GENERAL TERMS AND CONDITIONS
Agreement(s): any verbal or written agreement concluded between FIT and the Other Party, any change thereto or supplement thereto, and all (legal) acts in preparation and execution of that agreement.
FIT Fitcons B.V. (also trading as FIT Global), a company having its address at Koopvaardijweg no. 2, (4906 CV) Oosterhout; registered in the Trade Registry of the Dutch Chamber of Commerce with the number: 20128264.
Other Party: the party – a legal entity or natural person – who concludes an Agreement with FIT, to whom FIT has submitted a quotation or who has any other legal relationship with FIT.
Parties: FIT and the Other Party together.
Product: A software solution of FIT like FIT ‘CAT Dealer Business Solution’ (“FIT-CDBS”) among others.
SAP: the software and service provider SAP SE, established in Germany, owner of SAP Software.
1. Applicability of terms and conditions
1.1 These general terms and conditions (hereinafter: “general conditions”) apply to all offers, tenders and quotations of FIT, and to all Agreements concluded between FIT and the Other Party.
1.2 The applicability of any general conditions of the Other Party is hereby expressly rejected. Deviations from and/or additions to these general conditions will only be binding if and to the extent expressly confirmed in writing by FIT, and relate only to (the part of) the Agreement in respect of which such acceptance has taken place.
1.3 If at any time one or more provisions of these general conditions become void or voidable, whether in part or in full, the rest of these general conditions remain in place. In this event, FIT and the Other Party will agree on the replacement of the void or voidable provisions by new provisions, while retaining the purpose and scope of the original provisions as much as possible.
1.4 If FIT does not insist on the strict observance of these general conditions at all times, this does not mean that the provisions concerned have become inapplicable or that, in other cases, FIT has in any way relinquished the right to insist on the strict observance of the provisions of these general conditions.
2. Quotations and offers
2.1 All quotations and offers of FIT are without obligation, unless an acceptance period has been stipulated in the quotation. A quotation or offer shall be null and void if the product to which the quotation or the offer pertains is no longer available in the meantime.
2.2 FIT cannot be held to its quotation, if that quotation, or a part of it, contains an obvious mistake or clerical error.
2.3 Previously submitted quotations do not automatically apply to future orders or Agreements.
2.4 A composite price statement does not oblige FIT to perform part of the activities at a corresponding proportion of the stated price.
2.5 Unless expressly stated otherwise, all quoted amounts are exclusive VAT.
3.1 An Agreement between the Parties is only concluded if the Other Party unconditionally accepts an offer from FIT, or if FIT confirms the Agreement in writing, or has fully or partially executed the Agreement.
3.2 All agreements, amendments and/or other commitments made after the formation of the Agreement shall be binding on FIT only if confirmed in writing by FIT.
3.3 Unless otherwise agreed, FIT is not a party to the provision of services of third parties, such as hosting, even if FIT purchased these services for the benefit of the Other Party.
4. Obligations Other Party
4.1 The Other Party must ensure that all data and documents, of which FIT has indicated that these are necessary for the correct and timely execution of the agreed work, or of which the Other Party should understand that these are necessary for the correct execution of the work, will be made available to FIT in time.
4.2 The Other Party is responsible for the correctness, completeness and reliability of the data and documents made available to FIT, even if these come from or via third parties. The Other Party shall immediately inform FIT of any changes which materially affects the performance of its obligations under the Agreement.
4.3 The Other Party grants FIT free access and/or passage to the (physical or digital) location where the Agreement is executed. This includes, among other things, the Other Party’s obligation to provide FIT with any necessary passwords or access for or to the digital location where the Agreement is being executed.
4.4 If the Other Party has not, not timely or not adequately fulfilled its obligations as referred to in this article, then FIT is entitled to suspend the performance of the Agreement until the moment the Other Party fulfils its obligations as stated in this article.
5. Execution of the Agreement
5.1 FIT is entitled – upon or after entering into the Agreement and before (further) delivery – to demand sufficient security from the Other Party that both the payment obligation and any other obligations will be complied with. FIT can therefore request a down payment on the invoice amount before it starts the execution of the Agreement. Refusal by the Other Party to provide the required security gives FIT the right to refuse the execution of the Agreement.
5.2 All work performed by FIT in the execution of the Agreement is performed to the best of its knowledge and ability. FIT's obligation relates to a best efforts obligation.
5.3 FIT determines the manner in which the Agreement is executed, while taking into account the requirements that the Other Party has made to this. FIT has the right to engage (and have work done by) third parties and reserves the right to replace persons and/or employees involved in the execution of the Agreement.
5.4 Specified deadlines for the execution of the Agreement or for the delivery of certain items are indicative and are never strict deadlines. If a term is exceeded, the Other Party must declare FIT in default in writing.
5.5 Unless agreed otherwise in writing, the work of FIT never includes performing tests, applying for permits and assessing whether the Other Party's instructions comply with legal standards.
5.6 FIT shall be permitted to audit the usage of the FIT Products at least once annually, which may include on-site and/or remote audits. The Other Party shall cooperate reasonably in the conduct of such audits. In the event, an audit reveals that (I) the Other Party underpaid license fees and/or FIT support fees to FIT and/or (II) that the Other Party has used the Products in excess of the license quantities or levels stated in the Agreement, the Other Party shall pay such underpaid fees and/or for such excess usage based on the then current FIT price list and terms and conditions in effect and the reasonable cost of the audit. Subsequently the Agreement will be modified accordingly.
5.7 FIT reserves all of its rights at law or in equity with respect to both the Other Party’s underpayment of license fees or FIT support fees and usage in excess of the license quantities or levels.
5.8 If during the execution of the Agreement it appears that the work to be done must be amended or supplemented in order to ensure the proper execution of the Agreement, Parties will timely and in mutual consultation amend the Agreement accordingly.
5.9 If the Parties agree that the Agreement will be amended or supplemented, the time of delivery may be affected. FIT will inform the Other Party as soon as possible.
5.10 An amendment and/or supplement to the Agreement may have financial and/or qualitative consequences.
6. Termination, suspension and dissolution
6.1 The Agreement shall become effective as of the date set forth in the Agreement and shall continue in effect thereafter unless the Agreement is terminated. Agreements can be terminated by each Party at any time by the end of the current term of the Agreement with due observance of a notice period of thirty (30) days.
6.2 FIT is authorized to suspend its obligations or to dissolve the Agreement without any obligation to pay any damages, loss or costs, if:
- the Other Party does not, not fully or not timely fulfil its obligations under the Agreement; or
- FIT becomes, after the conclusion of the Agreement, aware of circumstances that give good ground to fear that the Other Party will not fulfil its obligations; or
- a delay on the part of the Other Party is of such nature that FIT can no longer be expected to fulfil its originally agreed obligations under the Agreement; or
- the Other Party refuses to provide the required security.
By virtue of default, the Other Party shall be held to pay damages or compensation to FIT and is liable for any damages (including costs) arising directly or indirectly on the part of FIT as a result.
6.3 FIT is always entitled to refuse or terminate an Agreement, or an amendment therein, if the Agreement is in conflict with a statutory provision or regulation. FIT may also refuse or terminate an Agreement if, in its opinion, the Agreement could damage the interests or reputation of its business.
6.4 In case of dissolution, any outstanding invoices or claims in the name of the Other Party shall be immediately due and payable.
6.5 In case of liquidation, (application for) suspension of payment or bankruptcy, seizure on behalf of the Other Party, debt restructuring or any other circumstances that prevents the Other Party to freely dispose of his/her capital, FIT is entitled to terminate or cancel the Agreement with immediate effect, without any obligation for FIT to pay any damages or compensation.
7.1 If the Other Party cancels an assignment fully or partially within 30 days before the start of the (execution of the) Agreement, FIT is allowed, regardless of the cause of such cancellation, to charge 100% of the license fees.
7.2 The cancellation date is the date on which FIT received the written cancellation.
7.3 The administration of FIT is leading for the determination of the costs incurred and the associated cancellation date.
8. Force majeure
8.1 FIT is not obliged to fulfil any obligation to the Other Party in case it is being hampered due to a circumstance that is not due to gross negligence, and neither shall be for the account of FIT under the law, a legal act or general acceptance, hereinafter referred to as “force majeure”.
8.2 In addition to what is included in law and jurisprudence, force majeure shall mean all external causes either foreseen or unforeseen, which FIT cannot influence however which prevents FIT to meet its obligations under the Agreement. Such situations include any strikes within FIT or third parties, as well as the situation that a performance of a supplier of FIT is not, not timely or not sufficient delivered to FIT by the supplier or the Other Party. FIT is also entitled to invoke force majeure if the circumstance preventing (further) compliance occurs after FIT should have met its obligations.
8.3 FIT is entitled to suspend its contractual obligations during the period of force majeure. If the period of force majeure lasts for longer than three (3) months, either party shall be entitled to dissolve the Agreement without being obliged to pay any compensation for damages to the other party.
8.4 Insofar FIT, at the time the force majeure commences, has meanwhile partly fulfilled its obligations by virtue of the Agreement, of shall be able to do so, and the fulfilled part and/or the part to be fulfilled represents independent value, FIT is entitled to separately invoice the part that has already been fulfilled and/or is yet to be fulfilled. The Other Party is obliged to pay that invoice as though it were for a separate agreement.
9. Compensation and payment
9.1 Unless otherwise expressly agreed in writing, payment must be made within 30 days from the date of invoice, in a manner indicated by FIT and in the currency stated in the invoice. The license fee plus the first year of the maintenance fee has to be paid by the Other Party to FIT directly at the commencement of the Agreement. After that, the maintenance fee will be paid yearly upfront by the Other Party.
9.2 In the event of additional costs, such as allowances or additional work, these costs will be charged on the basis of subsequent calculation.
9.3 If the Other Party fails to make (timely) payment, the Other Party shall be immediately in default as from due date without prior notice or summons from FIT. Without prejudice to its other obligations, the Other Party owes interest on the outstanding amount (including collection costs) as from due date of the invoice until the date of payment in full on an annual basis equal to the statutory commercial interest rate ex Section 6:119a of the Dutch Civil Code. All reasonable judicial and extrajudicial costs made by FIT to obtain payment shall be borne by the Other Party.
9.4 FIT shall be entitled to use the payments made by the Other Party first to cover the costs, then to cover any interest that has fallen due and finally to cover the principal sum and accrued interest. Payments made by the Other Party will be used by FIT in settlement of the oldest due claims.
9.5 The Other Party is never entitled to set off the amount owed by it to FIT.
9.6 Objections to the invoiced amount or any other objection(s) shall never suspend the payment obligation of the Other Party.
10.1 Any liability of FIT remains at all times limited to the provisions as stated in these general conditions.
10.2 FIT is not liable for damage of any nature whatsoever that has arisen due to incorrect or incomplete information provided to FIT by or on behalf of the Other Party.
10.3 FIT is not liable for damage, of whatever nature, arising as a result of a “bug” that only comes into play as a result of the passage of time, such as a “bug” as a result of a change of date or otherwise. FIT is also not liable for any downtime of the software.
10.4 The liability of FIT is always limited to the amount that its insurer pays in that case, or if no payment of the insurance takes place, up to a maximum of the invoiced amount related to the maintenance fee to the Other Party over the last two calendar months in respect of the part of the Agreement to which the liability relates.
10.5 In the event that liability is assumed, FIT is only liable for direct damage. This includes: (1) the reasonable costs to determine the cause and extent of the damage; (2) if applicable, the reasonable costs incurred to resolve the defective performance of FIT, insofar as this is attributable to FIT, and (3) the reasonable costs incurred to prevent or limit the damage. The Other Party must then be able to demonstrate that these costs have actually led to a limitation of the direct damage.
10.6 FIT is never liable for indirect damage. This includes, among other things: consequential damage or loss, lost profit and damage or loss as a result of business stagnation.
10.7 The limitation of liability as set out in these general conditions shall not apply if the damage is due to intent or gross negligence on the part of FIT.
11.1 The Other Party indemnifies FIT, and third parties engaged by FIT, from any liability towards third parties who suffer damage as a result of the performance of the Agreement. This indemnification also applies in respect of intellectual property to the materials and data provided by the Other Party that are used in the performance of the Agreement.
11.2 The Other Party guarantees to FIT that the information carriers, electronic files, software and other similar files are free of viruses and defects, and indemnifies FIT for any liability for damage resulting from the use of these information carriers, electronic files, software and other similar files.
11.3 If the Other Party uses or applies any result obtained from FIT, or gives third parties the opportunity to use or apply these, the Other Party indemnifies FIT for any liability as a result of damage claimed by the Other Party and/or third parties.
12. Intellectual property and copyrights
12.1 FIT reserves the rights and powers that belong to FIT on the basis of the Dutch Copyright Act and the Neighbouring Rights Act (“Auteurswet en de Wet op de naburige rechten”) and other intellectual property rights. FIT therefore reserves at all times all rights including but not limited to the Product, ideas, software, concepts, literary works, drawings, illustration and photographs even if costs have been charged.
12.2 If nothing has been determined with regard to the scope of the use, the Other Party only has the revocable right to use the Product in unmodified form for own internal use, for the period of the Agreement, for the purpose, edition and manner such as Parties has meant at the conclusion of the Agreement. The right to use the Product is a non-exclusive right.
12.3 The use of the software by third parties is never permitted without permission from FIT. The Other Party cannot rent out, make available, sell or transfer the Product to third parties.
12.3 Following on the above, all intellectual property rights that arise during the performance of the Agreement belong to FIT and may not be used or reproduced without prior permission from FIT, unless expressly otherwise agreed.
12.4 FIT reserves the right to use the design – originated in the performance of the Agreement – for other purposes, insofar as no confidential information is brought to the notice of third parties. The products created, produced and developed during the implementation project will be used by FIT for the further development of FIT existing solutions and products, without any limitation by the Other Party,
12.5 The Other Party is not permitted to remove or change any designation concerning copyrights, brands, trade names or other intellectual property rights from the materials supplied.
13.1 During the period of the Agreement, and for an indefinite period after its’ termination, independent of the reason of termination, and without considering whether the intended deliverables of the Agreement have been realized or not, and without receiving the prior written approval from each other, the Parties accept, declare and commit to the following.
13.2 Parties will not disclose to third parties, will not make available to be accessed by third parties, will not spread and publish and will keep as confidential all kinds of confidential information obtained/to be obtained during and relevant to the performance of the Agreement, including but not limited to commercial secrets, know-how, all kinds of written or verbal information, printed documents or documents in electronic format.
13.3 Neither Party shall use the name of the other Party in publicity, advertising, or similar activity, without the prior written consent of the other.
13.4 The obligations of confidence under this clause shall not apply to information that a receiving party can demonstrate:
- was previously known by the receiving party without any obligation to hold it in confidence;
- is independently developed by the receiving party without the use of confidential information of the disclosing party;
- is or becomes available to the public through no breach of the Agreement by the receiving party;
- is approved for release by written authorisation of the disclosing party, but only to the extent of and subject to such conditions as may be imposed in such written authorization;
- is required to be disclosed by law, regulations or the listing requirements of an internationally recognized electronic stock trading system to be disclosed, but only to the extent and for the purposes of such required disclosure;
- is required to be disclosed by valid order of a court or other governmental body, but only to the extent of and for the purposes of such order; provided, however, that the receiving party must use its reasonable efforts to notify the disclosing party in advance of such required disclosure; or
- is lawfully received, without restriction, against disclosure, from a third party free to disclose such information.
14.1 FIT attaches great importance to the successful execution of the Agreement. If the Other Party nevertheless finds a shortcoming or improvement point, this must be reported 7 days after execution of that part of the Agreement. No rights can be derived from a submitted complaint or improvement point.
14.2 For the application of this article, each partial delivery must be regarded as a separate delivery.
14.3 The Other Party needs to provide FIT with the opportunity to investigate a complaint.
14.4 The submission of complaints will never release the Other Party from its purchase and payment obligation towards FIT.
14.5 In the event of late notification of the complaint, the Other Party will no longer be entitled to repair, replacement or any other compensation.
14.6 The limitation period for all claims and defences against FIT and third parties engaged by FIT in the execution of an Agreement, that do not fall within the scope of the duty to complain, is one year.
15. General Data Protection Policy
FIT is familiar with the General Data Protection Regulation (AVG) and takes this into account when processing the (personal) data of the Other Party. No (personal) data is shared with third parties, unless (i) this is necessary for the proper execution of the Agreement; or (ii) FIT has a legal obligation to share the (personal) data; or (iii) FIT has received explicit permission from the Other Party for this; or (iv) if one of the other legal grounds for the processing of personal data applies. If the Other Party decides to provide third-party personal data to FIT, the Other Party must ensure an appropriate processor agreement that meets the requirements set in the AVG.
16. Governing law and jurisdiction, disputes
16.1 Dutch law is applicable to each and every Agreement and any other legal relationships with FIT.
16.2 Any dispute about these general conditions and/or the Agreement is subject to the judgment of the competent Dutch court in the residence of FIT, unless otherwise prescribed by mandatory law.
16.3 The Parties initiate court proceedings only if they have done their utmost to resolve the dispute by mutual consultation.