GENERAL BUSINESS TERMS
Enclosed you will find the general business terms of AeroPlus Aviation Software B.V., seated Veerpoortstraat 7-9, 6981 BL Doesburg, The Netherlands, which terms are applicable to our offers, orders, services and agreements;
General business terms of AeroPlus Aviation Software
Of: AeroPlus Aviation Software B.V. and/or its trading names, registered at the Dutch chamber of commerce, Arnhem, registration no. 09188408, hereafter called AeroPlus Aviation.
I GENERAL CONDITIONS
Art. 1. General
1. These general conditions are applicable to all offers and all agreements, orders, services, however named, of AeroPlus Aviation with third parties – hereafter to be named the client – and to the execution of these.
2. In these general conditions with business is understood all products, goods, services and/or materials delivered by AeroPlus Aviation in any possible way.
Art. 2. Delivery times and force majeure
1. AeroPlus Aviation will, before or after the entering of an agreement but at least as soon as possible, inform client of the delivery times that can be expected, when applicable. When programming according to Agile programming principles, the programming is done in short increments with room for additional requirements being added to the project while underway and thus then delivery times are estimates and subject to change.
2. The delivery times are valid approximately and are never to be regarded as deadlines, unless in contravention of these general conditions otherwise is explicitly agreed, confirmed in writing.
3. In case of force majeure, including the case that AeroPlus Aviation is not able to comply with the agreement because of third parties AeroPlus Aviation makes use of to carry out the agreement regardless of the reason, as well as in the case that the fulfillment of the agreement within a term as meant in clause 1 and/or clause 2 in all reasonability can not be asked of AeroPlus Aviation, the delivery time as meant in clause 1 will be extended with a duration of time equal to duration of the continuing of these circumstances, unless a deadline, as meant in clause 2 has explicitly been agreed on or the specified in clause 5 is applicable.
4. If at the moment of acceptance of the order it appears that this order can not be carried out as a result of circumstances unknown to AeroPlus Aviation at the moment of acceptance, AeroPlus Aviation is entitled to annul the agreement starting immediately, without AeroPlus Aviation owing any compensation to client. Unless client immediately after meant annulment informs AeroPlus Aviation that he wants to change the given order and AeroPlus Aviation accepts this renewed order. In that case the agreement counts as annulled and a new agreement will be made between AeroPlus Aviation and client, without AeroPlus Aviation being obliged to pay any compensation to client.
5. Exceeding the delivery time – by which cause whatsoever – does not oblige AeroPlus Aviation to pay compensation to the client for damage in any form, suffered by the client or third parties, unless the exceeding has risen on purpose or by gross guilt of managers of executive staff of AeroPlus Aviation. Neither will the client obtain any right to annulment of the
agreement by the exceeding of the delivery times or to not fulfilling any obligation that might be attached on him on account of the concerned or any other agreement that has been made with him. In contravention to the afore mentioned, client has, in case it is a matter of a very substantial exceeding of the extended delivery time, after having declared AeroPlus Aviation in default in writing and having given AeroPlus Aviation a period of at least one month to fulfill his delivery obligations, the right to annul the agreement. However annulment does not give the client any right to compensation towards AeroPlus Aviation nor the right to not fulfilling any obligation that might be attached on him on account of other agreements that have been made with him.
Art. 3. Payment
1. Principally payment takes place immediately when the order is placed, but not later than 8 days after date of invoice if not agreed in the agreement otherwise. The payment must be made to a bank account specified by AeroPlus Aviation. Client commits concerning Internet services to payment per automatic collection. If client is a partner/dealer of AeroPlus Aviation, then invoices are paid ‘at delivery’ through a so-called voucher system unless otherwise agreed in the agreement, where AeroPlus Aviation invoices the partner up-front for a specified amount of programming/support hours. Client will give all cooperation to AeroPlus Aviation such that meant collection can be given shape.
2. In case payment has not taken place within the in previous clause specified term, the client is in default without further notice and AeroPlus Aviation has the right to charge 1.5% interest over the invoice price for every period of 30 days or a part of that period during which payment of the account after expiration of the mentioned term has not taken place.
3. Payment of the invoice price has always to take place without discount or comparison of debts. Complaints do not give client the right to refuse or delay payment.
4. In the first place payments made by the client serve always in settlement of all due interest and costs and next in settlement of the demandable invoices that are outstanding the longest, even though the client states that the settlement concerns a subsequent invoice.
5. When in case of untimely payment AeroPlus Aviation deems it necessary to place its claims for collection in hands of a third party, the herewith connected costs are for the account of the client. By choice of AeroPlus Aviation the client can be charged with the legal costs, or with an amount equal to 15% calculated on the to AeroPlus Aviation payable main sum increased by the delay interest, with a minimum of 1,000.– euro. The owing of the collection costs arises by the mere calling in of a third party by AeroPlus Aviation.
6. AeroPlus Aviation reserves the right to demand further collateral at all times and by failing of this AeroPlus Aviation has the right to suspend the agreement.
Art. 4. Liability
1. Without prejudice to the specified in these general conditions about guarantees AeroPlus Aviation is never liable for any direct, indirect or subsequent damage, like for instance: personal accident and/or damages to objects, machines, installations and buildings, company institutions, delay and/or disorders, temporary breakdown of (Internet)servers, damage to the environment, the loss of data or information, or any other (company) damage by any reason or by any nature whatsoever, unless the damage is the result of intent or gross guilt of managers or executive staff of AeroPlus Aviation and unless it is a case of product liability in according to the meaning of the Civil Code.
2. AeroPlus Aviation is also never liable to any direct or indirect damage caused by the functioning or non-functioning of business and/or executed work or services delivered by AeroPlus Aviation, caused by relevant personnel in his employment (not executive) or persons and/or representatives working by order of AeroPlus Aviation, to business and persons whatever of whomever.
3. In case any liability might be attached on AeroPlus Aviation, by any reason whatsoever, this liability is always restricted to the amount to which AeroPlus Aviation Software is entitled on account of the agreement that has been made with the client and will never exceed the amount that the liability insurance company will refund.
4. In case client is a partner/dealer of AeroPlus Aviation, the result is that client is responsible for the programming/service project towards his or her own client. The special price offered by AeroPlus Aviation to client implies that client takes full responsibility for the projects and uses the programming and/or other services of AeroPlus Aviation as a subcontracting service, whereby AeroPlus Aviation is not responsible for whatever was agreed between client and his or her own client.
Art. 5. Annulment
1. In case of default of the client to fulfill his obligations, also including the case that he has not paid at a before agreed time, AeroPlus Aviation will always have the right to annul the agreement completely of partially, or to demand fulfillment, without prejudice to the claims of AeroPlus Aviation to compensation, while at that moment AeroPlus Aviation also has the right to annul all other agreements with client under equal conditions, as for as these have not been carried out yet; each annulment results in the payment of the yet payable amount to AeroPlus Aviation.
2. Besides the possibility of annulment by AeroPlus Aviation of a made agreement on account of the first clause of this article AeroPlus Aviation has the right to annul the agreement without judicial intervention in case of suspension of payment, bankruptcy, ward ship or rule of court and/or liquidation of client. By entering any agreement with AeroPlus Aviation client agrees with the in this article mentioned authority to unilateral annulment of the agreement by AeroPlus Aviation.
Art.6. Disputes
1. Dutch Law is applicable to all offers, agreements, orders, services – whatever named – of AeroPlus Aviation.
2. Location of implementation of made agreements with AeroPlus Aviation, is the place of business of AeroPlus Aviation, being Doesburg, the Netherlands.
3. All disputes that might occur as a result of orders accepted by AeroPlus Aviation or as a result of agreements made with AeroPlus Aviation will exclusively be judged by the Dutch judge, competent in the place of business of AeroPlus Aviation in Doesburg.
Art.7. Appropriateness
1. Different conditions are only part of the agreement made by parties, if and as far as both parties have specifically agreed on these conditions in writing.
2. The possibly not being applicable of a (part of a) condition of these general conditions leaves the appropriateness of the other conditions intact.
II DEVELOPMENT OF SOFTWARE AND INTERNET PRODUCTS
Art. 8. Development of software
1. In the development of software is understood: based on by the client given written specification of functions that have to be included in the software, by AeroPlus Aviation on own responsibility carrying out, designing, writing, testing and in case necessary correcting of software and the implementation of this software in the computer system of client or at one of the (Internet)servers of AeroPlus Aviation or client. In the development of software is also understood the designing of websites, interactive programs for the Internet and e-commerce solutions and everything that is connected to the Internet products and services of AeroPlus Aviation.
2. The development of software only concerns the application area’s and/or programs that are mentioned in the offer.
3. Changes in or additions to the agreed specifications can only be made with mutual agreement and in writing through the project website or e-mail; additional costs resulting from these changes or additions are for the account of client. Concerning the payment of these costs the specified in article 3 of these conditions is valid without prejudice. AeroPlus Aviation will inform client of an influence on the time of completion by changes or additions if substantial. Herewith article 2 of these conditions is of according application.
Art. 9. Nature of the agreement
1. Unless in writing a fixed price or other arrangement has been agreed the agreement for development of software has been entered into on the basis of subsequent calculation of spent hours.
2. All by AeroPlus Aviation stated amounts are excluding VAT, unless the contrary is explicitly stated.
Art. 10. Delivery and acceptance
1. AeroPlus Aviation will deliver the software that has to be developed to the client ready for use through Internet delivery or by mail. Principally AeroPlus Aviation will inform the client in writing of ready to use delivery of the software.
2. The client has the right to, if this has been agreed in writing, test the developed software during a period of 14 days after the ready to use delivery. This test will exist of the carrying out of a collection of test cases, composed by client, that the client on request of AeroPlus Aviation will put at disposal timely before the ready to use delivery.
3. In case an acceptance test has been agreed on in writing, the client will within 14 days after the ready to use delivery in writing and/or through the bug-tracking website of AeroPlus Aviation and detailed inform AeroPlus Aviation of failures that the client has found in the developed software. Failures also include that the developed software does not comply with the agreed specification of functions. On written request of the client AeroPlus Aviation will repair failures in the software within a reasonable term. AeroPlus Aviation uses an online support system where the failures can be reported and tracked.
4. The software is considered to be accepted by the client after the ready to use delivery. If an acceptance test, as meant in clause 2, is agreed on in writing, the software is considered to be accepted by the client 14 days after the ready to use delivery, in case the client has not informed AeroPlus Aviation in writing according to the previous clause, or after the repair of the
failures.
5. By acceptance, as meant in clause 4, client declares himself to be in agreement with the software as delivered by AeroPlus Aviation. Herewith client renounces himself to refer to any failure occurring or resulting from software delivered by AeroPlus Aviation.
Art. 11. Property designs
AeroPlus Aviation has the rights on industrial and intellectual property concerning contents and form of reports, drawings, designs, software, the developed software, models and the like, however named. The client is not allowed to sell, deliver, copy or put to the disposal of third parties in any other way business where meant property is attached to without the written consent of AeroPlus Aviation. If it is agreed in writing that the rights on industrial and intellectual property is transferred to client, then this only happens after full payment of all outstanding invoices, costs, etc. In the case that client is partner/dealer of AeroPlus Aviation the intellectual property of software solutions worked on and custom developed for client always are and remain the property of client and will never become property of AeroPlus Aviation unless agreed otherwise in writing. All developed software, additions, customizations of software of AeroPlus Aviation related to standard software provided or sold by AeroPlus Aviation is and shall remain the sole property of AeroPlus Aviation.
III DELIVERY OF STANDARD SOFTWARE
Art. 12. General
1. With delivery of standard software is understood: the selling by AeroPlus Aviation to client of the right to use the general available, not specifically for client developed software (standard package); also if the standard package is adapted on behalf of client. A standard package contains, unless explicitly in writing is agreed on, the programs recorded on for the computer, whatever named, of client readable information carriers and the concerned documentation, including the possibly to be provided new versions.
2. AeroPlus Aviation guarantees that she has the right to dispose of the standard package. Art. 13. Property designs. AeroPlus Aviation has the rights on industrial and intellectual property concerning contents and form of reports, drawings, designs, software, the developed software, models and the like, however named. The client is not allowed to sell, deliver, copy or put to the disposal of third parties in any other way business where meant property is attached to without the written consent of AeroPlus Aviation. All developed software, additions, customizations of standard software of AeroPlus Aviation is and shall remain the sole property of AeroPlus Aviation.
Art. 13. Maintenance
1. If a maintenance agreement has been made for the standard package that has been developed by AeroPlus Aviation or if it is a case of a payment for the use including the maintenance, client will according the normal procedures of AeroPlus Aviation inform AeroPlus Aviation in writing of observed failures in the software. After receipt of this informing AeroPlus Aviation will repair possible failures to his best ability, in case the software does not comply with the specifications of the standard package (user manual).
AeroPlus Aviation does not guarantee that the software will function without interruption or that all failures will be repaired.
2. AeroPlus Aviation can charge client with the costs resulting from the repair of the failures as meant in clause 1 in case of user faults on part of client, to be determined by AeroPlus Aviation, or resulting from other causes that AeroPlus Aviation can not be accounted for or in case the software has been changed or is maintained by others than AeroPlus Aviation. Repair of possibly lost data is not included in the maintenance and thus the costs resulting from this repair are for the account of client.
3. In case a maintenance agreement has been made, AeroPlus Aviation gives client an improved version of the standard package when this becomes available. After three months after the becoming available of the improved version AeroPlus Aviation is not obliged to repair possible failures in the old version any more. AeroPlus Aviation can ask a further by AeroPlus Aviation to be determined payment for putting a version with new possibilities and functions to the disposal of client.
4. AeroPlus Aviation, his employees and/or third parties brought in by AeroPlus Aviation or his representatives are not liable for damages, before or during the carrying out of the maintenance, the transfer of data or software to other hardware and the replacement of software by a new version included, losing data, unless the damage is the result of purpose or gross guilt of management or executive staff of AeroPlus Aviation. Client himself is responsible for making a backup (safety copy) of the data. This concerns also the available websites and applications of the client that are present at the (Internet)servers of AeroPlus Aviation.
IV SELLING EQUIPMENT
Art. 14. Transfer of property
1. The property of the delivered business only transfers to client, when he has paid everything he is indebted to AeroPlus Aviation concerning the delivery of this business, including interest and costs.
2. In case AeroPlus Aviation makes an appeal to the property condition, the concerned made agreement will be observed as annulled, without prejudice to the right of AeroPlus Aviation to demand payment for damage, lost profit and interest.
3. As long as the property has not been transferred to the client, he is not allowed to pledge the business, to establish a silent right of distraint on it on behalf of a third party or to give third parties any rights on the business. Such an act will be regarded as liable non-observance of the client. Then AeroPlus Aviation can at once, without being held to any proof of default, suspend her obligations of the agreement or annul the agreement without prejudice to the right of AeroPlus Aviation on payment of damage, lost profit and interest.
Art 15. Acceptance and complaint
1. Complaints about the quality of the business and/or defaults of the specifications have to be submitted to AeroPlus Aviation not later than 8 days after receipt by client. The onus of proof that the delivered business does not comply with the agreement is attached to the client.
2. The client has to give AeroPlus Aviation the opportunity to inspect the business in unchanged quality as delivered, in order to check whether the complaint is justified or not. Complaints never give the client any right to totally or partially postpone payment of the purchase price or additional costs, while any appeal to compensation explicitly is excluded. Complaints do not relieve client of his obligations to purchase previous or still to be carried out deliveries and/or to accept still to be delivered business.
3. Business about what is complained and that is located in another place than the supply room
of AeroPlus Aviation, has to be stored by client on his own account and for his own risk. In this case the client has to take care of the business with the care of a prudent man, including adequate insurance against the usual risks.
Art. 16. Guarantee
AeroPlus Aviation only delivers equipment of suppliers. Client has only claims because of guarantee towards the suppliers in compliance with the conditions of these suppliers.