does not make timely payments, KVSA shall be authorized to suspend its contractual obligations. | |
| Mobile Telecommunication Services | ||
| 6.6 | The Customer shall be obliged to pay KVSA for all services accessed or used with its SIM-card. | |
| Other Telecommunication Services | ||
| 6.7 | In the event that the Customer informs KVSA of theft, loss or misuse in conformity with article 3.2, the Customer shall be obliged to pay for the messages sent by KVSA until the moment of disconnection. | |
| 7. Industrial and Intellectual Property | ||
| All Activities | ||
| 7.1 | All copyrights, intellectual and/or industrial property rights to software and tools delivered by KVSA to the Customer shall always remain with KVSA. | |
| 7.2 | The Customer shall ensure that the software and tools as described in article 7.1 are properly identified as the property of KVSA and shall ensure that such property is returned to KVSA at KVSA's first request. | |
| 7.3 | If the Customer fails to return or make available to KVSA the software and tools described in article 7.1 at KVSA's first request, or if the software and/or tools is/are incomplete or damaged, the Customer shall compensate KVSA for all damages incurred. | |
| 8. Reservation of ownership | ||
| Sales and Hire-Purchase of Terminal Equipment | ||
| 8.1 | All terminal equipment sold or hire-purchased to the Customer by KVSA shall remain the property of KVSA until such time as the Customer has paid all sums due to KVSA resulting from the sales or hire-purchase agreement regarding the terminal equipment concerned. | |
| 8.2 | Until the Customer has paid all amounts due as referred to in article 8.1 above, the Customer shall not be authorized to dispose of any of the terminal equipment sold or hire-purchased by KVSA nor place a lien on it, nor to alienate or encumber it with any right in rem | |
| 8.3 | If the Customer has not paid the total price of the terminal equipment bought or hire-purchased from KVSA in accordance with article 5.3, KVSA shall be entitled to repossess the terminal equipment concerned. KVSA shall be entitled to enter the premises of the Customer for this purpose. | |
| 9. Complaints | ||
| 9.1 | Mobile and Other Telecommunication Services Complaints with respect to telecommunication services, including but not limited to complaints regarding access to the telecommunication network and breaks in transmission, must be made by the Customer to KVSA in writing within two hours after the alleged problem has been discovered by the Customer. |
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| Software, Sale, Lease and Hire-Purchase of Terminal Equipment | ||
| 9.2 | Upon receipt of the software and/or the terminal equipment the Customer shall verify that the goods delivered by KVSA conform to the Customer's order; if the software and/or the terminal equipment does not conform or if the Customer has observed visible defects in any of the software and/or terminal equipment licensed, leased from, sold, or otherwise made available by KVSA, the Customer shall give KVSA written notice within two working days indicating the deviation(s) and/or defects. | |
| 9.3 | Claims with respect to latent defects in any of the software and/or terminal equipment licenced, leased from, sold or otherwise made available by KVSA must be made within 10 days of those defects having been discovered or after they could reasonably have been discovered, but ultimately within six months of delivery of the terminal equipment or software concerned. | |
| 9.4 | KVSA does not guarantee that the software which is delivered by KVSA shall function without any interruption or shall be completely faultless, nor that all faults will be corrected by KVSA. | |
| All Activities | ||
| 9.5 | The Customer shall at all times give KVSA the opportunity to correct and/or repair any deviations and/or defects. | |
| 10. Force majeure | ||
| All Activities | ||
| 10.1 | Force majeure shall exist if the execution of the agreement between KVSA and the Customer is prevented wholly or partially, whether or not temporarily, by circumstances beyond the control of the parties or by circumstances on the part of KVSA such as strike, lock out, blockade, revolt, traffic jam and other transport disturbances, accidents, fire, interruptions of work, import or export restrictions, unavailability of materials and/or inputs. | |
| 10.2 | In the event of force majeure which lasts longer than three months, either party may terminate the agreement by means of a registered letter. Performance pursuant to the agreement prior to the force majeure event shall be settled on a pro rata basis, without compensation being due to either party. | |
| Mobile Telecommunication Services and Other Telecommunication Services | ||
| 10.3 | The access to and options for telecommunication networks may be restricted by atmospheric disturbances and geographic limitations, as well as by other circumstances beyond the control of KVSA and/or the network operator, as well as by the shutting down or changing of all or part of the network as a result of any activities by the network operator or any other entity. KVSA shall in no event be held liable if the Customer is unable to gain access to the telecommunications network. | |
| 11. Liability | ||
| All Activities | ||
| 11.1 | Unless indicated otherwise, KVSA shall not be liable for any direct or indirect damage incurred by the Customer, except for damage which results from gross negligence or wilful misconduct on the part of KVSA and/or its employees. | |
| 11.2 | If the Customer has incurred personal injury or property damage, KVSA shall in no event be held liable for an amount greater than EUR 23,000 (twenty three thousand Euro's). | |
| 11.3 | If and in so far as KVSA is held liable by the competent court for damage incurred, for whatever reason, such liability shall in any event be limited to costs of repair and/or replacement and under no circumstances exceed a maximum amount of EUR 23,000 (twenty three thousand Euro's) . | |
| 11.4 | The Customer and its employees shall indemnify KVSA and hold KVSA harmless against any and all claims from third parties relating to telecommunication services provided by KVSA, licensing of software and sales and leasing of terminal equipment by KVSA. The Customer guarantees that KVSA's employees shall not be held liable by third parties in relation to KVSA's activities as described herein. | |
| Mobile and Other Telecommunication Services | ||
| 11.5 | KVSA shall in no event be liable for direct or indirect damage resulting from temporary restrictions or the failure of the telecommunications network, nor for the consequences of incorrect or distorted transmission or of other insufficient performance of the telecommunications network, operated by KVSA and KVSA's network operator. | |
| 11.6 | If the format used by the Customer for sending messages is not in full conformity with KVSA's requirements, KVSA can in no event be held liable for damages incurring as a result of an incomplete or incorrect contents of the message dispatched. | |
| Software, Sale, Lease and Hire-Purchase of Terminal Equipment | ||
| 11.7 | KVSA shall not be liable for any direct or indirect damages sustained by the Customer as a result of malfunctioning of (i) the software licenced to the Customer, or (ii) the terminal equipment leased by, sold or otherwise made available to the Customer, except for damage which results from gross negligence or wilful misconduct on the part of KVSA and/or its employees. | |
| 12. Processing of data | ||
| All Activities | ||
| 12.1 | KVSA shall keep a record of the information obtained from the Customer in accordance with the Wet Persoonsregistraties (Act on the Registration of Persons). KVSA guarantees that the statutory regulations concerning the protection of privacy shall be observed in processing the information. To meet this requirement, KVSA shall take all reasonable technical and organizational precautions for privacy protection and data security, provided that KVSA shall in no event be liable for unauthorized disclosure or data mutilation. | |
| 12.2 | The Customer agrees that the information listed in its application is registered, processed and used by KVSA. This also applies to information on connections. | |
| Other Telecommunication Services | ||
| 12.3 | Unless indicated otherwise, KVSA shall be under no obligation to retain or record any of the messages sent by the Customer to KVSA nor of the messages dispatched through the KVSA system. | |
| 13. Miscellaneous | ||
| All activities | ||
| 13.1 | KVSA shall be authorized to terminate any agreement it has entered into at all times, provided it has notified the Customer thereof in writing at least one week prior to the date of termination. | |
| 13.2 | Should any provisions of these conditions be declared null and void by the competent court, the remaining provisions shall remain in full force and effect. | |
| 13.3 | The Customer shall not be permitted to set off any debt due to KVSA against any claim it has on KVSA. | |
| Mobile and Other Telecommunication Services | ||
| 13.4 | If the Customer fails to observe one or more of his obligations, or does not observe them promptly or properly, is declared bankrupt, applies for a suspension of payment, goes into liquidation, ceases operating in any other way, or part or all of its assets are attached, or proves to be insolvent in any other way, and in the case of such alterations in the circumstances that the observation of KVSA's obligations arising from the agreement and/or these general conditions becomes so difficult for KVSA that it cannot be reasonably be exepected from KVSA that it remains bound to the agreement, KVSA is entitled to dissolve the agreement without any legal intervention and to claim reimbursement for the costs, damages and interests resulting from the events that gave rise to the dissolution. | |
| 13.5 | KVSA shall at all times be authorized to change the access codes, passwords, telex or telephone numbers made available to the Customer for technical and commercial reasons. | |
| 14. Disputes and applicable law | ||
| All activities | ||
| 14.1 | Dutch law shall be applicable to these conditions and to all agreements between KVSA and the Customer. | |
| 14.2 | All disputes arising from these conditions or any agreement between KVSA and the Customer shall be subject to the judgment of the competent court in Amsterdam, provided that KVSA can also initiate proceedings against the Customer in the court of the Customer's place of residence. | |
| These Conditions were registered on 29-10-1996, under no. 68/1996 with the clerk's office of the District Court of Haarlem. |
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