General Terms and Conditions
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Definitions, conceptions and abbreviations
a. ScanYours:
the private company with limited liability ScanYours, established at Loenen, holding office at Bergakkerweg 20, 7371 CV Loenen, registered at the Chamber of Commerce in Arnhem under 30168455.
b. General Terms and Conditions:
the general terms and conditions of ScanYours as listed hereafter.
c. Internet:
a global structure of linked computers, computer networks, hosting computers, databanks and infrastructural telecommunication facilities.
d. Hosting:
the supply by ScanYours to its customers of space on the Internet as well as services, in the broadest possible sense.
e. Licence Agreement:
an agreement concluded by ScanYours with a customer about making available its Software Applications.
f. Customer:
each party concluding an agreement with ScanYours about the services and products mentioned in these general terms and conditions.
g. Right of Use:
the right to use the Software Applications, while taking into account the general terms and conditions, granted by ScanYours through a licence agreement.
h. Software Applications:
all ScanYours computer programmes, including the programmes based on the author’s right-protected Landscape Model allowing the customer to generate online information through questionnaires.
i. Questionnaires:
all questionnaires designed by ScanYours including pop-up explanations.
j. Username:
the identification code of the individual customer.
k. Email address:
a unique address registered by name that allows the exchange of electronic messages.
l. Password:
the password required by a customer for access to the ScanYours Software Applications, among other things.
m. Website:
the url www.ScanYours.com and every other website of which ScanYours is the rightful owner.
n. Licence Holder:
having the right to a licence (permission by patent holder / author’s right holder to others to entirely or partly use the patent or author’s right belonging to him).
o. Database:
structured collection of data and information of ScanYours and its customers, stored in computer systems, on magnetic disks, tapes or related equipment of ScanYours or its service provider(s).
Article 1 – General Terms and Conditions
1.1 These general terms and conditions apply to all offers and agreements in which the private company with limited liability ScanYours B.V., hereafter to be called ScanYours, delivers products or services of any kind to a customer, even if these products or services have not been (further) described in these terms and conditions.
1.2 Reference to the own general terms and conditions by the other party is explicitly rejected by ScanYours. Any deviation from these general terms and conditions must take place in writing. Deviations only apply to the agreements involved in the deviation and not to future legal relationships.
1.3 If and in so far as based on reasonability and fairness or a possibly unreasonably strict nature no appeal can be made on any stipulation in these general terms and conditions, this term or condition will assume a meaning – in content and scope – that is as similar as possible or becomes less strict, allowing an appeal to be made.
Article 2 – Offer and Agreement
2.1 Each offer made by ScanYours is free of obligation, unless the contrary has been determined explicitly in writing.
2.2 An agreement with ScanYours is made in any case through a written offer by ScanYours addressed to a customer and an oral or written acceptance by the customer.
Article 3 – Concluding electronic agreement
3.1 The terms and conditions mentioned in this article specifically apply to the case in which a customer concludes an agreement electronically. The other stipulations in these general terms and conditions will remain in full force.
3.2 Prior to concluding an electronic agreement ScanYours is not held to inform the customer about:
- - The way in which the agreement will be made, and especially the activities required to do this;
- - Filing or not filing the agreement, and how a possible file may be made accessible to a customer;
- - The way in which a customer can trace and correct mistakes entered;
- - The languages in which the agreement may be made;
- - The codes of conduct to which ScanYours is subjected and the way in which these codes of conduct can be consulted by a customer.
3.3 ScanYours is not held to send a confirmation of receipt or order to a customer.
3.4 Section 2 of this article does not apply to agreements with a natural person not acting in the framework of a profession or business firm.
Article 4 – Obligations of ScanYours
4.1 ScanYours is held to carry out its orders and services with care.
4.2 ScanYours will see to it that its orders and services meet the qualifications agreed to and will be carried out professionally.
4.3 ScanYours will see to it that its employees comply with and will comply with the qualities required to carry out its obligations regarding expertise and experience.
4.4 ScanYours is obliged to regular checks and sound maintenance of the equipment and systems used, taking care that the capacity of this equipment and these systems is such that normal use will not result in failure.
4.5 ScanYours does not offer a guarantee with the services provided by the company, but is held to use all the available means to immediately solve possible disruptions and/or failures the moment the customers request this. All agreements to be concluded by ScanYours on carrying out work or providing services are best effort agreements.
4.6 ScanYours will not provide (personal) data to third parties if these are traceable to a customer, such as individual name, (email) address and residential information.
4.7 ScanYours is obliged to keep secret any confidential information provided by customers. ScanYours will take all the reasonable precautions to comply with this obligation in the best possible way.
Article 5 – Obligations of Customer
5.1 The customer will always provide ScanYours with timely, useful and necessary information that is as complete as possible, and if the working activities by ScanYours require this, make available all its facilities at its own location(s).
5.2 The customer will guarantee that all the reasonable instructions by ScanYours will be followed regarding the use of services to enable ScanYours to continue its services in a reasonable manner, and will in this respect always assist ScanYours if so reasonably requested.
5.3 The customer will safeguard ScanYours from any claim by third parties dealing with damage for which the liability of ScanYours towards the custumer is excluded, and especially also for damage as the result of:
- - Inexpert use/faulty installation of – and providing incorrect/illegal information and/or images on – an Internet site by the customer, employees of the customer and/or third parties;
- - Unauthorised breaking into and/or gaining access to computer programmes / Internet sites by third parties (hacking) without permission by the customer or ScanYours;
- - Offending or infringing in any way on the rights of third parties.
5.4 The customer will make sure he possesses the operational necessary hardware and software, other equipment and connections to enable the use of ScanYours services.
5.5 A username is strictly personal. The customer is not permitted to sell, lease or otherwise make available his username and/or password to third parties, not for a compensation nor for free, unless ScanYours has granted explicit permission in writing.
5.6 At all times the customer is obliged to provide correct, current and full data requested from the customer, when or after concluding an agreement. Providing incorrect, obsolete or insufficient data when entering into an agreement gives ScanYours the right to terminate the agreement. The customer is obliged to send any changes in his personal data to ScanYours in writing.
5.7 The customer is obliged to safeguard the secrecy of confidential information offered by ScanYours. The customer will take all reasonable precautions in order to meet this obligation in the best possible manner.
Article 6 - Liability
6.1 Apart from damage incurred by own intention or conscious recklessness of ScanYours, ScanYours is only liable for damage in so far as it is described in the following sections of this article. Each further liability from the part of ScanYours for whichever reason and/or with respect to whichever damage is therefore excluded.
6.2 The full liability of ScanYours due to a shortfall that will be its responsibility regarding compliance with the agreement is limited to a compensation of the direct damage up to a maximum of the amount of the price agreed to in this specific agreement, excluding VAT. If the agreement is a longer term agreement of over six (6) months, the agreed price is set at the total of the compensations (excluding VAT) agreed for six (6) months.
6.3 Direct damage is exclusively:
- The reasonable cost the customer would incur to make the ScanYours performance meet the stipulations of the agreement;
- The cost incurred by the customer being forced by circumstances to keep his old system or systems including the corresponding facilities operational for a longer period of time, because ScanYours has not delivered at the agreed delivery date, under deduction of the possible savings made as a result of the slowed delivery;
- The reasonable cost made to establish the cause and the size of the damage, in so far as establishing is related to the direct damage as understood in the sense of these conditions;
- The reasonable cost made to prevent or limit direct damage, in so far as the customer can prove that these costs have led to a reduction of the direct damage as understood in the sense of these conditions.
6.4 The liability of ScanYours for indirect damage, including ensuing damage, loss of earnings, missed savings and damage through company black-out is excluded.
Article 7 – Reservation of Ownership
7.1 All items delivered by ScanYours to the other party as a result of an agreement, including diskettes, manuals, brochures and flyers remain the property of ScanYours until all amounts owed by the customer for delivered or deliverable items or work carried out or to be carried out in accordance with the agreement are paid.
7.2 If any items delivered by ScanYours to the customer in accordance with the agreement under reservation of ownership are seized, the customer is obliged to notify ScanYours of this immediately. In case of a possible seizure, suspension of payment granted to the customer or an actual bankruptcy, the customer will notify the bailiff, administrator or curator in question immediately of the property rights of ScanYours.
7.3 All items mentioned under section 7.1 have to be returned to ScanYours within 7 (seven) days after terminating the licence agreement.
Article 8 – Duration and Termination
8.1 An agreement between ScanYours and the customer is for a specific period of time.
8.2 The agreement can, unless parties decide otherwise, during this period only be terminated through annulment if the other party, following a sound proof of default in writing, falls short of compliance with the real obligations resulting from the agreement, while being responsible. Annulment must take place through a registered letter. No legal intervention is required.
8.3 If at the moment of annulment the other party has already received products and/or services to carry out the agreement, he can only annul the agreement in part, this being the part that has not yet been delivered by ScanYours.
8.4 Amounts for which ScanYours has sent an invoice before the annulment regarding the work done or services rendered to carry out the agreement remain without prejudice to the claim and will be claimable immediately at the moment of annulment.
8.5 ScanYours can annul the agreement wholly or partly and immediately without legal intervention by sending a written notice if the other party is declared to be in a state of bankruptcy, if a petition for suspension of payment is (temporarily) granted or if he is in any other way unable to comply with the obligation to pay, or if his company is liquidated or terminated in any other way. ScanYours can never be obliged to pay any damage compensation because of this annulment.
Article 9 – Price and Payment
9.1 All prices and fees are VAT exclusive or exclusive of any other tax, right or duty imposed by the government. Prices are expressed in Euros.
9.2 ScanYours reserves the right to change prices when the agreement is prolonged or a new agreement is concluded with the customer.
9.3 If ScanYours has done work or any other activity requested by the customer or with his prior permission that fall outside the scope of the agreement these activities will be compensated by the customer in accordance with the usual ScanYours rates. It is possible for ScanYours to ask that a separate agreement will be concluded for such a request.
9.4 Payment by the customer to ScanYours should be in accordance with the conditions for payment mentioned on the invoice. If there is no mention the payment should take place within 14 days after the date of the invoice. Payment is done without any deduction or settlement, without the other party being allowed to block his obligation to pay by seizing the own funds or in any other way. ScanYours reserves the right to demand prepayment or sureties for payment at any given moment.
9.5 In case of a late payment due to the expiration of the term of payment the customer is in default. Without any proof of default from this date onwards the customer is obliged to page an immediately claimable default interest of 1.5% per month, part of a month being counted as an entire month.
9.6 All cost, judicially and extrajudicially – including the cost of legal advice – ScanYours will have to make due to the non-compliance with the customer obligation, will be payable by the customer. The extrajudicial collecting rate of ScanYours is determined in accordance with the collecting rate of the Nederlandse Orde van Advocaten, the minimum being EUR 250,00.
9.7 If ScanYours has agreed to perform activities during a specific or unspecified period the company has the right to adapt the rates agreed to each year on January 1st by sending a written notice to the other party, if this is (at its maximum) equal to the CBS Consumenten Prijsindexcijfer (series: all households, 1990=100).
Article 10 – Force majeure
10.1 Circumstances beyond one’s control (force majeure) are all exterior causes that could in all fairness not have been foreseen, resulting in ScanYours not being able to comply with its obligations towards a customer. These include, among other things, disruptions in the connection with the internet, interference in the telecommunications infrastructure, disruptions in networks, full manning of points of presence, power failure.
10.2 ScanYours has the right to call on circumstances beyond its control (force majeure) if this circumstance preventing (further) compliance takes place after ScanYours would have been held to comply with the agreement.
10.3 During circumstances beyond one’s control (force majeure) the obligations of ScanYours are suspended. If the period of circumstances beyond one’s control (force majeure) preventing ScanYours from complying with its obligations lasts longer than two (2) weeks, each party is authorised to annul the agreement without any legal intervention, there being no right of compensation for the other party.
Article 11 – Applicable Law and Disagreements
11.1 The agreements between ScanYours and the customer are subject to Dutch Law.
11.2 Any disagreement that may occur between ScanYours and the customer about an agreement concluded between ScanYours and the customer or subsequent agreements resulting from it will be laid before the authorised judge in Utrecht, unless ScanYours in its role of claimant chooses an authorised judge in the residence or place of business of the customer.
Hosting
The stipulations mentioned in Hosting apply next to the stipulations above if ScanYours, by order of the customer, acts as host on the Internet as well as in the case of other periodic services rendered.
Article 12 - Duration
12.1 The agreement is valid for the period agreed to between parties. If no specific term is mentioned the period will be one (1) year.
12.2 The duration of the agreement will each time be tacitly prolonged for the duration of the original period but not longer than one (1) year, unless the customer or ScanYours annuls the agreement in writing, taking into account a period of notice of two months before the end of the period in question.
Article 13 – Obligations of ScanYours
13.1 ScanYours will take care of the presence of the customer on the Internet for the duration of the agreement, as well as of all specifications and parts of the services requested by the customer, albeit that ScanYours is allowed to adapt the composition or content of the services required by the client unilaterally, which will favour the customer.
13.2 ScanYours is onbliged to inform the customer in time if the data traffic threatens to exceed the limit agreed to in the agreement.
Article 14 – Obligations of Customer
14.1 The customer will not use applications or perform activities of which he knows or can reasonably suspect that these will hamper other customers of the Hosting Service in their use of this service, or through which Internet users will be limited or hindered in the possibility to visit sites. The customer will refrain from exorbitant use of processor capacity of one of the servers, or from exorbitant use of bandwidth.
14.2 The customer is in any case not allowed to use the Hosting Service for one of the following activities or intentions, the list below in no way being exhaustive:
- - Spamming: the unsolicited sending of large amounts of emails with the same content, e.g. ads through email;
- - Email bombing: sending one or more very large email messages that are sent to frustrate the electronic letterboxes of the recipients;
- - Hacking: gaining unauthorised access to other computers or computer systems on the Internet.
14.3 In case the data traffic exceeds the limit stipulated in the agreement, the customer owes ScanYours a compensation as stipulated in the agreement.
Software Applications
The stipulations in the chapter Software Applications apply next to the stipulations above if ScanYours has made available computer programmes to the customer.
Article 15 - Availability
15.1 ScanYours grants the customer a user right to the Software Applications that cannot be transferred and is not exclusive, within the limitations indicated by ScanYours, as described in the information provided by ScanYours (including the information on the ScanYours website), as well as in these general terms and conditions.
15.2 As soon as possible after the conclusion of the licence agreement ScanYours will inform the customer at which date the Software Applications will become available to the customer.
15.3 The time required to make the Software Applications available can only be indicated approximately. In the case the indicated period is exceeded the customer can only demand annulment of the agreement and/or compensation of the damage if this is caused by intention or conscious recklessness. If the customer is of the opinion that ScanYours is too late in making the Software Applications available, the customer will give ScanYours proof of default as well as propose a reasonable term in order to still make the Software Applications available.
15.4 In order to carry out the agreement ScanYours reserves the right to change or improve the Software Applications without prior notice to the customer.
Article 16 – Obligations of Customer
16.1 Customers are not allowed to use the Software Applications or engage on any other activities that may prevent the availability of the Software Applications to other persons or could influence these in a detrimental manner. It is also not allowed to damage the Software Applications and the information in the database that have been made available (including in any case viruses and Trojan Horses).
16.2 Customers are not allowed to access the information in the database that has been generated by other persons.
16.3 If the customer acts in violation with section 1 or 2 of this article ScanYours has the right to immediately annul the licence agreement with the customer and to demand an immediately claimable fine of EUR 10,000 per event. This fine does not impair the right of ScanYours to claim damages for this event.
16.4 ScanYours has the right to (temporarily) put the Software Applications out of order and/or to limit its use if the customer acts in violation of these general terms and conditions. The obligation to pay the amounts owed because of the licence agreement will remain in place during the period the Software Applications are made unavailable.
16.5 A renewed start-up will be possible if the customer has met his obligations within the term set by ScanYours, and has paid an amount for the renewed start-up determined by ScanYours.
16.6 Damage to ScanYours or third parties, caused by any action in violation of this article may be recovered from the customer in question.
Article 17 - Intellectual Property Rights
17.1 The author’s rights and any possible rights of intellectual or industrial property as well as all similar rights to protect information dealing with the Software Applications (including standard adjustments and new versions), questionnaires, building files, databases, documentation or materials are the exclusive property of ScanYours or its licence provider. Nothing in the licence agreement implies the whole or partial transfer of such rights.
17.2 The customer is not allowed to copy the Software Applications that are made available or the corresponding user documentation, except if this is necessary for own use and back-up purposes. When making back-up copies the customer will leave all the signs determining the traceability of the owner of the author’s rights and the original source intact.
17.3 The customer is not allowed to make changes in or additions to the Software Applications, or have this done by others.
17.4 ScanYours is allowed to take and maintain technical measures to protect its Software Applications.
17.5 The customer will hold the author’s right and all possible other rights of intellectual property and similar rights pertaining to the protection of information supplied by the customer himself or questionnaires entered as well as the information generated by the customer from these.
17.6 ScanYours explicitly holds the author’s right and all possible other rights of intellectual property and similar rights pertaining to the protection of information supplied by the customer himself from questionnaires made by ScanYours, as long as this information is located at the ScanYours server.