General Terms and Conditions of Samen ICT

All deliveries by the Contractor Samen ICT, CC-Vision, and CrossConnected Vision, registered with the Chamber of Commerce under number 52633411, are subject to the provisions below, also referred to as General Terms and Conditions. You can request a personal copy via our helpdesk. The Client declares to have seen a copy of this and that access to it has been granted.

** Update of General Terms and Conditions in the context of European Legislation and NIS2 Directive **
We aim to continuously improve our services and to meet the highest standards of safety and compliance. In this context, we have updated our General and Special Terms and Conditions to align with recent developments in European legislation, particularly the NIS2 Directive (Directive on measures for a high common level of security of network and information systems in the Union). It is important to note that each member state of the European Union still has the opportunity to transpose these directives into national law. As more information becomes available, we will need to revise our General and Special Terms and Conditions again.

Applied modules:
Module A. General
Module B. Development of (web) applications
Module C. Hosting / SaaS
Module D. Hardware
Module E. Telecom
Module F. Hardware Rental
Module G. Maintenance and Support
Module H. Consultancy and Training

If a specific module applies, it takes precedence over the General Module. To the extent that the general part is not in conflict with applicable provisions from specific modules, the general part is also applicable. The definitions of terms written with a capital letter apply to all modules.

Definitions

In these General Terms and Conditions, the following terms are understood to mean:

Acceptance Test: a (limited) mandatory testing effort to be provided by the Client in order to complete the Project.

General Terms and Conditions: these conditions, which are modularly structured.

Service: the performance to be delivered by the Contractor, including the development and/or maintenance of software, applications, programs, etc. The Agreement determines the Services involved, and these General Terms and Conditions provide further rules for specific Services.

Defect: failure to meet the Specifications.

User: the (end) user who uses the Service/Project provided by the Contractor on behalf of the Client.

Hardware: equipment provided by the Contractor to the Client.

Materials: for example, (web) applications, software, programs, advice, or reports.

 

Employee: an employee, freelancer/self-employed person, or a helper borrowed by the Contractor from a third party, who is deployed or performs work on behalf of the Contractor for the Client.

Module: a module of these General Terms and Conditions containing provisions relating to a specific area of work.

Client: the natural person or legal entity with whom the Contractor has entered into an Agreement. It also refers to anyone negotiating with or representing the Contractor in this matter, as well as their representative(s), authorized representative(s), legal successor(s), and heirs.

Contractor: see introduction.

Agreement: the agreement between the Contractor and the Client.

Force Majeure: a failure that cannot be attributed to the debtor, if it is not due to his fault, nor is it attributable to him under the law, legal act, or generally accepted views in traffic.

Project: the work that the Contractor will perform on behalf of the Client, as described in the quotation and/or in the Agreement.

Project Management System: an electronic system that can be used for Project management and communication between the Contractor and the Client regarding the execution of the Agreement.

Results: the results of the work performed by the Contractor under the Agreement.

In Writing: in these General Terms and Conditions, In Writing also includes email and fax communication, provided that the identity of the sender and the integrity of the message are sufficiently established.

Specifications: the functional and technical description of the Project.

 

Office Location at Jacob Woerden

Jacob Bijzerweg 19

3446 CR Woerden

 

Office Location at Nest Utrecht

Ringwade 33

3439 LM Nieuwegein

 

Postal Address/Headquarters

Beneluxlaan 59

2871 HE Schoonhoven

 

Phone number 085-0046524 (0182-329777)

VAT number NL.850529323.B01

Chamber of Commerce number 52633411

Helpdesk email address: helpdesk@samenict.nl

Accounts Receivable department email address: debiteuren@samenict.nl

 

Module A. General

Article A.1 Quotation, offer, and acceptance

A.1.1 A quotation, prepared by the Contractor, is non-binding and valid for 14 days after the date by the Contractor, unless otherwise stated in the quotation.

A.1.2 The Client should preferably accept the quotation in Writing, but if the Client agrees to the quotation in a manner other than Writing or gives that impression, then the quotation may be considered accepted by the Contractor.

A.1.3 Provisions or conditions of the Client that deviate from, or are not included in, these General Terms and Conditions are only binding on the Contractor if and to the extent that they have been expressly accepted by the Contractor in Writing.

A.1.4 Without prejudice to the Contractor’s right to withdraw the quotation in accordance with article 1, paragraph 1, the Agreement can only be amended with mutual consent after acceptance. In the event of inconsistency between provisions in the following documents, the following hierarchy applies:

• the Agreement;
• any appendices, excluding brochures;
• these General Terms and Conditions;
• any additional conditions, excluding brochures.

Article A.2. Execution of the Project & provision of information

A.2.1 After the conclusion of the Agreement, the Contractor will execute the Project as soon as possible in accordance with the quotation, taking into account reasonable requests of the Client. The Contractor endeavors to carry out the Project to the best of its ability, applying sufficient care and expertise. The Client is obliged to enable timely and correct execution of the Project. In particular, the Client ensures that all data, which the Contractor indicates as necessary or which the Client reasonably understands to be necessary for the execution of the Project, are provided to the Contractor in a timely manner. The necessary involvement of the Client must be provided with sufficient quality and timeliness. This applies both to support to be provided by the contact persons and to the planned deployment of project staff within the project activities to be carried out.

A.2.2 If the Client fails to comply with the above, the Contractor is entitled to charge additional costs, and it is possible that the Project may be delayed. Any delay in the Project caused by the Client will be reported via the project management system or, if no project management system is used for the Project, by email or, in the absence of functioning email correspondence, in another Written manner. If this situation occurs, the Contractor will inform the Client of any additional costs that may be charged.

 

Article A.3. Duration, termination, and dissolution

A.3.1 The Agreement is considered terminated when the performances thereunder have been delivered reciprocally.

A.3.2 Notwithstanding article 3.1, agreements concerning services are tacitly renewed per month, year, or periods of multiple years upon expiration of the term. Termination of such agreements takes place in Writing.

A.3.3 With regard to agreements and invoices concerning IZYX/iZyX-related services, products, and deliveries (recognizable, among other things, by invoice lines containing “iZyExtern” or other invoice lines with names such as iZyX/iZyX! in the service or product name), specific conditions may apply. In particular, delivery conditions, notice periods, term, changes, or S.L.A. may deviate from regular services and products provided by CC-Vision & Samen ICT. It is the responsibility of the Client to be aware of these specifically agreed conditions and to comply with them.

A.3.4 Delivery deadlines provided by the Contractor are always indicative. The Contractor is only in default, even in the case of an agreed final deadline, after the Client has sent him a Written notice of default, subject to the situations prescribed by law in which default occurs automatically.

A.3.5 If the Client fails to fulfill any obligation under the Agreement, the Contractor has the right to suspend the execution of all agreements concluded with the relevant Client without the need for notice of default or judicial intervention and without prejudice to the Contractor’s right to compensation for damages, lost profits, and interest, unless the non-fulfillment in question is of minor significance.

A.3.6 The Client is obliged to comply with all relevant legislation and the obligations arising from the associated regulations.

A.3.7 The Contractor is authorized to terminate the Agreement in whole or in part immediately, without judicial intervention, in Writing, and without any obligation to pay compensation or indemnification, if: the Client fails to fulfill, fully or on time, the obligations under the Agreement; circumstances come to the attention of the Contractor after the conclusion of the Agreement that give good reason to fear that the Client will not fulfill its obligations; the Client was asked to provide security for the fulfillment of its obligations under this Agreement and this security is not provided or is insufficient; due to the delay on the part of the Client, it can no longer reasonably be expected of the Contractor to fulfill the Agreement under the originally agreed conditions; the Client dies, applies for a suspension of payments or files for bankruptcy; the bankruptcy of the Client is granted; the activities of the Client are suspended or liquidated; attachment is made to any asset of the Client; circumstances arise which are of such a nature that the fulfillment of the Agreement becomes impossible or the unchanged continuation of the Agreement cannot reasonably be demanded from the Contractor.

The Contractor is never obliged to refund any funds already received or to pay compensation due to termination in case of bankruptcy of the Client, the Client applies for a suspension of payments or files for bankruptcy.

A.3.8 If the Agreement is terminated, the Contractor’s claims against the Client become immediately due and payable. If the Contractor suspends the performance of the obligations, it retains its rights under the law and the Agreement.

A.3.9 If the termination is attributable to the Client, the Contractor is entitled to compensation for the damage directly and indirectly caused thereby.

 

 

Article A.4. Procedure after termination

A.4.1 Parties are mutually obliged to return any goods of which the other Party is the owner or entitled party and which are in possession of one Party, promptly after termination of the Agreement. Certain goods, such as data (carriers), may also be erased or destroyed instead of returned if the entitled party has given Written permission for this.

A.4.2 All data provided or entered by the Contractor remains the property of the Contractor at all times. The Client only obtains a non-exclusive, transferable license necessary for the execution of the Agreement.

 

Article A.5. Prices

A.5.1 Prices are exclusive of value-added tax (VAT) and other government levies.

A.5.2 If a price in a quotation is based on data provided by the Client and this data proves to be incorrect, the Contractor has the right to adjust the prices to the prices reasonably corresponding to the correct data, even after the Agreement has already been concluded.

A.5.3 All prices mentioned in the Contractor’s quotation are subject to typographical and calculation errors.

A.5.4 The Contractor has the right to change prices from time to time. Changes will be notified to the Client at least 30 days in advance and in Writing. Price increases of 3% or less may be implemented by the Contractor without the Client’s consent once a year in January. In the case of price increases of more than 3%, the Client has the right to terminate the Agreement as of the date on which the new prices will come into effect.

Article A.6. Payment Terms

A.6.1 The Contractor will send an invoice to the Client for the amount due. If the Project is delivered in phases, the Contractor is entitled to invoice per delivered phase, monthly, or based on hours worked (at the discretion of the Contractor). The payment term for an invoice is 14 days after the date of the invoice, unless otherwise agreed between the Contractor and the Client.

A.6.2 If the Client does not pay in full and on time, he will be in default by operation of law from 30 days after the payment term without the need for a notice of default. If an amount due is not paid within the payment term, a contractual interest of 2% per month and €15 administrative costs are due on the outstanding amount without further notice of default by the Contractor.

A.6.3 In case of late payment, the Client, in addition to the amount due and the accrued interest, is obliged to pay full compensation for both extrajudicial and judicial collection costs, including the costs of lawyers, bailiffs, and collection agencies.

A.6.4 The claim for payment becomes immediately due and payable if the Client is declared bankrupt, applies for a suspension of payments, dies, or furthermore, if it is liquidated, dissolved, or if bankruptcy is granted.

A.6.5 In the above cases, the Contractor also has the right to terminate or suspend the performance of the Agreement or any unperformed part thereof without notice of default or judicial intervention, without the Client being entitled to compensation.

 

 

Article A.7. Additional Work

A.7.1 If, due to Client’s wishes, which the Contractor reasonably considers to be a change or addition to the provisions in the quotation or the Agreement (including a delay or extension regarding the Project attributable to the Client), the amount of work that the Contractor must perform under this Agreement increases, this constitutes additional work.

A.7.2 If the Contractor believes that there is additional work, it will promptly notify the Client thereof and request Written approval for the execution of the proposed additional work and the offer made by the Contractor, including the delivery deadline.

A.7.3 The Client will decide on the proposed additional work within five (5) working days. The work to be carried out as part of accepted additional work will be documented in Writing and approved by both parties.

A.7.4 The Client is responsible for any extension of the delivery deadlines stated in the original quotation due to additional work.

A.7.5 The provisions of these General Terms and Conditions apply to all additional work to be performed by the Contractor, unless otherwise agreed by the parties.

 

Article A.8. Liability

A.8.1 The Contractor is only liable to the Client for direct damage resulting from an attributable failure to perform the relevant Agreement. Direct damage refers to the damage suffered to rectify the non-performance. Direct damage exclusively includes:

• damage to tangible property, also referred to as (material) property damage;
• costs that the Client has incurred to urge the Contractor to perform the Agreement properly;
• costs incurred by the Client to limit, prevent, or remedy direct damage;
• costs incurred by the Client to make the performance comply with the Agreement;
• costs incurred to determine the cause and extent of the damage, insofar as it concerns direct damage as intended in this provision;
• costs incurred proportionally to the termination or limitation of a data breach (as referred to in the GDPR). Notwithstanding the foregoing, liability of the Contractor for other forms of liability is expressly excluded.

A.8.2 The liability of the Contractor for direct damage suffered by the Client as a result of an attributable failure by the Contractor to fulfill its obligations under the Agreement, expressly including any failure to fulfill a warranty obligation agreed upon with the Client, or due to an unlawful act by the Contractor, its employees, or third parties engaged by it, is limited per event or a series of related events to an amount equal to the fees payable by the Client under this Agreement per year (excluding VAT). In no event, however, will the total compensation for direct damage exceed 25,000 euros (excluding VAT).

A.8.3 The total liability of the Contractor for damages due to death or bodily injury or for physical damage to property will in no event exceed 500,000 euros per damaging event, whereby a series of related events is considered one event.

A.8.4 Liability of the Contractor for indirect damage, including consequential damage, loss of profit, missed savings, mutilation or loss of (business) data, and damage due to business interruption, is excluded.

A.8.5 The exclusions and limitations of liability in this article shall cease to apply if and insofar as the damage is the result of intent or willful recklessness on the part of the management of the Contractor.

A.8.6 The liability of the Contractor for attributable failure to perform the Agreement arises only if the Client immediately gives Written notice of default to the Contractor, specifying a reasonable period for remedying the failure, and the Contractor continues to fail to perform its obligations under the Agreement attributable after that period. The notice of default must contain as detailed a description of the failure as possible so that the Contractor can respond adequately.

A.8.7 A condition for the existence of any right to compensation is that the Client reports the damage to the Contractor in Writing within 30 days after its occurrence.

A.8.8 The Client indemnifies the Contractor against all third-party claims for liability as a result of a Defect in the Project/Service delivered to a third party by the Client and which also consisted of items, Materials, or Results provided by the Contractor, unless and to the extent that the Client proves that the damage was caused by those items, Materials, or Results. The Client also indemnifies the Contractor against claims regarding non-compliance with licenses by the Client and/or third parties (including Users) falling under the Client’s responsibility.

A.8.9 The liability of the Contractor for deficiencies in products and services of third parties, including software and programs, is excluded.

Article A.9. Malfunctions and Force Majeure

A.9.1 None of the parties shall be held liable for the performance of any obligation if a circumstance beyond the control of the parties, which could not reasonably have been foreseen at the time of conclusion of the Agreement, makes it impossible to fulfill. Parties may only invoke Force Majeure against each other if the relevant Party notifies the other Party in writing of such invocation of Force Majeure as soon as possible after the occurrence of the default, accompanied by the necessary evidence.

A.9.2 The circumstances referred to in paragraph 1 may include, for example: (a) malfunctions of the internet or other telecommunication facilities, (b) failures in the performance by third parties on whom the Contractor depends in the provision of the Services, (c) defects in goods, equipment, software or Materials prescribed by the Client for use by the Contractor, (d) unavailability of one or more employees (due to illness), (e) mobilization, (f) war, (g) delays in transportation, (h) strikes, (i) supply disruptions, (j) fire, (k) natural disasters, (l) diseases, epidemics, or quarantines, and (m) government measures.

A.9.3 In the event of Force Majeure, the performance of the relevant obligation(s), and the related obligations, shall be wholly or partially suspended for the duration of such Force Majeure, without the parties being liable to each other for any compensation in that regard. Parties may only invoke Force Majeure against each other if the relevant party notifies the other party in writing of such invocation of Force Majeure as soon as possible after the occurrence of the default, accompanied by the evidence.

A.9.4 In the event of Force Majeure, the party invoking Force Majeure shall endeavor to ensure that the default, which is excused by Force Majeure, is of as short a duration as possible.

A.9.5 If a force majeure situation has lasted for thirty (30) days, or as soon as it is established that the force majeure situation will last longer than three months, each of the parties shall have the right to terminate the Agreement in writing, unless the nature or extent of the default does not justify interim termination. Any performance already rendered under the Agreement shall be settled proportionately in that case, without the parties otherwise being indebted to each other.

 

Article A.10. Intellectual Property Rights

A.10.1 All intellectual property rights to all materials provided in the context of a Project, Service, or Product shall exclusively vest in the Contractor or its licensors. This applies in particular to software and development, as well as to the activities, working methods, or procedures applied by the Contractor that were not sufficiently known to the Client or Customer beforehand. This includes matters such as regulated infrastructure, configured network equipment, and other settings, adjustments, and installations applied by the Contractor to support and manage the Client.

A.10.2 The Client shall only obtain the rights of use and powers explicitly granted in these General Terms and Conditions, the Agreement, or otherwise in writing, and shall not otherwise reproduce or disclose the software, Services, or other Materials.

A.10.3 The Client is not permitted to remove or modify any indications regarding copyrights, trademarks, trade names, or other intellectual property rights from the Materials, including indications regarding the confidential nature and confidentiality of the Materials.

A.10.4 The Contractor is allowed to take technical measures, such as passwords or encryption, to protect the Materials. If the Contractor has secured the Materials by technical means, the Client is not allowed to remove or circumvent this security.

A.10.5 Any use, reproduction, or disclosure of the Materials that falls outside the scope of the Agreement or granted usage rights constitutes an infringement of the intellectual property of the Contractor or its licensors.

A.10.6 The Client shall pay the Contractor an immediately due and payable penalty of €5,000 per infringing act and €25,000 per intentionally infringing act, without prejudice to the Contractor’s right to be compensated for its damages resulting from the infringement or to take other legal measures to terminate the infringement and/or recover the damages. After one working day has elapsed since the Contractor has notified the Client of an infringement, the Client shall also owe a penalty of €5,000 per day that the infringement has not been terminated.

Article A.11. Processing of personal data

A.11.1 If the Contractor will process personal data in the performance of the Services, the General Data Protection Regulation (“GDPR”) obliges the Contractor and the Client to enter into commitments regarding the processing to be carried out by the Contractor, which provide guarantees regarding the technical and organizational security measures with regard to the processing to be carried out. In the absence of a separate, separately agreed “data processing agreement”, the provisions of this article shall apply as the commitments referred to in the GDPR.

A.11.2 The Contractor processes the personal data solely under the authority of the Client and solely for the purpose of performing the Services, for as long as the Agreement continues. In this respect, the Client is to be regarded as the data controller, and the Contractor as the data processor.

A.11.3 The personal data of data subjects that may be processed by the Contractor in the context of the Services are further detailed in the Agreement.

A.11.4 If reference is made in these General Terms and Conditions, or in the Agreement, to provisions of the Personal Data Protection Act, the corresponding provisions of the General Data Protection Regulation (“GDPR”) are meant as of 25 May 2018.

A.11.5 The Contractor shall make efforts to take appropriate technical and organizational measures with regard to the processing of personal data and shall make efforts to ensure that the security measures meet a level that, given the state of the art, the sensitivity of the personal data, and the costs associated with implementing the security, is not unreasonable.

A.11.6 The Contractor ensures that anyone acting under the authority of the Contractor, to the extent that they have access to personal data originating from the Client, only processes such data on behalf of the Client, except for divergent legal obligations.

A.11.7 The Contractor may process personal data in countries within the European Union. In addition, the Client gives the Contractor permission to process personal data outside the European Union.

Processing outside the European Union shall only take place in compliance with the applicable laws and regulations. Upon request of the Client, the Contractor shall inform the Client promptly in which countries outside the European Union it processes personal data.

A.11.8 The Client hereby gives the Contractor permission to use a third party in the processing of personal data for the performance of the Services, subject to applicable laws and regulations. The Contractor shall ensure that these third parties undertake in writing the same obligations as those agreed upon by the Client and the Contractor, and ensure the correct authorizations. Upon request of the Client, the Contractor shall inform the Client as soon as possible about the third parties it has engaged. The Client has the right to object to any third parties engaged by the Contractor. If the Client objects to third parties engaged by the Contractor, the Client and the Contractor shall enter into discussions to find a solution.

A.11.9 The Client ensures that it will only provide or otherwise make available personal data to the Contractor in a completely lawful manner, without infringing upon any rights of third parties. The Client indemnifies the Contractor against all claims and liabilities related thereto.

A.11.10 If, in the context of a legal obligation or the exercise of the legal rights of data subjects, the Client needs to provide, modify, move, delete, or transfer personal data stored in the systems of the Contractor, the Contractor shall assist the Client in this as much as possible. The costs for such activities may be invoiced separately. In case a data subject wishes to exercise any of their legal rights and directs such request to the Contractor, the Contractor shall forward this request to the Client. The Client shall then handle the request independently.

A.11.11 The Client has the right to have audits carried out by an independent third party bound by confidentiality, to verify compliance with this Article A.11. Such audit shall only take place in case of concrete suspicion of misuse proven by the Client. The audit initiated by the Client shall take place two weeks after prior written notice by the Client. The costs of an audit shall be borne by the Client.

A.11.12 All personal data received by the Contractor from the Client and/or collected by the Contractor in the performance of the Services for the Client is subject to a confidentiality obligation towards third parties. This confidentiality obligation does not apply to the extent that the Client has expressly consented to provide the information to third parties, if providing the information to third parties is logically necessary given the nature of the Services, or if there is a legal obligation to provide the information to a third party. If the Contractor is legally obliged to provide information to a third party, the Contractor shall inform the Client thereof immediately to the extent legally permitted.

A.11.13 The Client, as the data controller within the meaning of the GDPR, is at all times responsible for reporting a data breach (defined as: a breach of the security of personal data resulting in a risk of serious adverse consequences, or serious adverse consequences, for the protection of personal data) to the supervisory authority(ies) and/or data subjects. In order to enable the Client to comply with this legal obligation, the Contractor shall notify the Client as soon as possible and no later than forty-eight (48) hours after discovering a data breach. If the law and/or regulations so require, the Contractor shall cooperate in informing the competent supervisory authority and/or data subjects.

A.11.14 The obligation to report shall in any case include reporting the fact that a breach has occurred. In addition, the obligation to report, as far as known to the Contractor:

• the date on which the breach occurred (if no exact date is known: the period within which the breach occurred);
• the (presumed) cause of the breach;
• the date and time when the breach became known to the Contractor or to a third party or subcontractor engaged by him;
• the number of persons whose data has been leaked (if no exact number is known: the minimum and maximum number of persons whose data has been leaked);
• a description of the group of persons whose data has been leaked, including the type or types of personal data that have been leaked;
• whether the data has been encrypted, hashed, or otherwise made incomprehensible or inaccessible to unauthorized persons;
• what the intended and/or already taken measures are to close the breach and to limit the consequences of the breach;
• contact details for follow-up of the report.

A.11.15 After termination of the Agreement, the Contractor shall delete or return the personal data as referred to in this Article A.11.3, at the choice of the Client.

Article A.12. Personnel

A.12.1 If an Employee must carry out work at the Client’s location for the execution of the Agreement (other than when the Client and Contractor enter into an Agreement for the secondment of an Employee), the following provisions shall apply.

A.12.2 The Client shall provide all necessary support to the Employee of the Contractor who carries out work at the Client’s location for the execution of the Agreement, for the purpose of exercising the work. The Client is obliged to do everything necessary for the Employee to perform his work well and safely.

A.12.3 The Contractor shall make efforts to ensure that the Employee has the correct job description and competencies. It is not possible for the Client to choose Employees, unless expressly agreed otherwise. The Contractor is entitled to replace an Employee with an Employee with comparable competencies and a comparable job description.

A.12.4 The Client cannot selectively grant access to certain Employees. Furthermore, there is no guarantee that the Client can have access to a fixed team of Employees, if relevant.

A.12.5 Without the Written consent of the Contractor, the Client is not allowed, during the term of the Agreement and for a period of two (2) years thereafter, to employ Employees of the Contractor, enter into direct or indirect business relationships with them, or have them carry out work, other than within the scope of the Agreement, on pain of a immediately payable penalty of €10,000 per violation, plus €500 for each day during which the violation continues, which penalty amounts shall be due and payable to the Contractor. This article also applies if the Client and Contractor enter into an Agreement for the secondment of an Employee.

 

Article A.13. Confidentiality

A.13.1 Parties shall treat information provided to each other before, during, or after the execution of the Agreement as confidential if this information is marked as confidential or if the receiving party knows or reasonably should suspect that the information was intended as confidential. Parties also impose this obligation on their employees as well as on third parties engaged by them for the execution of the Agreement.

A.13.2 The Contractor shall not access data stored and/or distributed by the Client via the Contractor’s Services, unless this is necessary for the proper execution of the Agreement or the quality of the Projects, or the Contractor is required to do so by law or court order. In that case, the Contractor shall make efforts to limit the access to the data as much as possible, to the extent possible within its power.

A.13.3 This obligation shall also remain in force after termination of the Agreement for whatever reason, for as long as the disclosing party can reasonably claim the confidential nature of the information.

 

Article A.14. Changes to General Terms and Conditions

A.14.1 If it concerns a continuing agreement, the Contractor reserves the right to change or supplement these General Terms and Conditions and all Modules thereof.

A.14.2 Changes shall also apply to already concluded Agreements with a notice period of 30 days after the announcement of the change on the Contractor’s Website or by electronic communication. Minor changes can be made at any time.

A.14.3 If the Client is a natural person who does not act in the exercise of a profession or business, and the change results in the provision of a service to the Client that deviates substantially from the original service, the Client has the right to terminate the agreement as of the date the amended terms come into effect.

Article A.15. Dispute Resolution

A.15.1 Dutch law shall exclusively apply to the Agreement, as well as to the agreements and other legal transactions arising from or related to it.

A.15.2 All disputes, including those considered as such by only one party, arising from or related to (the execution of) this Agreement and/or the agreements arising from or related to it shall be settled through mediation.

A.15.3 Parties mutually commit to cooperating in dispute resolution through Mediation and undertake to share equally the costs of Mediation.

A.15.4 Mediation consists of two phases. In the first phase, parties explore a potential solution acceptable to both parties. If an agreement is reached, the mediator will formalize it into a settlement agreement. If it proves impossible to reach an agreement acceptable to both parties in the first phase, a second phase begins. In the second phase, the mediator will devise an agreement binding on both parties, also to be reflected in a settlement agreement by the mediator.

A.15.5 Contractor and Client retain the right at all times to submit disputes to the competent court, but only when both Parties explicitly grant their Written consent, waiving Mediation.

 

Article A.16. Concluding Provisions General Module

A.16.1 If any provision of this Agreement is found to be void, this shall not affect the validity of the entire Agreement. In such case, the Parties shall replace the void provision(s) with (a) new provision(s) that, to the fullest extent possible under the law, give effect to the intent of the original Agreement and General Terms and Conditions.

A.16.2 Disputes arising from the Agreement that cannot be resolved through dispute resolution shall be submitted to the competent court in Amsterdam.

A.16.3 Information and communications provided by colleagues of the Contractor via email, website, and other forms of communication are subject to errors. The Contractor will inform the Client as carefully, timely, and fully as possible about any risks, terms, and limitations that may apply to the services and products provided. Before entering into a (services/management) agreement with the Contractor, a (periodic) risk assessment should be conducted jointly by both parties to determine whether the services and products are suitable for your specific situation. The results of the risk assessment will be discussed, and any recommendations or limitations will be clearly communicated.

A.16.4 The version of any communication received or stored by the Contractor shall be considered authentic (including log files), unless proven otherwise by the Client.

A.16.5 In order to promote its services, the Contractor is entitled to show to third parties which Projects it delivers to the Client, unless the reasonable interests of the Client make this unacceptable or unless otherwise agreed in Writing.

A.16.6 The Contractor has the right at all times to involve third parties in the execution of the Agreement.

A.16.7 The Contractor and the Client may assign their rights and obligations under the Agreement to third parties, provided that the other party agrees to this in Writing prior to the transfer.

A.16.8 The contractor operates under a business policy aimed at a general duty of care towards the client. The contractor commits itself to perform its services and products with reasonable care. This means that the contractor will act with the care that may be expected from a reasonably skilled and acting service provider.

A.16.9 These general terms and conditions refer to the subject of reporting obligations and associated procedures. The Contractor appreciates receiving all types of input or notifications from the Client. Complaints are also welcome and will be thoroughly investigated according to a formal complaints procedure. In general, you can contact our accounts receivable department for anything. In the case of reports related to (technical) reporting obligations and incident response, and which may affect data, information, or other privacy-related matters, these must be reported to our helpdesk within 24 hours. The incident response and procedure will be carried out according to the policy established for this purpose.

A.16.10 Services/products may generally be subject to supervision by external authorities. This supervision is intended to ensure the quality and safety of the services provided.

Module B. Development of (web) applications

Module B applies to custom work delivered by Contractor to Client, such as the design and/or development of (web) applications, software, advice, reports, or other specific content works.

Article B.1. Delivery & Acceptance

B.1.1 Contractor endeavors to deliver the Materials in accordance with the Specifications for acceptance to Client.

B.1.2 When the Materials have been delivered to Client for acceptance, Client shall, at its own expense and under its own responsibility, subject them to an Acceptance Test during the acceptance period of one week. By acceptance, Client releases Contractor from all its obligations regarding the Results.

B.1.3 If Client does not reject the Materials (in whole or in part) within the period mentioned in paragraph 2, they shall be deemed accepted and delivered.

B.1.4 Client is deemed to have accepted the Materials if Client puts them into use or if Client has not, within ten days of delivery, notified Contractor in Writing that and for what reason(s) it does not accept the Materials.

B.1.5 If the Materials are not accepted, Contractor shall specify the adjustments to be made, including the associated time or any costs. Client shall then indicate whether it agrees to the specified adjustments and associated time and costs or whether it waives the rejection. Contractor shall make maximum efforts to rectify the Defects determined by Client and reproducible within the agreed term between the parties, or failing that, within a reasonable term.

B.1.6 Implementing adjustments following the rejection of Materials may take place in a production environment or in an acceptance environment, at Contractor’s discretion.

B.1.7 If Client has accepted the Results (excluding Defects in functionalities and cosmetic Defects; minor Defects), the warranty period of 30 days shall commence. Within this period, the Results are deemed accepted, but it is possible to report Defects that could not reasonably have been discovered during the Acceptance Test. Contractor shall specify any Defects and supplement them with the expected time and, if the Defects cannot be rectified easily and within 30 days, any additional costs for adjustment of those parts. This warranty period does not extend the Acceptance Test and does not provide more guarantees than specified in this paragraph.

B.1.8 Minor Defects, which are Defects that by their nature and/or quantity do not reasonably impede the business use of the Materials, shall not be grounds for withholding acceptance, without prejudice to Contractor’s obligation to rectify such Defects. The parties shall consult each other on this matter.

B.1.9 If the Project is carried out in phases, Client shall give approval or rejection of the Materials for each phase after delivery, and the above procedure shall also apply. Client may not base approval or rejection of the Materials for a subsequent phase on matters approved in an earlier phase.

B.1.10 Contractor has the right to delay the start of a new phase until Client has explicitly accepted the previous phase.

B.1.11 Contractor does not guarantee that the goals Client aims to achieve with the works to be developed or developed by Contractor will actually be achieved.

B.1.12 Contractor endeavors to develop and provide its products/works as well and as error-free as possible.

B.1.13 Contractor is authorized to implement temporary solutions, limiting certain functionalities to prevent severe errors.

 

 

Article B.2. Progress

B.2.1 Client and Contractor shall mutually agree on the specific phases, delivery dates, and deadlines for the Project, for example, in the Offer or the Agreement.

B.2.2 Contractor shall inform Client of the progress of the Project at least once every fourteen days by email, telephone, or via the project management system.

Article B.3. Specifications & (Source) Materials

B.3.1 Parties shall specify in Writing which works will be developed, the requirements they must meet, and how this will be done. Contractor shall execute the development with care based on the data provided by Client. Client is responsible for the accuracy, completeness, consistency, and timeliness of its instructions and data.

B.3.2 A Written specification as mentioned in article 3.1 is not required if Client has expressed the desire to grant Contractor a high degree of freedom in developing works and the manner in which it is done. If the development has taken place in this manner, Client cannot subsequently invoke Specifications, which have been put in writing, to which Contractor has not agreed.

B.3.3 Contractor is entitled, but not obliged, to investigate the accuracy, completeness, or consistency of the (source) Materials, requirements, or Specifications provided to him and, upon discovering any deficiencies, to suspend the agreed-upon activities until Client has rectified the relevant deficiencies.

B.3.4 If (source) Materials provided by Client to Contractor are protected by any intellectual property right, Client shall ensure at all times that it has all licenses necessary for the provision to and use by Contractor within the scope of the Agreement.

B.3.5 Unless otherwise agreed, Contractor has the right to use images, software, and components from third parties, including open-source software, in the development of the works. After delivery, responsibility for complying with the relevant licenses of third parties when using the developed works lies with Client. Contractor shall adequately inform Client about the applicable license terms. Costs associated with licenses necessary for the execution of the Agreement will be invoiced to Client. This is specified in the quotation.

B.3.6 Client is responsible for keeping its own applications, Services, and infrastructure up-to-date for interoperability with the products and Services of Contractor. This is necessary for potential integrations. Applications may not function properly if this is not done.

B.3.7 Contractor is not liable for the unusability of the Project / Service if the unusability is caused by Client’s failure to timely migrate (upon Contractor’s instruction) to current standards or use standards no longer supported in the industry. A standard introduced 24 months ago is no longer considered current by Contractor. This exclusion of liability also applies if Client is using a version of a web browser whose use and support are no longer considered obvious due to the appearance of a new version of that web browser.

 

Article B.4. License Terms for Development

B.4.1 Contractor grants Client the right to reproduce and distribute developed Materials for the purposes intended by Client upon entering into the Agreement.

B.4.2 Contractor shall never transfer any intellectual property rights (such as copyright) belonging to Contractor to Client unless expressly agreed upon in Writing.

B.4.3 The source code of software delivered by Contractor, not being open-source software, and the technical documentation produced during the development of the software may and shall never be made available to Client, nor may Client make any changes to it, unless expressly agreed upon in Writing.

B.4.4 Contractor grants Client the non-exclusive right to use the Service/software developed for Client. Client shall strictly comply with the usage restrictions agreed upon between the parties. The granted right of use is non-transferable.

B.4.5 Client is not permitted to sell, lease, sublicense, transfer, grant limited rights to, or in any way or for any purpose make available to a third party the developed works, even if the respective third party uses the software exclusively for Client, unless expressly agreed upon in Writing or in case of and in combination with a sale of the respective business units or activities of Client.

 

Module C. Hosting / SaaS

This module applies to the ‘remote’ provision and maintenance (hosting) of data and/or (web) applications to Client by Contractor via the internet or another network, without providing a physical carrier with the relevant software to Client. This also includes registering and managing domain names.

 

Article C.1. Execution

C.1.1 After the conclusion of the Agreement, Contractor shall execute the Service as soon as possible in accordance with the quotation, taking into account reasonable requests from Client.

C.1.2 The Agreement determines when Contractor will start with the installation and management of the (web) application.

C.1.3 Contractor endeavors to configure and manage the (web) application to the best of its ability, applying sufficient care and expertise.

C.1.4 Client is obliged to do and refrain from doing everything necessary to enable timely and correct installation of the (web) application. In particular, Client ensures that all data and facilities, which Contractor indicates are necessary or which Client reasonably understands to be necessary for the installation of the (web) application, are made available to Contractor in a timely manner.

 

Article C.2. Duration of Agreement

C.2.1 The Agreement is entered into by Client for a minimum period of twelve (12) months. Thereafter, the Agreement shall continue for an indefinite period and be extended in periods of at least twelve (12) months. After the end of the minimum period, the Agreement may be terminated mutually with a notice period of at least three (3) months. Termination of the Agreement by Client or Contractor shall be in Writing.

Article C.3. Rules of Conduct

C.3.1 Client refrains from storing and/or disseminating material in violation of provisions of Dutch law, including but not limited to material that is defamatory, libelous, offensive, racist, discriminatory, or inciting hatred, erotic or pornographic (unless explicitly allowed in the quotation), infringes on the rights of third parties, including but not limited to copyrights, trademark rights, and portrait rights, constitutes an invasion of the privacy of third parties, including but not limited to distributing personal data of third parties without consent or necessity or repeatedly harassing third parties with unwanted communication, hyperlinks, torrents, or similar information containing material to which Client knows or should know refers to material that infringes on the rights of third parties, contains unsolicited commercial, charitable, or ideological communication, or contains malicious content such as viruses or spyware.

C.3.2 Client refrains from hindering or causing damage to other Clients or internet users or the servers of Contractor. Client is prohibited from initiating processes or programs, whether via the server or otherwise, of which Client knows or reasonably suspects that it hinders or causes damage to Contractor, other Clients, or internet users. Contractor will inform Client of any measures taken.

C.3.3 In addition to the obligations under the law, damage resulting from Client’s incompetence or failure to act in accordance with the above points shall be borne by Client.

C.3.4 To prevent the aforementioned problems such as damage and security risks, Contractor is entitled at its discretion to limit the management capabilities of Client to such an extent that management is entirely carried out by Contractor.

 

Article C.4. License

C.4.1 Client hereby grants Contractor an unlimited license to distribute, store, transmit, or copy all materials provided by Client to Contractor’s Services in any manner deemed appropriate by Contractor, but only to the extent reasonably necessary for the performance of the Agreement by Contractor.

 

Article C.5. Indemnification

C.5.1 Client indemnifies Contractor against all legal claims from third parties regarding the use of the Services by Client. Contractor is not responsible for the data/Services/software invoked by means of a link.

C.5.2 If Contractor, on the basis of an authorized order from a government authority or in connection with a legal obligation, must perform work with regard to data of Client, its employees, or Users, all associated costs will be invoiced to Client.

 

Article C.6. Service and Availability

C.6.1 All services of Contractor are performed on a best effort basis, unless and to the extent Contractor has explicitly promised a result in the Written Agreement and the relevant result is also sufficiently described.

C.6.2 The electronic transmission of data from Client in the context of the Services, in any way, is at the risk and expense of Client.

C.6.3 Contractor is never obliged to provide the applications available remotely on a physical data carrier (e.g., CD or USB stick) to Client.

C.6.4 If the Services are (partly) provided via services and/or networks of Contractor, Contractor will endeavor to minimize downtime.

C.6.5 Contractor does not provide guarantees regarding the exact amount of uptime unless otherwise agreed upon in the quotation through a designated SLA. If not otherwise specified in an applicable SLA, this article applies.

C.6.6 Unless proven otherwise, the availability and service level measured by Contractor shall be deemed complete evidence.

C.6.7 Contractor will endeavor to ensure that Client can use the networks directly or indirectly connected to Contractor’s network. However, Contractor cannot guarantee that these networks will be available at any time. The use of third-party networks may be subject to legal and contractual conditions. Contractor will endeavor to inform Client about this in a timely manner.

C.6.8 If, in the opinion of Contractor, a risk arises for the functioning of the Services or Contractor’s or third parties’ networks and/or of the service provision via a network, particularly due to excessive transmission of email or other data, poorly secured Services, or activities of viruses, Trojans, and similar software, Contractor is entitled to take all measures it reasonably deems necessary to prevent this.

C.6.9 Contractor has the right to temporarily disable the Services or parts thereof for maintenance, modification, or improvement thereof. Contractor will try to schedule such unavailability outside office hours and make efforts to inform Client in a timely manner of the planned unavailability. However, Contractor is never obliged to compensate for damage arising from such unavailability unless expressly agreed upon in Writing, for example, in an SLA.

C.6.10 Only if expressly agreed upon in Writing is Contractor obliged to have a backup center or other backup facilities.

C.6.11 Unless otherwise agreed upon in the Agreement, Contractor is not obliged to make backups of data stored by Client on Contractor’s Services. Any backups made may be destroyed at any time after the termination of the Agreement. It is the responsibility of Client to request a backup upon termination or dissolution.

Article C.7. Amendments

C.7.1 Contractor is entitled to modify the provided applications at its discretion during the term of the Agreement. If a modification leads to a significant change in functionality, Contractor will endeavor to inform Client thereof. Only if technically feasible and not requiring disproportionate effort from Contractor, Client may, upon request, continue to use an older version of the application. Contractor may charge additional fees for providing this option.

 

Article C.8. Storage and Data Limit

C.8.1 Contractor may set a maximum on the amount of storage space or data traffic per month that Client may use in the context of the Services. Client shall not exceed the limits unless the consequences thereof are expressly regulated in the Agreement. In case of exceeding this maximum, Contractor is authorized to charge an additional amount, in accordance with the amounts for extra data traffic specified in the Agreement. If no storage and/or data limit is agreed upon, Contractor’s fair use policy applies.

 

Article C.9. Procedure after Termination

C.9.1 Contractor will ensure that upon termination of the Agreement, Client is provided with a reasonable opportunity to transfer the data of Client stored in Contractor’s systems back to Client’s own systems or to the systems of a new provider. For this purpose, Contractor will endeavor to provide the data in a common file format.

Module D. Hardware

This module applies to Contractors supplying Hardware to Clients.

 

Article D.1. Delivery and Ownership

D.1.1 Hardware is deemed delivered to the Client when it is delivered to the delivery address specified by the Client in the order and this delivery is accepted by the Client.

D.1.2 Upon delivery, Client is obliged to inspect the Hardware for defects to the extent reasonably possible at that time.

D.1.3 Ownership of the Hardware passes from the Contractor (or its suppliers) to the Client upon delivery to the delivery address specified by the Client in the order, but only if full payment has been made for the Hardware by the Client.

 

Article D.2. Warranty

D.2.1 After delivery, Contractor is responsible for the operation of the delivered Hardware for a period of 1 year from delivery in accordance with the specifications communicated to the Client beforehand and can be held accountable by the Client for it.

D.2.2 If the manufacturers of the delivered Hardware have specific warranty arrangements that are longer than the warranty provided by Contractor, those warranties remain valid, and Contractor remains responsible for the correct handling of Hardware covered by those warranty arrangements.

D.2.3 The warranties provided by Contractor and manufacturers do not affect the statutory warranty period applicable to the Hardware.

D.2.4 The warranty on Hardware expires if there are unauthorized modifications, failure to comply with the instructions for use, or other careless use of the Hardware by the Client.

D.2.5 If Client makes use of the warranty arrangement within the specified periods and rules, Contractor will endeavor to arrange for the repair of the Hardware or provide replacement Hardware as soon as possible but no later than 30 days after the correct receipt of the returned Hardware.

D.2.6 Contractor is not liable for data loss resulting from the repair or replacement of Hardware.

 

Article D.3. Returns

D.3.1 If Client makes use of the warranty arrangement, Client shall return the delivered Hardware and all accessories as much as possible in the original condition of delivery to the Contractor.

D.3.2 If there are costs associated with returning the Hardware in the context of the warranty arrangement, these shall be borne by the Client.

Module E. Telecom

Module E applies to Contractors providing services related to telephony over a computer network and related services, such as (X)DSL and VOIP.

 

Article E.1. Execution

E.1.1 After the conclusion of the Agreement, Contractor will execute the Service as soon as possible in accordance with the quotation, taking into account reasonable requests from the Client.

E.1.2 If desired and against payment, Contractor can provide equipment for the use of the Service. After delivery, Client is at all times responsible for this equipment and its configuration.

E.1.3 Client is not allowed to sublet or otherwise make available to third parties the Service, as referred to in this module, without Written consent from Contractor.

 

Article E.2. Duration of the agreement

E.2.1 The Agreement is entered into by the Client for a duration of twelve (12) months. Thereafter, the Agreement is automatically renewed until terminated.

E.2.2 The Agreement may be terminated by the Client before the end of the period upon giving three (3) months’ notice. After automatic renewal, the Client may terminate at any time with three (3) months’ notice. For the Contractor, a notice period of three (3) months also applies.

E.2.3 Termination of the Agreement by the Client or Contractor must be made in writing.

E.2.4 If the Client has prepaid for a specific period but the Agreement is terminated in accordance with Article E.2.2, the Contractor will refund any prepaid amounts to the Client pro rata.

 

Article E.3. Service Provision and Availability

E.3.1 All services provided by the Contractor are carried out on a best efforts basis, unless explicitly guaranteed in writing in the Agreement with sufficiently defined results.

E.3.2 The Contractor does not guarantee the exact amount of availability unless otherwise agreed in the quotation through a designated Service Level Agreement (SLA). Unless stated otherwise in a relevant SLA, this article applies.

E.3.3 Unless proven otherwise, the availability and service level measured by the Contractor shall be considered as complete evidence.

E.3.4 The Contractor will make efforts to ensure that the Client can use networks directly or indirectly connected to the Contractor’s network. The use of third-party networks may be subject to legal and contractual conditions. The Contractor will make efforts to inform the Client about this in a timely manner.

E.3.5 The availability and quality of the Service depend on external factors, including the Client’s internet connection if, for example, a VOIP service is used. The Contractor must follow the Client’s guidelines regarding these external factors.

 

Article E.4. Maintenance

E.4.1 The Contractor has the right to temporarily disable the Services or parts thereof for maintenance, adaptation, or improvement purposes. The Contractor will try to schedule such unavailability preferably outside of office hours and make efforts to inform the Client in advance of planned unavailability. However, the Contractor is never obliged to compensate for damage resulting from such unavailability unless expressly agreed otherwise in writing, for example, in an SLA.

E.4.2 Only if expressly agreed in writing is the Contractor obligated to have a backup center or other backup facilities.

E.4.3 The Contractor is entitled to change the operation and technical specifications of the Service at any time in the interest of continuing the Service. Unless reasonably impossible, the Contractor will notify the Client of these changes in advance. The Contractor is not liable for damages resulting from such changes.

Module F. Hardware Rental

This Module applies to Contractors who rent Hardware to Clients.

 

Article F.1. Delivery

F.1.1 Hardware is deemed delivered to the Client when it is delivered to the delivery address specified by the Client in the order, and this delivery is accepted by the Client.

F.1.2 Unless otherwise agreed in writing, the provision of consumables necessary for the use of the Hardware is not included in the rental of the Hardware.

F.1.3 Hardware is provided without software, licenses, software, etc. If software, programs, etc. are also provided alongside the Hardware (for the same rental period), the Agreement will clearly specify the user rights acquired by the Client, the components involved, and the conditions under which this is provided.

F.1.4 Upon delivery, the Client is obliged to inspect the Hardware for defects to the extent reasonably possible at that time. If defects are not reported within 72 hours of delivery, the Hardware is deemed to have been received by the Client correctly and without defects.

F.1.5 The Contractor may require the Client to cooperate in an inspection of the delivered items. After a successfully completed inspection, the Hardware will be made available to the Client. A report of the inspection may be prepared.

F.1.6 The Client shall install the Hardware themselves unless otherwise agreed upon in writing by the parties.

 

Article F.2. Duration and Termination

F.2.1 The Agreement is entered into by the Client for a minimum period of twelve (12) months. Thereafter, the Agreement continues indefinitely. After the end of the minimum period, the Agreement may be terminated by mutual agreement with a notice period of at least three (3) months. Termination of the Agreement by the Client or Contractor must be made in writing.

 

Article F.3. Use

F.3.1 The Client may only use the Hardware within their own company, for the purpose for which the Hardware is intended.

F.3.2 Without the written consent of the Contractor, the Client is not allowed to sublet the Hardware or otherwise make it available to third parties. The Client shall never use (a part of) the Hardware as collateral or security for third parties in any way.

F.3.3 The Client shall use the Hardware as a prudent lessee. They shall handle the Hardware with care, take precautions, and follow all instructions provided with the Hardware or provided by the Contractor.

F.3.4 If the Client discovers defects in the Hardware, they must promptly notify the Contractor in writing.

F.3.5 The Client is fully liable to the Contractor for damage to the Hardware that arises other than from normal (expected) use. The Client shall always promptly report any damage in writing to the Contractor.

F.3.6 The Client may not modify or alter the Hardware without the written consent of the Contractor, unless it involves changes and additions that can be undone and removed at the end of the rental period without significant costs. The Client is obliged to undo these latter adjustments and changes.

F.3.7 The Contractor is always entitled to refuse the consent referred to in the previous paragraph or to attach conditions to their consent. The Client is entitled to increase the agreed rental fee for the Hardware if the modification or change justifies it.

F.3.8 Damage resulting from modifications and changes can never be damage for which the Contractor is liable, as meant in art. 7:204 of the Dutch Civil Code.

F.3.9 The Client is obliged to immediately notify the Contractor of any attachment to the Hardware. As much information as possible should be provided, including at least the identity of the attachment holder and the reason for the attachment. Additionally, the Client is obliged to grant the attachment holder access to the (rental) Agreement.

 

Article F.4. Obligations of the Contractor

F.4.1 The Contractor will rectify defects within a reasonable period, unless this is impossible or requires expenses that cannot reasonably be expected from the Contractor in the given circumstances.

F.4.2 The Contractor will not rectify defects if they are defects that:

• were accepted by the Client upon entering into the rental agreement;
• arise from abnormal use other than normal use, or from the actions of the Client, their staff, or visitors to the location;
• result from careless, incorrect, or unwise use of the Hardware or use contrary to regulations, documentation, etc.;
• arise from use contrary to Article F.3.

F.4.3 If the Contractor does rectify a defect as referred to in the preceding paragraph, they are entitled to charge the Client for this.

F.4.4 The Contractor is entitled to replace the Hardware with a new or comparable item instead of repairing a defect.

F.4.5 The Contractor is entitled to carry out preventive maintenance on the Hardware. The Client is obliged to cooperate with this maintenance. The parties will consult in advance to determine a date and time for maintenance. During the maintenance period, the Client is not entitled to replacement Hardware.

Article F.5. Termination

F.5.1 Upon termination of the Agreement, the Client is obliged to make the Hardware available to the Contractor again. Any costs for transporting the Hardware from the Client to the Contractor are borne by the Client.

F.5.2 If a report (as referred to in Article F.1.5) has been drawn up between the parties at delivery, the Client is obliged to return the Hardware in the same condition as it was accepted according to the description, except for authorized changes and additions and wear/damage resulting from normal use. If no report has been drawn up, the Client (unless the Contractor proves otherwise) is deemed to have received the Hardware in the condition it is in at the end of the Agreement.

F.5.3 The Contractor may require the Client to cooperate in a final inspection. If the Client refuses to cooperate, the Contractor will nevertheless carry out the final inspection, with the approval of both parties.

F.5.4 If, during the final inspection, the Contractor finds defects that are not the responsibility of the Contractor as the lessor, the Contractor will charge the Client for the costs of repair and/or replacement. The Client always has the right to dispute this cost claim by demonstrating that any defects and damage are the result of normal wear and tear, depreciation, and use of the Hardware.

F.5.5 Upon termination, the Client is responsible for the transfer of their data, making backups, etc. Unless otherwise agreed, the Contractor does not offer the possibility to provide the Client with any data that may still be present on the Hardware after its return.

Module G. Maintenance and Support

This Module applies to Services that involve the installation, configuration, and/or maintenance of Materials and Services such as software, applications, websites, etc.

 

Article G.1. Execution

G.1.1 Maintenance is understood as ensuring the operation of existing or newly (developed) Materials in accordance with the quotation or further agreement, and more generally, rectifying errors. Support is understood as providing assistance, whether remotely or not, in maintaining or working with the Materials.

G.1.2 After the conclusion of the Agreement, the Contractor will promptly carry out the work in accordance with the quotation, taking into account the reasonable wishes of the Client.

G.1.3 The Agreement specifies when and at what cost the Contractor will commence the provision of the Services and work. This may involve fixed fees or work based on hourly rates and cost calculation. The Agreement clearly specifies which work is performed for which amounts.

G.1.4 All Services provided by the Contractor are performed on a best efforts basis unless the Contractor explicitly undertakes a result in the Written Agreement and the relevant result is also sufficiently described.

G.1.5 The Contractor does not guarantee results unless otherwise agreed in the quotation through a designated Service Level Agreement (SLA). Unless otherwise specified in an applicable SLA, this article applies. The Contractor will make every effort to execute requests from the Client as soon as possible, but cannot provide strict deadlines. This applies to both scheduling and performing planned work, as well as response times and repair times in the event of a request to adjust, repair, and/or improve the Service and/or Materials.

 

Article G.2. Duration

G.2.1 The Agreement is entered into by the Client for a minimum period of twelve (12) months. Thereafter, the Agreement continues indefinitely and for periods of at least one (1) year or multiple years. After the end of the minimum period, the Agreement may be terminated by mutual agreement with a notice period of at least three (3) months. Termination of the Agreement by the Client or Contractor must be made in writing.

 

Article G.3. Specifications and Client Cooperation

G.3.1 If agreed upon, the Contractor will install and configure the Materials on hardware and networks designated by the Client. The Client is obligated to do and refrain from all that is reasonably necessary and desirable to enable timely and proper installation and operation of the Materials. In particular, the Client ensures that all data, which the Contractor indicates as necessary or which the Client reasonably understands to be necessary for the provision of the Materials, are provided to the Contractor in a timely manner.

G.3.2 Upon request by the Contractor, the Client shall grant Employees and agents of the Contractor all necessary access to the relevant computer systems to enable installation, configuration, maintenance, and adjustments of the Materials. Physical access to these systems will only take place if necessary and only after prior consultation with the Client.

G.3.3 The choice, purchase, and management of the hardware and networks to be used are solely and entirely the responsibility of the Client. The Contractor will provide instructions on the desired configuration. If the designated hardware and networks do not meet the requirements of the Contractor, the Contractor is entitled to refuse installation or configuration.

 

Article G.4. Updates and Improvements

G.4.1 Only if part of the Agreement, the Contractor will endeavor to adjust the Materials from time to time to improve functionality and rectify errors, whether based on instructions and requests from the Client or on their own initiative, if specified in the Agreement.

G.4.2 Only if part of the Agreement, the Contractor will endeavor to keep the Materials up-to-date. However, the Contractor is often dependent on its supplier(s) and third parties in this regard. The Contractor is entitled to refrain from installing certain updates or patches if, in their opinion, it does not benefit the proper functioning of the software or is not in the interest of the Service.

G.4.3 The Contractor will make every effort to add changes and new functionality requested by the Client to the Materials. The Contractor is always entitled to refuse such a request if, in their opinion, it is not feasible or may impede the proper functioning or availability of the Materials. Adding changes and new functionality to the Materials at the request of the Client incurs costs. The Contractor will inform the Client of these costs in advance.

G.4.4 If an adjustment, update, or patch leads to changed functionality within an already developed Service or Project, which has significant consequences for the operation of other Materials, systems, etc., the Contractor and the Client will consult on the consequences. If it is decided to implement these changes, updates, or patches, the Contractor is entitled to separately invoice the hours spent on this based on cost calculation.

G.4.5 If the Client wishes to make a change to the Materials independently, this is entirely at the Client’s own risk and responsibility. The Contractor is then no longer obliged to make efforts to correct bugs or errors. This is unless the Client has notified the desired change to the Contractor in advance and the Contractor has approved it in writing. The Contractor may impose conditions on this approval.

G.4.6 If not otherwise agreed, support for end users (clients of the Client) is not included.

 

Article G.5. Remote Support

G.5.1 Remote support is provided by phone, email, and other mutually agreed channels.

G.5.2 Upon request by the Client, the Contractor will propose software for remotely accessing the computers to be supported. It is the responsibility of the Client to ensure that their network and security environment allows this software to function.

G.5.3 If it appears that remote support does not lead to a satisfactory solution or is not feasible given the nature of the problem, the Contractor will consult with the Client to find a solution on-site.

G.5.4 For remote support (including scheduling maintenance and error correction), the Contractor is available on working days (Monday to Friday, excluding recognized and official holidays in the Netherlands) from 9:00 am to 5:00 pm.

 

Module H. Consultancy and Training

This Module applies to Contractors engaged in consultancy activities and/or providing training or courses.

 

Article H.1. Specific provisions for training and courses

H.1.1 If the Agreement includes the provision of a course/training (hereinafter: course) by the Contractor, the provisions of this article shall apply.

H.1.2 There may be various courses provided by the Contractor.

 

• A course is understood as: a course, workshop, education, lecture, or training provided or offered by the Contractor.
• A general course is understood as a course provided at the initiative of the Contractor intended for multiple parties.
• An internal course is understood as a course provided at the request of, on-site at, and aimed at employees of the Client.

H.1.3 Unless otherwise agreed, a separate fee is payable for course materials in addition to the fee payable for the course.

H.1.4 For an internal course, the Client is responsible for providing the facilities required by the Contractor (including, but not limited to, sufficient course space, computers, projectors, internet connection, food, and drinks) for the course, as well as handling registrations and cancellations.

H.1.5 For a general course, the Contractor will provide the necessary facilities for the respective general course.

H.1.6 For an internal course, the Client has the right to cancel or reschedule the course up to fourteen (14) calendar days before the (first) course date. Any cancellation or change costs for already booked facilities (including, but not limited to, travel expenses or hotel accommodations for instructors) are the responsibility of the Client.

H.1.7 For a general course, participation is on a first-come, first-served basis. The Contractor will confirm or reject the registration by email or with reasons provided. If a registration from the Client reaches the Contractor after the maximum number of participants for the course has been reached, the Contractor will retain the registration and accept it if another participant drops out. The Contractor will notify the Client of this in a timely manner.

H.1.8 The Client determines whether the course is suitable for the participants or to participate in the course. The absence of the required prior knowledge by the Client or their employees is not a reason for cancellation and does not result in obligations under the Agreement and/or General Terms and Conditions being waived.

H.1.9 The Contractor is allowed to change the content, location, and dates/times of the general course. The Client will be informed of this no later than two (2) weeks before the start of the general course.

H.1.10 The Client has the right to cancel participation up to five (5) working days before the (first) date of the general course. The participation fee will then be waived. If canceled within five (5) working days, the agreed price remains due. The Client is entitled to nominate a replacement up to and including the (first) day of the general course; this does not constitute a cancellation.

H.1.11 Payment is made in advance, prior to the course.

Article H.2. Specific provisions regarding consultancy

H.2.1 If the Agreement includes consultancy services by the Contractor, the provisions of this article shall apply.

H.2.2 Unless otherwise agreed in writing, the Contractor does not guarantee delivery and/or lead times. Work is carried out or will take place on working days excluding Saturdays, Sundays, or public holidays, between 9:00 a.m. and 5:00 p.m.

H.2.3 If it is agreed that the work will be carried out in phases, the Contractor is entitled to wait to proceed with the next phase until the Client has approved the Materials and the corresponding results.

H.2.4 The use of results, Materials, or other outcomes of the Services and work is always at the risk and responsibility of the Client.

H.2.5 If and to the extent that proper execution of the Agreement requires it, the Contractor has the right to have certain work carried out by third parties. Any associated (additional) costs are borne by the Client. This, of course, with the approval of the Client.

H.2.6 The Client will use the results provided by the Contractor under the Agreement only for the agreed purpose. In particular, the Client will use the texts prepared by the Contractor only for the purposes specified in the Agreement. Furthermore, the Contractor has the right to revoke the usage license regarding the prepared texts. Article A.10 applies accordingly.

H.2.7 If necessary, the Contractor will inform the Client about the status and progress of the work. The Agreement may contain further agreements regarding the number of contact moments and how this will take place. Interim reports may be part of this. Parties will appoint contact persons to facilitate and ensure the smooth progress of this process.

H.2.8 Notwithstanding the provisions of article A.6, the Contractor is entitled to invoice an amount in advance prior to the work and may delay the execution of the Agreement until the first payment is received by the Contractor.

 

Version 01-09-2023