Article 1 Definitions
In the present General Terms, the following definitions are applicable in singular as well as in plural.
1.1 General Terms: the present general terms, regardless of the form in which they are presented (on paper or electronically, e.g. through the kvsolutions.nl website).
1.2 KV Solutions: company and place of business established in Middelburg.
1.3 Instructing Party: party to whom KV Solutions offer has been directed, with whom KV Solutions has reached an agreement or for whom the legal act takes place, on grounds of which Products or Services are delivered to this party.
1.4 Products: all moving things which are the object of any offer, agreement or other legal act in the frame of the relationship between KV Solutions and the Instructing Party.
1.5 Services: all work and other activities which are the object of any offer, agreement or other legal act in the frame of the relationship between KV Solutions and the Instructing Party.
1.6 Agreement: any reciprocal acceptation, confirmed in writing or through e-mail, with respect to KV Solutions Services. Orders placed electronically are explicitly included herein.
Article 2 Applicability of the General Terms
2.1 The General Terms are applicable to and are part of all offers, agreements and other legal acts, regardless of the way in which they have been made (orally, in writing, electronically or in any other form), in the frame of delivery by KV Solutions of Products and/or Services to or for the Instructing Party.
2.2 The General Terms are also applicable to Products and/or Services KV Solutions obtained from a third party and delivered (be it with or without having treated them before delivery) to the Instructing Party as well as to Products and/or Services delivered to the Instructing Party for KV Solutions by a third party, as a result of the execution of an offer, agreement or any other legal act.
2.3 Derogations of the General Terms are only valid providing both KV Solutions and the Instructing Party have explicitly agreed to them in writing.
2.4 KV Solutions explicitly rejects the applicability of possible general terms (of purchase) belonging to the Instructing Party.
2.5 In the event that a condition should become or should be declared void, the remaining conditions of the General Terms shall remain in full effect. KV Solutions and the Instructing Party will agree mutually to a new condition in order to replace the void/annulled condition, thereby trying to approximate the intentions of the void/annulled condition as much as possible.
Article 3 Offer and agreement
3.1 All offers made by KV Solutions are made without purchase obligation, unless explicitly specified in writing.
3.2 Offers made by KV Solutions are valid for the term indicated on the offer. In case no term has been indicated, the offer will be valid for two (2) weeks after the date of emission of the offer.
3.3 Agreements come into effect through the acceptance by KV Solutions of the order given in writing by the Instructing Party or at the moment of execution of an order by KV Solutions.
3.4 Agreements are always closed for a duration of thirty-six (36) months, unless otherwise agreed. Premature termination is out of the question.
3.5 At the end of their established term, agreements are always prolonged with consecutive terms of twelve (12) months, unless otherwise agreed. Services ordered through the automated ordering process are automatically renewed with the same period as the initial ordering period, unless a cancellation has been received in time (article 13.4).
3.6 In the frame of any remote purchase in the sense of articles 7:46a to 7:46j of the Civil Code, the Instructing Party – providing it is a physical person and doesn't operate in a professional frame or on account of a company – has the right to revoke the purchase within fourteen (14) days after placement of the order of (the) Service(s) without justification. In the event that the Instructing Party should want to exert its revocation right, it should notify KV Solutions in writing of this decision. In that case, the Instructing Party may have to return to KV Solutions any equipment delivered to it in the frame of the agreement as soon as possible and at its own risk and expense (postal parcel). In the event that the returned equipment should have suffered any damage ascribed to the Instructing Party, the Instructing Party empowers KV Solutions beforehand to claim compensation of the damage suffered by KV Solutions through the direct debit authorization the Instructing Party has provided.
Article 4 Prices, rates and surcharges
4.1 All prices and rates mentioned by KV Solutions are in euros, unless explicitly specified otherwise in writing.
4.2 All prices and rates mentioned by KV Solutions are given VAT excluded and without taking into account any other taxes imposed by the government. Similarly, transportation and delivery costs or travel expenses have not been taken into account, unless explicitly specified otherwise in writing.
4.3 At all times, KV Solutions has the right to modify its prices and rates. Unless explicitly agreed in writing that prices and rates are valid for a given period, the announced price changes for delivery of Products and/or Services will come into effect two (2) months after their announcement.
4.4 If the Instructing Party doesn't agree with a price and/or rate change announced by KV Solutions, the Instructing Party has the right to terminate the agreement with KV Solutions in writing, within fourteen (14) days following the announced change and by the time the announced change will come into effect.
4.5 In the event of a derogation of the original agreement between KV Solutions and the Instructing Party, authorized by the Instructing Party, the ensuing surcharge will be calculated by means of the prices and/or rates in vigour at the time of execution of the additional service and presented to the Instructing Party.
4.6 Indexation: KV Solutions reserves the right to increase rates yearly with a given percentage, without advance notice. This percentage equals five (5) per cent at most, augmented by a percentage equalling the increase of the cost-of-living index, as established by the CBS, during the year preceding the increase in rates. It should be mentioned explicitly that increases of rates on grounds of the indexation applied by KV Solutions do not constitute a valid motive for premature termination of the agreement. The indexation is an integral part of the agreed price.
Article 5 Payment
5.1 The Instructing Party must pay invoices issued by KV Solutions within the term mentioned on the invoice in question. In the event that no deadline for payment is mentioned on an invoice, a term of thirty (30) days will be applicable.
5.2 All payments by the Instructing Party to KV Solutions are deduced from the old unpaid invoices addressed to the Instructing Party, regardless of any other indication given by the Instructing Party.
5.3 Any request for suspension, clearance or deduction submitted by the Instructing Party will be rejected.
5.4 At all times, KV Solutions has the right to request (partial) payment in advance for the delivery of Products and/or Services, for instance through an authorisation of direct debit given to KV Solutions. KV Solutions also has the right to suspend delivery until the advance payment has been received. Furthermore, KV Solutions has the right to request security of payment in the form preferred and indicated by KV Solutions (e.g. banker's guarantee). In that case, KV Solutions will not deliver the Products and/or Services until the desired security has been provided.
5.5 If the Instructing Party fails to pay any invoice issued by KV Solutions within the deadline for payment, the Instructing Party will automatically be considered in breach of the agreement, without advance notice. In that event, KV Solutions has the right to claim interests by right, in accordance with article 6:119 of the Civil Code, or compensation of loss caused by delay in accordance with article 6:119a of the Civil Code, at a per month rate or for part of the month and to be calculated in accordance with the amount of the unpaid invoice.
5.6 If, after the notice of default, the Instructing Party remains indebted of the owed sum augmented by the interest by right as provided for by article 6:119 of the Civil Code or the surcharge for loss caused by delay as provided for by article 6:119a of the Civil Code, KV Solutions has the right to pass on the claim. On top of the main sum with the additional late payment interest by law (as provided for by article 6:119 of the Civil Code) or the surcharge for loss caused by delay (as provided for by article 6:119a of the Civil Code), the Instructing Party will then also be liable to cover all extra-judicial and possible judicial costs, explicitly in addition to the possible costs established by right. These costs will amount to at least 15% of the main sum.
5.7 In the event of late payment, KV Solutions reserves the right to immediately suspend services. The party concerned accepts liability for the following surcharge per invoice in respect to KV Solutions (in order to cover administration costs) in the event that the invoice should be passed on to a debt collection agency: €90.00 augmented by €10.00 per exhortation and €35.00 per cost for charge from a debt collection agency; for an exhortation sent by registered mail, €25.00 will be charged. These in-house administration costs and the invoice total will be augmented by the collection costs and all judicial and extra-judicial costs entailed by the collection procedure. After payment of all outstanding sums, reconnection can be performed at a one-time charge of €250.00.
5.8 KV Solutions reserves the right to dissolve the agreement and consider it dissolved by right if the party concerned doesn't timely pay the amounts due in accordance with this agreement.
5.9 In the event of late payment, the party concerned accepts liability for all judicial and extra-judicial costs and interests by right incurred by any third party involved by KV Solutions or the debt collection agency.
5.10 In the event the Instructing Party performs a charge back on any payment without filing a reclamation or objection with KV Solutions first, the Instructing Party will be invoiced at €25.00 per charge back to cover administrative fees.
Article 6 Delivery, risks and retention of title
6.1 The terms of delivery announced by KV Solutions for Products and/or Services are presented only for information purposes, thus are never to be considered a deadline, unless explicitly agreed otherwise in writing.
6.2 The risk of loss or damage to the Products in the frame of the agreement between KV Solutions and the Instructing Party is transferred to the Instructing Party from the moment the Products in question become the actual possession of the Instructing Party or any proxy acting on its behalf.
6.3 It is compulsory that the Instructing Party should check all delivered Products for possible defects or flaws immediately following delivery.
6.4 The title to all goods delivered to the Instructing Party shall remain vested in KV Solutions, until full payment of all due sums by the Instructing Party for Products and/or Services delivered by KV Solutions and all due interests and surcharges, as provided for by articles 5.5 and 5.6. Inasmuch as it was agreed explicitly in writing that certain rights will be granted or transferred, the rights will always be transferred or granted providing the charges pertaining thereto have been fully and timely paid.
Article 7 Reclamations
7.1 Any contestation from the Instructing Party regarding a KV Solutions invoice or an amount recovered by KV Solutions through direct debit should be notified in writing to KV Solutions within fourteen (14) days following the invoice date or the date on which the direct debit was performed; past this deadline, the invoiced or debited sum shall be considered approved by the Instructing Party.
7.2 Should the Instructing Party consider that a Product or Service delivered by KV Solutions does not meet the criteria agreed on between both parties, then the Instructing Party should immediately notify KV Solutions within fourteen (14) days following delivery or following the moment starting from which the Instructing Party could have reasonably noticed the shortcoming indicated by it.
Article 8 Intellectual property
8.1 All rights on intellectual property pertaining to the Products and/or Services as well as to designs, programs, documentation and any other material developed and/or used for the preparation or implementation of the agreement between KV Solutions and the Instructing Party - or the rights deriving thereof - are solely vested in KV Solutions or its suppliers. The delivery of Products and/or Services doesn't entail any transfer of rights of intellectual property.
8.2 The Instructing Party is always granted a mere non-exclusive and non-transferable right to use the Products and results of the Services for the agreed purposes. The Instructing Party will, during such use, strictly adhere to conditions specified in the General Terms or otherwise imposed on the Instructing Party.
8.3 Products and results of the Services will never, in any way, be disclosed to the public, multiplied or held at a third party's disposal by the Instructing Party without prior authorisation in writing from KV Solutions.
8.4 The Instructing Party will never remove or modify notices placed by KV Solutions or its suppliers and pertaining to authors' rights, brands, trade marks or other rights of intellectual property.
8.5 KV Solutions guarantees that it holds the right to transfer the rights mentioned in article 8.2 to the Instructing Party; KV Solutions will also keep the Instructing Party indemnified from possible claims from third parties in the frame of this article. This condition will not be valid in case and insofar as the Products and/or results of the Services have been altered and/or have been delivered in connection with goods delivered by a third party, unless - in the last case - the Instructing Party can prove that the rights of the third party only pertain to the Products and/or results of Services delivered by KV Solutions.
Article 9 Supply of information by the Instructing Party
9.1 The Instructing Party will always timely supply complete information as requested by KV Solutions, as well as any other type of information required for the delivery of Products and/or Services.
9.2 The Instructing Party guarantees that the information mentioned in article 9.1 is accurate and complete and that it is entitled to provide the information to KV Solutions in the frame of delivery of Products and/or Services. The Instructing Party will indemnify KV Solutions from all possible claims from third parties in this frame.
9.3 In the event that part of the information supplied by the Instructing Party to KV Solutions could be considered personal information, the Instructing Party guarantees that the information complied with the privacy laws in vigour at the time the information was supplied and that its use and treatment by KV Solutions is authorized. The Instructing Party indemnifies KV Solutions from all possible claims from third parties in this frame.
Article 10 Confidentiality
10.1 The parties will not disclose any confidential information concerning the company of the other party, obtained in the frame of the agreement. Parties will also impose this restriction on their employees and on third parties employed for the implementation of the agreement between both parties.
10.2 Information will by all means be considered confidential if any one of the parties indicates it as such.
Article 11 Liability of KV Solutions
11.1 The legal liability of KV Solutions for imputable faults in the frame of the implementation of the agreement is restricted to the compensation of direct damage suffered by the Instructing Party up to a maximum amount equalling the compensation established in the agreement in question. If the agreement has a term exceeding one year, the established compensation will equal the sum total of compensations established for the ongoing year at the time the fault occurs. In no case will the total compensation for direct damage exceed €250.00 and - if the damage is of physical or material nature - €250.00 per event, whereby a series of events will be considered one event.
11.2 With direct damage is exclusively meant: costs the Instructing Party had to reasonably incur in order to repair or discontinue the shortcomings of KV Solutions so that KV Solutions performance would again be in accordance with the agreement, as well as reasonable costs incurred to prevent or restrict such damage and reasonable costs incurred to establish the cause and the importance of the damage. If KV Solutions and the Instructing Party have agreed on a binding term of delivery, the costs will be taken into account, which the Instructing Party had to reasonably incur to take emergency dispositions on account of KV Solutions failure to deliver within the binding term of delivery, less possible savings, also in the case of direct damage.
11.3 Each liability of KV Solutions for indirect damage, including but not limited to consequential loss, loss of profits and loss of revenue is excluded.
Article 12 Force Majeure
12.1 There will be no imputable faults ascribed to KV Solutions in case of Force Majeure.
12.2 If the circumstances of Force Majeure have lasted for longer than sixty (60) consecutive days, the Instructing Party will have the right to dissolve the agreement in writing and out of court. No damage compensation whatsoever will be imputable to KV Solutions for damages suffered by the Instructing Party on account of the dissolution of the agreement. KV Solutions has the right to claim payment from the Instructing Party for all Products and/or Services delivered to the Instructing Party up to the moment of dissolution of the agreement.
Article 13 Termination
13.1 Each party has the right to dissolve the agreement out of court in the event that the other party should fail to fulfil its obligations in the frame of the agreement and should remain incapable of remedying the breach within a reasonable timeframe after having received due notice in writing. Dissolution does not discharge the Instructing Party of any obligation of payment for Products and/or Services already delivered by KV Solutions, unless KV Solutions is to be considered in breach with respect to a certain Product or Service.
13.2 KV Solutions has the right to dissolve the agreement immediately without advance notice and without being considered liable for any kind of damage compensation to the Instructing Party if suspension of payment has been granted to the Instructing Party, if a declared state of bankruptcy has been requested for the Instructing Party, if (part of) the possessions of the Instructing Party have been seized, if the company of the Instructing Party finds itself in a state of liquidation or goes out of business, if the Instructing Party commits acts in violation of the (inter)national laws and regulations or if the Instructing Party has supplied false information to KV Solutions.
13.3 Immediately after the dissolution of the agreement (whichever the reason of dissolution), the Instructing Party will stop using Products and/or results of Services provided to it and will return all programs, documentation and other material provided to it in the frame of the agreement.
13.4 Early termination of the agreement must be notified in writing, observing a period of notice of three (3) months at the end of the agreed on period, unless otherwise agreed. The termination may be notified through (E)-mail, or trough KV Solutions online ticket system on the understanding that the period of notice will begin on the day that KV Solutions receives the notice of termination. Game servers and voice servers have a minimum renting period of one (1) month and period of notice of one (1) month. Dedicated servers ordered through the automatic ordering process have a minimum renting period of one (1) month and a period of notice of one (1) month. A custom order/invoice has a minimum agreement of twelve (12) months and a period of notice of three (3) months. The notice of termination should mention the personal information and the customer number (if any). The notice should also bear the signature of the Instructing Party.
Article 14 Personnel
14.1 In the event that KV Solutions personnel should perform its duties in the frame of the delivery of Products and/or Services on the premises of the Instructing Party, the Instructing Party will offer all the support necessary for the accomplishment of these duties.
14.2 Throughout the duration of the agreement between Instructing Party and KV Solutions and for one year following termination thereof, the Instructing Party shall not hire or employ in any other way, be it directly or indirectly, personnel of KV Solutions without prior written authorisation of KV Solutions. With personnel of KV Solutions is meant: all persons which KV Solutions or one of its associated enterprises has hired or which have stopped working for KV Solutions or one of its associated enterprises less than 6 (six) months ago.
Article 15 Disputes
15.1 Offers, agreements and other legal acts in the frame of delivery of Products and/or Services by KV Solutions are governed by Dutch law.
15.2 Disputes between KV Solutions and the Instructing Party, resulting from or pertaining to offers, agreements and other legal acts in the frame of delivery of Products and/or Services by KV Solutions will be exclusively presented to the competent judge in the district of Middelburg.
Article 16 Disablement of services
16.1 KV Solutions has the right to temporarily disable delivered Services for maintenance purposes.
16.2 KV Solutions has the right to (temporarily) disable delivered Services or limit their use if the Instructing Party should fail to fulfil one of its obligations toward KV Solutions or displays conduct that is in breach with the present General Terms. KV Solutions will notify the Instructing Party thereof, unless this cannot be reasonably expected from KV Solutions. The imposed restriction or disablement doesn't affect the other obligations of the Instructing Party and thus has no suspending effect.
16.3 The Instructing Party will be reconnected upon the fulfilment of all its obligations within a deadline imposed by KV Solutions and upon payment of the thereto established reconnection fee (€25.00 VAT excluded).