Annex 1. General Terms
Chapter 1: General Provisions
1. Definitions
1.1. In this Annex 1 (General Terms) the following definitions are used:
Client the party that procures Products or Services from Supplier, as defined in the Contract;
Contract means any agreement concluded between Supplier and the Client to which these General Terms apply, including but not limited to a statement of work for the provision of specific Products or Services (“SoW”) or a master services agreement;
Intellectual Property Rights means all brands, logos, trademarks, trade names, service marks, (internet) domain names, models and designs, patents, copyrights (including all rights relating to software) and moral rights, rights relating to databases, documentation, scripts, knowhow and other rights, as well as all other industrial and intellectual rights, in any case independent from whether or not they have been registered and with the inclusion of registration applications as well as all equivalent rights or means of protection (e.g. trade secrets) leading to a similar result anywhere in the world;
Products means any product delivered by Supplier to a Client pursuant to and as specified in an SoW, including but not limited to Software;
Results means the output delivered as a result of a Service, such as invoices, reports, advices, screenshots, print-outs, analyses, designs, documentation, training materials and other results of Services;
SaaS means as remotely making and keeping Software available to Client via the internet or any other data network, without Client being provided with a physical carrier with this Software (also referred to as Software-as-a-Service);
Service means the service delivered by Supplier to a Client pursuant to and as specified in an SoW, including but not limited to software related services and consultancy services;
Software means all software – both in source code, object code and otherwise – agreed on in the SoW; and
Supplier the entity which provides Products or Services to Client, as defined in the Contract. The supplier may also be defined as “Rojo” in a Contract.
Any capitalized term used but not defined in these General Terms, shall have the meaning attributed to it in the Contract to which these General Terms are an Annex.
2. Services
2.1. All of Supplier’s Services are provided on the basis of a best efforts obligation ("inspanningsverbintenis").
2.2. Supplier will endeavour, within reason, to observe, as much as possible, the terms and/or dates, whether deadlines or not, referred to by Supplier or agreed upon by parties. Any date agreed upon between parties is considered a target date and does not bind Supplier. Merely exceeding one of the (delivery) terms or (delivery) dates referred to by Supplier or agreed upon between parties does not result in Supplier being in default ("verzuim"). Supplier will never be in default for exceeding a deadline - not even, therefore, if parties have explicitly agreed upon a (delivery) deadline in writing - before Client has served a written default notice granting Supplier a reasonable period of time to remedy the default and Supplier still imputably fails to perform its obligations after this period of time.
2.3. Parties are jointly responsible for ensuring the planning and possible departures from it and they will see to it that the planning and ensuring the planning is always an item on the agenda of their regular consultations.
2.4. If parties have agreed that the performance of the activities agreed upon under an SoW is to take place in phases, Supplier is entitled to postpone the start of activities that are part of a certain phase until Client has approved the Results of the preceding phase in writing.
2.5. Supplier is not responsible or liable for performance issues that can be traced back to or that are caused by the online support by any third parties or by suppliers.
2.6. Without prejudice to the provisions above, Supplier is not bound by any (delivery) date or (delivery) term, whether a deadline ("fatale termijn") or not, if parties have agreed upon a change in the content or scope of an SoW (extra work, alteration of specifications, etc.) or a change in the way an SoW is to be executed, or in the event Client fails to meets its obligations arising from an SoW, or fails to meet these in time or in full. If any extra work should be required while an SoW is being executed, this can never be a reason for Client to terminate the Contract by giving notice of termination ("opzeggen") or to terminate it for breach ("ontbinden").
3. Third party products and services
3.1. If and insofar as Supplier makes products or services of third parties available to Client or grants access to these products or services, the terms of the third parties in question apply to these products or services in the relationship between Supplier and Client and replace the provisions in these General Terms that depart from those third party terms, provided that Client has been informed by Supplier about the applicability of the (licensing or sales) terms of those third parties and Client has been given a reasonable opportunity to take note of those terms. Contrary to the previous sentence, Client cannot invoke a failure on the part of Supplier to meet the aforementioned obligation if Client is a party as referred to in article 6:235 paragraph 1 or paragraph 3 of the Netherlands Civil Code.
3.2. If and insofar as the terms of third parties in the relationship between Client and Supplier referred to above prove to be inapplicable or are declared inapplicable for any reason whatsoever, these General Terms apply in full.
4. Price and payment
4.1. All prices are exclusive of turnover tax (VAT) and other levies imposed by the authorities. Unless explicitly agreed otherwise in writing in the relevant Contract, all prices quoted by Supplier are in euros and Client must pay in euros.
4.2. If any withholding or deduction is required under applicable law, Client shall, when making payment of the prices to which the withholding or deduction relates, pay to Supplier such additional amount as to ensure that Supplier receives the same total amount of the fees that it would have received if no such withholding or deduction had been required.
4.3. Invoices shall be paid by Client in accordance with the payment terms stated in the relevant Contract. In the absence of a statement, Client shall pay an invoice within thirty (30) days of the invoice date. Payment terms shall be regarded as strict dates (fatale termijnen). Client is not entitled to set off a payment.
4.4. Supplier may index its rates on an annual basis, per 1 January, in accordance with the CBS (Statistics Netherlands) price index for business and ICT Services, IT Services, 2015 = 100.
4.5. If Client fails to pay the amounts due or does not pay these on time, Client shall, without any demand or notice of default being required, be in default and shall owe statutory (commercial) interest on the outstanding amount. If Client should fail to pay the sum due even after a reminder or notice of default, Supplier can pass on the claim for collection and Client is obliged to pay, within reason and in addition to the total sum due at that time, all judicial and extrajudicial costs, including all costs charged by external experts – all of which is without prejudice to any of Supplier’s statutory and contractual rights (including Supplier’s right to suspension of services).
4.6. Any complaint regarding Supplier’s invoices must be communicated to Supplier by registered mail within ten (10) Business Days of their receipt. Otherwise, they shall be deemed accepted without reservation. A claim shall in no case justify a delay or suspension of payment of the undisputed part of the invoice. If the invoice, at the request of the Client, is issued to a third party, the Client and that third party are jointly and severally liable for the payment and the execution of other liabilities arising from the relevant Contract.
4.7. Client cannot derive any rights or expectations from a preliminary calculation or budget issued by Supplier, unless parties have agreed otherwise in writing.
5. Duration of a Contract
5.1. If and insofar as a Contract is a continuing performance contract, it is entered into for the term agreed on by parties. A term of one year applies if a specific term has not been agreed on.
5.2. Unless otherwise agreed in writing, upon expiry of its term, the duration of a Contract is tacitly renewed for the duration of the term originally agreed upon, unless either party should terminate ("opzeggen") the Contract by serving written notice of termination in accordance with the possibilities described in that Contract. If no reference is made to any notice period for termination, this notice period will be three (3) months before the end of the relevant term.
6. Termination of a Contract
6.1. Unless performance of the remaining obligations under a Contract is permanently impossible, a Contract or a part thereof may only be terminated for breach (“ontbinden”) if either party has imputably failed to meet any of its fundamental obligations and the other party has sent that party a written notice of default, stating the details of the breach, and has granted the other party a reasonable term to remedy the failure and this party – after this term has lapsed – still imputably fails to meet its obligations. Payment obligations of Client and any obligations Client has with respect to third parties engaged by Client are always considered fundamental obligations under a Contract.
6.2. Any amounts that are invoiced by Supplier before termination (“ontbinding”) remain fully due and are immediately payable at the moment of termination, unless Client proves that Supplier continues to be in default with respect to a fundamental part of the Contract.
6.3. Either party may terminate (“opzeggen”) a Contract in writing, in whole or in part, without notice of default being required and with immediate effect, if the other party is granted a suspension of payments, whether or not provisional, a petition for bankruptcy is filed against the other party or the company of the other party is liquidated or dissolved other than for restructuring purposes or for a merger of companies. Supplier is never obliged to repay any sum of money already received or pay any sum of money in compensation because of termination as referred to in this paragraph.
6.4. A Contract that has been entered into for a definite period of time or for the duration of a project cannot be terminated early by serving notice of termination (“opzeggen”) – in so far as required contrary to the provisions of article 7:408 paragraph 1 Netherlands Civil Code.
6.5. Either party may terminate, by serving notice of termination (“opzeggen”), a Contract entered into for an indefinite period of time if this Contract in its nature and content does not end by discharge. Termination must be in writing, taking effect at the end of a month and with due observance of a notice period of at least three (3) calendar months.
6.6. Supplier will never be obliged to compensate any damages caused by termination by giving notice (“opzegging”).
7. Consequences of terminating a Contract
7.1. When a Contract ends, for whatever reason, the right to use and/or access the Software, Services and/or Products, websites, applications, data files, training testing and other materials (such as, but not limited to, analyses, designs, documentation, report, and the like) that were made available to Client under the relevant Contract ends automatically, without Supplier having to terminate these rights explicitly. Promptly following the termination of a Contract, Client must return all copies of the Software in its possession or, upon Supplier’s request, demonstrate that these have been destroyed.
7.2. Upon termination of a Contract, Supplier will, in any case, make the data available to Client in a generally accepted electronic format; these data concern information (never including source codes and technical documentation) that Client needs to be able to continue the Services by itself or to have these continued by a third party to be designated by Client.
7.3. If the information referred to above is the property of any third party or any third party is entitled to it the above only applies if and in so far as Supplier is proprietor of or entitled to share this information with Client.
8. No Guarantees
8.1. Supplier will provide the Products and Services “as is”, unless explicitly agreed otherwise in a Contract.
8.2. Supplier does not guarantee that the Products and/or Services are free of errors and functions without any interruptions. Supplier does not guarantee that errors in the Products and Services that has not been developed by Supplier itself are repaired.
8.3. Supplier makes every effort to repair the errors in the underlying software within a reasonable period of time if and insofar as underlying software is concerned that has been developed by Supplier itself and Client has provided Supplier with a detailed, written description of the relevant errors. In a particular case, Supplier may postpone repairing errors until a new version of the underlying software is put into service.
8.4. Supplier is entitled to install temporary solutions, program bypasses or problem-avoiding restrictions in the Products and Services.
8.5. Supplier does not guarantee that the Products and Services are timely adapted to any amendments in the relevant laws and regulations. Supplier shall undertake to adapt the Products and Services to amendments in the relevant laws and regulations on the basis of a best efforts obligation ("inspanningsverbintenis").
9. Audit
9.1. In the event Supplier has reasonable suspicion that Client does not use the Products and Services in compliance with the Contract, Supplier is entitled to audit, or have an independent external auditor audit Client’s books and records, subject to Supplier giving prior notice of at least one (1) month of its intention to perform such audit. Client shall cooperate with any such audit and shall allow Supplier or the auditor, as the case may be, to access the relevant books and records and access to the relevant systems to investigate Client’s compliance with the Contract. Audits will be performed during business hours. Parties shall bear their own respective costs and expenses incurred as a result of any audit, unless the audit reveals that the Client is not compliant with the Contract, in which case the Client shall bear all costs and expenses incurred by parties as a result of the audit.
10. Maintenance, service levels and back-up
10.1. Arrangements concerning maintenance and/or service levels are exclusively agreed upon in writing in a service level agreement.
10.2. If any arrangements have been made about a service level, the availability of software, systems and related services is always measured in such a way that unavailability (i) due to scheduled or unscheduled maintenance, modifications, or upgrades or other forms of service (b) due to hardware failures, power outages, or failures of third-party providers (c) to mitigate or prevent the effects of any threat or attack to the Services or any other network or systems on which the Services rely or (d) as required for legal or regulatory reasons, are not taken into account. Subject to proof to the contrary offered by Client, the availability measured by Supplier is considered conclusive.
10.3. Supplier ensures that the period of time during which the Service is out of operation does not take longer than necessary and ensures, where possible, that the service takes place at times when the Service is usually used least intensively.
10.4. Supplier will make a reasonable effort to notify Client in advance of any scheduled Services’ unavailability.
10.5. Except as provided for in an SoW, to the greatest extent permitted by applicable law, Supplier is not in any way liable for any damages, losses (including any loss of data or profits), or any other consequences that Client may incur as a result of unavailability of Services or the failure to provide notice of unavailability.
10.6. Client is responsible for making backups, unless explicitly agreed otherwise in writing. Client remains at all times responsible for checking that its data is properly and completely backed up.
10.7. Supplier is never obliged to recover data that have been corrupted or lost.
11. Data exchange and personal data
11.1. If personal data are to be processed under the Contract, Supplier and Client will enter into a data processing agreement to that end, substantially in the form and substance as attached to the Contract as Annex 2 (DPA).
11.2. Supplier does not make Client's data, including personal data, available outside its own organization and the enterprises affiliated with Supplier, unless Client should instruct this or in so far as this should be necessary or required under these General Terms, under a Contract or by law.
11.3. Client guarantees the accuracy, quality, integrity, lawfulness, reliability and suitability of the data delivered by Client. Client sees to it that all relevant consent is obtained to make data available to Supplier and for Supplier to use the data in the context of the execution of a Contract, which consent includes permission to collect, use, process, transfer and provide personal data.
11.4. Client is fully responsible for the data that it processes when making use of a Service provided by Supplier. Client guarantees vis-à-vis Supplier that the content, use and/or processing of the data are not unlawful and do not infringe any third party's right. Client indemnifies supplier against any claims by a third party instituted, for whatever reason, in connection with these data or the performance of a Contract.
12. Security
12.1. Supplier is only obliged to provide some form of security if and to the extent provided for in the SoW. Supplier is entitled to adjust the security measures from time to time if this is necessary as a result of changing circumstances.
12.2. Supplier explicitly does not warrant that information security is effective under all circumstances and the Client acknowledges this.
12.3. Supplier may give Client instructions about security features intended to prevent or to minimalize incidents, or the consequences of incidents, that may affect security. If Client should fail or follow the instructions issued by Supplier or by a relevant public authority, or should fail to follow these in time, Supplier is not liable and Client indemnifies Supplier against any damage that may arise as a result.
12.4. Client is responsible for adequately securing and maintaining adequate security of its systems and infrastructure, even if security by Supplier is within the scope of the SoW.
12.5. Client, among other things, must have and maintain its own security policy and is responsible for conducting and maintaining a proper password policy and actively warning within its organization about phishing emails and similar activities to prevent security incidents.
12.6. Supplier is not liable for any damage suffered or costs incurred as a result of the use or misuse that is made of access or identification codes or certificates or any other security means unless the misuse is the direct result of any intent or deliberate recklessness on the part of Supplier's management.
12.7. Access or identification codes, certificates or other security devices provided by or on behalf of Supplier to Client are confidential and will be treated as such by Client and will only be disclosed to authorized personnel from the Client's own organization. Supplier is entitled to change assigned access or identification codes and certificates. Client is responsible for managing authorizations and providing and timely revoking access or identification codes.
12.8. If the security or testing thereof relates to software or infrastructure not provided to Client by Supplier under the SoW, Client warrants that all necessary licenses or approvals have been obtained to allow Supplier to perform said services. Supplier shall not be liable for any damages incurred in connection with the performance of such service. Client indemnifies Supplier against any legal claim of whatever nature in connection with the performance of these services.
12.9. Supplier is always permitted to install technical and organizational provisions for the protection of equipment, data files, websites, software made available, or other works to which access is provided (directly or indirectly) to Client, also in connection with an agreed upon limitation in the content or duration of the right to use these objects. Client shall not remove (or cause to be removed) or circumvent (or cause to be circumvented) such technical provision(s).
12.10. The risk of loss, theft, embezzlement or damage to items, data (including user names, codes and passwords), documents, software or data files manufactured for, supplied to or used by the Client in the context of the execution of a Contract shall pass to the Client at the time they are placed under the actual control of the Client or an auxiliary person of the Client.
13. Obligations of Client
13.1. Client guarantees the accuracy and completeness of the data, information, designs and specifications provided by or on behalf of Client to Supplier (i) prior to entering into a Contract and on which the offer and/or the Contract is based and (ii) during the execution of the Contract.
13.2. Client will always render any assistance required - always promptly and in all reasonableness - and always provide Supplier with the data or information that Supplier requests. If Client assigns its own staff and/or auxiliary persons to assist in the execution of a Contract, these employees and auxiliary persons must have the required skills and experience.
13.3. Client performs its tasks and duties with appropriate quality, quantity, assignment of sufficient staff and sufficiently qualified staff and on time.
13.4. Client itself is responsible for the correct interpretation and proper use (including compliance with laws and regulations) of the Results.
13.5. Client bears the risk of selecting, using, applying and managing the hardware (including the settings), Software, websites, data files and other products and materials for or in its organization and the Services to be provided by Supplier and the way in which the Results of the Services, Software and other products and Services are implemented. Client is also responsible for the instructions given to the users and for the use made of all of this by the users.
13.6. Client must always exercise the utmost care with respect to the proper installation, mounting and implementation and to the correct setting of the hardware, Software, websites, data files and other products and materials.
13.7. In the event Supplier employees carry out activities at Client's premises, Client will see to it, free of charge, that these employees are provided, in all reasonableness, with the facilities they require, such as a workplace with computer, data and telecommunication facilities. The workplace and facilities must meet the statutory and other relevant requirements for working conditions. Client indemnifies Supplier against claims by third parties, including claims by Supplier’s employees, who suffer damage in connection with the execution of a Contract, which damage results from any act or omission of Client or from unsafe situations in Client's organization. Before the activities start, Client informs Supplier’s employees about the house rules and safety rules that Client applies in its organization.
13.8. In the event computer, data and telecommunication facilities, including the internet, are used for the execution of a Contract, Client is responsible for the appropriate selection of means required for these facilities and for their timely and full availability, except for the facilities which are under Supplier's direct use and management. Supplier is never responsible for any damage or costs, including costs of delay for Supplier, as a result of transmission errors, failures or non-availability of these facilities, unless Client proves that this damage or these costs are caused by intent or wilful recklessness on the part of Supplier's management.
13.9. Client is responsible both for installing, setting up, parametrizing and tuning the software and auxiliary software required for its own hardware and, where required, modifying any other hardware used, other software or auxiliary software and for the operating environment and for realizing the interoperability wanted.
13.10. For the duration of the Contract and one (1) year following the end of the Contract, Client is not allowed to, either alone or jointly with others, directly or indirectly, whether for its own account or on behalf of any other person or in any other way for the account of any third party and in any capacity, including as director, partner, shareholder, agent, consultant, adviser or developer, without the prior written consent of the Supplier engage, recruit, solicit, contact or approach for, or induce or attempt to induce to terminate the, employment, engagement, consultancy, secondment or any similar position, any person who is or has within two (2) year preceding the date on which the Contract ends, served as an employee, director or officer of, or consultant or independent contractor to Supplier.
13.11. In the event of a breach by Client of article 13.10, Client shall forfeit an immediately due and payable penalty, without any demand or notice of default being required, amounting to € 20,000 per breach without prejudice to Supplier’s right to full compensation of damages.
14. Intellectual property rights
14.1. All Intellectual Property Rights with respect to the Products, Services, Software, websites, applications, data files, hardware, training materials, testing materials and other materials - such as but not restricted to analyses, designs, documentation, reports - made available to Client remain exclusively vested in Supplier, its licensors and/or suppliers. Client is solely granted the rights of use laid down in these General Terms, in the Contract and in the applicable mandatory legal provisions. A right of use granted to Client is non-exclusive, non-transferable, non-pledgeable (niet-verpandbaar) and non-sublicensable.
14.2. Supplier is permitted to take technical measures to protect the hardware, data files, websites, applications, Software made available, Software which Client is granted access to (partially or in full) and the like in the context of an agreed upon restriction in the content or the duration of the right to use these objects. Client may not remove or circumvent these technical measures or have these removed or circumvented.
14.3. Supplier will try to resolve any claim filed by a third party against Client, which claim is based on an alleged, direct infringement by Software, websites, applications, data files, hardware or other materials ("Materials") developed by Supplier of any Intellectual Property Right which that third party can enforce in the European Economic Area. Supplier is obliged to do so, provided that Client uses these Materials unmodified and in accordance with the relevant Contract and without combining these Materials with hardware or software, websites or other materials that have not been supplied or delivered by Supplier or have not been recommended in the relevant Contract. If Supplier cannot resolve the claim by the third party under commercially reasonable conditions, Supplier may (a) modify the object delivered to Client or replace it by an operational equivalent, or, if this should prove impossible (b) terminate ("opzeggen") the relevant Contract by giving notice of termination and refund the amount paid by Client for the period following the termination of the Contract.
14.4. Article 14.3 applies subject to the following conditions: (a) Client informs Supplier immediately in writing about any such claim or a possible claim, (b) Client allows Supplier to conduct its own defense, independently, and/or to settle the claim and (c) Client provides Supplier with correct and complete information and assistance to settle such claim and/or to defend itself against it. To that purpose Client must grant Supplier the required powers-of-attorney and provide Supplier with any assistance it may require.
14.5. Article 14.3 does not apply if the alleged infringement is related to material made available by Client to Supplier for use, modification, processing or maintenance or modifications that Client has made, or has had made, in the Materials without Supplier’s written prior permission.
14.6. Client is not entitled to remove or alter any reference to the confidential nature or notices of the relevant copyrights, trademarks, trade names or any other intellectual property from or in the Materials or have these removed or altered.
14.7. Client guarantees that none of the hardware, software, material meant for websites and/or data files and/or other materials and/or designs made available to Supplier for use, maintenance, modification, installation or integration purposes or for the performance of other activities pursuant to or in the context of a Contract is incompatible with any third party rights. Client indemnifies Supplier against any claim by a third party which is based on an alleged infringement of any right of that third party by any of the means that have been made available or by the use, maintenance, modification, installation or integration of such means.
14.8. Supplier is never obliged to carry out data conversion, unless this has been explicitly agreed upon with Client.
15. Liability
15.1. Supplier’s total liability due to an imputable failure in the performance of a Contract, or arising from any other legal basis whatsoever, explicitly each and every failure to meet a guarantee or indemnification obligation agreed on with Client, is at all times limited to compensation for direct damages up to a maximum amount equal to the amount of the invoices (excluding VAT and including discount) paid by Client to Supplier under the Contract which was breached. If the Contract is a continuing performance contract with a term of six (6) months or longer, the amount of invoices paid by Client shall be set at the total sum of the invoices (excluding VAT and including discount) paid for the six (6) months immediately preceding the moment when the event giving rise to the damage occurred. In no event does Supplier's total cumulative liability, on any legal basis whatsoever, exceed EUR 500.000. A series of consecutive or related events is seen as one (1) event. In so far as claims arise from various legal relationships between parties which are based on one and the same or a related body of facts, these claims are not considered to constitute a cumulation of claims. In that event the stipulated price as referred to above is the Contract that has the lowest price.
15.2. Supplier's total cumulative liability for any damage arising from death or bodily injury or arising from material damage to goods is limited to the amount of EUR 1,250,000.
15.3. Direct damages are exclusively understood to mean:
(a) reasonable costs incurred by Client to have Supplier's performance comply with a Contract; however. These damages are not compensated, however, if Client has terminated this Contract for breach (“ontbinden”);
(b) reasonable costs incurred by Client by establishing the cause and the extent of the damage, in so far as establishing this is related to the direct damage in the meaning of these General Terms;
(c) reasonable costs incurred by Client to prevent or limit the damage, in so far as Client demonstrates that these costs have led to a limitation of direct damages in the sense of this article 15.
15.4. Liability of Supplier for indirect damage, consequential damage, loss of profit, lost savings, diminished goodwill, damage due to business interruption, damage resulting from claims of customers of Client, damage related to the use of goods, materials or software of third parties prescribed by Client to Supplier, damage related to the use of suppliers prescribed by Client to Supplier and all forms of damage other than those mentioned in article 15.1, 15.2 and 15.3, for whatever reason, is expressly excluded at all times. Supplier’s liability for corruption, destruction or loss of data or documents is also excluded.
15.5. The exclusions and limitations of Supplier's liability described articles 15.1 up to and including 15.4 are without any prejudice whatsoever to the other exclusions and limitations of Supplier's liability described in these General Terms.
15.6. The exclusions and limitations referred to in articles 15.1 up to and including 15.4 cease to apply if and insofar as the damage is caused by intent or deliberate recklessness on the part of Supplier's management.
15.7. Unless performance by Supplier is permanently impossible, Supplier is exclusively liable for an imputable failure in the performance of a Contract if Client promptly serves Supplier with a written notice of default, granting Supplier a reasonable period of time to remedy the breach, and Supplier should still imputably fail to meet its obligations after that reasonable term has passed. The notice of default must describe Supplier's failure as comprehensively and in as much detail as possible so that Supplier has the opportunity to respond adequately.
15.8. The right to compensation of damages exclusively arises if Client reports the damage to Supplier in writing as soon as possible after the damage has occurred. Any claim for compensation of damages filed against Supplier lapses by the mere expiry of a period of twelve months following the inception of the claim unless Client has instituted a legal action for damages prior to the expiry of this term.
15.9. Client indemnifies Supplier against any and all claims of third parties arising from product liability because of a defect in a product or system that Client delivered to a third party and that consisted in part of hardware, software or other materials delivered by Supplier, unless and insofar as Client is able to prove that the loss was caused by the hardware, software or other materials referred to.
15.10. Both the provisions in this article 15 and all other restrictions and exclusions of liability referred to in these General Terms also apply for the persons and legal persons that Supplier engages for the performance of a Contract.
15.11. If Supplier follows up on a complaint of Client, this does not mean that Supplier thereby accepts liability.
16. Retention of title, reservation of rights and suspension
16.1. All goods delivered to Client remain the property of Supplier until all sums due by Client to Supplier under the Contract have been paid to supplier in full.
16.2. The property-law consequences of the retention of title with respect to any goods destined for export is governed by the laws of the state of destination if the relevant laws contain provisions that are more favourable to Supplier.
16.3. Where applicable, rights are granted or transferred to Client subject to the condition that Client has paid all sums due under the Contract.
16.4. Supplier may retain all information, documents, software and/or data files received or created in the context of a Contract, despite an existing obligation to hand these over or transfer them, until Client has paid all sums due to Supplier.
17. Transfer of risk
17.1. The risk of loss, theft, misappropriation or damage of goods, information (including user names, codes and passwords), documents, software or data files that are created for, delivered to or used by Client in the context of the performance of a Contract pass to Client at the moment these are placed under the actual control of Client or an auxiliary person of Client.
18. Adjustments and extra work
18.1. If, at Client’s request or after Client's prior consent, Supplier has performed activities or has delivered goods or services that are outside the scope of the agreed activities and/or delivery of goods or services, Client is charged for these activities or for these goods or services on the basis of the agreed rates or, if no rates have been agreed on by parties, on the basis of Supplier's applicable rates. Supplier is not obliged to honour such request and may require that, to that purpose, a separate agreement should be entered into in writing.
18.2. Client realises that adjustments and extra work (may) result in terms and delivery periods and/or dates and delivery dates being postponed. Any new terms and delivery periods and/or dates and delivery dates indicated by Supplier replace the previous terms and delivery periods and/or dates and delivery dates.
19. Confidentiality
19.1. Each party shall ensure that all information received from the other party which is known or should reasonably be known to be of a confidential nature shall remain secret. This prohibition shall not apply if and insofar as disclosure of the data in question to a third party is necessary pursuant to a court order, a statutory regulation, on the basis of a legally issued order by a government authority or for the proper execution of a Contract. The party receiving confidential data shall use it only for the purpose for which it was provided. Data shall in any case be considered confidential if it is designated as such by one of the parties.
19.2. Client acknowledges that the Products, Software and/or the Services provided by or through Supplier are always confidential in nature and contains trade secrets of Supplier its suppliers or the producer of the Software.
19.3. If Client detects an error or a data breach in the Products, Services, Software or data carrier, Client will report this to Supplier and will not make this public before Supplier and/or the relevant third party supplier have been granted a reasonable period of time to repair the error or the breach ("responsible disclosure").
20. Force Majeure
20.1. Neither party is obliged to meet any of its obligation, including any statutory and/or agreed guarantee obligation, if it is prevented from doing so because of circumstances beyond its control (“niet toerekenbare tekortkoming”). Circumstances beyond Supplier’s control are understood to include, in any event: (i) circumstances beyond the control of Supplier’s suppliers, (ii) the failure by a supplier that Supplier was instructed by Client to engage to properly meet its obligations, (iii) defective condition of goods, hardware, software or materials of third parties that Client instructed Supplier to use, (iv) measures by authorities, (v) power failures, (vi) breakdown of the internet, data network or telecommunication facilities, (vii) (cyber) crime, (cyber) vandalism, war or terrorism and (viii) general transport problems.
20.2. If a force majeure situation lasts for more than sixty (60) days, either party has the right to terminate the Contract, in writing, for breach. In such event, all that has already been performed under the Contract must be paid for on a proportional basis, without anything else being due by either party to the other party.
21. Applicable Law
21.1. Each Contract is exclusively governed by Dutch law. Applicability of the Vienna Convention 1980 (The United Nations Convention on Contracts for the International Sale of Goods (CISG)) is excluded.
21.2. Any and all disputes arising from or in connection with a Contract shall shall be subject to the exclusive jurisdiction of the competent in Amsterdam, the Netherlands.
22. Other provisions
22.1. Obligations which by their nature are intended to continue after the end of a Contract shall continue to apply after the end of the Contract. These provisions include those arising from the provisions on confidentiality, intellectual property rights, liability and applicable law.
22.2. Client may only sell, transfer or pledge its rights and obligations under a Contract to a third party with the prior written consent of Supplier. Supplier has the right to sell, transfer or pledge its claims for payment of fees to a third party. Supplier is entitled at any time to transfer the Contract to another company in which Supplier holds the majority of the shares.
22.3. In the event that any clause or any part of any clause contained in these General Terms is declared invalid or unenforceable by the judgment or decree, whether consent or otherwise, of a court or body of competent jurisdiction from whose decision no appeal is or can be taken, all other clauses or parts of clauses contained in these General Terms shall remain in full force and effect and Parties will agree upon an alternative arrangement that is valid and which as closely as possible corresponds with the contents of the provisions to be replaced.
Chapter 2: Services
The provisions in this chapter ‘Services’ apply, in addition to those in the chapter ‘General Provisions’ if Supplier supplies and delivers Services, of whatever nature, to Client.
23. Performance of the Services
23.1. If and in so far as required for the proper performance of the Services, Supplier is entitled to have certain activities performed by third parties (“hulppersonen”). The General Terms also apply to the activities these third parties perform in the context of an SoW.
23.2. Supplier is not liable for damages or costs that result from the use or abuse that is made of access and identification codes or certificates, unless this use or abuse is directly caused by intentional or deliberately reckless act or omission of Supplier’s management.
23.3. If an SoW is entered into with a view to have one particular person perform the activities, Supplier is always entitled to replace this person by one or more persons who have the same and/or similar qualifications.
23.4. In the event any instructions or requests by Client change or add to the Services agreed upon, parties will consult each other on the consequences of this in terms of planning and costs.
24. End users of the Service
24.1. If this is part of the Service, Supplier creates one or more accounts for the end user(s) to provide end users with access to the Service.
24.2. Client and the end users must exclusively use the user name and password for the account for their own purposes and may never provide these details to third parties.
24.3. Client must ensure that only end users have access to the Service. Client is responsible for the secrecy of the content and for the Results. Client must impose the obligation to observe secrecy on all persons who are involved with the Service and the Results in so far as these persons do not have that obligation yet under their employment contracts. This explicitly applies for persons who perform activities for Client without having an employment contract, whether on a temporary basis or not, for example, but not limited to, consultants.
24.4. Any action that takes place with Client’s user name and password is considered to take place under Client’s responsibility and risk. In the event abuse of the administrative user name and/or password is suspected, Client must notify Supplier as soon as possible, irrespective of Client’s own obligation to take immediate measures to prevent abuse or any further abuse.
24.5. Before making use of the Service, end users must agree to the conditions for use that apply for the use of the Service. Supplier designs the Service in such a way that the end user is asked to agree to the conditions when first using the Service.
24.6. End users must comply with the conditions for use. Supplier is entitled to call Client to account – in addition to or instead of calling the end user to account – for any act or omission by any end user. Incorrect use or abuse of a Service by end users is at Client’s risk and in this case Supplier is entitled to refuse or restrict access to the Service.
Chapter 3: Software and developing Software
The provisions in this chapter ‘Software’ apply, in addition to those in the ‘General Provisions’ of these General Terms and the provisions in the chapter 2 ‘Services’, if Supplier makes Software available to Client for Client to use in other way than on the basis of ‘Software-as-a-Service’. ‘Platform-as-a-Service’ and/or ‘Infrastructure-as-a-Service’.
25. Right to use and restrictions
25.1. Upon payment in time by Client of the sums agreed on, Supplier grants Client a non-exclusive, non-transferrable, non-pledgeable and non-sublicensable licence to use the Software under the conditions laid down in the relevant SoW.
25.2. Client always complies strictly with the restrictions, of whatever nature or content, agreed upon in an SoW concerning the right use the Software and/or the combination of the Software with specific hardware.
25.3. Except where exceptions apply that are laid down by mandatory law, Client is not entitled to modify the Software without Supplier’s prior permission in writing.
25.4. Supplier does not provide any guarantees with respect to third party software.
25.5. Parties agree that an SoW entered into by them – in so far as this SoW concerns making Software available for use – will never be considered a sales and purchase agreement.
26. Delivery and installation
26.1. Within a reasonable period of time after the relevant SoW has been entered into, Supplier either delivers the Software on the type of data carrier agreed on or, if no such provisions have been agreed upon, on a type of data carrier to be determined by Supplier or makes the Software online available for delivery to Client. Parties agree on implementation and installation separately.
27. Acceptance
27.1. In the event parties have not agreed upon an acceptance test in an SoW, Client accepts the Software delivered in the condition in which it is at the moment it is delivered (‘as is, where is’). In this case the Software delivered is considered to have been accepted by Client upon delivery, or, in the event implementation and/or installation by Supplier was agreed upon, upon completion of the implementation and/or installation respectively.
28. Software Development
28.1. In the event Supplier – as part of a project – develops Software on Client’s instruction, the provisions of the present article are applicable, in addition to the other provisions in this chapter ‘Software’, those in the ‘General Provisions’ of these General Terms and the provisions in the chapter 2 ‘Services’. Parties will specify, in consultation, which Software is to be developed and in which way it is to be developed.
28.2. Supplier develops the Software with due care and due observance of the specifications and the methods, techniques and/or procedures explicitly agreed on in writing with Client.
28.3. If parties use a development method that is characterized by the starting point that designing and/or developing Software, or parts of the Software, is carried out interactively, for example Scrum, parties accept that, when the activities are first started, they will not be performed on the basis of complete or completely worked out specifications and parties also accept that specifications can be adapted, in consultation, during the execution of a Contract, provided that this is part of the project strategy and the development method selected. During the execution of this SoW parties make joint decisions, in consultation, about the specifications that apply for the next phase of the project – for example a ‘time-box’ – and/or for the development of the next part. Client accepts the risk that the Software will not necessarily meet all specifications. Client will ensure a permanent, active input supported by Client’s organization and cooperation of all relevant end users, amongst other things with respect to testing and further decision making. Client guarantees that the staff assigned have the required decision making powers when appointed in key positions. Client guarantees expeditiousness with respect to decisions to be made on further progress during the execution of the Contract. In the event Client fails to make any timely and clear decision on further progress in conformity with the project strategy for relevant development method, Supplier is entitled – but not obliged – to make the appropriate decision at its own discretion.
28.4. If parties use the development method referred to in article 34.3, Client accepts the Software in the condition it is in at the moment the last development phase has been completed (‘as is, where is’). After the last development phase Supplier is not obliged to repair errors, unless parties have explicitly agreed otherwise in writing.
28.5. Within a reasonable period of time, to be determined by Supplier, after an SoW has been entered into, Supplier starts the design and/or development activities and informs Client about the start and the expected duration of the activities, unless parties have agreed upon specific provisions to this purpose.
28.6. Upon request, Client allows Supplier to perform the activities at Client’s offices or premises outside the customary working days and working hours.
28.7. The obligations Supplier has with respect to developing a website do not include the making available of a so-called ‘content management system’.
28.8. The maintenance of the Software and/or website, and/or providing support to end users and/or administrators of the Software and/or website is not included in the development and/or delivery of the Software and/or website. If Supplier is to provide maintenance and/or support, contrary to the previous provisions, Supplier may require Client to enter into a separate, written SoW. These activities will then be invoiced separately, at Supplier’s customary rates.
28.9. Supplier makes the Software and any accompanying documentation developed on Client’s instructions available to Client for use.
28.10. Supplier is not obliged to make any auxiliary Software and program or data libraries required for use and/or maintenance of the Software available.
Chapter 4: Managed Services
The provisions in this chapter ‘Managed Services’ apply, in addition to those in the chapter ‘General Provisions’ and the chapter ‘Services’, if Supplier provides Services in the field of operating and maintaining an IT environment.
29. Support Services
29.1. The relevant SoW specifies which Services in the field of support (“Support Services”) Supplier provides.
29.2. If Supplier also provides Support Services to users and/or system managers of private cloud or hybrid cloud environment, Supplier advises, by telephone or by email, on the use and operation of the Software, systems and infrastructure referred to in the SoW. Supplier may set conditions for the qualifications and the number of persons who may make use of the Support Services. Supplier attends to properly substantiated requests for Support Services within a reasonable period of time and in accordance with its customary procedures. Supplier does not guarantee the correctness, completeness or the promptness of its responses or the Support Services offered. Support Services are provided on working days, during Supplier’s customary opening hours.
29.3. If it is agreed upon in a Contract that Supplier provides so-called ‘standby-services’, Supplier keeps one or more employees available during the days and the hours referred to in the Contract. In that case Client is entitled to call these employees for Support Services in an urgent situation, i.e. if there is a serious failure in the operation of the Software. Supplier cannot guarantee that all failures will be repaired in time.
29.4. Maintenance and other Services agreed on, as mentioned in this chapter, are carried out starting on the day a Contract for such Services is entered into, unless parties have agreed otherwise in writing.
29.5. Supplier is not obliged to repair corrupt or lost data.
Chapter 5: Consultancy
The provisions in this chapter ‘Consultancy’ apply, in addition to those in the chapter ‘General Provisions’ and the chapter ‘Services’, if Supplier provides Services in the field of advisory and consultancy, which services are not provided under Client’s direction and supervision.
30. Execution
30.1. Supplier performs the advisory and consultancy services in a fully independent manner, at its own discretion and without Client’s supervision and directions.
30.2. Unless agreed otherwise in the relevant SoW, Supplier does not commit itself to the completion time of an advisory or consultancy assignment. Advice and/or consultancy is provided during Supplier’s customary working days and working hours.
30.3. When Supplier gives advice concerning configuration, Supplier can neither guarantee the correct and timely supply and delivery of the hardware, Software or software, infrastructure and/or other materials that the advice is meant for, nor their correct operation.
30.4. The use that Client makes of any advisory and/or a consultancy report drafted by Supplier is always at Client's risk. The burden of proof is on client to prove that the advisory and/or consultancy services or the way in which these are performed is not in compliance with that which has been agreed on in writing or that which may be expected from a competent supplier acting reasonably, without prejudice to supplier's right to provide evidence to the contrary, using any legal means.
30.5. Without Supplier's prior written consent, Client may not disclose Supplier's way of working, methods and techniques and/or the content of Supplier's recommendations or reports.