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GENERAL PROVISIONS
1. Proposition and agreement
1.1 In these general terms is meant by:
1.1.1 QSITE: QSITE.COM BV, as well as every business that state these agreements applicable.
1.1.2 Other: The party that closes this line with QSITE, as well as has contact with QSITE in other ways.
1.2 These general provisions are applicable at all offers, legal relationships and agreements whereby QSITE delivers goods and/or services of any kind to the other.
Abnormalities and additions to these general terms are valid only as if these are explicitly agreed written.
1.3 All offers and other expressions by QSITE are optional, unless QSITE explicitly agreed written otherwise. The other is responsible for the correctness and completeness of the by or for him given measurements, demands or specifications of the action and other records to QSITE on which QSITE bases its proposition.
1.4 The agreement between QSITE and the other is closed by a proposition from QSITE and its acceptance by the other. Both parties explicitly accept electronic communication for the creation of agreements, (further) deals and work. When electronic media are used, the risk of this is for the other. The (electronic) administration from QSITE is decisive in disputes between parties. QSITE is entitled to declare (further) demands on electronic communication between parties.
1.5 Applicability of purchasing or other conditions by the other are explicitly rejected of.
1.6 If any provision of these general terms is reversed or destroyed the other provisions of these general terms will remain completely. QSITE and the other will engage in dialogue in order to agree on a new provision to replace the reversed or destroyed provision, whereby as much as possible the goal and intention of the reversed or destroyed provision will be observed.
2. Price and payment
2.1 All prices are exclusive of sales tax and other taxes which are imposed by the government.
2.2 If there is a periodic payment obligation by the other it states that QSITE is entitled to adjust the actual prices and rates at a term of at least three months.
If the other does not wish to accept such an adjustment the other is entitled to end the agreement within thirty days after the announcement, the agreement will end at the date the adjustment will be in effect.
2.3 Parties will register the date or dates in which QSITE will charge the payment of the agreed performances to the other in the agreement.
The invoices will be paid by the other according to the payment terms written on the invoice. By failing terms the other will pay within 14 (fourteen) days after the invoice date. The other is not entitled to offsetting or adjournment of a payment.
2.4 If the other does not pay the due payments in time, the other is due, without any further exhortation or default necessary, the statutory interest on the outstanding amount. If the other remains negligent after exhortation or default in the claim compliance, QSITE can give the claim compliance from hands, in which case the other is, apart from the then due total amount, also due the compensation of all legal and outside court costs, among which the costs charged by external experts next to the legally established costs.
3. Confidential data, acquisitioning personell and privacy
3.1 Each party guarantees that all data received from the other party of which one knows or should know that they are confidential, remains secretive, unless a legal obligation demands publishing of these records.
The party receiving the confidential records will use them exclusively for the intended purpose. Records will in any case be considered confidential if the are denoted by one of the parties.
3.2 Each party will during the maturity of this agreement as well as a year after termination of which only after previous written consent by the other party, employ employees of the other party, who are or have been involved by the implementation of the agreement, as well as, direct or indirect, have work for him.
QSITE will not restrain such consent if the other has offered a fitting compensation.
3.3 The other indemnifies QSITE for claims made by persons of whom personal records are registered or are being used in the context of Personal registration which is held by the other or for which the other is in terms of the law otherwise responsible, unless the other can prove that the facts on which the claim is based are exclusively QSITES responsibility.
4. Reservation of ownership and rights, specification and retention
4.1 All causes delivered to the other remain in ownership of QSITE, until all payments due by the other for, according to the agreement, delivered or to be delivered causes or work that is or will be done, as well as all other payments due by the other, caused by inadequate commitment, are completely paid to QSITE.
The other operating as a distributor will be allowed to sell all causes subject to the ownership reservation of QSITE, as well as distribute these causes for as far as that is common in the context of the normal practice of his company.
If the other forms a new business (also) from causes delivered by QSITE, that business will be formed exclusively for QSITE and the other will reserve the newly formed business for QSITE until the other has paid all amounts that result from this agreement; QSITE has, at least until the moment of complete fulfilment of these depths by the other, all rights as owner of the newly formed business.
4.2 Rights will be given or transferred in common cases to the other at the condition that the other will pay the agreed fees in time and completely.
4.3 QSITE can keep, in the light of the agreement received or generated causes, products, property rights, data, documents, databases and (intermediate) results of the services of QSITE, despite an existing duty to handover, until the other has completely fulfilled all depths.
5. Risk
5.1 The risk of loss, theft or damaging of causes, products, software or data that are the object of this agreement, will be transmitted to the other at the moment in which these are in the actual disposal of the other or someone helping the other.
6. Rights of intellectual or industrial ownership.
6.1 All rights of intellectual or industrial ownership for under this agreement developed or distributed software, websites, databases, equipment or other materials such as analyses, designs, documentation, reports, propositions, as well as preparatory material of which, are exclusively for QSITE, its licensor or its suppliers.
The other only obtains the use that is given under these terms and the law explicitly.
Every other or further right of the other to duplication of the software, websites, databases or other materials is excluded. A right for use, given to the other, is non-exclusive and non-transferable to third parties.
6.2 If in deviation of article 6.1 QSITE is prepared to commit to transfer the right of intellectual or industrial ownership, such a commitment can only and explicitly be made written.
If parties agree written and explicitly that the rights of intellectual or industrial ownership regarding software, websites, databases, equipment or other materials designed specifically for the other, will be transferred to the other, it will not affect the underlying parts, general principles, ideas, designs, documentation, work, software languages and such, to adjust and exploit without any limitation, or for itself, or for third parties.
Neither the agreement of rights of intellectual or industrial ownership will affect the right of QSITE for developments for QSITE or third parties similar to those done for the other.
6.3 The other is not allowed to change or remove any indication concerning the confidential character or concerning copyrights, brands, trades or other rights of intellectual or industrial ownership from the software, websites, databases, equipment or materials.
6.4 QSITE is entitled to take technical measures to protect the software or, concerning agreed restrains, in the duration of the right to use the software.
The other is not allowed to remove or avoid such a technical measure. If security measures result in the impossibility of making a backup of the software by the other, QSITE will provide a backup if asked for it.
6.5 Unless QSITE provides a backup of the software to the other, the other is entitled to make a backup of the software, which is to be uses exclusively to protect against involuntary loss or damage. Installation of the backup happens only after involuntary loss or damage. A backup is supposed to be provided with labels and indications of copyright such as present on the original copy (see article 6.3).
6.6 Observing the remaining terms of this general agreement the other is entitled to correct mistakes in the provided software if that is necessary for the intended use of the software. Where in these terms ‘mistakes' is mentioned it is meant the written expressed functional or technical specifications are substantially not met and, in case of customised software and websites, written expressed functional or technical specifications between parties. There is only a mistake if the other can prove this and if it is reproducibly. The other is supposed to report mistakes to QSITE immediately.
6.7 QSITE indemnifies the other against any procedure of a third party which is based on the statement that software, websites, databases, equipment or other materials developed by QSITE impose a right of intellectual or industrial ownership as described in an applicable law in the Netherlands, at the condition that the other informs QSITE written immediately about the existence and content of the procedure and leaves the completion of the case, amongst which the possibility of settlements, completely to QSITE.
The other will therefore give QSITE the necessary proxies, information and cooperation to, if necessary, in the name of the other, defend itself to these actions.
This obligation to indemnification expires if the accused violation has a relation with (i) materials, to use, edit, process or incorporate, provided by the other to QSITE as well as with (ii) adjustments made by the other or by third parties in the software, website, databases, equipment or other materials.
If it is legally finally established that the software, websites, databases, equipment or other materials developed by QSITE itself, are a violation of any right of intellectual or industrial ownership of a third party or if by the judgement of QSITE there is a real possibility that such a violation will occur, QSITE will try to establish the unpunished continuation of use of the delivered, or functionally likewise other software, websites, databases, equipment or concerning other materials, for as far as possible, for instance by adjustment of the violating parts or by acquiring a use for the other.
If QSITE, exclusively by its own judgement, can not or not other than in for him (financially) unreasonable burdensome way establish that the other can continue to use the delivered unpunished, QSITE will retrieve the delivered at a refund minus a reasonable fee for use.
QSITE will only make such a choice after consulting the other.
Every other or further liability or indemnification of QSITE due to a violation of the rights of intellectual or industrial ownership of a third party is completely excluded, amongst which liability and indemnification of QSITE for violations caused by the use of the delivered software, websites, databases, equipment and/or materials (i) in a modified form other than modified by QSITE, (ii) in conjunction with cases or software delivered or distributed other than by QSITE or (iii) in other ways than for which equipment, software, websites, databases and/or other materials are designed or intended.
6.8 The other guarantees that no third party rights are against the deposition to QSITE of equipment, programs, material intended for websites (images, text, music, domains, logo's, etc.), databases or other materials, amongst which design material, intended to be used, edited, installed or incorporated (for instance in a website). The other will secure QSITE against any action that will be a violation of any right of a third party, like making this material available, using it, editing it, installing it or incorporating it.
7. Cooperation by the other; telecommunication
7.1 The other will always give QSITE all data or information useful or necessary for a proper achievement of the agreement in time and cooperate fully, amongst which give access to its buildings.
If the other puts its own staff in, in order to cooperate to achieving this agreement, this staff will have the necessary knowledge, experience, capacity and quality.
7.2 The other bears the risk of selection, use and application in its organisation of the equipment, software, websites, databases and other products and materials and of the given services by QSITE, and is also responsible for the control- and security procedures and an adequate system management.
7.3 If the other supplies QSITE with software, websites, materials, databases or data on a medium, they will gratify QSITES prescribed specifications.
7.4 If the other does not supply QSITE with the data, equipment, software or staff necessary to achieve the agreement, or if the other does not comply to its obligations in any other way, QSITE is entitled to completely or partially adjourn the achievement of this agreement and has the right to charge the therefore made costs according to its common fees, without prejudice the right of QSITE to exercise any statutory right.
7.5 If QSITES employees work on the others location, the other takes care of the required facilities, such as a working area with computer- and telecommunication facilities, without charge. This working area and these facilities will meet all laws and requirements concerning working conditions.
The other indemnifies QSITE for third party claims, amongst employees of QSITE, that are damaged with reference to the implementation of the agreement, due to acting or neglecting by the other or by unsafe situations in its organisation.
The other will reveal its house and security rules such as known in its organisation to QSITE employees in time.
7.6 If for the achievement of this agreement telecommunication facilities are used, amongst which internet, the other is responsible for the right choice and the adequate availability (in time) of it, except for those facilities which are used and managed directly by QSITE.
QSITE is never liable for damage or cost due to transmission errors, interferences or unavailability of these facilities, unless the other can prove that the damage or cost are the direct result of intentional errors or gross debt by QSITE or its managers.
If for the achievement of this agreement telecommunication facilities are used, QSITE is entitled to assign access or identification codes to the other. QSITE can change assigned access or identification codes.
The other uses the codes confidentially and carefully and only reveals them to authorised personnel. QSITE is never liable for damage or cost due to abuse of access or identification codes.
8. Delivery times
8.1 All by QSITE mentioned or agreed (delivery) terms are established to the best and based on the information know by the acceptance of this agreement by QSITE.
QSITE efforts to include in observing the agreed (delivery) terms as much as possible.
A single crossing of a mentioned or agreed (delivery) term QSITE will not be in place.
In all cases, ergo also if parties have agreed written and explicitly a final term, QSITE will be in place only after the other has put QSITE in notice written.
QSITE is not held to a whether or not final (delivery) term that can not be met, that has occurred by circumstances that are beyond its control. Neither QSITE is held to a whether or not final delivery term if parties have agreed a change of the content or size of the agreement (extra work, change of specifications, etc.).
If crossing of any term seems about to occur, QSITE and the other will engage in dialogue as soon as possible.
9. Termination of the agreement
9.1 Each party is only entitled to terminate the agreement if the other party, at all times after an appropriate and as detailed as possible written default in which there is a reasonable term to clear the shortcoming, is failing accountably in the compliance of the essential obligations of the agreement.
9.2 If an agreement does not end by completion after its character and content, is agreed indefinitely, it can be ended written by each party after consultation and together with reasons.
If between parties no explicit termination term is agreed, a reasonable term should be observed. Parties will never be held to any indemnity due to termination.
9.3 Notwithstanding the law this regarding thru regime, the other can only end an agreement of services in the cases described in these agreements.
9.4 Each party can terminate the agreement written without default immediately completely or partially if the other – whether or not temporally – is given suspension of payment, if regarding the other bankruptcy applications are made or if the company of the other is liquidated or ended other than for the reconstruction or fusion of companies.
QSITE is never held to restitution of already received payments or indemnity due to this termination. In the case of bankruptcy of the other the right to use the software made available will end of right.
9.5 If the other has already received performances implementing the agreement at the time of the termination referred to in article 9.1, these performances and
its related commitments will never be object of cancellation, unless the other proves that QSITE is in default regarding these performances.
Amounts billed by QSITE for the termination concerning accomplishments adequately made by the implementation of the agreement, will be due without prejudice observing the statement in the previous sentence and will be due immediately after termination of the agreement.
10. Accountability of QSITE; protection
10.1 Except for purpose or gross dept by QSITE itself, accountability of QSITE for company, consequential or indirect damage is always excluded.
10.2 In all other cases in which QSITE is kept to payment of indemnity, this will never be more, at its choice, or the invoice value of the delivered, at least the part of it which or with which the damage is caused, or, if the damage is covered by an insurance of QSITE, the amount which actually is paid by the relevant insurance company. In the case of duration contracts the ‘invoice value' is regarded the amount that QSITE invoices for the work (the part that is considered to have caused the damage) done in a period of three months, subject to deduction of possible credited amounts in the same period and for the same work.
10.3 Every claim against QSITE, except those acknowledged by QSITE, expires by the mere lapse of six months after the occurrence of the claim.
10.4 Limiting accountability, excluding or noting conditions, which can be invoked to QSITE in relation with the delivered by suppliers or subcontractors of QSITE, can also be invoked to the other by QSITE.
10.5 The employers of QSITE or the by QSITE enabled agents for the implementation of the agreement can rely on all defences that can be derived from the agreement against the other as if they were a party in the agreement.
10.6 The other will secure QSITE, its employers and its enabled agents for every claim of third parties related to the implementation of the agreement by QSITE, for as far as those claims are more or different from those which the other forward towards QSITE.
11. Majeure
11.1 None of the parties is held to fulfilment of any obligation if it is prevented to do so related by force majeure.
By majeure is also meant majeure of suppliers of QSITE, the breach of obligations by suppliers that are prescribed to QSITE by the other as well as defects in stuff, materials, software of third parties of which the use is prescribed to QSITE by the other.
11.2 If a majeure situation has endured longer than ninety days, parties are entitled to end the agreement by written termination.
That which is performed under the agreement will in that case be settled proportionally, moreover without parties being slightly due to each other.
12 Applicable law and disputes
12.1 The agreement between QSITE and the other as well as these general terms are governed by Dutch law exclusively.
Applicability of the Viennese buy treaty 1980 is excluded.
12.2 The disputes which might arise between QSITE and the other because of an agreement between QSITE and the other as well as because of more agreements as a result of which, will be resolved by a competent Dutch court in Almelo.
PROVISION OF SERVICES
The in this chapter “Provision of services' listed terms are, alongside the General Provisions of these general terms, applicable if QSITE provides services as, but not limited to, advising, feasibility research, consultancy, education, training, support, outsourcing, hosting, services on ASP-basis like making software, hardware and storage available on ASP-basis, designing, developing, implementing or managing software, websites or information systems and services according to networks.
These terms are without prejudice of the provisions concerning specific services such as development, use and maintenance of software as written in the general terms.
13 Achievement
13.1 QSITE will effort to best to achieve the provision of service, in case according to disciplines and procedures written agreed with the other. All services of QSITE will be achieved based on effort commitment, unless and for as far as QSITE has written agreed a result and the concerning result is also described with sufficient certainty.
Any agreements concerning a level of services will only be agreed written and explicitly.
13.2 If services in phases are agreed, QSITE is entitled to postpone the start of service of a certain phase until the other as approved the results of the previous phase written.
13.3 Only if it is agreed written and explicitly, QSITE is held to follow instructions the other points out only if they are given in time and responsibly.
QSITE is not obligated to follow instructions that change or add the content or size of the agreed services, if these instructions are followed, the work that is concerned will be compensated according to the terms in article 14.
13.4 If an agreement of services is made with a view to achievement by a certain person, QSITE is always entitled to replace this person by one or more persons with the same qualifications after consultation with the other.
13.5 In the absence of an explicitly agreed billing schedule all amounts concerning services delivered by QSITE are due afterwards once per calendar month.
14. Changes and more
14.1 If QSITE does work or performs outside the content or size of the agreed service by request or with previous consent by the other, this work or performance will be compensated according to the usual rates of QSITE. There is more if system analyses, designs or specifications are extended or changed. QSITE is never obligated to meet a certain request and can require a separate written agreement for it.
14.2 The other accepts that the agreed or expected time of completing the service and the mutual responsibilities from the other and QSITE can be influenced by work or performance such as in article 14.1.
The fact that (the request of) more presents itself during the achievement of the agreement will never be reason for termination of the agreement.
14.3 For as far as a fixed price is agreed for the service, QSITE will inform the other written about the financial consequences of more or extra performances if this is requested.
15. Training and courses
15.1 For as far as QSITES services consist of provide training and course, QSITE can request payment before the start of it. The consequences of cancellation of participation in training or courses are controlled by QSITES usual rules.
15.2 If the number of participations leads to combination of the training or course with one or more other trainings or courses or to postponing it to a later date or time by QSITES judgement, QSITE is entitled to do so.
16. Hosting and ASP services
16.1 Unless written agreed otherwise, an agreement for hosting systems and/or purchasing ASP services is made for a period of 3 years (initial period). The agreement above can not be terminated interim by the other. At the end of the agreement above it will be renewed for a period of 1 year. Termination of this (renewed) agreement by the other can only be done written and registered at least 2 months before the end of the contract term.
16.2 The other is not allowed to use its website, the systems hosted by QSITE and/or the purchased ASP services for:
a) Acts and practices contradicting the applicable legal provisions, the Netiquette or the guidelines of the advertising code commission;
b) Sending large amounts of e-mail with similar content unsolicited and/or posting messages with similar content in large amounts of news groups on the internet unsolicited (spamming);
c) Infringing copyrighted works or acting in violation of intellectual ownership of third parties;
d) Publishing or spreading illegal texts and/or images or sounds, amongst which child pornography and discriminatory expressions;
e) Sexual intimidation or disturbing persons in other ways;
f) Penetrating other computers or websites on the Internet or Intranet without permission, whereby any security is broken and/or access is gained by a technical intervention using false signals or a false key, or by assuming false status (hacking);
g) Splitting of (computer) processors that remain active between QSITE and/or the Internet after terminating the (online) connection with QSITE;
h) Spreading computer virusses.
16.3 QSITE is entitled to block access to the website of the other as well as to the hosted systems and/or to the purchased ASP services and is also entitled to remove them from its server without giving any reason, without giving the other the right to apply for compensation and with the retained to QSITE to compensate all damage suffered by QSITE and/or its third parties, caused by the foul, in the next cases:
a) If the others acts alien to article 16.2 and/or if a serious suspicion arises that the other acts alien to article 16.2;
b) If a (part of) the website of the other is the cause of or threatens to be the cause of going down or getting inaccessible of the server of QSITE;
c) If it turns out that the other has given fake personal or corporate information;
d) If the other has made the agreement under false pretences.
16.4 QSITE has no interference with information published on the website of the other and/or is spread using QSITES servers and also QSITE is not responsible for any consequences that might occur. Also QSITE is not responsible for the drain of confidential data. The use of Credit Card payment and acceptance mechanisms or the use of electronic money is exclusively the others responsibility.
16.5 The other is not allowed to lease the website, hosted systems and/or purchased ASP services to third parties or to have them used by third parties in any other way.
16.6 If the amount of data generated or used by the other exceeds the described amount in the agreement, QSITE is entitled to adjust the rates analogical.
16.7 QSITE is entitled to put outside operation and/or limit the use of the hosted systems and/or purchased ASP services (temporarily) for as far as is necessary for the required maintenance or for the improvement of the system or application.
16.8 QSITE will towards customer attempt to make the availability and usability of the hosted systems and/or ASP services as large as possible. QSITE will troubleshoot in case of faults as soon as possible. QSITE doesn't guarantee permanent availability of the hosted systems by and/or purchased ASP services from QSITE.
The temporary lack of or reduced availability of the hosted systems and/or purchased ASP services never gives the other any right for compensation.
16.9 The attempt of breaking a system or network security is forbidden.
By this is meant (but not limited to): access not allowed; using, testing or scanning the system security; actions that require unnecessary or high rising traffic; mail bombing; flooding; attempt of overloading or attacking the system; changing TCP-IP information and/or (part of) the header information in an e-mail.
16.10 Each attempt to undermine or do damage to server(s) and/or infrastructure of QSITE and/or third parties is strictly forbidden. This means but does not restrict: posting or using software that concerns enormous CPU delays, improper storage.
Using email addresses, email forwarding possibilities, POP accounts or auto reply systems other than for own accounts is forbidden, as well as accessing CGI scripts installed on QSITE servers.
16.11 QSITE is not in any way liable for the content and/or availability of external websites or sources made available by the other thru so called links through the others website. The other indemnifies QSITE for claims of third parties.
16.12 QSITE is entitled to make restrictions according to, but not limited to, the maximum number of email messages that can be send and/or received and the maximum storage that the other is given on QSITES infrastructure.
16.13 QSITE is not in any way liable for the (accidental) removal of information by QSITE or the impossibility to save, maintain or send/receive messages and other information.
16.14 The other is responsible for gaining access to hosted systems and/or purchased ASP-services by the other from QSITE. This access can be charged by third parties to the other, such as (but not limited to) costs for the requirement of an Internet Provider.
16.15 Relevant Hosting and ASP services QSITE uses a Fair Use Policy concerning data. This means that a data limit will be agreed with the other according to the amount of data the other is entitled, which will be agreed in each agreement. A temporary crossing of the data limit will be tolerated by QSITE in principle, provided that the average data limit calculated for a period of three months previous to the crossing will not be higher than the agreed data limit. QSITE reserves the right to – in case of crossing the data limit – postpone the Hosting and/or ASP service, however, this after informing the other written.
16.16 If and for as far as meant in article 16.15 the average data is higher than the agreed data limit, the other is obligated to purchase a higher data limit from QSITE for an additional.
17. Username, password and security
17.1 Exclusively the other is responsible for the secrecy of its username and password; also exclusively the other is responsible for the actions that are made by its username and password. The other will report unauthorised use of its username and/or password and any other abuse and violation directly to QSITE.
18. Security, privacy and retention periods
18.1 QSITE meets all obligations concerning the processing of personal data as adaptor that are on him under legislation.
QSITE will take care of fitting technical and organisational measures to secure (personal)data against loss or any form of illegal processing
18.2 The other guarantees that all laws concerning processing personal data, amongst which the data protection laws, will be strictly observed and all prescribed notifications are performed and all required permissions to processing personal data are obtained. The other will immediately provide all requested information that is relevant.
18.3 The other indemnifies QSITE for all claims of third parties against QSITE on account of a violation of data protection law that QSITE can not be held responsible for and/or other laws concerning processing personal data.
18.4 The other indemnifies QSITE for all claims of third parties, including public, which may be filed because of violation of laws concerning legal retention periods.
SOFTWARE DEVELOPMENT
The terms in this chapter ‘Software Development' are, next to the General provisions of this Generals terms and the specific terms from the chapter ‘Provision of Service' applicable if QSITE develops and possibly installs software commissioned by the other.
The chapter ‘Use and maintenance of software” is also applicable for this software, except for as far as there is a deviation in this chapter.
The in this chapter intended rights and obligations are exclusively concerning software that is readable on a data machine and also stored in a way that it is readable on such a machine, as well as on corresponding documentation .
Wherever in this chapter software is mentioned, one can also read websites.
19. Software development
19.1 If specifications or a design of software to be developed by QSITE are not handed over at the moment of entering the agreement, parties will specify written after consultation which software will be developed and how this will happen.
QSITE will develop this software carefully based on the data distributed by the other, the other is responsible for the accuracy, completeness and consistency of which.
If parties agree on the use of a development method that is characterized by prioritization that will be determined during the achievement of this agreement, this prioritization will always be established after consultation between parties.
19.2 QSITE is entitled, yet not obligated, to investigate the accuracy, completeness or consistency of the data, specifications or designs provided to QSITE and to suspend work if any imperfections concerning the agreed work are noticed, until the other has removed the concerning imperfections.
19.3 Without prejudice of the established in article 5 the other will only obtain the right to use the software in its own company or organisation. Only if and for as far as this is explicitly agreed written, the source code of the software and the technical documentation created during the development of the software can be provided to the other, in which case the other is entitled to make changes in this software.
If QSITE is legally accounted to provide the source code and/or the technical documentation to the other, QSITE can demand a reasonable compensation for it.
20. Delivery, installation and acceptation
20.1 QSITE will deliver and install the software, which is to be developed, to the other according to specifications in writing as far as possible, installation by QSITE only if this is agreed written.
In lack of explicit agreements regarding this, the other will install, arrange, parameterise and tune the software itself and adjust the therefore used equipment and operating environment if necessary. Unless explicitly agreed otherwise QSITE is not obligated to perform data conversion.
20.2 If an acceptance test is agreed, the testing period is fourteen days after delivery or, if installation by QSITE is agreed written, after completion of the installation. During the test period the other is not allowed to use the software for productive or operation purposes. QSITE can always demand, therefore also if this is not explicitly agreed, that the other performs a sound test of sufficient size and dept with sufficient and well qualified personnel on (in between) results of the development work and that the test results will be reported to QSITE written, synoptic and comprehensible.
20.3 The software will be concerned accepted for parties:
1. if an acceptance test is not agreed: at the moment of delivery or, if installation by QSITE is agreed written, at the moment of completion of the installation, or
2. if an acceptance test is agreed: on the first day after the testing period, or
3. if QSITE receives a test report such as meant in article 20.5: at the moment that the mentioned errors in that test report regarding article 6.6 are repaired, without prejudice of the presence of imperfections that according tot article 20.6 are not blocking acceptance. Notwithstanding the software will be regarded fully accepted, if the other uses which in any way for productive or operational purposes before the moment of explicit acceptance, from the moment that usage started.
20.4 If during the test period errors occur in the software that block the continuation of the acceptance test, the other will inform QSITE written and detailed, in which case the test period is interrupted until the software is adjusted in such a way the blockage is repealed.
20.5 If during the acceptance test errors such as meant in article 6.6 appear, the other will inform QSITE with a written and detailed test report at last on the last day of the test period. QSITE will use their best effort to repair these errors within reasonable term, whereby QSITE is entitled to adapt temporary solutions, software bypasses or problem avoiding restrictions in the software.
20.6 Acceptance of the software can not be withheld on other grounds than those concerning the explicitly agreed specifications between parties and furthermore not concerning minor errors, being errors that do not reasonably block operational or productive use of the software, without prejudice of the obligation of QSITE to repair those minor errors in the light of the guarantee in article 23, for as far as applicable.
Acceptance can not be withheld concerning aspects of the software subjective assessment, such as the design of user interfaces.
20.7 If the software is delivered and tested in phases or parts, the not-acceptance of a certain phase and/or part will not prejudice any acceptance of a previous phase and/or part.
20.8 Acceptance of the software in any way such as meant in article 20.3 results in fully discharge of QSITE for the fulfilment of obligations concerning the development and distribution of the software and, in case installation by QSITE is agreed, its obligations of installing the software. Acceptance of software does not alter the others rights based on article 20.6 concerning minor errors and article 23 concerning guarantee.
20.9 In lack of explicitly agreed billing schedules all amounts concerning the development of software are due at the moment of delivering the software or, if installation of the software by QSITE is agreed written, after completion of the installation.
USE AND MAINTENANCE OF SOFTWARE
The terms in this chapter ‘Use and maintenance of software' are, next to the general provisions of these general terms, applicable on all software provided by QSITE.
The in this chapter intended rights and obligations are exclusively concerning software that is readable on a data machine and also stored in a way that it is readable on such a machine, as well as on corresponding documentation .
Wherever in this chapter software is mentioned, one can also read websites.
21. Use
21.1 Without prejudice of the established in article 6 QSITE confers the non-exclusive right of use of the software to the other. The other will always strictly comply with the agreed limitations of use. Without prejudice of the otherwise agreed terms in this agreement concerning the right to load and execute the software.
21.2 The software can be used by the other exclusively in its own company or organisation on the one processor and for a certain number or kind of users or connections for which the use is provided.
For as far as concerning is not otherwise agreed, the processor of the other on which the software is first used and the number of connections at the moment of the first use, will be regarded as the processor and the number of connections for which the use is provided.
In the case of interference of the intended processor the software can be used on another processor for the duration of the interference.
The use can concern multiple processors for as far as that explicitly appears from the agreement.
21.3 The use is not transferable. The other is not allowed to sell, lease, sublicense, vend or distribute limiting rights or provide in any way or for any cause whichever access to a third party, give access whether or not from a distance to or have a third party host the software, also not if the concerning third party uses the software exclusively on behalf of the other. The other will not change the software other than in the case of repairing errors. The other will not use the software in the case of processing data on behalf of third parties (‘time-sharing'). The source code of the software and the technical documentation created during the development of the software will not be distributed to the other, not even if the other is willing to provide financial compensation for this distribution. The other acknowledges that the source code has a confidential character and that it contains company secrets of QSITE. 21.4 Immediately after termination of the use of software the other will return all copies of the software in his possession to QSITE. If parties have agreed that the other will destroy concerning copies after termination of the use, the other will immediately report such a destruction written to QSITE.
22. Delivery, installation and acceptation
22.1 QSITE will deliver the software on the agreed kind and size of data carriers to the other and, if installation by QSITE is agreed written, will install the software for the other. In lack of explicit agreements regarding this, the other will install, arrange, parameterise and tune the software itself and adjust the therefore used equipment and operating environment if necessary. Unless explicitly agreed otherwise QSITE is not obligated to perform data conversion.
22.2 If an acceptance test is agreed, the determined in articles 20.2 including 20.7 apply mutatis mutandis.
If an acceptance test is not agreed, the other accepts the software in the state it is in at the moment of delivery, thus including all visible and invisible errors and other defects, without prejudice of QSITE obligations concerning guarantee in article 23. In all cases the determined in article 20.8 is without prejudice.
22.3 In lack of explicitly agreed billing schedules all amounts concerning the distribution and use of software are due at the moment of delivering the software or, if installation of the software by QSITE is agreed written, after completion of the installation.
23 Guarantees
23.1 QSITE will use their best efforts to repair errors in the software such as in article 6.6 within reasonable terms if those are reported to QSITE written detailed within three months after delivery or, if parties agreed on an acceptance test, within three months after acceptance.
QSITE does not guarantee that software will work without interference, errors or other failures or that all errors and other failures will be improved. The repair will be free of charge, unless the software is developed ordered by the other; different than for a fixed price, in which case QSITE will charge according to its common rates the costs of repair.
QSITE can, according to its common rates, charge the costs of repair in case of user errors or improper use by the other or from all causes not attributed to QSITE or if the errors could have been established during the agreed acceptance test.
Repair of mutilated or lost data is not part of the guarantee. The guarantee expires if the other changes the software or has changes made without a written permission by QSITE, which permission will not be denied unreasonably.
23.2 Repair of errors will occur on a location determined by QSITE. QSITE is entitled to adapt temporary solutions, software bypasses or problem avoiding restrictions in the software.
23.3 QSITE is not obligate to repair errors reported after the term intended in article 23.1, unless parties have agreed on such an obligation to reparation.
24. Maintenance
24.1If there is a maintenance agreement for the software or if the usage fee includes software maintenance, the other will report observed errors to QSITE detailed in accordance with the procedures. After receiving the report QSITE will use their best effort to repair errors intended in article 6.6 and/or adept improvements in later new versions of the software. The results will, depending on the urgency, be distributed to the other in a way and term determined by QSITE.
QSITE is entitled to adapt temporary solutions or problem avoiding restrictions in the software. In lack of explicit agreements regarding this, the other will install, arrange, parameterise and tune the software itself and adjust the therefore used equipment and operating environment if necessary. Unless explicitly agreed otherwise QSITE is not obligated to perform data conversion.
24.2 QSITE does not guarantee that software will work without interference, errors or other failures or that all errors and other failures will be improved.
24.3 QSITE can, according to its common rates, charge the costs of repair in case of user errors or improper use by the other or from all causes not attributed to QSITE or if the software is changed by others than QSITE. Repair of mutilated or lost data is not part of the guarantee.
24.4 In case of a maintenance agreement, QSITE will provide improved versions of the software to the other as soon as those versions are available. Three months after the distribution of an improved version QSITE is no longer obligated to repair any errors in the previous version and to provide support concerning a previous version. For the distribution of a version with new opportunities and functions QSITE can demand a new agreement between the other and QSITE and that a new fee is due for the distribution.
24.5 If a maintenance agreement between the other and QSITE is not made simultaneous with the agreement of distributing the software, QSITE can not be held to make a maintenance agreement at a later time.
24.6 In lack of an explicit agreed billing schedule all amounts concerning maintenance of software are due previous to a maintenance period.
25. Software of suppliers
25.1 If and for as far as QSITE supplies software of third parties to the other the conditions of those third parties concerning that software will be applicable, provided that this is reported written to the other and overruling the provisions in these terms.
The other accepts the referred conditions of third parties. These provisions are available for the other at QSITE and QSITE will send those conditions free of charge to the other if requested. If and for as far as intended conditions of third parties are concerned not applicable for whatever reason in the relation between QSITE and the other, the provisions in these general terms apply fully.
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