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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 Telecom Solutions;
- Other Telecom Solutions;
- 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.
1.3 The applicability of general and/or other conditions of the
Customer is
expressly rejected by KVSA.
1.4 A copy of these conditions shall be sent to the Customer at
his request.
2. Offer and Acceptance
All activities
2.1 All offers made by KVSA shall
be without commitment and non-binding.
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 Telecom Solutions
2.3 An agreement with respect to
mobile Telecom Solutions 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 Telecom Solutions
2.4 An agreement with respect to
other Telecom Solutions 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 Telecom Solutions
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 Telecom Solutions 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 SIMcard.
The Customer shall be authorized to use the SIM-card to
accept and
make telephone calls.
Mobile and Other Telecom
Solutions
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 Telecom
Solutions
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 Telecom Solutions, 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 Telecom Solutions, 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.
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 Telecom Solutions
6.6 The Customer shall be obliged
to pay KVSA for all services accessed or
used with its SIM-card.
Other Telecom Solutions
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
Mobile and other Telecom
Solutions
9.1 Complaints with respect to
Telecom Solutions, 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.
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 Telecom Solutions and
other Telecom Solutions
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 Ђ 23,000 (twenty -
three thousand Euro).
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 Ђ 23,000
(twenty - three thousand Euro).
11.4 The Customer and its employees shall indemnify KVSA and hold
KVSA
harmless against any and all claims from third parties
relating to Telecom
Solutions 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 Telecom
Solutions
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 Telecom Solutions
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 Telecom
Solutions
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 01-03-2002, under no.
8/2002 with
the clerk's office of the District Court of
Haarlem.
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