GENERAL TERMS AND CONDITIONS
- These general terms and conditions apply to all offers, quotations, orders and/or agreements between DYZLE and Purchasers, with regard to the sale and delivery of goods and/or the rendering of services and/or the performance thereof. Any changes to or deviations from these terms need to be confirmed by DYZLE in writing and only apply to the relevant offer/order/agreement.
- DYZLE means DYZLE Operations B.V. and DYZLE Services B.V.
- Purchaser means any (legal) person who has requested or shall request DYZLE to deliver goods or to provide services, including their staff, representatives, attorneys, successors and heirs.
- Platform or PAAS (platform as a service) means the ASP/SAAS platform that clients of DYZLE can log into to view their registered information.
- Any general terms used by Purchaser are explicitly rejected and shall not be binding on DYZLE, unless DYZLE has agreed thereto in writing.
- If any provision of these general terms appears to be or is declared null or void, this will not affect the legality, validity or enforceability of any of the other terms and provisions and parties will agree to replace said provision by a provision that corresponds with the intention and purpose of the voided or nullified provision to the greatest extent possible.
- User means: Purchaser or any of its employees.
- Application Service Provider (ASP) and Software as a Service (SAAS) mean:
- DYZLE making and keeping available ‘at distance’ programs to Purchaser through the internet or another network, without making available to Purchaser a durable medium that contains the relevant programs.
- Computer service means: the automatic processing of data by using programs and appliances that are managed by DYZLE.
Offers and Quotations
- All offers of DYZLE are without obligation and shall be valid for a period of thirty days, unless otherwise specified.
- All prices stated by DYZLE are exclusive of VAT and costs for delivery.
- Any illustrations, specifications, descriptions about weight, measurements, colours etc. as mentioned in offers, circulars and quotations are by approximation.
Agreements and changes
- Only written agreements are binding on DYZLE. Only Purchaser can invoke any right from or in relation to the agreement that has been concluded with DYZLE. DYZLE is entitled to assign its rights and obligations under the agreement in whole or in part (e.g. to related companies).
- Purchaser shall notify DYZLE of any changes to be made to any placed order and the performance thereof timely and in writing.
- Changes to an order as placed by Purchaser, whatever the nature, resulting in an increase in costs compared to DYZLE’s original fee quote, shall be at the expense of Purchaser. In case such changes lead to a decrease in costs, Purchaser cannot derive any rights there from with respect to a reduction of the agreed purchase price. DYZLE may at its own discretion decide if such changes will lead to a reduction of the agreed purchase price.
- Agreements to provide services shall have an initial duration of five years after the appliances relating thereto have been connected, unless otherwise agreed in writing.
- Unless the agreement has been terminated by one of the parties in writing or by email by giving three months notice before the end of a term, the agreement shall be extended for a period of one year.
Any delivery periods stated by DYZLE have been determined with due care based on the data and information that was known to DYZLE at the time the agreement was concluded and shall be taken into consideration as much as possible; failure to meet a stated (delivery) period shall not constitute an event of default on DYZLE’s behalf. DYZLE is not bound to any (delivery) periods that cannot be met as a result of circumstances beyond DYZLE’s control that have occurred after conclusion of the agreement. In the event that it is likely that a date cannot be met, parties will consult with each other as soon as possible.
Access to the Platform
- DYZLE shall provide the services to Purchaser that have been agreed between parties in the areas of Application Service Provider, Software as a Service and/or Computer service and grant access to the Platform in accordance with the terms that have been agreed in writing. Access to the Platform will be granted to Purchaser after the conclusion of the agreement.
- DYZLE shall at all times be entitled to change the content, functionalities and scope of the agreed services concerning access to the Platform in case this is deemed required or desired by DYZLE for technical or economic reasons.
- All services will be provided by DYZLE on a best efforts basis, unless and insofar as DYZLE has committed itself to a certain sufficiently determined result as put down in the written agreement.
- Unless otherwise agreed, Purchaser shall remain responsible for the use of the service and the way in which the results of the service are used. Purchaser also remains responsible for instructions to and use of the programs by users, regardless of the fact that Purchaser has authority over these users.
- Purchaser should have the required facilities access to the Platform at his disposal, such as – but not limited to – suitable appliances and programs.
- DYZLE will provide Purchaser with the codes and settings that are required to access the Platform from Purchaser’s (computer) system. Purchaser shall be responsible for the correct entry of these codes and the settings of its (computer) system.
- DYZLE shall use all reasonable efforts to distribute the agreed fixed and/or mobile communications service.
- DYZLE shall use all reasonable efforts to provide the services with due care, where applicable in accordance with the agreements and procedures that have been agreed in writing with Purchaser.
- Any agreements about a service level (Service Level Agreement) explicitly have to be made in writing. Purchaser shall at all times inform DYZLE about any circumstances that may influence the provision of services and the availability thereof. In case an agreement is reached about a service level, the availability is measured without taken into consideration any announced shut downs for maintenance, as well as circumstances that are beyond the control of DYZLE and by taking into consideration the service as a whole for the duration of the agreement. Subject to evidence to the contrary, the availability and service level as measured by DYZLE shall constitute the full proof thereof.
- Visible damage or defects shall be reported to the transporter on the bill of lading upon arrival of the goods, or shall immediately be reported to DYZLE.
- - DYZLE shall be notified in writing of any complaints about the delivered goods within eight days after delivery. In case a default could not have reasonably been discovered within this term, a term of eight days shall apply from the moment such default could reasonably have been discovered.
- - Notwithstanding the above DYZLE shall under no circumstances accept any complaints that have been made upon expiration of a period of three months after the date of shipment of the appliances. DYZLE cannot be held liable in case it has not been notified timely of any complaints, in which case the agreement is deemed to have been performed properly.
- DYZLE reserves the right to replace or alter the delivered appliances at its own discretion without charging additional costs during a period of 6 months after the in service date, without this having effect on the agreed terms and conditions.
- An obligation for maintenance can only be derived from a written maintenance contract.
- An obligation to provide maintenance under the agreed fee structure will only apply to the appliances that are mentioned on Purchaser’s up to date list of appliances. Purchaser will keep this overview up to date at all times in consultation with DYZLE. In case DYZLE provides maintenance with regard to appliances that are not included in the overview at the time of maintenance, DYZLE shall perform these services separately at its usual rates.
- In case a maintenance contract is concluded or in case it is explicitly agreed in writing that maintenance is included in the user fee for the appliances, Purchaser shall report any defects in full detail to DYZLE in accordance with DYZLE’s standard procedures. Upon receipt of a notification DYZLE shall use its best efforts to try and repair such defects. Depending on the severity DYZLE will make the results available to Purchaser in a term and manner to be determined by DYZLE. DYZLE shall be entitled to apply temporary solutions as well as diversions or restrictions to the programs.
- DYZLE shall invoice its usual fees and costs for repair in case of improper or incorrect use or in case of other circumstances that are not attributable to DYZLE or in case the appliances have been altered by other persons. Recovery of damaged or lost data shall not be considered maintenance.
- Unless explicitly agreed otherwise in writing, costs of altered and/or new versions of appliances required for the functioning of the system and/or the maintenance thereof, as well as services as a result of such altered and/or new versions of such appliances, including the making of necessary amendments to the system, shall be for the account of Purchaser.
- DYZLE cannot be required to enter into a maintenance contract at a later stage in case Purchaser has not entered into a maintenance contract at the time the agreement for the delivery of appliances has been concluded.
Third party appliances
Insofar as DYZLE delivers or makes available (standard) appliances from third parties to Purchaser, the terms and conditions of such third parties shall apply, unless DYZLE informs Purchaser otherwise in writing. These terms and conditions will usually be included in the package of such appliances. In addition DYZLE will send these terms and conditions to Purchaser upon request.
Purchaser will timely, but in any event before the start of the installation activities, provide the connecting possibilities for the power/electricity that is required for the installation and testing of the system.
The costs of the required electricity are for the account of Purchaser.
- Purchaser shall take care of connecting the system/the installations to a public telecommunications network. Any (connecting) costs relating to this will be for the account of Purchaser. If so agreed in writing DYZLE will provide guidelines in relation to such connection to a public telecommunications network and/or provide SIM cards to facilitate GPRS communication. Purchaser shall at all times provide for a suitable internet connection for the Y-Gate Ethernet. In case the communication from the Y-Gates takes place through Purchaser’s own internet connection (DSL, Cable and/or Fibreglass), Purchaser shall at all times be responsible for the correct functioning of this connection. In case such connection is not available at the time of installation, a Y-Gate with GPRS connection shall be placed. Any (monthly) additional costs shall be for Purchaser’s account.
- Purchaser shall see to it that any operations to be performed by third parties (such as construction) and/or deliveries that are not part of the installation activities but are necessary for the correct and timely performance of the installation activities by DYZLE, will be performed timely and in such a way that they will not impede or delay the installation activities. In case an (expected) delay occurs nonetheless, Purchaser shall forthwith notify DYZLE.
- In case the start and progress of the installation activities is delayed by circumstances which are for the accountability of Purchaser, Purchaser shall be liable for any damages of DYZLE as a result of such delay in case such damages are a direct result of the delay. Both Purchaser and DYZLE will use their best efforts to mitigate such damages to the greatest extent possible.
- Purchaser shall be liable for damages to and loss of materials, parts or equipment that have been provided by DYZLE or third parties which are used by DYZLE for the installation activities and managed by Purchaser, unless such damages and/or loss are accountable to DYZLE.
- Purchaser will allow DYZLE to advertise and place name signs at the site of installation or on the system free of charge, during the time DYZLE is performing installation and/or maintenance activities.
- Purchaser warrants that it will make sure that the moving and/or immovable property where DYZLE (will) perform(s) the installation activities, comply with Dutch law, including legislation on construction and working conditions.
- Purchaser is responsible for and shall bear all costs for any applications for required permits in relation to the installation and the system, for exemptions and for additional local requirements from government and or public utility companies as well as all drawings to be performed for the set up of the system.
The system is considered to be delivered:
a) either in case DYZLE has notified Purchaser in writing (including by email) that the installation has been completed and Purchaser has approved or accepted the system;
b) or in case eight days have passed since DYZLE has notified Purchaser in writing (including by email) that the installation has been completed and Purchaser has failed to approve or accept the system within this period;
c) or in case a visual inspection of the system has been performed by DYZLE and a delivery report has been prepared and handed to Purchaser.
- Defaults that can be repaired within the warranty period as set out in the (Warranty) clause and that do not substantially affect the system’s performance will not affect the delivery.
- Delivery releases DYZLE from any liability for faults, unless Purchaser proofs that it reasonably could and/or should not have discovered such faults at the time of delivery.
- DYZLE does not warrant that the programs used by DYZLE for the Application Service Provider and/or Service as a Service are without fault and function without interruptions.
- DYZLE is not responsible for checking the accuracy and completeness of the results of the services provided and the data that has been generated by using the services.
- DYZLE does not warrant that Purchaser will have undisturbed and unrestricted access to the Platform.
- DYZLE does not warrant the undisturbed availability of fixed and mobile telecommunications networks.
- All services will be provided by DYZLE on a best efforts basis, unless and insofar as DYZLE has committed itself to a certain sufficiently determined result as put down in the written agreement.
- Unless otherwise agreed, Purchaser shall remain responsible for the use of the service and the way in which the results of the service are used. Purchaser also remains responsible for instructions to and use of the programs by users, regardless of the fact Purchaser has authority over these users.
- It is a known physical fact that for electronic means of communication such as mobile communications services the possibility to establish or maintain a connection and the quality of such connection is not equal or sufficient at any given place or time. DYZLE will use reasonable efforts to, insofar it makes use of services from third parties (telecom providers, cable companies etc.), limit the probability of disruptions as much as possible. However, Purchaser acknowledges that goods or services provided by DYZLE can be affected in a negative way and can be unavailable (temporarily) as a result of physical factors, atmospheric circumstances, modifications or maintenance to networks of providers of electronic communications services, disruptions to connections, problems with software or other causes.
- DYZLE shall use reasonable efforts to limit the probability and effects of disruptions as much as possible. DYZLE explicitly does not warrant the integrity of the used telecom/cable connections or power supply.
- In case this has been agreed in writing, Purchaser can notify DYZLE in writing of a disruption in a manner set by DYZLE. DYZLE will in that case use reasonable efforts to resolve the disruption in accordance with what has been agreed in writing between parties. If in DYZLE’s opinion the cooperation of Purchaser is required or desirable for the investigation into a disruption, Purchaser will grant all cooperation deemed useful, necessary or desirable by DYZLE. DYZLE is entitled to charge costs in case the disruption is related to incautious or improper use by Purchaser or non-compliance with instructions of use.
- DYZLE shall at all times be entitled to put the access to the Platform entirely or partially out of use.
- During a period of 3 (three) months after delivery, DYZLE will use its best efforts to repair any material and manufacturing faults, in case these faults have been reported to DYZLE within this period in writing and in detail. Any replaced parts will become the property of DYZLE.
- The guarantee lapses in case the defects as mentioned in the previous clause are a result of incorrect, incautious or improper use and/or external causes such as fire or water damage and/or other causes that are not attributable to DYZLE.
- In case of a justified complaint, DYZLE will send the delivered product via regular mail, after the defective product has been returned. The maximum warranty on appliances is 1 year from the moment of initial delivery. The warranty period shall not be extended in case a product is replaced in accordance with this article.
- Installation activities are excluded from any form of warranty.
- The warranty lapses in case Purchaser himself or any third party that has not been authorized by DYZLE has performed any work on the installation or the appliances.
- In case a warranty claim has been made wrongfully against DYZLE, e.g. in case of a disruption caused by external elements such as dust, break in a cable or disruptions that easily could be resolved by Purchaser, e.g. by resetting based on the manual or Platform support, any services to be performed by DYZLE will be charged to Purchaser in accordance with the going rates at that time.
- Any warranty obligation will first be performed in case Purchaser has fulfilled its all obligations under the agreement and any related obligations.
- DYZLE shall take due care in performing the agreement.
- DYZLE shall never be liable towards Purchaser in case the connection has been put out of use by a third party within the framework of, or following from an agreement between Purchaser and a third party.
- Purchaser acknowledges that the performance of telecommunication services can be affected in a negative way or such services can be unavailable temporarily or wholly as a result of physical factors (buildings, tunnels etc.) and by atmospheric conditions, disruptions in interconnection and problems with programs used by DYZLE and/or Purchaser. In the event of such circumstances, DYZLE shall never be liable towards Purchaser damages or costs.
- Apart from the warranty clauses as set out above, DYZLE shall never be liable for any damages, save for gross negligence or wilful misconduct.
- DYZLE shall never be liable for any failures in the performance of services of third parties, such as providers of telecommunications services.
- DYZLE shall not be liable for consequential damages, including damages to third parties, immaterial damages, loss of profits and damages to appliances or products of Purchaser or in any other form whatsoever.
- Notwithstanding the above, any liability shall be limited to the invoice amount for delivered goods and/or services during the period of the initial agreement, regardless of any extension of the term of the agreement.
- Notwithstanding the above and insofar as DYZLE has an insurance policy any liability shall be limited to the maximum amount that will be covered by DYZLE’s insurer.
- In the event more than one claim arises as result of one and the same event or in the event the sum of the different claims exceeds the amount covered by the insurance, the claims will be awarded and settled prorated.
- Also in the event DYZLE shall not be able to deliver the agreed hardware and/or services, DYZLE shall not be liable, unless the non-delivery of such hardware and/or services is the result of a material breach in the performance of DYZLE’s obligations, which lies within DYZLE’s sphere of control. The availability of the internet depends on the internet itself, DYZLE’s service provider and the telecommunications supplier of DYZLE. Therefore DYZLE cannot be kept accountable nor for the availability of online services, nor does it lie within the sphere of control of DYZLE and DYZLE shall not accept any liability under such circumstances.
- DYZLE shall never be liable towards Purchaser in case Purchaser uses telecom services (including the use of SIM cards that are the property of Purchaser) from a third party outside of any contractual relationship with DYZLE.
- DYZLE depends on its providers to maintain and make available the access to the Platform. DYZLE will use its best efforts to resolve any possible disruptions to the access and/or the use of the Platform as soon as reasonably possible, but – although DYZLE will aim to do so – in all fairness cannot guarantee the uninterrupted availability of the Platform, correct and undamaged data transmission, the full reliability and inability to hack the platform and/or services.
- DYZLE shall at all times have the right to temporarily put the Platform out of use for the purpose of resolving a disruption or performing maintenance or modifications to the Platform. Insofar as possible, DYZLE shall timely notify Purchaser of such (maintenance) activities.
- Any claims against DYZLE shall lapse after a period of one year from the moment they have become payable.
In case Purchaser has indicated that agreed orders and/or delivery thereof do not need to be executed, such only after written notification (including by email), DYZLE shall invoice the total order value, including first year services and registration fees, but excluding installation costs.
- Payments will be made in advance through pre authorized debit or, under exceptional circumstances, within 14 days after the invoice date.
- Unless otherwise agreed, Purchaser will authorize DYZLE, by agreement or upon first request thereof, to collect the outstanding amount through pre authorized debit from a bank account to be designated by Purchaser. Purchaser guarantees that there will be sufficient funds on this account.
- In the event Purchaser does not fulfil its payment obligation, DYZLE shall be entitled to suspend the performance of the agreement. DYZLE shall continue to perform its services during a period of one month after the due date of the invoice. After this period DYZLE may terminate the service without prior warning. DYZLE shall not be bound to pay any damages as a result thereof. Purchaser shall be obliged to pay any outstanding (periodic) amounts until the end date of the agreement.
- In case payment is not received by DYZLE in time Purchaser shall be in default by operation of law without any further default notice being required. In that case Purchaser shall be obliged to reimburse any and all extrajudicial costs, including costs for administration, storage, and judicial costs. In addition statutory interest will be charged in accordance with section 6:119a jo. 6:120 of the Dutch Civil Code.
- Unless otherwise agreed, costs for services will be invoiced and settled in advance on a quarterly basis.
- DYZLE shall keep confidential all confidential information that has been made available by Purchaser to DYZLE under the agreement. This confidentiality does not apply to any insights and procedures obtained through confidential information and data from Purchaser, unless such confidential information or data can be derived directly or indirectly from such insights and procedures.
- Purchaser is aware that programs, websites, databases, appliances and other materials that have been made available may contain confidential information and/or corporate secrets from DYZLE or its licensors. Purchaser is obliged to keep confidential such programs, databases, appliances and other materials, not to make known or give them to third parties and to only use them for the purposes for which they have been made available. Third parties include any person working for the organization of Purchaser who does not necessarily need to use the programs, websites, databases, appliances and/or other materials.
Retention of title
- DYZLE remains the owner of anything that has been delivered to Purchaser pursuant to any agreement, until Purchaser has met all its obligations with regard to the delivery of the goods and corresponding services. In case DYZLE provides services under this agreement, the retention of title also applies to any claims resulting from the provision of services. Additionally, the retention of title applies to any claims DYZLE may have against Purchaser in case Purchaser fails to perform its obligations under any agreement with DYZLE. As long as the ownership of the delivered goods has not been transferred to Purchaser, Purchaser shall not be allowed to process, remove from his disposal, encumber or pledge the goods, or grant any right to any third party in relation to the goods.
- Purchaser hereby authorizes DYZLE to access rooms and/or vehicles where goods to which retention applies are placed and/or to make these available, and authorizes DYZLE to take possession of such goods. DYZLE is entitled to do so the moment Purchaser is in default of payment or in case DYZLE has reasonable ground to fear that Purchaser will be in default. Any costs relating to the recovery will be for the account of Purchaser.
- Purchaser is obliged to insure all goods to which DYZLE’s retention of title applies, at its own expense in accordance with the ‘prudent man’ principle.
- Purchaser will inform DYZLE immediately in the event Purchaser is approached by a third party about an alleged breach of said third party’s rights as a result of goods delivered or services provided by DYZLE.
- In case an order is to be performed based on a design or other direction from Purchaser, Purchaser warrants that this will not breach any intellectual property rights or other rights of third parties.
- The intellectual property rights of any goods, programs, services or appliances delivered of provided shall remain with DYZLE or the party from which DYZLE has derived the relevant rights.
- DYZLE reserves the right to freely use any measured or registered data and information that has first been rendered anonymous for analyses, statistics and publications.
- Purchaser remains responsible for acceptance of terms of subscription that are related to the use of services and goods that have been provided by DYZLE.
- Purchaser is not allowed to alter or remove any label or indication about copyright, trade names, brands or other rights of intellectual property from goods, nor any label or indication about confidentiality or non-disclosure about data and information, in case these are part of goods that are the property of DYZLE. Purchaser is not allowed to remove or circumvent the security of any goods.
Applicable law and disputes
- These Terms, the agreement and the formation and execution thereof and any agreement in connection thereto shall be governed by the laws of The Netherlands.
- Any disputes about that may arise from or in connection with the (execution of) any agreement between DYZLE and Purchaser, as well as any dispute about these conditions, including requests for any provisional orders, shall be brought exclusively before the competent court in the Zwolle/Lelystad district, unless DYZLE prefers to bring the dispute to another competent court.
- In case of any dispute the Dutch version of these Terms and Conditions will prevail.