Terms and conditions

Article 1. Definitions
1.1. In these General Terms and Conditions, the following terms are used in the following sense, unless expressly stated otherwise or unless the context indicates otherwise:
a. User: the user of these General Terms and Conditions: Red Cactus B.V. located in (4462 GA) Goes at Dirk Dronkersweg 12A, registered with the Chamber of Commerce under the Chamber of Commerce number 77957229;
b. Distributor or Counterparty: the company that or the private individual that enters into an agreement with User with regard to software licences and software applications, or that has received a quotation/offer from the User or with whom the User is or will be in any legal relationship, or for whom the User performs any legal act.
c. Agreement: the agreement and/or any commitment between the User and affiliated companies of the User and the Distributor. The Agreement includes and provides for a non-exclusive cooperation between User and Distributor and may include an SLA (Service Level Agreement).
Article 2. General
2.1. These General Terms and Conditions apply to all offers, quotations and agreements concerning the provision of supplies and/or services and/or work by the User to the Distributor, as well as to all (other) legal acts between the User and the Distributor, including negotiation and other pre-contractual situations. User shall perform its services exclusively under the applicability of these terms and conditions.
2.2. These general terms and conditions also apply to all agreements with the User, the execution of which requires the involvement of third parties.
2.3. Any deviations from these general terms and conditions shall only be valid if they have been explicitly agreed upon in writing or electronically.
2.4. The applicability of any other general terms and conditions of the Distributor is expressly rejected. 2.5. If one or more provisions of these General Terms and Conditions are or become invalid, the remaining provisions of these General Terms and Conditions shall continue to apply in full. User and Distributor shall then consult with each other to agree on new provisions to replace the void or voided provisions, as far as possible observing the purpose and intent of the original provision.
Article 3. Offers and quotations
3.1. Any offer made by the User shall be free of obligation. User may revoke its offer immediately upon receipt of the acceptance thereof.
3.2. Every quotation is based on execution under normal circumstances and on information, data, documents, etc. provided by the Distributor. The Distributor guarantees the accuracy and completeness of the requirements and specifications supplied to the User by him or on his behalf and other data on which the User bases his offer.
3.3. If the acceptance deviates (on minor points) from the offer included in the quotation, the User will not be bound by it. The agreement shall then not be concluded in accordance with this deviating acceptance.
3.4. A composite quotation shall not oblige the User to perform part of the order for a corresponding part of the quoted price.
3.5. Offers or quotations do not apply to future orders.
3.6. Obvious mistakes or errors on the User's website and in leaflets, offers or publications shall not be binding on the User. Writing errors are also not binding.
3.7. The models, concepts, advice, illustrations, drawings, and measurements added to the offers, shown, or communicated, only give a general idea of the offered works, services, or goods. Any changes which cause the actual execution to deviate slightly from the aforementioned models, concepts, advice, illustrations, or measurements, but which do not substantially alter the execution of the order, shall not oblige the User to pay any compensation and shall not entitle the Distributor to suspend payment of the invoice amount.
3.8. Offers and other documents submitted by the User to the Distributor may not be reproduced or made available for inspection by third parties without the consent of the User.
3.9. The Distributor must treat the information in the quotation as confidential and may not use it for its own purposes or for the use of third parties, nor may it disclose it to third parties without the prior written consent of the User.
3.10. If no agreement is concluded on the basis of the quotation, the Distributor shall return the quotation and all accompanying documents to the User immediately upon request and at its own expense and risk.
3.11 A down payment made will not be refunded after a cancellation of goods or services, or at least the Distributor waives the right to reclaim it.
Article 4. Prices and travel costs
4.1. The prices or rates mentioned in quotations or offers are in euros and exclude VAT and other (government) levies.
Article 5. Execution of the agreement
5.1. User shall perform the agreement to the best of his knowledge and ability and in accordance with the requirements of good craftsmanship. All this based on the current state of knowledge and what is customary.
5.2. If and insofar as required for the proper execution of the agreement, the User shall be entitled to have certain activities carried out by third parties.
5.3. The User is always entitled to request the Distributor to provide adequate security for the performance of its payment obligation(s) (whether or not due in the future). User is entitled to suspend the execution or further performance of the Agreement until the requested security is provided.
Article 6. Obligations of the Distributor
6.1. The Distributor shall ensure that all data, equipment, and premises which the User indicates are necessary or which the Distributor should reasonably understand are necessary for the execution of the agreement, are provided to the User in good time. If the Distributor has not complied with this obligation, the User has the right to suspend the execution of the Agreement and/or to charge the Distributor for the additional costs arising from the delay in accordance with the usual rates.
6.2. If the products or data supplied by the Distributor are incomplete and/or incorrect, this will be entirely at the expense and risk of the Distributor. The Distributor is responsible for the calculations, designs and drawings as well as the suitability of the materials supplied by it or on its behalf.
6.3. The Distributor must immediately inform the User of any facts and circumstances that may be relevant in connection with performance of the Agreement.
6.4. The Distributor must refrain from any conduct that prevents the User from performing the Agreement properly. The Distributor shall enable the User to perform the activities in a proper and safe manner, on time, completely and in accordance with the Agreement.
6.5. User assumes that the Distributor has complied with all its legal obligations.
6.6. The Distributor shall indemnify the User against any claims of third parties who suffer damages in connection with the execution of the Agreement and which are attributable to the Distributor.
6.7. In the event that the Distributor cannot or is not allowed to indemnify the User pursuant to Article 6.6, or is deemed not to be required to indemnify the User, the Distributor shall arrange for adequate insurance cover.
6.8. The Distributor shall be obliged to use the advice, service or goods supplied by the User only in the manner set out in the instructions or technical specifications. In case of doubt, the Distributor shall immediately inform the User, without which the right to hold the User liable shall lapse.
6.9. If the Distributor fails to perform its obligations towards the User or fails to do so in time or in full, the Distributor shall be liable for all damages suffered by the User as a result thereof.
6.10 The Distributor may not transfer its obligations under the Agreement to a third party without the consent of User.
Article 7. Amendment of the agreement
7.1. If, during the execution of the Agreement, it becomes apparent that for a proper execution it is necessary to amend or supplement the Agreement, the Parties shall, in a timely manner and in mutual consultation, amend the Agreement accordingly. Distributor shall immediately cooperate in this regard.
7.2. If the parties agree that the Agreement will be amended or supplemented, this may affect the time of completion of the execution. User shall inform Distributor of this as soon as possible.
7.3. If the amendment of or addition to the Agreement has financial and/or qualitative consequences, User will inform the Distributor thereof in advance.
Article 8. Delivery and agreed times
8.1. The delivery dates and times indicated by the User are not to be considered as deadlines. It goes without saying that the User undertakes to make every effort to deliver on time.
8.2. In the event that a delivery deadline or time agreed with the Distributor is exceeded as a result of an event which is actually beyond the User's control and cannot be attributed to its actions and/or omissions, such deadline shall be automatically extended by the period by which it is exceeded as a result of such event.
8.3. Exceeding the specified delivery period shall not under any circumstances confer entitlement to compensation.
8.4. Immediately after completion of the work and/or any advice, the Distributor shall be required to inspect or study the work and report any defects found to him to the User, within two (2) days, unless urgent requirements mean that the work must be examined and inspected immediately. The Distributor must give the User the opportunity to check this report or complaint and still carry out the agreed activities. If the complaint is made too late, the Distributor's claim lapses.
8.5. The Distributor must also immediately check products and services that have been delivered. Any defects must be notified to the User immediately after delivery.
8.6. If the Distributor does not take delivery of the purchased products or rejects them, they will be stored at the expense and risk of the Distributor and the full agreed price will be owed, without prejudice to the right to full damages.
Article 9. Transfer of risk on delivery of goods
9.1. The risk of the goods or work delivered shall pass at the moment when the User makes them available to the Distributor.
Article 10. Extension of deadline/cost reimbursement
10.1. User shall be entitled to an extension of the deadline and/or compensation of costs in the event that
a. these terms and conditions expressly provide for it and on condition that the delay and/or costs are caused by a circumstance which cannot be attributed to User; or
b. they are caused by a circumstance for which the Distributor is responsible; or
c. an unforeseen circumstance arises which is of such a nature that the Distributor cannot reasonably and fairly expect the Agreement to remain unchanged.
10.2. If the User is of the opinion that it is entitled to an extension of the deadline and/or reimbursement of costs, it shall notify the Distributor thereof in writing or by e-mail without delay, stating its reasons. In doing so, User shall state all direct and indirect costs. It shall also state the consequences with regard to the planning.
Article 11. Fee
11.1. Parties may agree on a fixed price or fee in writing or electronically when entering into the agreement.
11.2. If no fixed price or fee has been agreed, the price or fee shall be determined on the basis of the User's rates. The fee shall be calculated in accordance with the User's usual rates, valid for the period in which the work is carried out, unless a deviating rate has been agreed.
Article 12. Materials
12.1. When executing the order and with regard to the materials to be supplied and processed, user shall make use of materials in the usual trade quality.
12.2. Materials which have been processed or treated by the Distributor can no longer be considered non-conforming; the risk of checking the quantities and quality shall be borne by the Distributor. The processing or working proves the acceptance in the agreed quality and quantity.
Article 13. Cancellation
13.1. In the event that a Distributor cancels, changes or terminates an order given to the User, the Distributor must reimburse the User for all costs already incurred by the latter within the scope of the order (the purchase of raw materials, materials, payment of wages, planned teaching activities, preparation of services, etc.). Likewise, any costs already incurred by staff or third parties who have been called in shall be reimbursed in full in accordance with the agreed fee or the usual fee charged by the User.
13.2. The above-mentioned cost arrangement shall not affect the Distributor's possible liability for loss resulting from the cancellation.
Article 14. Payment
14.1. Payment must be made immediately in a manner to be indicated by the User, unless the parties agree otherwise.
14.2. If the Distributor has not paid the invoice amount in time, the Distributor shall be in default and shall owe statutory interest. All judicial and extrajudicial collection costs incurred by the User to collect the claim of the Distributor shall be borne by the Distributor. The extrajudicial collection costs shall in any case amount to 15% of the principal sum with a minimum of € 500,-. If the actual extrajudicial costs (including the costs to be paid to a lawyer or bailiff) exceed 15% of the principal sum, Distributor will owe the costs actually incurred.
14.3. In the event of Distributor's liquidation, bankruptcy, seizure or suspension of payments, the User's claims against the Distributor are immediately due and payable.
14.4. Each payment made by the Distributor shall first serve to pay the interest owed and then the costs of collection. Only after these amounts have been paid will any payment made by the Distributor be applied to settle the outstanding principal.
Article 15. Retention of title and retention
15.1. All delivered and to be delivered products, licences, software, apps, etc., remain the sole property of the User, provided they are unopened and unused, until all claims which the User has or will have against the Distributor have been paid in full.
15.2. As long as ownership of the products has not passed to the Distributor because the Distributor has not fulfilled its payment or other obligations towards the User, the Distributor may not
a. pledge them, encumber them otherwise or alienate them;
b. grant third parties any other right in respect of the products;
c. resell them.
15.3 The Distributor shall be required to store the products delivered under retention of title with due care and as the recognisable property of the User.
15.4. The User has the right to take back the products which have been delivered under retention of title and are still at the Distributor's premises if the Distributor fails to fulfil his payment obligations or has or risks having difficulty in doing so. The Distributor shall at all times allow the User free access to its land and/or buildings to inspect the products and/or exercise the User's rights.
15.5. If the User cannot invoke its retention of title because the delivered products have been mixed, distorted, alienated, sold, or copied, the Distributor is obliged to pledge the newly formed items to the User.
15.6. The User may retain any goods, products, proprietary rights, data, documents, and databases received or generated within the scope of the Agreement, despite any existing obligation to surrender them, until such time as the Distributor has paid all amounts owed to the User.
Article 16. Suspension and dissolution
16.1. User is entitled to suspend the execution of the order with immediate effect if:
a. after the conclusion of the agreement, circumstances have come to the User's knowledge that give it good reason to fear that the Distributor will not fulfil its obligations. In the event that there are good grounds to fear that the Distributor will only partially or improperly fulfil its obligations, suspension shall only be permitted to the extent that the breach justifies such action.
16.2. User is authorised to dissolve the agreement (in whole or in part) if the Distributor fails to perform its obligations under the agreement or fails to do so in full and the Distributor has failed to respond to a notice of default sent to it, or if such notice of default is useless.
16.3. Furthermore, the User is authorised to dissolve the Agreement if circumstances arise which are of such a nature that performance of the Agreement is impossible or can no longer be required pursuant to standards of reasonableness and fairness, or if any other circumstances arise which are of such a nature that the unaltered maintenance of the Agreement can no longer be reasonably expected.
16.4. The User is entitled to dissolve the Agreement if the Distributor applies for or is granted a suspension of payments, if the Distributor is declared bankrupt or files for bankruptcy, if the Distributor is unable to meet his debts, if he discontinues or liquidates his business, if he is placed under guardianship or other (government) supervision or if a trustee or receiver is appointed.
Article 17. Liability and prescription
17.1. User cannot be obliged to compensate any damage which is a direct or indirect consequence of:
a. an event which is in fact beyond its control and therefore cannot be attributed to its acts and/or omissions, as described in Article 18 of these general terms and conditions, among others;
b. any act or omission by the Distributor, its subordinates or other persons employed by or on behalf of the Distributor.
17.2. User is not liable for any loss or damage of any kind whatsoever caused by the fact that User has relied on inaccurate and/or incomplete information provided by Distributor.
17.3. The User is not liable for any accidents with the goods, advice or service provided by the User, due to, for example, incorrect or incompetent use or use contrary to the instructions for use, methods, or customary practice.
17.4. Under no circumstances shall the User be liable for any damage which has occurred or is caused by the fact that the Distributor has used the goods supplied by the User for a purpose other than that for which they were purchased.
17.5. If the Distributor or a third party makes changes to the advice, goods or services supplied by the User, the User excludes any liability with regard to their operation and any loss or consequential loss.
17.6. The User accepts no liability whatsoever if, against the User's advice, the Distributor requires certain work to be carried out after all, including on or with unsuitable items.
17.7. The User shall never be liable for loss or damage, such as lost revenue, caused by a disruption in the Distributor's business operations which occurs during or as a result of the work. Such disruption or interruption shall be at the risk of the Distributor. If the Distributor wishes to take out insurance to cover the resulting loss, it must do so itself.
17.8. Neither the User nor its employees and/or auxiliary persons are liable to the Distributor for any consequential or indirect loss or damage, regardless of its origin.
17.9. The User shall not be liable for any loss which is caused by the fact that the Distributor or any third parties engaged by it have failed to fulfil their obligations arising from these General Terms and Conditions, the Agreement, or the law. In case of conflict, these General Terms and Conditions shall prevail.
17.10. If the User is liable for any loss or damage, the User's liability shall be limited to the amount paid out by the User's insurer. If, in any given case, the insurer makes no payment or if the loss is not covered by the insurance, the User's liability shall be limited to 10% of the invoice amount with a maximum of € 1,000.00, or at least to that part of the agreement to which the liability relates. For the rest, the Distributor shall take out adequate insurance.
17.11. The limitations of liability included in these General Terms and Conditions shall not apply if the loss is due to intent or gross negligence on the part of the User or its subordinates.
17.12. Any rights of action and other powers of the Distributor on any grounds whatsoever vis-à-vis the User shall lapse at the latest six months after an event occurs which entitles the Distributor to enforce rights and/or powers against the User and a summons has not been served on the User.
Article 18. Force majeure
18.1. User shall not be bound to comply with any obligation if prevented from doing so as a result of force majeure. Force majeure shall in any case be understood to mean: extreme weather conditions, such as: (tropical) storms, tornados, hurricanes, lightning, and extremely high or low temperatures; floods; landslides; corrosive air; terrorism; pandemics and the restrictions/measures resulting therefrom; obstructions by third parties, including the authorities; transport obstructions; strikes; riots, wars or dangers of war; loss of or damage to goods during transport; failure of its suppliers to deliver goods to the User or to do so on time; ex and import bans; fires, breakdowns and accidents in the User's company or that of its supplier; the burning of the User's or its supplier's means of transport, the occurrence of faults in them or involvement in accidents; measures taken by any domestic, foreign or international government.
18.2. Force majeure is also understood to mean a failure by the User's suppliers or engaged third parties.
18.3. In the event of force majeure, the User cannot be required to pay compensation for any loss as a direct or indirect result of it and he will also be released from his obligation to deliver or perform the agreed activities. It will depend on the circumstances of the case whether this is and will remain fully or partially the case, or whether there will only be a suspension of delivery and/or performance. If an opportunity arises to deliver and/or perform, and/or in an amended manner, both the User and the Distributor shall be obliged to make use of it, possibly by adjusting the amounts payable by the Distributor.
18.4. If the force majeure situation has lasted for more than 2 months, the parties shall be entitled to terminate the agreement by rescinding it in writing. What has already been delivered as a result of the agreement shall be settled proportionately.
Article 19. Confidentiality
19.1. Both parties are obliged to keep confidential all confidential information they have obtained within the framework of their agreement from each other or from another source. Information is considered confidential if the other party has indicated this or if this follows from the nature of the information. The party receiving confidential information shall only use it for the purpose for which it was provided.
19.2. If, on the basis of a statutory provision or a judicial decision, the User is required to disclose confidential information to third parties designated by law or the competent court and the User is unable to invoke a right to refuse to give evidence acknowledged or permitted by law or the competent court, the User shall not be required to pay compensation or indemnification and the Distributor shall not be entitled to dissolve the agreement on the grounds of any loss suffered as a result. This also applies to the provision of personal data within the meaning of the General Data Processing Regulation (AVG). 
Article 20. Intellectual property
20.1. User shall at all times retain all intellectual property rights to advice, concepts, documents, images, drawings, and software made available by it.
20.2. Without the User's written consent, the Distributor may not copy or reproduce or publish any concepts, documents, illustrations, drawings, and software in whole or in part, other than for internal use.
20.3 The Distributor shall indemnify the User against any claims by third parties relating to intellectual property rights on materials or information provided by the Distributor which are used in the execution of the Agreement.
20.4 The Distributor grants Red Cactus BV permission to process personal data of itself, the individuals employed by it, and its customers in accordance with the GDPR. If Red Cactus BV is considered a subprocessor under the GDPR at any time, Red Cactus BV will make efforts to comply as much as possible with the regulations imposed by the GDPR on subprocessors. Therefore, Red Cactus will not enter into a separate agreement for this purpose, as this agreement implies that Red Cactus BV will make efforts to conform to the obligations imposed by the GDPR on subprocessors.
Article 21. Final provisions
21.1. In the event of an interpretation of the contents and purport of these general terms and conditions, the Dutch text shall always prevail.
21.2. All agreements between the User and the Distributor shall be exclusively governed by Dutch law.
21.3. All disputes between the Distributor and the User relating to these General Terms and Conditions shall be submitted to the competent court in the district where the User has its registered office, except where the law provides otherwise.