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Terms of service

The NLdigital Terms have been deposited by NLdigital at the District Court Midden-Nederland, location Utrecht.

In the event of disputes concerning the interpretation of the English version of the NLdigital Terms, the Dutch texttakes precedence. © 2020 NLdigitalSection

1. General provisions
Article 1 Applicability NLdigital Terms
1.1 These NLdigital Terms (hereinafter also to be referred to as:
these general terms) apply to all offers and agreements for
which supplier delivers goods and/or services, of whatever
nature and under whatever name, to client.
1.2 These general terms can only be departed from or be
supplemented if agreed by parties in writing.
1.3 The applicability of any of the client’s purchase or other terms is
explicitly excluded.
1.4 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.
1.5 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.
1.6 If any provision of these general terms should be null and void
or is annulled, the other provisions of these general terms
remain fully applicable and effective. In that case, supplier and
client consult as to arrange for new provisions which have the
same purport, as much as possible, and that will replace the
provisions that are null and void or that have been annulled.
1.7 Without prejudice to the provisions of article 1.4, the provisions
of these general terms prevail if a conflict should arise about
any of the arrangements made by parties, unless parties have
explicitly departed from these terms in writing, with reference to
these terms. In the event of a conflict between the provisions of
different sections of these general terms, the provisions of a
prior section apply, unless parties have explicitly agreed
otherwise.
Article 2 Offers
2.1 All off supplier’s offers and other forms of communication are
without obligation, unless supplier should indicate otherwise in
writing. Client guarantees the correctness and completeness of
the information provided, with the exception of obvious typingerrors, by or on behalf of client to supplier and on which
information supplier has based its offer.
Article 3 Price and payment
3.1 All prices are exclusive of turnover tax (VAT) and other product
or service-specific levies imposed by the authorities. All prices
quoted by supplier are in euros and client must pay in euros.
3.2 Client cannot derive any rights or expectations from any cost
estimate or budget issued by supplier, unless parties have
agreed otherwise in writing. A budget communicated by client is
only considered a (fixed) price agreed on by parties if this has
been explicitly agreed in writing.
3.3 If it should be apparent from the agreement that client consists
of several natural persons and/or legal persons, each of these
persons is jointly and severally liable to supplier for the
performance of the agreement.
3.4 Where the activities performed by supplier and the sums due by
client for these activities are concerned, the information in
supplier's administration provides full evidence, without
prejudice to client's right to provide evidence to the contrary.
3.5 In the event client should be under a periodic payment
obligation, supplier may adjust the applicable prices and rates,
in writing and in accordance with the index or any other criterion
included in the agreement, within the period specified in the
agreement. If the agreement does not explicitly provide for the
possibility to adjust the prices or rates, supplier may adjust the
applicable prices and rates in writing with due observance of a
period of at least three months. If, in the latter case, client does
not want to accept the price adjustment, client is entitled to
terminate the agreement by serving notice of termination
(opzeggen) in writing, within thirty days following the notification
of the adjustment and effective from the date on which the new
prices and/or rates would take effect.
3.6 In their agreement parties lay down the date or dates on which
supplier invoices the fee for the activities agreed on with client.
Any sums due are paid by client in accordance with the
payment terms agreed on or as stated in the invoice. Client is
neither entitled to suspend any payments nor to set off any of
the sums due.
3.7 If client should fail to pay the sums due or does not pay these
on time, the statutory interest for commercial agreements is
payable by client on any outstanding sum, without a reminder
or notice of default being required. 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,2/18all 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.
Article 4 Duration of the agreement
4.1 If and insofar as the agreement between parties is a continuing
performance contract, the agreement 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.
4.2 The duration of the agreement for a definite period of time is
tacitly extended, each time by the period of time originally
agreed on with a maximum of one year, unless client or
supplier should terminate the agreement by serving written
notice of termination (opzeggen), with due observance of a
notice period of three months prior to the end of the relevant
term.
Article 5 Confidentiality
5.1 Client and supplier ensure that secrecy is observed with
respect to all information received from the other party of which
information the receiving party knows or should reasonably
know it is confidential. This prohibition does not apply if and
insofar as the information concerned must be provided to a
third party in compliance with a judicial decision, a statutory
requirement, a statutory order by a public authority or for the
proper performance of the agreement. The party that receives
the confidential information may only use it for the purpose for
which it has been provided. Information is in any case deemed
confidential if it has been designated as such by either party.
5.2 Client acknowledges that software made available by supplier
is always confidential in nature and that this software contains
trade secrets of supplier and its suppliers or of the producer of
the software.
Article 6 Privacy and data processing
6.1 If this should be relevant, in supplier’s opinion, for the
performance of the agreement, client informs suppliers in
writing, at supplier’s request, about the way in which client
performs its obligations under the applicable rules and
regulations pertaining to the protection of personal data.
6.2 Client indemnifies supplier against any claims by persons
whose personal data are or have been processed and for which
processing client is responsible pursuant to the law, unless
client proves that the facts on which a claim is based are
attributable to supplier.
6.3 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 the agreement.
6.4 If, further to a request or a lawfully issued order by a public
authority or in the context of a statutory obligation, client should
perform activities with relation to data of client, client’s
employees or users, any costs involved in this may be charged
to client.
6.5 If supplier performs activities for client as a processor as meant
in the rules and regulations pertaining to the protection of
personal data, Section 2 ‘Standard Clauses for Processing’ also
applies.
Article 7 Security
7.1 If supplier is obliged to provide some form of information
security under the agreement, this protection meets the
specifications on security that parties have agreed on in writing.
Supplier does not guarantee that the information security
provided is effective under all circumstances. If the agreement
does not include an explicitly defined security method, the
security features provided meet a level that is not unreasonable
in view of the state of the art, the implementation costs, the
nature, scope and context as known to supplier of the
information to be secured, the purposes and the standard use
of supplier’s products and services and the probability and
seriousness of foreseeable risks.
7.2 The access or identification codes and certificates provided by
or on behalf of supplier to client are confidential and must be
treated as such by client, and they may only be made known to
authorised staff in client’s own organisation or company.
Supplier is entitled to change the access or identification codes
and certificates. Client is responsible for managing these
authorisations and for providing and duly revoking access and
identification codes.
7.3 In the event security features or the testing of security features
pertain to software, hardware or infrastructure that has not been
delivered by supplier to client, client guarantees that all licences
or approvals have been obtained so that the performance of
such activities is actually allowed. Supplier is not liable for any
damage caused by or in relation to the performance of these
activities. Client indemnifies supplier against any claims, for
whatever reason, arising from these activities being performed.
7.4 Supplier is entitled to adapt the security measures from time to
time if this should be required as a result of a change in
circumstances.
7.5 Client adequately secures its systems and infrastructure and
keeps these adequately secured.
7.6 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.
7.7 Supplier is at any time permitted to install technical and
organizational facilities to protect hardware, data files websites,
software made available, software or other works to which
client has been granted access, whether directly or indirectly,
also in connection with a restriction agreed on in the content or
the duration of the right to use these objects. Client may not
remove or circumvent any of such technical facilities or have
these removed or circumvented.
Article 8 Retention of title, reservation of rightsand suspension
8.1 All goods delivered to client remain the property of supplier until
all sums due by client to supplier under the agreement entered
into by parties have been paid to supplier in full. A client that
acts as a reseller may sell and supply all goods that are subject
to the supplier’s retention of title insofar as this is customary in
the context of client’s normal course of business.
8.2 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.3/188.3 Where applicable, rights are granted or transferred to client
subject to the condition that client has paid all sums due under
the agreement.
8.4 Supplier may retain all information, documents, software and/or
data files received or created in the context of the agreement,
despite an existing obligation to hand these over or transfer
them, until client has paid all sums due to supplier.
Article 9 Transfer of risk
9.1 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 the
agreement pass to client at the moment these are placed under
the actual control of client or an auxiliary person of client.
Article 10 Intellectual property
10.1 All intellectual property rights to the software, websites, data
files, databases, hardware, training, testing and examination
materials, as well as other materials such as analyses, designs,
documentation, reports, offers, including preparatory materials
for these materials, developed or made available to client under
the agreement remain exclusively vested in supplier, its
licensors or its suppliers. Client is solely granted the rights of
use laid down in these general terms, in the agreement entered
into by parties in writing 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.10.2 If supplier is prepared to undertake to transfer an intellectual
property right, such undertaking may only be explicitly effected
in writing. If parties agree in writing that an intellectual property
right with respect to software, websites, data files, hardware,
know-how, or other works or materials specifically developed
for client is transferred to client, this does not affect supplier’s
rights or options to use and/or exploit, either for itself or for third
parties and without any restriction, the parts, designs,
algorithms, documentation, works, protocols, standards and the
like on which the developments referred to are based for other
purposes. Supplier is also entitled to use and/or exploit, either
for itself or for third parties and without any restrictions, the
general principles, ideas and programming languages that have
been used as a basis to create or develop any work for other
purposes. The transfer of an intellectual property right does not
affect supplier’s right to continue developing , either for itself or
for third parties, software - or elements of software - that are
similar to or derived from software – or elements of software -
that have been or are being developed for client.
10.3 Client is not permitted to remove or change any indication with
respect to the confidential nature of the software, websites,
data files, hardware or materials or with respect to copyrights,
brands, trade names or any other intellectual property right
pertaining to the software, websites, data files, hardware or
materials, or have any such indication removed or changed.
10.4 Supplier indemnifies client against any claim of a third party
based on the allegation that software, websites, data files,
hardware or other materials developed by supplier itself infringe
an intellectual property right of that third party, provided always
that client promptly informs supplier in writing about the
existence and content of the claim and leaves the settlement of
the claim, including any arrangements to be made in this
context, entirely up to supplier. To this end, client provides
supplier with the powers of attorney and information required
and renders the assistance supplier requires to defend itselfagainst such claims. This obligation to indemnity does not apply
if the alleged infringement concerns (i) works or materials made
available by client to supplier for use, modification, processing
or maintenance or (ii) modifications client has implemented or
modifications client has had implemented in the software,
websites, data files, hardware or other works and materials
without supplier’s written permission. If it is irrevocably
established in court that software, websites, data files,
hardware or other works and materials developed by supplier
itself should infringe any intellectual property right belonging to
a third party, or if, in supplier’s opinion, there is a good chance
that such an infringement will occur, supplier ensures, if
possible, that client can continue to use, or use functional
equivalents of, the software, websites, data files, hardware or
other works and materials delivered. Any other or further
obligation that supplier might have to indemnify client against
any infringement of a third party’s intellectual property right is
excluded.
10.5 Client guarantees that no rights of third parties preclude making
hardware, software, material intended for websites, data files
and/or other materials, designs and/or other works available to
supplier for the purpose of use, maintenance, processing,
installation or integration; this guarantee also pertains to client’s
having the relevant licences. Client indemnifies supplier against
any claim of a third party based on the allegation that making
any of this available and/or the use, maintenance, processing,
installation or integration infringes a right of that third party.
10.6 Supplier is never obliged to perform data conversion unless this
has been explicitly agreed on with client in writing.
10.7 Supplier is entitled to use client’s figurative mark, logo or name
in its external communication.
Article 11 Performance of services
11.1 Supplier performs its services with care to the best of its ability,
where applicable in accordance with the arrangements and
procedures agreed on with client in writing. All servicesprovided by supplier are performed on the basis of a best-
efforts obligation unless and insofar as supplier has explicitlypromised a result in the written agreement and the result
concerned has been described in the agreement in a
sufficiently precise manner.
11.2 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.
11.3 If the agreement has been entered into with a view to it being
performed by one specific person, supplier is always entitled to
replace this person by one or more persons who have the same
and/or similar qualifications.
11.4 Supplier is not obliged to follow client’s instructions when
performing the services, more particularly not if these
instructions change or add to the content or scope of the
services agreed on. If such instructions are followed, however,
the activities performed are charged at supplier’s applicable
rates.
Article 12 Obligation to provide information and render assistance
12.1 Parties acknowledge that the success of activities to be
performed in the field of information and communications
technology depends on proper and timely cooperation of
parties. Client undertakes always to fully cooperate, within
reason, and in time.4/1812.2 Client vouches for the correctness and completeness of the
data, information, designs and specifications provided by on or
behalf of client to supplier. If the data, information, designs or
specifications provided by client should contain inaccuracies
apparent to supplier, supplier requests client to provide further
information.
12.3 For reasons of continuity, client designates a contact person or
contact persons who act in that capacity for the time supplier
performs it services. Client’s contact persons have the relevant
experience required, specific knowledge of the subject matter
and a proper understanding of the objectives that client wishes
to achieve.
12.4 Client bears the risk of selecting the goods and/or services to
be provided by supplier. Client always exercises the utmost
care to guarantee that the requirements set for supplier’s
performance are correct and complete. Measurements and
data provided in drawings, images, catalogues, websites,
offers, advertising material, standardisation sheets and the like
are not binding on supplier unless explicitly stated otherwise by
supplier.
12.5 If client deploys employees and/or auxiliary persons in the
performance of the agreement, these employees and auxiliary
persons must have the knowledge and experience required. If
supplier’s employees perform activities at client’s premises,
client ensures the facilities required are available, such as a
workspace with computer and network facilities, on time and
free of charge. Supplier is not liable for damage suffered orcosts incurred by transmission errors, malfunctions or the non-
availability of these facilities unless client proves that thisdamage or these costs are caused by intent or deliberate
recklessness on the part of supplier’s management .
12.6 The workspace and facilities must meet all statutory
requirements. Client indemnifies supplier against claims of third
parties, including supplier's employees, who, when performing
the agreement, suffer damage caused by client’s acts or
omissions or by unsafe situations in client’s organisation or
company. Before the activities to be performed start, client
informs the employees deployed by supplier about the
company rules, information rules and security rules that apply in
client’s organisation or company.
12.7 Client is responsible for the management, including checks of
the settings, and use of the products delivered and/or services
provided by supplier, and the way in which the results of the
products and services are implemented. Client is also
responsible for appropriately instructing users and for the use of
the products and services that is made by users.
12.8 Client itself is responsible for the hardware, infrastructure and
auxiliary software and ensures that the (auxiliary) software for
its own hardware is installed, organised, parameterised and
tuned and, where required, that the hardware, other (auxiliary)
software and the operating environment used are modified and
kept updated, and that the interoperability wanted by client is
effected.
Article 13 Project and steering groups
13.1 If both parties are participating in a project or steering group in
which one or more of their employees have been appointed, the
provision of information takes place in the manner agreed on
for that project or steering group.
13.2 Decisions made in a project or steering group in which both
parties are participating are only binding on supplier if the
decisions are made in accordance with that which parties have
agreed on in writing in this regard or, if no written arrangements
have been made in this context, if supplier has accepted the
relevant decision in writing. Supplier is never obliged to acceptor implement a decision if, in its opinion, the decision cannot be
reconciled with the content and/or proper performance of the
agreement.
13.3 Client ensures that the persons that it has assigned to
participate in a project or steering group are authorised to make
decisions that are binding on client.
Article 14 Terms and deadlines
14.1 Supplier makes reasonable efforts, within reason, to comply to
the greatest extent possible with the terms and delivery periods
and/or dates and delivery dates, whether or not these are
deadlines and/or strict dates, that it has specified or that have
been agreed on by parties. The interim dates and delivery
dates specified by supplier or agreed on by parties always
apply as target dates, do not bind supplier and are always
indicative.
14.2 If a term or period of time is likely to be exceeded, supplier and
client consult as to to discuss the consequences of the term
being exceeded in relation to further planning.
14.3 In all cases – therefore, also if parties have agreed on
deadlines and strict delivery periods or dates and delivery dates
– supplier is only in default because of a term or period of time
being exceeded after client has served supplier with a written
notice of default and has set a reasonable period of time for
supplier to remedy the failure to meet its obligations and this
reasonable term has passed. The notice of default must
describe supplier’s breach to meet its obligations as
comprehensively and in as much detail as possible so that
supplier has the opportunity to respond adequately.
14.4 If it has been agreed that the activities to be performed under
the agreement must be performed in phases, supplier is entitled
to postpone the start of the activities for a next phase until client
has approved the results of the preceding phase in writing.
14.5 Supplier is not bound by a date or delivery date or term or
delivery period, whether or not these are deadlines and/or strict
dates, if parties have agreed on an adjustment in the content or
scope of the agreement (additional work, a change of
specifications, etc.) or a change in approach with respect to the
performance of the agreement, or if client fails to fulfil its
obligations under the agreement or fails to do so on time or in
full. If additional work should be required during the
performance of the agreement, this never constitutes a reason
for client to give notice of termination of the agreement
(opzeggen) or to terminate the agreement for breach
(ontbinden).
Article 15 Termination of the agreement for breach or by serving notice of
termination
15.1 Either party is exclusively entitled to terminate the agreement
for breach (ontbinden) following an imputable failure of the
other party to meet it is obligations under the agreement if the
other party, in all cases after a written notice of default has
been served that is as detailed as possible and in which the
other party is granted a reasonable period of time to remedy the
breach, should still imputably fail to meet any of its essential
obligations under the agreement. Client’s payment obligations
and all obligations of client or a third party contracted by client
to cooperate and/or to provide information apply in all cases as
essential obligations under the agreement.
15.2 If, at the time of the termination for breach, client has already
received goods or services in the performance of the
agreement, this performance and the relevant payment
obligations cannot be undone unless client proves that supplier5/18is in default with respect to the essential part of the
performance due. With due regard to the provisions of the
preceding sentence, sums invoiced by supplier prior to the
termination for breach in connection with what has already
been properly performed or delivered in the performance of the
agreement remain due in full and become immediately payable
at the time of the termination for breach.
15.3 An agreement which, due to its nature and content, is not
discharged by performance and which has been entered into
for an indefinite period of time may be terminated, following
consultation between parties, by either party by serving written
notice of termination to the other party (opzeggen). Reasons for
the termination must be stated. If a notice period has not been
agreed on between parties, a reasonable period must be
observed when notice of termination is served. Supplier is
never obliged to pay any compensation because of this
termination.
15.4 Client is not entitled to terminate (opzeggen) an agreement for
services that has been entered into for a definite period of time
before the end of the term; client is not entitled either to
terminate (opzeggen) an agreement that ends by completion
before it has been completed.
15.5 Either party may terminate (opzeggen) the agreement 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
may also terminate (opzeggen) the agreement, in whole or in
part, without notice of default being required and with
immediate effect, if a direct or indirect change occurs in the
decisive control of client’s company. 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. If client is irrevocably bankrupted, its right to
use the software, websites and the like made available to client
ends, as does its right to access and/or use supplier’s services,
without supplier being required to cancel these rights.
Article 16 Supplier’s liability
16.1 Supplier’s total liability for an imputable failure in the
performance of the agreement or arising from any other legal
basis whatsoever, explicitly including each and every failure to
meet a guarantee or indemnification obligation agreed on with
client, is limited to the compensation of damages as described
in more detail in this article.
16.2 Direct damage is limited to a maximum of the price stipulated
for the agreement in question (excluding VAT). If the agreement
is mainly a continuing performance contract with a duration of
more than one year, the price stipulated for the agreement is
set at the total sum of the payments (excluding VAT) stipulated
for one year. In no event does supplier’s total liability for any
direct damage, on any legal basis whatsoever, exceed EUR
500,000 (five hundred thousand euros).
16.3 Supplier’s total 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 (one million two hundred fifty
thousand euros).
16.4 Liability for indirect damage, consequential loss, loss of profits,
lost savings, reduced goodwill, loss due to business
interruption, loss as a result of claims of client’s clients, loss
arising from the use of goods, materials or software of third
parties prescribed by client to supplier and any damage and
loss arising from contracting suppliers client has recommendedto supplier is excluded. Liability for corruption, destruction or
loss of data or documents is also excluded.
16.5 The exclusions and limitations of supplier’s liability described
articles 16.2 up to and including 16.4 are without any prejudice
whatsoever to the other exclusions and limitations of supplier’s
liability described in these general terms.
16.6 The exclusions and limitations referred to in articles 16.2 up to
and including 16.5 cease to apply if and insofar as the damage
is caused by intent or deliberate recklessness on the part of
supplier’s management.
16.7 Unless performance by supplier is permanently impossible,
supplier is exclusively liable for an imputable failure in the
performance of an agreement 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.
16.8 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 twenty four months following the
inception of the claim unless client has instituted a legal action
for damages prior to the expiry of this term.
16.9 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.
16.10 The provisions of this article and all other exclusions and
limitations of liability referred to in these general terms also
apply in favour of all natural persons and legal persons that
supplier and supplier’s suppliers contracts for the performance
of the agreement.
Article 17 Force Majeure
17.1 Neither party is obliged to meet any obligation, including any
statutory and/or agreed guarantee obligation, if it is prevented
from doing so by circumstances beyond its control (overmacht).
Circumstances beyond supplier’s control include, among other
things: (i) circumstances beyond the control of supplier’s
suppliers, (ii) the failure by supplier to properly meet obligations
that were contracted by supplier on client’s instructions, (iii)
defects in goods, hardware, software or materials of third
parties that supplier uses on client’s instructions, (iv) measures
by public authorities, (v) power failures, (vi) failures of the
Internet, data network or telecommunication facilities, (vii)
(cyber) crime, (cyber) vandalism, war or terrorism and (viii)
general transport problems.
17.2 If a force majeure situation lasts for more than sixty days, either
party has the right to terminate the agreement, in writing, for
breach (ontbinden). In such event, all that has already been
performed under the agreement must be paid for on a
proportional basis, without anything else being due by either
party to the other party.
Article 18 Service Level Agreement
18.1 Possible arrangements about a service level (Service Level
Agreement) are exclusively agreed on in writing. Client6/18promptly informs supplier about any circumstances that may
affect the service level or its availability.
18.2 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 due to preventive,
corrective or adaptive maintenance service or other forms of
service that supplier has notified client of in advance and
circumstances beyond supplier’s control are not taken into
account. Subject to proof to the contrary offered by client, the
availability measured by supplier is considered conclusive.
Article 19 Backups
19.1 If the services provided to client under the agreement include
making backups of client’s data, supplier makes a complete
backup of client’s data in its possession, with due observance
of the periods of time agreed on in writing, or once a week if
such terms have not been agreed on. Supplier keeps the
backup for the duration of the agreed term or for the duration of
supplier’s usual term if no further arrangements have been
made in this regard. Supplier keeps the backup with due care
and diligence.
19.2 Client itself remains responsible for complying with all the
applicable statutory obligations with respect to keeping records
and data retention.
Article 20 Adjustments and extra work
20.1 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.
20.2 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.
20.3 Insofar as a fixed price has been agreed on for the agreement,
supplier informs client, at client’s request and in writing, about
the financial consequences of the extra work or additional
delivery of goods or services referred to in this article.
Article 21 Transfer of rights and obligations
21.1 Client is not entitled to sell, transfer or pledge (verpanden) its
rights and obligations under an agreement to a third party.
21.2 Supplier is entitled to sell, transfer or pledge (verpanden) any
claims it has to payment of any sums due to a third party.
Article 22 Applicable law and disputes
22.1 The agreements between supplier and client are governed by
the laws of the Netherlands. Applicability of the Vienna
Convention 1980 (The United Nations Convention on Contracts
for the International Sale of Goods (CISG)) is excluded.
22.2 Any disputes that may arise from an agreement between
parties and/or from any further agreements deriving from this
agreement are resolved by arbitration in accordance with the
Arbitration Regulations of the Foundation for the Settlement of
Automation Disputes (Stichting GeschillenoplossingAutomatisering – SGOA – (www.sgoa.eu), this without
prejudice to either party’s right to request preliminary relief in
preliminary relief proceedings or arbitral preliminary relief
proceedings and without prejudice to either party’s right to
attach property before judgment. Arbitration proceedings take
place in Amsterdam, or in any other place designated in the
Arbitration Regulations.
22.3 If a dispute that arises from an agreement entered into by
parties or from any further agreements deriving from this
agreement is within the jurisdiction of the cantonal section of
the Netherlands District Court (kantongerecht), either party is
entitled, notwithstanding the provisions of article 22.2, to bring
the case as a cantonal court case before the competent district
court in the Netherlands. Parties are only entitled to initiate
these proceedings if arbitration proceedings concerning the
dispute have not yet been instituted under the provisions of
article 22.2. If, with due observance of the provisions of this
article 22.3, either party has brought the case before the
competent district court to be heard and decided, the cantonal
judge of that district court is competent to hear the case and to
decide on it.
22.4 Regarding a dispute that arises from an agreement entered into
by parties or from any further agreements deriving from this
agreement, either party is always entitled to institute ICT
mediation proceedings in accordance with the ICT Mediation
Regulations of the Foundation for the Settlement of Automation
Disputes (Stichting Geschillenoplossing Automatisering –
SGOA – (www.sgoa.eu). The other party is then obliged to
actively participate in the ICT mediation proceedings that have
been instituted. This legally enforceable obligation in any case
includes having to attend at least one joint meeting of mediators
and parties, in order to give this extrajudicial form of dispute
resolution a chance of success. Either party is free to terminate
the ICT mediation proceedings at any time after this first joint
meeting of mediators and parties. The provisions of this
paragraph do not prevent either party, if this party deems doing
so necessary, from requesting preliminary relief in preliminary
relief proceedings or in arbitral preliminary relief proceedings
nor do they prevent either party from attaching property before
judgment.
Section 2. Standard clauses on data
processing
The provisions in this section ‘Standard clauses on data
processing’ apply, apart from the General provisions of
these general terms, if supplier processes personal data, in
the context of the performance of an agreement, for the
controller(s) as (sub)processor as meant in the laws and
regulations on personal data protection. These ‘Standard
clauses on data processing’ together with the practical
arrangements made on personal data processing in the
agreement or in a separate appendix (for example a Data
Pro Statement) form a processing agreement as meant in
article 28, paragraph 3 of the General Data Protection
Regulation (GDPR).
Article 23 General
23.1 Supplier processes the personal data on client’s behalf and in
accordance with the written instructions agreed on by supplier
and client.
23.2 Client, or client’s client, is the controller in the sense of the
GDPR, has control over the processing of personal data and7/18has established the purpose of and the means for the personal
data processing.
23.3 Supplier is processor in the sense of the GDPR and, for that
reason, has no control over the purpose of and the means for
the personal data processing and, therefore, does not take any
decisions on, amongst other things, the use of the personal
data.
23.4 Supplier implements the GDPR as laid down in this section
‘Standard clauses on data processing’ and in the agreement.
Client is responsible for assessing, on the basis of this
information, whether supplier offers adequate guarantees with
respect to applying appropriate technical and organisational
measures for the processing to meet the requirements posed
by the GDPR and to adequately safeguard the protection of the
data subjects’ rights.
23.5 Client guarantees vis-à-vis supplier that it acts in compliance
with the GDPR, that its systems and infrastructure are at any
time appropriately secured and that the content, the use and/or
the processing of the personal data are not unlawful and do not
breach any third party rights.
23.6 Client is not entitled to seek recovery from supplier of an
administrative fine imposed on client by the supervisory
authority, on whatever legal ground. In the present section
(Section 2) ‘supervisory authority’ is understood to mean the
supervisory authority referred to in the GDPR.
Article 24 Security
24.1 Supplier takes all the technical and organisational security
measures described in the agreement. When implementing
these technical and organisational measures, supplier has
taken into account the state of the art, the costs involved in
implementing the security measures, the nature, scope and
context of the processing, the nature of its products and
services, the processing risks and the varying risks, in terms of
likelihood and severity, posed to the rights and freedoms of the
data subjects that supplier could expect in view of the use
iintended to be made of its products and services.
24.2 Unless explicitly stated otherwise in the agreement, supplier’s
product or service is not intended for processing special
categories of personal data or data relating to convictions under
criminal law or criminal offences.
24.3 Supplier endeavours to ensure that the security measures to be
taken by supplier are appropriate for the use of the product or
service intended by supplier.
24.4 The security measures described offer a security level, in
client’s opinion and taking the factors referred to in article 24.1
into account, appropriate to the risk involved in processing
personal data used or provided by client.
24.5 Supplier may adjust the security measures implemented if this
should be required, in supplier’s opinion, to continue to offer an
appropriate security level. Supplier keeps a record of important
adjustments and informs client of these adjustments where
relevant.
24.6 Client may request supplier to implement further security
measures. Supplier is not obliged to implement any
adjustments in its security measures following such request.
Supplier may charge client for the costs involved in
implementing the adjustments requested by client. Supplier is
not obliged to actually implement these adjusted security
measures before the security measures requested by client
have been agreed on in writing.
Article 25 Personal data breaches
25.1 Supplier does not guarantee that the security measures are
effective in all circumstances. If supplier discovers a personal
data breach, supplier informs client of this without undue delay.
The agreement stipulates in which way supplier informs client
of personal data breaches. If no specific arrangements have
been agreed on, supplier contacts the client’s contact person in
the usual way.
25.2 It is up to the controller – i.e. client or client’s client – to assess
whether the personal data breach reported by supplier must be
reported to the supervisory authority or the data subject.
Reporting personal data breaches is, at any time, controller’s –
i.e. client’s or client’s client’s – responsibility. Supplier is not
obliged to report personal data breaches to the supervisory
authority and/or the data subject.
25.3 Where required, supplier provides further information on the
personal data breach and renders assistance in providing the
information to client that client needs to report a breach to the
supervisory authority or the data subject.
25.4 Supplier may charge client for the costs involved in this context,
within reason and at supplier’s current rates.
Article 26 Confidentiality
26.1 Supplier ensures that the obligation to observe confidentiality is
imposed on any person processing personal data under
supplier’s responsibility.
26.2 Supplier is entitled to provide personal data to third parties if
and insofar as this should be required pursuant to a judicial
decision or a statutory requirement, on the basis of an
authorised order by a public authority or in the context of the
proper performance of the agreement.
Article 27 Obligations following termination
27.1 In the event the processing agreement ends, supplier deletes,
within the period of time agreed on in the agreement, all
personal data received from client that it has in its possession
in such a way that they can no longer be used and are
rendered inaccessible, or, if agreed on, returns these data to
client in a machine readable format.
27.2 Supplier may charge client for any costs possibly incurred in the
context of the stipulation in the previous paragraph. Further
arrangements on this may be laid down in the agreement.
27.3 The provisions of article 27.1 do not apply if statutory provisions
should prohibit supplier to delete the personal data or return
these, in part or in full. In such event supplier only continues to
process the personal data insofar as required under its
statutory obligations. The provisions of article 27.1 do not apply
either if supplier is a controller in the sense of the GDPR with
respect to the personal data.
Article 28 Data subjects’ rights, Data Protection
Impact Assessment (DPIA) and audit
rights28.1 Where possible, supplier renders assistance in reasonable
requests by client that are related to data subjects exercising
their rights against client. If supplier is directly contacted by a
data subject, supplier refers this data subject, whenever
possible, to client.
28.2 If client should be obliged under the GDPR to carry out a Data
Protection Impact Assessment (DPIA) or a prior consultation
following this, supplier renders assistance, at client’s
reasonable request, in this DPIA or prior consultation.8/1828.3 At client’s request, supplier provides all information that would
be reasonably required to demonstrate compliance with the
arrangements laid down in the agreement with respect to
personal data processing, for example by means of a valid Data
Pro Certificate or another certificate at least equal to it, an audit
report (Third Party Memorandum) drafted by an independent
expert commissioned by supplier or by means of other
information to be provided by supplier. If client should
nevertheless have reasons to assume that the personal data
are not processed in accordance with the agreement, client
may commission an audit, no more than once per year and at
client’s expense, by an independent, certified external expert
who has demonstrable experience in the type of data
processing that is carried out under the agreement. Supplier is
entitled to refuse an expert if this expert affects, in supplier’s
opinion, supplier’s competitive position. The audit is limited to
verifying compliance with the arrangements on personal data
processing as laid down in the agreement. The expert is
obliged to observe confidentiality with respect to his findings
and only reports issues to client which result in a failure by
supplier to meet its obligations under the agreement. The
expert provides supplier with a copy of his report. Supplier may
refuse an expert, an audit or an instruction by the expert if this
should be, in supplier’s opinion, in violation of the GDPR or
other laws and regulations or if this should be an unacceptable
breach of the security measures implemented by supplier.
28.4 Parties hold consultations on the findings of the report as soon
as possible. Parties comply with the improvement measures
proposed and laid down in the report insofar as this can be
reasonably expected from them. Supplier implements the
proposed measures insofar as these are appropriate in
supplier’s opinion, taking into account the processing risks
associated with supplier’s product or service, the state of the
art, the implementation costs, the market in which supplier
operates and the intended use of the product or service.
28.5 Supplier is entitled to charge client for the costs it has incurred
in the context of the provisions laid down in this article.
Article 29 Subprocessors
29.1 Supplier has stated in the agreement if and, if so, which third
parties (subprocessors) supplier contracts for the processing of
personal data.
29.2 Client grants supplier permission to contract other
subprocessors in the performance of supplier’s obligations
under the agreement.
29.3 Supplier informs client about possible changes with respect to
the third parties it contracts. Client is entitled to object to said
change by supplier.
Section 3. Software-as-a-Service (SaaS)
The provisions in this section ‘Software-as-a-service
(SaaS)’ apply, apart from the General provisions of these
general terms, if supplier performs services under the
name or in the field of Software-as-a-Service (also referred
to as: SaaS). For the application of these general terms,
SaaS is understood to mean a service by which supplier
makes functionality available to and keeps functionality
available for client remotely, through the Internet or
another data network, without providing client with a
physical carrier with or download of the relevant
underlying software.Article 30 SaaS Implementation
30.1 Supplier provides the SaaS on client’s instructions. Client may
solely use the SaaS for its own organisation or company and
only insofar as required for the use intended by supplier. Client
may not allow third parties to make use of the SaaS.
30.2 Supplier may adjust the content or scope of the SaaS. If such
adjustments are substantive and result in a change in client’s
current procedures, supplier informs client about this as soon
as possible and the costs of this adjustment are at client’s
expense. In this case client may serve notice of termination of
the agreement (opzeggen), which termination takes effect on
the date on which the adjustment takes effect, unless the
adjustment is related to amendments in relevant legislation or
other instructions issued by public authorities, or the adjustment
is at supplier’s expense.
30.3 Supplier may continue to provide the SaaS using a new or
modified version of the underlying software. Supplier is not
obliged to maintain, modify or add particular features or
functionalities of the SaaS specifically for client.
30.4 Supplier may temporarily put all or part of the SaaS out of
service for preventive, corrective or adaptive maintenance
services or other forms of service. Supplier ensures that the
period of time during which the SaaS is out of operation does
not take longer than necessary and ensures, where possible,
that the service takes place at times when the SaaS is usually
used least intensively.
30.5 Supplier is never obliged to provide client with a physical carrier
or download of the underlying software.
30.6 If no further arrangements have been made in this regard, client
itself is responsible for designing, configuring, parameterising
and tuning the SaaS, converting and uploading possible data
and, where required, for modifying the hardware and user
environment used.
Article 31 Guarantees
31.1 Supplier does not guarantee that the SaaS is free of errors and
functions without any interruptions. Supplier makes every effort
to repair the errors in the underlying software referred to in
article 36.3 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. Supplier does not
guarantee that errors in the SaaS that has not been developed
by supplier itself are repaired. Supplier is entitled to install
temporary solutions, program bypasses or problem-avoiding
restrictions in the SaaS. If the SaaS, or part of it, has been
developed on client’s instructions, supplier may charge client
for the costs incurred by repairing the error(s) at supplier’s
applicable rates. Supplier is never obliged to repair other
imperfections than those referred to in this article. In the event
supplier is prepared to remedy other imperfections than those
referred to in this article, supplier is entitled to charge client a
separate fee for this.
31.2 On the basis of the information provided by supplier on
measures to prevent and restrict the effects of malfunctions,
errors and other imperfections in the SaaS, corruption or loss of
data or other incidents, client identifies and lists the risks to its
organisation or company and, where necessary, takes
additional measures. Supplier declares itself prepared to render
assistance, at client’s request, to the extent reasonable and
according to the financial and other conditions set by supplier,
with respect to further measures to be taken by client. Supplier9/18is never obliged to recover data that have been corrupted or
lost other than placing back – where possible – the most recent
back-up of the data in question.
31.3 Supplier does not guarantee that the SaaS is timely adapted to
any amendments in the relevant laws and regulations.
Article 32 Commencement of the service;payment
32.1 The SaaS provided by supplier – and, where relevant, support
– commences within a reasonable period of time after the
agreement has been entered into. Unless agreed on otherwise,
the SaaS commences by supplier client granting access to the
SaaS that is made available by supplier. Client ensures that it
has the facilities required to use the SaaS immediately after the
agreement has been entered into.
32.2 The fee payable by client for the SaaS is included in the
agreement. If no payment scheme has been agreed on, all
sums related to the SaaS delivered by supplier become due
and payable, in advance, per calendar month.
Article 33 Additional provisions
33.1 The following articles apply equally to the SaaS: 34.3, 34.5,
34.8, 36.1 (excluding the reference to art. 40), 36.11, 48.4,
49.1, 49.2, 62.2 and 62.4 and 63. In these articles the word
‘software’ should be read as ‘SaaS’ and the word ‘delivery’ as
‘commencement of the service’.
Section 4. Software
The provisions in this section ‘Software’ apply, apart from
the General provisions of these general terms, if supplier
makes software and apps available to client for use,
together with the relevant data or databases and/or user
documentation for this software– in these general terms
together to be referred to as ‘software’ – other than on the
basis of a SaaS.
Article 34 Right to use and restrictions on use
34.1 Supplier makes the software agreed on available for use by
client on the basis of a user licence and for the term of theagreement. The right to use the software is non-exclusive, non-
transferable, non-pledgeable and non-sublicensable.34.2 Supplier’s obligation to make the software available and client’s
right to use the software exclusively extend to the so-called
object code of the software. Client’s right to use the software
does not pertain to the software’s source code. The source
code of the software and the technical documentation drafted
when the software was developed are not made available to
client, not even if client is prepared to pay a financial
compensation.
34.3 Client always strictly complies with the agreed restrictions on
the use of the software, regardless of the nature or the content
of these restrictions.
34.4 If parties have agreed that the software may only be used in
combination with particular hardware and this hardware has a
malfunction, client is entitled to use the software on other
hardware with the same qualifications during the period of time
that the original hardware remains defective.
34.5 Supplier may require that client should only start using the
software after it has received one or more codes needed for the
use from supplier, from supplier’s supplier or from the producer
of the software.34.6 Client is only entitled to use the software in and for its own
organisation or company and only insofar as required for the
intended use. Client does not use the software for the benefit ofthird parties, for example in the context of Software-as-a-
Service (SaaS) or outsourcing.34.7 Client is never entitled to sell, lease or alienate, or grant limited
rights to, or make the software and the carriers on which the
software is or will be recorded available to third parties, in any
way whatsoever, for whatever purpose or under whatever title.
Neither is client entitled to grant, whether or not remotely
(online), a third party access to the software or place the
software with a third party for hosting, not even if the third party
concerned exclusively uses the software in client’s interest.
34.8 If so requested, client promptly renders assistance in any
investigation into compliance with the agreed restrictions on
use to be carried out by or on behalf of supplier. At supplier’s
first request, client grants supplier access to its buildings and
systems. Insofar as such information does not concern the use
of the software itself, supplier observes secrecy with respect to
all confidential business information that it obtains from client or
at client’s business location in the context of an investigation.
34.9 Parties agree that the agreement entered into by parties is
never seen as a purchase agreement where it is related to
making software available for use.
34.10 Supplier is not obliged to maintain the software and/or provide
support to users and/or administrators of the software. If,
contrary to the foregoing, supplier is asked to perform
maintenance activities and/or provide support for the software,
supplier may require that client should enter into a separate,
written agreement for this purpose.
Article 35 Delivery and installation
35.1 At its discretion, supplier either delivers the software on the
agreed type of data carrier or, if no arrangements have been
made in this regard, on a type of data carrier determined by
supplier, or makes the software online available to client. At
supplier’s discretion, any agreed user documentation is made
available in hardcopy or digital form, in a language determined
by supplier.
35.2 Supplier only installs the software at client’s business premises
if this has been agreed on. If no arrangements have been made
in this respect, client itself is responsible for installing,
designing, parameterising, tuning and, if necessary, for
modifying the hardware and operating environment used.
Article 36 Acceptance
36.1 If parties have not agreed on an acceptance test, client accepts
the software in the state that it is in when delivered (‘as is,
where is’), therefore, with all visible and invisible errors and
defects, without prejudice to supplier’s obligations under the
guarantee scheme as set out in article 40. If this should be the
case, the software is deemed to have been accepted by client
upon delivery or, if installation by supplier has been agreed on
in writing, upon completion of the installation.
36.2 If an acceptance test has been agreed on by parties, the
provisions of articles 36.3 up to and including 36.10 apply.
36.3 Where these general terms refer to ‘error’ this is understood to
mean a substantial failure of the software to meet the functional
or technical specifications of the software explicitly made known
by supplier in writing and, if all or part of the software is
customised software, a substantial failure to meet the functional
or technical specifications explicitly agreed on in writing. An
error only exists if it can be demonstrated by client and if it is
reproducible. Client is obliged to report errors without delay.10/18Supplier does not have any other obligation whatsoever with
respect to other imperfections in or on the software than those
in relation to errors in the sense of these general terms.
36.4 If an acceptance test has been agreed on, the test period is
fourteen days following delivery or, if installation by supplier has
been agreed on in writing, fourteen days following the
completion of installation. During the test period, client may not
use the software for production or operational purposes. Client
performs the agreed acceptance test with qualified personnel,
to an adequate extent and in sufficient detail.
36.5 If an acceptance test has been agreed on, client is obliged to
check whether the software delivered meets the functional or
technical specifications explicitly made known by supplier in
writing and, if and to the extent that all or part of the software is
customised software, that it meets the functional or technical
specifications explicitly agreed on in writing.
36.6 If testing on client’s instruction involves personal data being
made use of, client ensures that using these data for this
purpose is permitted.
36.7 The software is understood to have been accepted:
a if parties have agreed on an acceptance test: on the first
day following the test period, or
b if supplier receives a test report as referred to in article 36.8
prior to the end of the test period: at the time the errors
listed in this test report have been repaired, notwithstanding
the presence of errors that, according to article 36.9, do not
prevent acceptance, or
c if client uses the software in any way for production or
operational purposes: at the time it is put into use for
production or operational purposes.
36.8 If it should become clear when the agreed acceptance test is
carried out that the software contains errors, client reports the
test results to supplier in writing in a well-ordered, detailed and
understandable manner no later than on the last day of the test
period. Supplier makes every effort to repair the errors referred
to within a reasonable period of time. In this context, supplier is
entitled to install temporary solutions, program bypasses or
problem-avoiding restrictions.
36.9 Client is neither entitled to refuse to accept the software for
reasons that are not related to the specifications explicitly
agreed on in writing by parties nor entitled to refuse to accept
the software because it has minor errors, i.e. errors that do not
prevent – within reason – the productive or operational use of
the software, all of this without prejudice to supplier’s obligation
to repair these minor errors as referred to in article 40.
Acceptance may not be refused either because of aspects of
the software that can only be assessed subjectively, such as
aesthetic aspects of the user interfaces.
36.10 If the software is delivered and tested in phases and/or parts,
non-acceptance of a certain phase and/or part is without
prejudice to the acceptance of a previous phase and/or a
different part.
36.11 Acceptance of the software in one of the ways referred to in this
article results in supplier being discharged of its obligations in
the context of making the software available and delivering it
and, if installation of the software by supplier has also been
agreed on, of its obligations in the context of installing it.
36.12 Acceptance of the software is without prejudice to client’s rights
under article 36.9 regarding minor errors and article 40
providing for guarantees.
Article 37 Making the software available
37.1 Supplier makes the software available to client within a
reasonable period of time after parties have entered into the
agreement.37.2 Immediately after the agreement ends, client returns all copies
of the software in its possession to supplier. If it has been
agreed that client is obliged to destroy the relevant copies when
the agreement ends, client informs supplier, promptly and in
writing, that the copies have been destroyed. When the
agreement ends or after it has ended, supplier is not obliged to
render assistance in any data conversion that client may
possibly want to carry out.
Article 38 Payment for the right to use the software
38.1 The sum due for the right to use is payable by client at the
agreed times or, if a time has not been agreed on:
a if parties have not agreed that supplier is responsible for
the installation of the software:
● upon delivery of the software; or
● in the event periodic payments are due for the right to
use, upon delivery of the software and subsequently
when each new term of the right to use commences;
b. if parties have agreed that supplier is responsible for the
installation of the software:
● upon completion of that installation;
● in the event periodic payments are due for the right to
use the software, upon completion of that installation
and subsequently when each new term of the right to
use commences.
Article 39 Modifications in the software
39.1 Except where mandatory statutory provisions should provide
otherwise, client is not entitled to modify all or part of the
software without supplier’s prior written permission. Supplier is
entitled to refuse permission or to attach conditions to its
permission. Client bears the entire risk of all modifications that it
implements – whether or not with supplier’s permission – or that
client has implemented by third parties on its instructions.
Article 40 Guarantees
40.1 Supplier makes reasonable efforts to repair errors in the sense
of article 36.3 within a reasonable period of time if these errors
are reported, in detail and in writing, to supplier within a period
of three months after delivery or, if an acceptance test was
agreed, within three months after acceptance. Supplier does
not guarantee that the software is suitable for the actual and/or
the intended use. Supplier does not guarantee either that the
software functions without interruptions and/or that all errors are
always repaired. Repairs are carried out free of charge unless
the software was developed on client’s instructions other than
for a fixed price, in which case supplier charges the costs of the
repairs to client at its applicable rates.
40.2 Supplier may charge the costs of the repairs to client at its
applicable rates if such repairs are required as a result of usage
errors or client not using the software properly, or as a result of
causes that cannot be attributed to supplier. The obligation to
repair errors ends if client modifies the software or has such
modifications implemented without supplier’s written
permission.
40.3 Errors are repaired at a location and in a manner to be
determined by supplier. Supplier is entitled to install temporary
solutions, program bypasses or problem-avoiding restrictions in
the software.
40.4 Supplier is never obliged to recover corrupted or lost data.11/1840.5 Supplier does not have any obligation whatsoever, of whatever
nature or content, with respect to errors reported after the end
of the guarantee period referred to in article 40.1.
Section 5. Development of software and websites
The provisions in this section ‘Development of software
and websites’ apply, apart from the General provisions of
these general terms, if supplier develops and/or designs
software as described in Section 4 and/or websites for
client and possibly installs the software and/or websites.
Article 41 Specifications and development of
software and/of websites
41.1 Development always takes place under an agreement for
services. If no specifications or design of the software and/or
website to be developed have been provided before the
agreement is entered into or no specifications or design are
provided when the agreement is entered into, parties specify,
by consultation and in writing, the software and/or website to be
developed and the manner in which the software and/or
website will be developed.
41.2 Supplier develops the software and/or website with due care
and in accordance with the explicitly agreed specifications or
design and, where applicable, with due regard for the project
organisation, methods, techniques and/or procedures agreed
on in writing with client. Before starting the development
activities, supplier may require that client should agree to the
specifications or design in writing.
41.3 If no specific arrangements have been made in the matter,
supplier starts the design and/or development activities within a
reasonable period or time, to be determined by supplier, after
the agreement has been entered into.
41.4 At supplier’s request, client provides supplier with the
opportunity to perform activities at client’s premises outside the
usual working days and working hours.
41.5 Supplier’s obligations to perform with respect to the
development of a website do not include making a content
management system available.
41.6 If parties agree that, apart from development activities, supplier
also provides training courses, maintenance and/or support
and/or that supplier also applies for a domain name, supplier
may request that client should enter into a separate, written
agreement. Supplier charges client separately for these
services, at supplier’s applicable rates.
41.7 If supplier provides services to client in the context of a domain
name, such as the application for, renewal, alienation or
transfer to a third party of that name, client is obliged to observe
the rules and methods of the relevant authority or authorities. At
client’s request, supplier provides client with a written copy of
these rules. Supplier is explicitly neither responsible for the
correctness or the promptness of the services nor responsible
for achieving the results client intends to achieve. Client is
charged for all costs involved in the application and/or
registration at the agreed rates and, if no rates have been
agreed on, at supplier’s applicable rates. Supplier does not
guarantee that a domain name client should want to use will
actually be assigned to client.Article 42 Agile development of
software/websites42.1 If parties use an iterative development method – scrum, for
example – parties accept: (i) that, at the start, the activities are
not performed on the basis of complete or fully detailed
specifications; and (ii) that specifications which may or may not
have been agreed on at the start of the activities, may be
adapted during the term of the agreement, in mutual
consultation and with due observance of the project approach
that forms part of the development method concerned.
42.2 Before starting the activities to be performed in the context of
the agreement, parties put together one or more teams that
consist of representatives of both supplier and client. The team
ensures that the communication lines remain short and direct
and that consultations take place regularly. Parties provide for
the deployment, by both of them, of the capacity agreed on
(FTEs) in terms of team members in the roles and with the
knowledge and experience and the decision-making powers
required to perform the agreement. Parties accept that in order
to make the project successful, the capacity agreed on is a
minimum requirement. Parties endeavour to keep key staff
available that have been deployed in first instance, as much as
reasonably possible, until the end of the project, unless
circumstances should arise that are beyond parties’ control.
During the performance of the agreement, parties jointly decide,
by consultation, on the specifications that apply for the following
phase of the project – for example a time box – and/or for the
development of a following part. Client accepts the risk that the
software and/or the website may not necessarily meet all
specifications. Client ensures permanent and active input by
and contributions from relevant end users who are supported
by client’s organisation or company in the context of, among
other things, testing and (further) decision making. Client
guarantees expeditiousness in progress-related decisions that
have to be made during the performance of the agreement. If
client fails to make clear and prompt progress-related decisions
in conformity with the project approach that forms part of the
relevant development method, supplier is entitled, though not
obliged, to make the decisions that supplier considers to be
appropriate.
42.3 If parties have arranged for one or more test moments, a test
exclusively takes place on the basis of objective, measurable
criteria agreed on previously, such as confirming to
development standards. Errors and other imperfections are only
repaired if the responsible team decides so and this will be
carried out in a subsequent iteration. If an extra iteration should
be required, the costs are at client’s expense. After the last
development phase, supplier is not obliged to repair any errors
or other imperfections, unless explicitly agreed on otherwise in
writing.
Article 43 Delivery, installation andacceptance
43.1 The provisions of article 35 with respect to delivery and
installation apply mutatis mutandis.
43.2 Unless supplier is obliged, under the agreement, to host the
software and/or website for client on its own computer system,
supplier either delivers the software and/or website to client on
a data carrier and in a form determined by supplier, or makes
the software and/or website online available to client.
43.3 The provisions of article 36 of these general terms with respect
to acceptance apply mutatis mutandis.
43.4 If parties make use of a development method as referred to in
article 42, the provisions of article 36.1, 36.2, article 36.4 up to12/18and including 36.9, article 36.12 and article 40.1 and 40.5 do
not apply. Client accepts the software and/or website in the
state it is in at the moment the last development phase ends
(‘as is, where is’).
Article 44 Right to use
44.1 Supplier makes the software and/or website developed on
client’s instructions, together with the relevant user
documentation, available to client for use.
44.2 The source code of the software and the technical
documentation prepared when the software is developed is only
made available to client if this has been agreed in on writing, in
which case client is entitled to modify the software.
44.3 Supplier is not obliged to make the auxiliary software and
program or data libraries required for the use and/or
maintenance of the software and/or website available to client.
44.4 The provisions of article 34 with respect to the right to use and
restrictions on the use apply mutatis mutandis.
44.5 Only if the content of the written agreement explicitly indicates
that all design and development costs are fully and exclusively
at client’s expense, restrictions on the use of the software
and/or website do not apply for client, contrary to the provisions
of article 44.4.
Article 45 Payment
45.1 If no payment scheme has been agreed on, all sums related to
the development of software and/or website become due and
payable, in arrears, per calendar month.
45.2 The price for the development activities includes payment for
the right to use the software and/or website for the term of the
agreement.
45.3 The payment for the development of the software and/or
website does not include payment for auxiliary software and
program and data libraries, and any installation services and
any modifications and/or maintenance of the software and/or
website required by client. The payment does not include
support services for the users of the software and/or website
either.
Article 46 Guarantees
46.1 The provisions of article 40 with respect to guarantees apply
mutatis mutandis.
46.2 Supplier does not guarantee that the software and/or website it
has developed function properly on all sorts of new versions of
web browser types and possibly other software and/or
websites. Supplier does not guarantee either that the software
and/or website function properly on all types of hardware.
Section 6. Maintenance and support of
software
The provisions in this section ‘Maintenance and support of
software’ apply, apart from the General provisions of these
general terms, if supplier provides services in the field of
software maintenance and software support for the use of
the software.
Article 47 Maintenance services
47.1 If agreed, supplier performs maintenance services for the
software specified in the agreement. The obligation to providemaintenance includes repairing errors in the software in the
sense of article 36.3 and, only if this has been agreed in writing,
making new versions of the software available in accordance
with article 48.
47.2 Client is to report, in detail, any errors discovered in the
software. Following receipt of the report, supplier makes every
effort to repair errors and/or implement corrections in later, new
versions of the software in compliance with its applicable
procedures. Depending on the urgency and supplier’s version
and release policy, the results are made available to client in a
manner and within the period of time determined by supplier.
Supplier is entitled to install temporary solutions, program
bypasses or problem-avoiding restrictions in the software.
Client itself is responsible for installing, organising,
parameterising and tuning the corrected software or the new
version of the software made available, and, if necessary, for
modifying the hardware and operating environment used.
Supplier is never obliged to repair other imperfections than
those referred to in this article. In the event supplier is prepared
to correct other imperfections than those referred to in this
article, supplier is entitled to charge a separate fee for this.
47.3 The provisions of article 40.3 and 40.4 apply mutatis mutandis.
47.4 If supplier performs maintenance services online, client
ensures, in due time, that a properly and appropriately secured
infrastructure and network facilities are in place.
47.5 Client renders every assistance required by supplier for the
maintenance services, which includes that client should
temporarily stop using the software and should make a backup
of all data.
47.6 If maintenance concerns software that was not delivered to
client by supplier and if supplier believes this is necessary or
appropriate in the context of maintenance, client makes the
source code and the technical (development) documentation of
the software, including data models, designs, change logs and
the like, available to supplier. Client guarantees that it is entitled
to make the source code and documentation available. Client
grants supplier the right to use and modify the software,
including the source code and technical (development)
documentation, so that supplier can perform the maintenance
services agreed on.
Article 48 New versions of the software
48.1 Maintenance includes making new versions of the software
available only if and insofar as this has been agreed in writing.
If maintenance includes making new versions of the software
available, these new versions are made available at supplier’s
discretion.
48.2 Three months after an enhanced version has been made
available, supplier is no longer obliged to repair errors in the
previous version and to provide support and/or perform
maintenance services for a previous version.
48.3 Supplier may require that client should enter into an additional
written agreement with supplier for a version with new
functionality and that a further payment should be made for this
version. Supplier may incorporate functionality from a previous
version of the software in the new version without any
modifications, but supplier does not guarantee that each new
version includes the same functionality as the previous version.
Supplier is not obliged to maintain, modify or add particular
features or functionalities in the software especially for client.
48.4 Supplier may require that client should modify its system
(hardware, web browser, software and the like) if this should be
necessary for the proper functioning of a new version of the
software.13/18Article 49 Support services
49.1 If the services provided by supplier under the agreement
include support services to users and/or administrators of the
software, supplier advises – online, by telephone or by email –
on the use and functioning of the software specified in the
agreement. Client is obliged to specify the requests for support
as comprehensively and in as much detail as possible so that
supplier can respond appropriately. Supplier may set conditions
with respect to the way in which support is requested and the
qualifications and the number of persons eligible for support.
Supplier handles properly substantiated requests for support
within a reasonable period of time and in compliance with its
applicable procedures. Supplier does not guarantee the
correctness, completeness or timeliness of responses or of the
support offered. Support services are performed on working
days during supplier’s usual business hours.
49.2 If the services provided by supplier under the agreement
include standby services, supplier ensures that one or more
staff members are available on the days and at the times
specified in the agreement. If standby services have been
agreed on, client is entitled, in urgent cases, to call in the
support of staff members on standby if there are serious errors,
serious malfunctions and other serious imperfections in the
functioning of the software. Supplier does not guarantee that
these are promptly repaired.
49.3 The maintenance and other agreed services referred to in this
chapter are performed starting from the date on which the
agreement is entered into, unless parties have agreed
otherwise in writing.
Article 50 Payment
50.1 If no payment scheme has been explicitly agreed on, all sums
related to the maintenance of the software and other services
as meant in this section and set out in the agreement become
due and payable, in advance, per calendar month.
50.2 Sums relating to the maintenance of the software and the other
services as meant in this section and set out in the agreement
are payable when the agreement is entered into. Payment for
maintenance and other services is always due, regardless
whether client has taken the software into use and regardless
whether client actually makes use of the maintenance or
support services.
Section 7. Advisory and consultancy services
The provisions in this section ‘Advisory and consultancy
services’ apply, apart from the General provisions of these
general terms, if supplier provides services in the field of
advice and consultancy, which services are not provided
under client’s direction and supervision.
Article 51 Performance of advisory and consultancy services
51.1 Supplier performs the advisory and consultancy services in a
fully independent manner, at its own discretion and without
client’s supervision and directions.
51.2 Supplier does not commit to a completion time of the
assignment because the completion time of an assignment in
the field of advisory or consultancy services depends on
various factors and circumstances, such as the quality of thedata and the information provided by client and the assistance
rendered by client and relevant third parties.
51.3 Supplier only performs its services on supplier’s usual working
days and during supplier’s usual business hours.
51.4 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.
51.5 Without supplier’s prior written permission, client may not
inform any third party about supplier’s way of working, methods
and techniques and/or the content of supplier’s
recommendations or reports. Client may not provide supplier’s
recommendations or reports to a third party or otherwise make
supplier’s recommendations or reports public.
Article 52 Reporting
52.1 Supplier periodically informs client, in the manner agreed on in
writing, about the performance of the services. Client informs
supplier, in advance and in writing, about circumstances of
importance or circumstances that could be of importance to
supplier, such as the manner of reporting, the issues to be
addressed, client’s prioritisation, the availability of client’s
resources and staff, and special facts or circumstances or facts
or circumstances of which supplier is possibly unaware. Client
ensures that the information provided by supplier is spread and
actually taken notice of within client’s organisation or company
and client assesses this information, also on this basis, and
informs supplier of this.
Article 53 Payment
53.1 If no payment scheme has been explicitly agreed on, all sums
related to the services provided by supplier as meant in this
section become due and payable, in arrears, per calendar
month.
Section 8. Secondment services
The provisions in this section ‘Secondment services’
apply, apart from the General provisions of these general
terms, if supplier makes one or more of its employees
available to client to perform activities under client’s
supervision and instructions.
Article 54 Secondment services
54.1 Supplier makes the employee specified in the agreement
available to perform activities under client’s direction and
supervision. The results of these activities are at client’s risk.
Unless otherwise agreed in writing, the employee is made
available to client for forty hours a week, during supplier’s usual
working days.
54.2 Client may only deploy the employee made available to perform
activities other than the activities agreed on if supplier has
agreed to this in advance and in writing.
54.3 Client may only second the employee made available to a third
party for the purpose of performing activities under that third
party’s direction and supervision if this has been explicitly
agreed in writing.14/1854.4 Supplier makes reasonable efforts to ensure that the employee
made available remains available, during the agreed days, to
perform activities for the term of the agreement, except in the
event of the employee’s incapacity for work or if the employee
leaves supplier's employment. Even if the agreement has been
entered into with a view to the activities being performed by one
particular person, supplier is always entitled, after consultations
with client, to replace this person by one or more persons who
have the same qualifications.
54.5 Client is entitled to request that the employee made available
should be replaced (i) if the employee made available
demonstrably fails to meet the quality requirements explicitly
agreed on and client informs supplier about this, stating
reasons, within three working days after the activities have
started, or (ii) in the event of the relevant employee’s prolonged
incapacity for work or if the employee leaves supplier's
employment. Supplier complies with such a request without
delay and as a matter of priority. Supplier does not guarantee
that the employee made available can always be replaced. If
the employee cannot be replaced or cannot be replaced
promptly, both client’s rights with respect to further performanceof the agreement and all client’s claims arising from non-
performance of the agreement lapse. Client’s paymentobligations with respect to the activities already performed
continue to apply in full.
Article 55 Duration secondment agreement
55.1 Notwithstanding the provisions of article 4 of these general
terms, if nothing has been agreed by parties considering the
duration of the secondment, the secondment agreement is
seen as an agreement for an indefinite period of time, in which
case either party must observe a notice period of one calendar
month following any initial term of the agreement. Termination
by serving notice of termination (opzegging) must be served in
writing.
Article 56 Working hours and workingconditions
56.1 The working hours, holiday periods, rest periods and other
relevant working conditions of the employee made available are
the same as those usually applied by client. Client guarantees
that the working hours, holiday periods, rest periods and other
relevant working conditions are in compliance with relevant
laws and regulations.
56.2 Client informs supplier about any intended temporary or
permanent closure of its organisation or company.
Article 57 Overtime pay and travel time
57.1 If, on client’s instructions or at client’s request, the employee
made available works more hours per day than the agreed or
usual number of working hours or works on days other than
supplier’s usual working days, client is charged for these hours
at the overtime rate agreed on, or, if no such rate has been
agreed on, at supplier’s applicable overtime rate. If so
requested, supplier informs client about its applicable overtime
rates.
57.2 Client is charged for travelling expenses and travel time in
accordance with supplier’s applicable rules and standards. If so
requested, supplier informs client about supplier’s applicable
rules and standards.Article 58 Hirer’s liability and other liability
58.1 Supplier ensures that amounts payable in terms of payroll tax,
national insurance contributions, employee insurance
contributions, income-related healthcare contributions and
turnover tax for the employee made available under the
agreement with client are paid on time and in full. Supplier
indemnifies client against any and all claims of the Tax
Administration or authorities responsible for implementing
social insurance legislation that are due and payable under the
agreement with client, provided that client promptly informs
supplier, in writing, about such claims when they arise and
about the content of a claim and leaves the settlement of that
claim, including any arrangements to be made in this regard,
entirely up to supplier. Client provides supplier with the powers
of attorney and the information required and assists supplier in
defending itself, if necessary in client’s name, against such
claims.
58.2 Supplier does not accept any liability for the quality of the
results of the activities performed under client's supervision and
instructions.
Section 9. Training courses
The provisions in this section ‘Training courses’ apply,
apart from the General provisions of these general terms, if
supplier provides services, under whatever name and in
whatever way – for example in electronic form – in the field
of education, courses, workshops, trainings, seminars and
the like (hereinafter to be referred to as: training courses).
Article 59 Registration and cancellation
59.1 Registration for a training course must take place in writing and
is binding following its confirmation by supplier.
59.2 Client is responsible for the choice and suitability of the training
course for the participants. A participant’s lack of the required
prior knowledge does not affect client’s obligations under the
agreement. Client may replace a training course participant by
another participant following supplier’s written permission.
59.3 If, in supplier’s opinion, the number of registrations should give
rise to this, supplier is entitled to cancel the training course, to
combine it with one or more training courses or schedule it on a
later date or at a later time. Supplier reserves the right to
change the location of the training course. Supplier is entitled to
change the training course in organisational terms and in terms
of content.
59.4 If client or a participant cancels participation in a training
course, the consequences of the cancellation are governed by
supplier’s applicable rules. In any case, cancellation must take
place in writing and prior to the training course or the part of the
training course concerned. Cancellation or non-attendance
does not affect client’s payment obligations under the
agreement.
Article 60 Training courses
60.1 Client accepts that supplier determines the content and the
scope of the training course.
60.2 Client informs the participants about the obligations under the
agreement and the rules of conduct and other rules prescribed
by supplier for participation in the training course, and client
ensures compliance by participants with these obligations and
rules.15/1860.3 If supplier uses its own hardware or software in the training
course, supplier does not guarantee that this hardware or
software is free of errors and operates without interruption. If
the training course is at client’s premises, client ensures that an
appropriate classroom and properly operating hardware and
software are available. In the event the facilities at client’s
premises appear not meet the requirements and the quality of
the training course, therefore, cannot be guaranteed, supplier is
entitled not to start or to shorten the training course or to stop it
altogether.
60.4 The agreement does not include administering an exam or a
test.
60.5 Client is separately charged for the documentation, training
materials or training resources made available or produced for
the training course. This also applies for possible training
course certificates or duplicates of training course certificates.
60.6 If the training course takes place as an e-learning training
course, the provisions of the section ‘Software-as-a-Service
(SaaS)’ apply mutatis mutandis as much as possible.
Article 61 Price and payment
61.1 Supplier may require that client should pay the sums due prior
to the start of the training course. Suppler may exclude
participants from participating in the training course if client fails
to ensure the payment is made in time, without prejudice to any
other rights supplier may have.
61.2 If supplier has carried out a preliminary study to make a training
course plan or has given training course recommendations,
client may be separately charged for any costs involved.
61.3 Unless supplier has explicitly indicated that the training course
is VAT exempt within the meaning of article 11 of the Turnover
Tax Act 1968, VAT is payable on client’s payment. Supplier is
entitled to adjust its prices after the agreement has been
entered into in the event of any changes in the VAT regime for
training courses as this applies under or pursuant to the law.
Section 10. Hosting
The provisions in this section ‘Hosting’ apply, apart from
the General provisions of these general terms, if supplier
provides services, under whatever name, in the field of
hosting and hosting-related services.
Article 62 Hosting services
62.1 Supplier performs the hosting services agreed on with client.
62.2 If the agreement’s object is to make hard disk space available,
client may not exceed the agreed disk space unless the
agreement explicitly arranges for the consequences of doing
so. The agreement pertains to making disk space available on
a server specifically reserved for client only insofar as this has
been explicitly agreed in writing. All use of disk space, data
traffic and other use made of systems and infrastructure is
restricted to the maximums agreed on by parties. Data traffic
that is not used by client in a given period may not be
transferred to a subsequent period. If the agreed maximums
are exceeded, supplier charges client for an additional
compensation at its applicable rates.
62.3 Client is responsible for the management, including checks of
the settings, and use of the hosting service, and the way in
which the results of the service are implemented. If no specific
arrangements have been made in this regard, client itself is
responsible for installing, organising, parameterising and tuningthe software and auxiliary software, and, where required,
modifying the hardware and user environment used and for
effecting the interoperability wanted. Supplier is not obliged to
perform data conversion.
62.4 Only if this has been explicitly agreed in writing, the
agreement’s object also is to ensure security, back-up,
contingency and recovery services or to make these available.
62.5 Supplier may temporarily put all or part of the hosting service
out of operation for preventive, corrective or adaptive
maintenance. Supplier ensures that the period of time during
which the service is out of operation does not take longer than
necessary and also ensures, where possible, that this takes
place outside office hours, and, according to circumstances,
have this commence after client has been consulted.
62.6 If, under the agreement, supplier provides services to client in
the context of a domain name, such as the application for,
renewal, alienation or transfer to a third party of that name,
client is obliged to observe the rules and methods of the
relevant organisation or organisations. At client’s request,
supplier provides client with a written copy of these rules.
Supplier is explicitly neither responsible for the correctness or
the promptness of the services nor responsible for achieving
the results client intends to achieve. Client is charged for all
costs involved in the application and/or registration at the
agreed rates and, if no rates have been agreed on, at supplier’s
applicable rates. Supplier does not guarantee that a domain
name client should want to use will actually be assigned to
client.
Article 63 Notice and Take Down
63.1 At all times, client acts with due care and does not act
unlawfully vis-à-vis third parties, more in particular by
respecting the intellectual property rights and other rights of
third parties and the privacy of third parties, by refraining from
spreading information in a manner that is in violation of the law,
from granting unauthorised access to systems and from
spreading viruses or other harmful programs or data, and by
refraining from committing criminal offences and violating any
other legal obligations.
63.2 To prevent liability to third parties or limit the consequences,
supplier is always entitled to take measures with respect to an
act or omission of or at client’s risk. At supplier’s first request in
writing, client promptly removes data and/or information from
supplier’s systems. If client fails to do so, supplier is entitled, at
its own option, to delete the data and/or information itself or to
make access to the data and/or information impossible. In
addition, in the event of a breach or an imminent breach of the
provisions of article 63.1, supplier is entitled to deny client
access to supplier’s systems with immediate effect and without
prior notice. All of this is without prejudice to supplier taking any
other measures or exercising any other statutory and
contractual rights with respect to client. Supplier is also entitled
in this case to terminate the agreement by serving notice of
termination (opzeggen) with immediate effect without being
liable to client for doing so.
63.3 Supplier cannot be expected to form an opinion on the validity
of the claims of third parties or of client’s defence, or to become
involved, in any way whatsoever, in any dispute between a third
party and client. Client is to deal with the relevant third party in
this matter and is to inform supplier in writing, properly
substantiated and supported by documents.16/18
Section 11. Hardware purchases
The provisions in this section ‘Hardware purchases’ apply,
apart from the General provisions of these general terms, if
supplier sells hardware, of whatever nature, and/or other
goods (corporeal objects) to client.
Article 64 Purchase and sale
64.1 Supplier sells the hardware and/or other goods according to the
nature and number agreed on in writing.
64.2 Supplier does not guarantee that the hardware and/or goods
are suitable, on delivery, for client’s actual and/or intended use
unless the intended purposes have been clearly specified,
without caveats, in the written agreement.
64.3 Supplier’s obligation to sell does not include assembly and
installation of materials, software, consumer items and articles,
batteries, stamps, ink and ink cartridges, toner articles, cables
and accessories.
64.4 Supplier does not guarantee that the assembly, installation and
operating instructions that come with the hardware and/or
goods are free of errors and that the hardware and/or goods
have the features stated in these instructions.
Article 65 Delivery
65.1 The hardware and/or goods sold by supplier to client are
delivered to client ex warehouse. If this has been agreed on in
writing, supplier delivers the goods sold to client at a location to
be designated by client, or has these goods delivered at this
location. In this case, supplier informs client, if possible in good
time before the delivery, about the time when supplier or the
transporter contracted by supplier intends to deliver the
hardware and/or goods.
65.2 The purchase price of the hardware and/or goods does not
include the costs of transportation, insurance, hauling and
hoisting, the hiring of temporary facilities and the like. If
applicable, client is charged for these costs.
65.3 If client requests supplier to remove or destroy old materials –
such as networks, cabinets, cable ducts, packaging materials,
hardware or data on hardware – or if supplier is legally obliged
to do so, supplier may accept this request on the basis of a
written order and at its applicable rates. If and insofar as
supplier is prohibited by law from requiring payment, for
example in the context of the old-for-new scheme, supplier
does not charge, where applicable, any costs.
65.4 Provided parties have entered into a written agreement to
arrange for this, supplier is responsible for installing, configuring
and connecting the hardware and/or goods or for having the
hardware and/or goods installed, configured and connected.
Any obligation of supplier to install and/or configure hardware
neither includes data conversion nor software installation.
Supplier is not responsible for obtaining any of the licences
possibly required.
65.5 Supplier is always entitled to perform the agreement in partial
deliveries.
Article 66 Test setup
66.1 Supplier is only obliged to set up a test environment for the
hardware client is interested in if this has been agreed in
writing. Supplier may attach financial and other conditions to a
test setup. A test setup involves making the standard version of
the hardware temporarily available on approval, excluding
accessories, in a space made available by client, prior toclient’s final decision on whether or not to purchase the
hardware in question. Client is liable for the use of, damage to
and theft or loss of the hardware that forms part of a test setup.
Article 67 Requirements hardware environment
67.1 Client ensures an environment that meets the requirements
specified by supplier for the hardware and/or goods, among
other things in terms of temperature, humidity and technical
requirements.
67.2 Client ensures that activities to be performed by third parties,
such as constructional work, are performed adequately and on
time.
Article 68 Guarantees
68.1 Supplier makes every effort to repair defects in the material and
manufacturing defects in the hardware and/or goods sold, as
well as defects in parts delivered by supplier within the scope of
the guarantee, within a reasonable period of time and free of
charge if these defects are reported, in detail, to supplier within
a period of three months following delivery. If, in supplier’s
reasonable opinion, the defects cannot be repaired or repair
would take too long, or if repair would entail disproportionately
high costs, supplier is entitled to replace the hardware and/or
goods free of charge with other, similar, though not necessarily
identical, hardware and/or goods. The guarantee does not
include any data conversion that should be required because of
any repair or replacement. All replaced parts are supplier’s
property. The guarantee obligation no longer applies if defects
in the hardware, goods or parts are entirely or partly caused by
incorrect, careless or incompetent use or by external
circumstances such as fire or water damage, or if client
modifies the hardware or parts delivered by supplier under the
guarantee, or has these modified, without supplier’s permission.
Supplier does not withhold such permission on unreasonable
grounds.68.2 Client cannot file any claims or further claims concerning non-
conformity of hardware and/or goods delivered other than thoselaid down in article 68.1.
68.3 Client is charged for any costs incurred by activities and repairs
performed outside the scope of this guarantee at supplier’s
applicable rates.
68.4 Supplier does not have any obligation whatsoever under the
purchase agreement with respect to defects and/or other faults
reported after the guarantee period referred to in article 68.1
ends.
Section 12. Leasing hardware
The provisions in this section ‘Leasing hardware’ apply,
apart from the General provisions of these general terms, if
supplier leases hardware of whatever nature to client.
Article 69 Leasing
69.2 Supplier leases to client the hardware and relevant user
documentation specified in the lease agreement.
69.3 The lease neither includes making software available on
separate data carriers nor does it include making the consumer
items and articles available that are required to use the
hardware, such as batteries, ink and ink cartridges, toner
articles, cables and accessories.17/1869.4 The lease commences on the date the hardware is made available to client.
Article 70 Prior inspection
70.1 By way of prior inspection, supplier may draft a report, in
client’s presence and prior to making the hardware available or
when it is made available, describing the state of the hardware,
including any defects observed. Supplier may require that client
should sign this report, prior to making the hardware available
to client for use, to indicate client’s agreement with the text of
the report. The defects in the hardware listed in this report are
at supplier’s account. If any defects are observed, parties
arrange whether, and if so, how and when, the defects listed in
the report must be repaired.
70.2 If client does not properly cooperate in the prior inspection
referred to in Article 70.1, supplier is entitled to carry out this
prior inspection without client being present and to draft the
report itself. This report is binding on client.
70.3 If no prior inspection is carried out, client is deemed to have
received the hardware in a proper and undamaged state.
Article 71 Use of the hardware
71.1 Client exclusively uses the hardware in and for its own
organisation or company, in compliance with the hardware’s
intended use under the agreement and at the premises
specified in the agreement. Use of the hardware by or for the
benefit of third parties is not permitted. The right to use the
hardware is non-transferable. Client is not permitted to lease
the hardware to a third party or otherwise enable a third party to
use the hardware or to make use of it together with client.
71.2 Client itself is responsible for installing and assembling the
hardware and making it ready for use.
71.3 Client is not permitted to use the hardware or any part of it as a
security or collateral, in any way whatsoever, or to dispose of
the hardware or any part of it in another way.
71.4 Client uses and maintains the hardware with due care. Client
takes adequate measures to prevent any damage to the
hardware. Should there be any damage, client promptly informs
supplier about this. For the term of the lease, client is always
liable to supplier for damage to the hardware and theft, loss or
misappropriation of the hardware.
71.5 Client is neither permitted to modify the hardware, either
entirely or partly, nor permitted to add anything to it. If any
modifications or additions have nevertheless been made, client
is obliged to undo or remove these modifications or additions
no later than at the end of the lease agreement.
71.6 Parties agree that defects in the modifications or additions
made to the hardware by or under client’s instructions and all
defects in the hardware caused by those modifications or
defects are not considered defects within the sense of article
7:204 of the Netherlands Civil Code. Client can never file a
claim against supplier with respect to such defects. Supplier is
not obliged to carry out repairs or perform maintenance
services with respect to such defects.
71.7 Client is not entitled to any compensation for modifications or
additions made by client to the leased hardware if these
modifications or additions are not undone or removed, for any
reason whatsoever, when or after the lease agreement ends.
71.8 Client promptly informs supplier in writing when the hardware is
provisionally attached, stating the identity of the attaching party
and the reason for the attachment. Client promptly allows the
bailiff levying the attachment to inspect the lease agreement.
Article 72 Maintenance of the leased hardware
72.1 Client is not allowed to maintain the leased hardware itself or
have the hardware maintained by a third party.
72.2 Client promptly informs supplier in writing about any defects
that it observes in the leased hardware. Supplier makes every
effort, within a reasonable period of time and by means of
corrective maintenance, to repair defects in the hardware that
are at supplier’s account. Supplier is also entitled, though not
obliged, to perform preventive maintenance services on the
hardware. If so requested, client provides supplier with the
opportunity to perform corrective and/or preventive
maintenance services. Parties determine together, by
consultation and in advance, the dates on which and the times
at which maintenance services must be performed. Client is not
entitled to replacement hardware during periods of time
maintenance services are performed.
72.3 Supplier’s obligation to repair defects excludes:
● repairing defects that client accepted when entering into the
lease agreement;
● repairing defects that are caused by external
circumstances;
● repairing defects that can be attributed to client, its staff
members and/or third parties contracted by client;
● repairing defects that are caused by careless, incorrect or
incompetent use or use that is contrary to the use
described in the documentation;
● repairing defects that are related to the use of parts or
consumer articles that have not been recommended or
authorised by supplier;
● repairing defects that are caused by the hardware being
used in a manner that is contrary to its designated use;
● repairing defects that are caused by unauthorised
modifications of or additions to the hardware.
72.4 If supplier repairs the defects referred to in the preceding
paragraph or has such defects repaired, client is charged, at
supplier’s applicable rates, for the costs incurred by the repairs
carried out.
72.5 Supplier is always entitled to decide against repairing the
defects and to replace the hardware with other, similar, though
not necessarily identical, hardware.
72.6 Supplier is never obliged to recover or reconstruct data that
have been lost.
Article 73 Final inspection and return ofhardware
73.1 At the end of the lease agreement, client returns the hardware
to supplier in its original state. Any costs of transportation
incurred by the return of the hardware are at client’s expense.
73.2 Prior to or no later than on the last working day of the lease’s
term, client renders its assistance in a joint, final inspection of
the hardware’s condition. The findings of this final inspection
are laid down in a report to be jointly drafted by parties. This
report must be signed by both parties. If client does not render
assistance in the final inspection, supplier is entitled to carry out
this inspection without client being present and to draft the
report itself. This report is binding on client.
73.3 Supplier is entitled to have the defects that are listed in the final
inspection report and that are – within reason – at client’s risk
and expense, repaired at client’s expense. Client is liable for
any loss supplier suffers because the hardware is temporarily
out of operation or because supplier cannot lease the hardware
to a third party.
73.4 If, at the end of the term of the lease, client has not undone a
modification or removed an addition that client implemented in18/18the hardware, parties agree that client is deemed to have
waived any and all rights to those modifications and/or
additions.
Section 13. Maintenance of hardware
The provisions in this section ‘Maintenance of hardware’
apply, apart from the General provisions of these general
terms, if supplier maintains hardware, of whatever nature,
for client.
Article 74 Maintenance services
74.1 Supplier performs maintenance services for the hardware
specified in the maintenance agreement provided that the
hardware is set up in the Netherlands.
74.2 Client is not entitled to temporary replacement hardware during
the time that supplier has the hardware that has to be
maintained in its possession.
74.3 The content and scope of the maintenance services to be
performed and the service levels that possibly apply are laid
down in a written maintenance agreement. If maintenance has
not been agreed on in writing, supplier is obliged to make every
effort to repair malfunctions, within a reasonable period of time,
that have been reported by client in an appropriate way. In
these general terms, ‘malfunction’ means non-compliance of
the hardware with the hardware specifications explicitly made
known by supplier in writing or a failure of the hardware to
comply with these specifications without interruption. A
malfunction only exists if client cannot only demonstrate but
also reproduce this malfunction. Supplier is also entitled,
though not obliged, to perform preventive maintenance.
74.4 Client promptly informs supplier of a malfunction in the
hardware, by providing a detailed description of it, when this
malfunction occurs.
74.5 Client renders all assistance required by supplier in the context
of maintenance services, for example to temporarily stop using
the hardware. Client grants supplier’s staff or third parties
designated by supplier access to the location of the hardware,
renders the assistance required and makes the hardware
available to supplier so that the maintenance services can be
performed.
74.6 Client ensures that a complete and properly functioning backup
is made of all software and data recorded in or on the hardware
before the hardware is made available to supplier for
maintenance.
74.7 At supplier’s request, one of client’s staff who is an expert in the
matter at hand is present for consultation when the
maintenance services are performed.
74.8 Client is authorised to connect hardware and systems not
delivered by supplier to the hardware and install software on
that hardware.
74.9 If, in supplier’s opinion, maintenance of the hardware should
require testing the hardware’s connections with other hardware
or software, client makes both the other hardware and software
in question and the test procedures and data carriers available
to supplier.
74.10 Testing material required for maintenance that is not included in
supplier’s normal range of hardware is to be made available by
client.
74.11 Client bears the risk of loss or theft of, or damage to, the
hardware during the time that supplier has the hardware that
has to be maintained in its possession. It is up to client to takeout insurance against this risk.
Article 75 Maintenance fees
75.1 The maintenance fee does not include:
● costs of consumer articles, or of replacing these articles,
such as batteries, stamps, ink and ink cartridges, toner
articles, cables and accessories;
● costs of parts, or of replacing these parts, and of
maintenance to repair malfunctions that were entirely or
partly caused by attempts at repair by parties other than
supplier;
● activities performed for overhaul of the hardware;
● modifications of the hardware;
● moving, relocating or reinstalling hardware, or costs for
transportation where hardware is to be repaired or any
other activities arising from these activities.
75.2 The maintenance fee is due regardless whether client has put
the hardware to use and makes use of it and regardless
whether client makes use of the maintenance option.
Article 76 Exclusions
76.1 Activities performed to investigate or repair malfunctions that
are caused by or connected with user errors, improper use of
the hardware or external circumstances such as failures of
internet services, data network connections, power supplies or
connections to hardware, software or materials that do not
come under the maintenance agreement, do not fall within the
scope supplier’s obligations under the maintenance agreement.
76.2 Supplier’s obligations with respect to maintenance do not cover:
● investigating or repairing malfunctions that are caused by or
connected with a modification of the hardware carried out
by a party other than supplier or a party acting on behalf of
supplier;
● use of the hardware in breach of the applicable conditions
and client’s failure to have the hardware maintained in time.
Supplier’s maintenance obligations do not include investigating
or repairing malfunctions in the software installed on the
hardware.
76.3 Any costs incurred by maintenance services and/or
investigations carried out under articles 76.1 and/or 76.2 can be
charged by supplier, or charged as extra costs by supplier, at
supplier’s applicable rates.
76.4 Supplier is never obliged to recover corrupted or lost data.