General Conditions MyCall B.V.
1. General
1.1
The following terms in these conditions shall be understood to mean:
General Conditions: these general conditions that are maintained by MyCall B.V. for supplying its services;
MyCall B.V: MyCall B.V., established in Amsterdam
Client: the other party in all agreements made with MyCall B.V;
Services: the services that MyCall B.V. supplies to Client and which are described in the MyCall B.V. agreement;
Access codes: each code which MyCall B.V. provides to Client and/or its users which gives Client and/or its users access to services supplied by MyCall B.V;
Agreement: The written agreements between MyCall B.V. and Client on the grounds of which MyCall B.V. provides services to Client and which in any case include the Agreement between MyCall B.V. and Client and corresponding appendices among which the so-called general conditions;
Equipment: the equipment described in the agreement which MyCall B.V. makes available to Client for execution of the Services;
Stand Alone solution: the equipment installed with Client which consists of one or more standard PCs with accessories which is/are connected to the telephone/data line and Client’s electricity supply;
Network solution: the equipment installed with Client is made up of multiple PCs that are connected to a server which is connected to the telephone/data line and Client’s electricity supply;
User: the person who is permitted by Client to use the services by means of the equipment.
1.2 The general conditions apply to all offers, issued tenders, agreements entered into and the execution thereof, MyCall B.V. deliveries and services supplied and all further legal relations between MyCall B.V. and Client, for whatever reason. Deviations from the general conditions and the agreement are only effective if agreed upon in writing between MyCall B.V. and Client.
1.3 In the event of any contradictions between a provision in the general conditions and a provision in the agreement, the provision in the agreement shall prevail.
1.4 If any provisions from an agreement and/or the general conditions turn out to be void able or void, this shall not affect the validity of the entire Agreement and/or the general conditions. MyCall B.V. and Client will set down (a) new provision(s) by mutual agreement as a replacement, staying as close as is rightly possible to the intention of the original agreement and/or general conditions.
2. Conclusion of agreement
2.1 The Agreement is concluded when signed by both MyCall B.V. and Client.
3. Adjustments to services and tariffs.
3.1 MyCall B.V. has the right to make procedural and technical adjustments or improvements in the services at any time without informing Client beforehand.
3.2 MyCall B.V. has the right to adjust the tariffs laid down in the agreement. MyCall B.V. shall inform Client of this in writing at least 30 days in advance.
4. Payment
4.1 Each month MyCall B.V. will charge the costs and tariffs of the services supplied in the previous calendar month as agreed upon in the agreement to Client by sending an invoice. Client shall pay the invoice within 15 days after invoice date to MyCall B.V. on a Bank account specified by MyCall B.V.
4.2
If Client has not met the payment obligations within the terms stated in paragraph 1, then Client shall be in default by operation of law and MyCall B.V., without prejudice to its further rights, shall be entitled to payment by Client of:
Default interest, equal to the legal interest, whereby part of the month is counted as a full month, over the owed invoice amount as of the expiry date until the date of full payment; and
Extra judicial collection costs for the amount of 15 percent of the amount owed by Client.
In addition in this case MyCall B.V. is entitled to annul any agreed reductions by written notice to Client retroactively, so in that case Client shall owe the outstanding invoice amount increased with the agreed reduction per date of annulment of the relevant invoice(s).
4.3 The tariffs stated by MyCall B.V. are excluding Value Added Tax and other taxes applicable as imposed by the authorities. They shall be expressed in euros (€).
5. Equipment
5.1 All Equipment remains the property of MyCall B.V. and shall solely be used by Client for obtaining MyCall B.V. services.
5.2 Client is obliged to take proper care of the Equipment.
5.3 Client shall grant MyCall B.V. or a third party appointed by MyCall B.V. access to the places in which the Equipment is located at all times, to allow MyCall B.V. to execute the Agreement properly.
5.4 If Client wants to alter the agreed location of the equipment’s installation, for whatever reason, this relocation shall only be carried out in consultation with and by MyCall B.V. Any costs that MyCall B.V. must make in this regard shall be charged to Client.
5.5 MyCall B.V. is insured against damage to and theft of the Equipment as a result of burglary. This does not affect the possible right of recourse which MyCall B.V.’s insurer has towards Client, if the damage or theft is to due to intent or gross negligence on Client’s and/or user’s side. Client is liable for damage by any other cause than burglary as well as damage and/or theft as a result of burglary subject to an own risk of 115 Euro (€).
5.6 If there is theft of or damage to any equipment, then Client is obliged to report this to MyCall B.V. immediately after discovering it. In the event of burglary, Client is obliged to report this as soon as possible to the local police and to send a copy of this report to MyCall B.V. as soon as possible.
5.7 Also in the event of malfunction of the Equipment, Client is obliged to report this to MyCall B.V. immediately after discovering it.
5.8 In the event of termination of the agreement for whatever reason, Client is obliged to give MyCall B.V. the opportunity to remove the Equipment from Client premises or to have it removed. In this context client shall not be entitled to suspend this action.
6. Information, authorisation, confidentiality
6.1 Client shall provide MyCall B.V. with all useful and necessary information and/or authorisations on time, for the execution of the Agreement and will give all possible co-operations to MyCall B.V.
6.2 Neither MyCall B.V. nor Client shall make public any confidential information that was acquired during the execution of the agreement, or use it for other purposes than for the execution of the Agreement, either during or after termination of the agreement.
7. Access codes
7.1 Client is responsible for all the financial obligations towards MyCall B.V. when access to the services is gained via an access code by a user. This also applies if an unauthorised third party gains access to the services via an access code.
7.2 In the event of disputes by Client regarding (the length of) access to the services by a user, the administration concerning (the length of) access of MyCall B.V. shall be binding between both parties.
8. Intellectual property rights
8.1 MyCall B.V. indemnifies Client against legal actions pursuant to violations of intellectual property rights of third parties, solely if this originated by means of normal use of services by client. This under the condition that Client informs MyCall B.V. immediately in writing of the existence and the contents of the legal action and leaves handling of the case, among which any amicable arrangements, to MyCall B.V. Client shall grant MyCall B.V. the necessary authorisation, information and co-operation, if necessary, to defend Client against these legal actions in and out of court.
9. Liability
9.1 MyCall B.V. accepts liability for damage attributable to MyCall B.V. which occurred during the execution of the agreement in as far as this follows from this article and in as far as the damage is not due to ‘force majeure’ within the meaning of article 10.
9.2 MyCall B.V.’s total liability is limited to compensation of direct damages, to a maximum amount of the compensation stipulated in the agreement (excluding VAT) for the services supplied by MyCall B.V. in one calendar year.
9.3 Any liability of MyCall B.V. for indirect damage, including consequential damage, loss of profit, missed savings and damage by way of stagnation of business shall be excluded.
9.4 MyCall B.V. is not liable for damage due to insufficient security and/or loss of stored data by the user through the services of MyCall B.V., or for (temporary) inaccessibility to the services.
9.5 Without prejudice to the previous provisions, MyCall B.V.’s liability for products of third parties shall never comprise more than is recoverable from the third party (parties) in question.
9.6 Without prejudice to the previous provisions, MyCall B.V.’s liability can never amount to more than the amount of payment pursuant to MyCall B.V.’s general liability insurance, including the excess which MyCall B.V. has in connection with the insurance.
10. Force Majeure
10.1
If MyCall B.V. is hindered from (further) executing the agreement due to circumstances beyond its control, either indefinitely or temporarily, then a situation of force majeure exists. MyCall B.V., without any obligations of compensation, is then entitled to:
wholly or partially annul the agreement, by means of a written notification to Client without judicial intervention, without prejudice to MyCall B.V.’s right of payment by Client of activities already performed by MyCall B.V., before the ‘force majeure’ occurred, or
suspend (further) execution of the agreement under written notification to Client until the ‘force majeure’ is ended.
In the event of suspension MyCall B.V. shall be entitled to annul the agreement, wholly or partially, in accordance with the provision under (a) at any point in time.
10.2 If, due to circumstances beyond its control, a malfunction occurs in any of MyCall B.V.’s services to Client, then MyCall B.V. shall try to repair the malfunction as soon as possible.
11. Term of agreement
11.1 Agreements are entered into for at least 24 calendar months if the services to be performed by MyCall B.V. consist of a stand-alone solution, starting from the moment when Client gains access to the services.
11.2 An Agreement is considered tacitly renewed for 12 months, except in the event of written cancellation by one of the parties, taking into account a period of notice of at least 30 days before the end of the first 24 months after the date on which Client gained access to the services with regard to the stand-alone solution. After tacit renewal for 12 months, a period of notice of at least 30 days before the end of those twelve months shall apply.
12. Dissolution, compensation, suspension
12.1
If Client:
is declared bankrupt, assigns an estate, applies for a moratorium or in any other way loses the complete or partial free control over his or her capital, or
dies or is put under legal restraint, or
does not, wholly or partially, fulfil legal or contractual obligations, or
decides to stop operations of the company or an important part thereof, including his company’s contribution to an existing or to-be-founded partnership,
Client shall be considered to be in default by law and MyCall B.V.’s (residual-) claim will be due and payable immediately.
12.2
Furthermore in the events referred to in article 4 paragraph 2 and article 12 paragraph 1, without any obligation to repay damages and without prejudice to its rights and without notice of default or legal intervention being required, MyCall B.V. is entitled:
to wholly or partially annul the agreement by means of a written statement per registered letter to Client with immediate effect; and/or
to claim any amounts owed by Client on the basis of services supplied by MyCall B.V., without notice of default, wholly or partially, whereby discounts given shall come to expire; and/or
to suspend its obligations pursuant to any agreement until surety is provided for the fulfilment of the payment obligations by Client.
13. Transference
13.1 Client shall not be able to transfer rights and/or obligations arising from the agreement to a third party without written permission of MyCall B.V.
14. Applicable law, authorised judge
14.1 Dutch law shall apply to all quotations, order confirmations, agreements and general conditions
14.2 All disputes pursuant to any agreement and/or the general conditions will solely be presented to the authorised court in Amsterdam.