Algemene voorwaarden

TERMS & CONDITIONS Unix Support Nederland B.V., a corporation under Dutch law, registered and having its office at Laan van Kronenburg 14, (1183AS) in Amstelveen, registered with the Chamber of Commerce under registration id/number 27152479, (hereinafter: Supplier). Section A. General provisions Article 1. Applicability

These General Terms and Conditions USN (hereinafter also to be referred to as: these terms) apply to all offers and agreements for which Supplier delivers goods and/or services, of whatever nature and under whatever name, to client.
These terms consist of various parts. The terms under Section ‘’A. General’’ apply in all cases. For Software, Software Development, and Secondment Services in addition to and in derogation, the provisions of Sections B, C and D will apply.
These terms can only be departed from or be supplemented if agreed by parties in writing.
The applicability of any of the client’s purchase or other terms is explicitly excluded.
If and insofar as Supplier makes products or services of third parties available to client or grants access to these products or services, including open source, 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 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.
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 terms apply in full.
If any provision of these terms should be null and void or is annulled, the other provisions of these 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.
Without prejudice to the provisions of article 1.5, the provisions of these 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 terms, the provisions of a prior section apply, unless parties have explicitly agreed otherwise.

Article 2. Offers

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 typing errors, by or on behalf of client to Supplier and on which information Supplier has based its offer.

Article 3. Price and Payment

The 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.
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.
All services are provided on the basis of the applicable hourly rate, unless parties have explicitly agreed otherwise in writing.
If, according to the contract concluded between the parties, the client consists of several natural persons and/or legal entities, each of these natural persons and/or legal entities shall be jointly and severally liable towards Supplier for performance of the contract.
Supplier shall be entitled to yearly adjust prices and rates, in writing and in accordance with the CBS (Dutch Central Statistics Bureau) Consumer Price Index figure (series: all households 2015 = 100). Also, Supplier is entitled to adjust, in writing and with due observance of a term of at least three months the applicable prices and rates. If client does not agree to the adjustment in this latter case client shall be entitled to terminate (in Dutch: opzeggen) the agreement in writing within thirty days following notice of the adjustment, which termination shall take effect on the date on which the new prices and/or rates would take effect.
Information from Supplier’s records shall count as conclusive evidence with respect to the activities delivered by Supplier and the amounts owed, without prejudice to client’s right to produce evidence to the contrary.
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.
If client fails to pay amounts due or fails to do so on time, client shall owe statutory interest for commercial contracts on the outstanding amount without a demand for payment or a notice of default being required. If client fails to pay the amount due after a demand for payment or a notice of default has been issued, Supplier shall be entitled to refer the debt for collection, in which case client must pay all judicial and extrajudicial costs, including all costs charged by external experts. The foregoing shall be without prejudice to Supplier’s other legal and contractual rights.

Article 4. Provision of Service

Supplier performs its services under its own direction and supervision and with care to the best of its ability, where applicable in accordance with the arrangements and procedures agreed on with client in writing. All services provided by Supplier are performed on the basis of a bestefforts obligation unless and insofar as Supplier has explicitly promised a result in the written agreement and the result concerned has been described in the agreement in a sufficiently precise manner.
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.
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.
Supplier will perform its services during working hours (09.00-18.00 CET) and days (Monday through Friday) with the exception of public holidays, unless agreed otherwise in writing.

Article 5. Term, Termination and Cancellation

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 (1) year applies if a specific term has not been agreed on.
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 (1) year, unless client or Supplier should terminate the agreement by serving written notice of termination (in Dutch: opzeggen), with due observance of a notice period of one (1) month prior to the end of the relevant term.
Client is not entitled to terminate (in Dutch: opzeggen) an agreement before the end of the term; client is not entitled either to terminate an agreement that ends by completion before it has been completed.
Recession (in Dutch: ontbinding)

Each party shall only be authorised to rescind an agreement due to an attributable failure if the other party, in all cases after a written notice of default that is as detailed as possible and that grants a reasonable term to remedy the breach has been issued, is culpably failing to fulfil essential obligations under the agreement. If, at the time of rescission, client has already used and/or received goods or services, the associated payment obligations shall not be undone unless client proves that Supplier is in default with respect to the essential part of such services. With due regard to the stipulation of the preceding sentence, amounts invoiced by Supplier prior to rescission shall remain payable in full and shall become immediately due and payable at the time of termination.

Termination (in Dutch: beëindiging)

Either of the parties may terminate an 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 moratorium, whether or not provisional, a petition for bankruptcy is filed for the other party or the company of the other party is liquidated or dissolved other than for restructuring or a merger of companies. Supplier may also terminate 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 the client’s company. Supplier is never obliged to repay any amount in money already received or pay any amount in compensation due to termination as referred to in this paragraph. If client goes irrevocably bankrupt, its right to use services shall end without termination by Supplier being required. Article 6. Confidentiality

Client and Supplier must ensure that all information received from the other party, that the receiving party knows or should reasonably know is confidential, is kept secret. This duty of confidentiality shall not apply to Supplier if and insofar as Supplier is required to provide the information concerned to a third party in accordance with a court decision or a statutory requirement, or if and insofar as doing so is necessary for the proper performance of an agreement by Supplier. The party that receives the confidential information may only use it for the purpose for which it was provided. Information shall in any case be deemed to be confidential if It has been qualified as such by one of the parties.
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.
During the term of the contract and for one year following its termination, the client shall not employ or otherwise directly or indirectly engage, for the purpose of performing work, employees of the Supplier who are or were involved in the performance of the contract unless the Supplier has given prior written permission. Conditions may be attached to this permission, including the condition that the client must pay reasonable compensation to the Supplier.

Article 7. Privacy and Data Processing

If necessary, in Supplier’s opinion, for the performance of the agreement, client shall on request inform Supplier in writing about the way in which client performs its obligations regarding the protection of personal data.
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.
If and insofar parties shall process personal data in accordance with the General Data Protection Regulation (GDPR) and the GDPR is applicable, parties hereby acknowledge that Supplier is a data processor and client is a data controller. In that case, further rights and obligations will be agreed by parties in a separate and by Supplier delivered Data Processing Agreement.

Article 8. Security

If Supplier is obliged to provide some form of security under the agreement, this protection meets the specifications on security that parties have agreed on in writing. 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.
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.
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.
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.
Client adequately secures its systems and infrastructure, keeps these adequately secured and have active antivirus software protection at all times.
Supplier does not guarantee that the security provided under the agreement is effective under all circumstances. In the event of a cyber incident, client must prove that the incident is attributable to Supplier’s negligence.
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.
Supplier is at any time permitted to install technical and organizational facilities to protect hardware, data files, 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 9. Terms and Deadlines

Supplier makes reasonable efforts 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.
If a term or period of time is likely to be exceeded, Supplier and client consult as to discuss the consequences of the term being exceeded in relation to further planning.
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.
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.

Article 10. Intellectual Property

All intellectual property rights to the software, training, as well as all other materials, developed or made available to the client under an agreement are held exclusively by Supplier, its licensors or its suppliers unless explicitly agreed otherwise in writing.
Client is solely granted the rights of use laid down in these terms or in the agreement entered into by parties in writing. A right to use accorded to client is non-exclusive and may not be transferred, pledged or sublicensed.
If and insofar 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, data files 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.
Client is not permitted to remove or change any indication with respect to the confidential nature of the software, data files or materials or with respect to copyrights, brands, trade names or any other intellectual property right pertaining to the software, data files or other materials, or have any such indication removed or changed.
Supplier indemnifies client against any claim of a third party based on the allegation that software, data files 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 itself against such claims.
Client guarantees that no rights of third parties preclude making hardware, software, 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 licenses. 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.

Article 11. Retention of Title, Reservation of Rights and Suspension

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.
Where applicable, rights are granted or transferred to client subject to the condition that client has paid all sums due under the agreement.

Article 12. Transfer of Risk

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 13. Cooperation

The parties acknowledge that the success of work depends on proper and timely mutual cooperation. A party will always provide all cooperation reasonably required by the other party in a timely manner.
The client bears the risk of selecting goods and/or services to be provided by the Supplier. The client always takes the utmost care to guarantee that the requirements that the Supplier must meet are accurate and complete.
Unless agreed otherwise in writing, client itself is responsible for the hardware, infrastructure and auxiliary software and ensures that the (auxiliary) software for its own hardware is installed, organized, parameterized 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 14. Liability

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.
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 20,000.- (twenty thousand euros).
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).
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 recommended to Supplier is excluded. Liability for corruption, destruction or loss of data or documents is also excluded.
The exclusions and limitations of Supplier’s liability described in articles 14.2 up to and including 14.4 are without any prejudice whatsoever to the other exclusions and limitations of Supplier’s liability described in these terms.
The exclusions and limitations referred to in articles 14.2 up to and including 14.5 cease to apply if and insofar as the damage is caused by intent or deliberate recklessness on the part of Supplier’s management.
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.
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.
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.
The provisions of this article and all other exclusions and limitations of liability referred to in these terms also apply in favour of all natural persons and legal persons

Article 15. Force Majeure

None of the parties shall be obliged to fulfil any obligation, including any statutory and/or agreed warranty obligation, if it is prevented from doing so by force majeure. Force majeure on the part of Supplier means, among other things:
force majeure or the failure to properly fulfil obligations on the part of the suppliers of Supplier;
defects in items, equipment, software or materials of third parties the use of which was prescribed to Supplier by client;
government measures;
power failures;
internet, data network or telecommunication facilities failures;
war; and,
general transport problems.
Either of the parties shall have the right to rescind the agreement and/or any other agreement in writing if a situation of force majeure persists for more than 60 days. In such an event, that which has already been performed shall be paid for on a proportional basis without the parties owing each other anything else.

Article 16. Adjustments and Extra Work

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.
Client realizes 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.
If and 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 17. Service Level Agreement

Arrangements about a service level are exclusively agreed on in writing in a Service Level Agreement (SLA). Client promptly informs Supplier about any circumstances that may affect the service level or its availability.
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 18. Backups

If and insofar 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.
Client itself remains responsible for complying with all the applicable statutory obligations with respect to keeping records and data retention.

Article 19. Varia

The client may not sell, transfer or pledge its rights and obligations under an agreement to a third party, unless otherwise agreed in writing.
Supplier may make amendments to these terms and conditions. In case of an amendment, Supplier will give client at least 30 days notice thereof. An amendment will be considered to be accepted by client and will enter into force on the date determined by Supplier, if client does not reject the amendment within 30 days following the notification thereof. If client rejects the amendment, Supplier will be entitled to terminate the agreement by giving at least 30 days notice of termination with effect from the end of a calendar month. In that case Supplier shall refund all amounts prepaid by client and are no longer due.
Supplier is entitled to sell, transfer or pledge its payment claims to a third party.

Article 20. Applicable Law and Disputes

Agreements between the Supplier and client are governed by Dutch law. Applicability of the Vienna Convention 1980 (The United Nations Convention on Contracts for the International Sale of Goods (CISG)) is excluded.
Disputes that arise as a result of the agreement between the parties and/or as a result of further agreements that result therefrom, will be submitted exclusively to the court of Amsterdam, The Netherlands.

Section B. Software The provisions in this section ‘Software’ apply, apart from the General provisions of these 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 terms together to be referred to as ‘Software’ – other than on the basis of Software as a Service. Article 21. Right to Use

Supplier makes the Software agreed on available for use by client on the basis of a user licence and for the term of the agreement. The right to use the Software is non-exclusive, nontransferable, non-pledgeable and non-sublicensable.
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.
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.
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.
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 22. Restrictions on Use

The Software shall only be used on one machine. In the event of any malfunction or change of the machine, client shall notify Supplier timely in advance.
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.
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 of third parties, for example in the context of Software-as-a-Service (SaaS) or outsourcing.
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.
Client may never reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software.
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.

Article 23. Delivery and Installation

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.
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 24. Acceptance

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. 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.
If an acceptance test has been agreed on by parties, the provisions of articles 24.3 up to and including 24.10 apply.
Where these 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. Supplier 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 terms.
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.
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.
If testing on client’s instruction involves personal data being made use of, client ensures that using these data for this purpose is permitted.
The Software is understood to have been accepted:
i) if parties have agreed on an acceptance test: on the first day following the test period, or,
ii) if Supplier receives a test report as referred to in article 24.8 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 24.9, do not prevent acceptance, or,

iii) 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.

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.
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. 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.
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.
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.

Article 25. Making the Software available

Supplier makes the Software available to client within a reasonable period of time after parties have entered into the agreement.
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 26. Payment for the Right to Use the Software

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:
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;

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 27. Modifications in the Software

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 28. Guarantees

Supplier makes reasonable efforts to repair errors in the sense of article 24.3 within a reasonable period of time if these errors are reported, in detail and in writing, to Supplier within a period of three (3) months after delivery or, if an acceptance test was agreed, within three months after acceptance, unless agreed between parties otherwise. 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.
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.
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.
Supplier is never obliged to recover corrupted or lost data.
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 28.1.

Section C. Software Development The provisions in this section ‘Software Development´ apply, apart from the General provisions of these general terms, if supplier develops and/or designs software for client and possibly installs the software. Article 29. Specifications and Development of Software

Development always takes place under an agreement for services. If no specifications or design of the software 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 to be developed and the manner in which the software will be developed.
Supplier develops the software 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.
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.
If parties agree that, apart from development activities, supplier also provides training courses, maintenance and/or support, supplier may request that client should enter into a separate, written agreement. Supplier charges client separately for these services, at supplier’s applicable rates.

Article 30. Agile Development of Software

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.
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 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.
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 31. Delivery, Installation and Acceptance

The provisions of article 23 with respect to delivery and installation and article 24 with respect to acceptance apply mutatis mutandis.
Unless supplier is obliged, under the agreement, to host the software for client on its own computer system, supplier either delivers the software to client on a data carrier and in a form determined by supplier, or makes the software online available to client.
If parties make use of a development method as referred to in article 30, the provisions of article 24.1, 24.2, article 24.4 up to and including 24.9, article 24.12 and article 28.1 and 28.5 do not apply. Client accepts the software in the state it is in at the moment the last development phase ends (‘as is, where is’).

Article 32. Right to Use

Supplier makes the software developed on client’s instructions, together with the relevant user documentation, available to client for use.
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.
Supplier is not obliged to make the auxiliary software and program or data libraries required for the use and/or maintenance of the software available to client.
The provisions of article 21 with respect to the right to use and restrictions on the use apply mutatis mutandis.

Article 33. Payment

If no payment scheme has been agreed on, all sums related to the development of software become due and payable, in arrears, per calendar month.
The price for the development activities includes payment for the right to use the software for the term of the agreement.
The payment for the development of the software 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 required by client. The payment does not include support services for the users of the software either.

Article 34. Guarantees

The provisions of article 28 with respect to guarantees apply mutatis mutandis.
Supplier does not guarantee that the software it has developed function properly on all sorts of new versions of web browser types and possibly other software. Supplier does not guarantee either that the software function properly on all types of hardware.

Section D. 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 professionals available to client to perform activities on behalf of client. Article 35. Performance of Services

Supplier makes the person specified in the agreement (hereinafter: Professional) available to perform activities on behalf of client. The Professional will perform its activities based on client’s instructions but remains under the direction and supervision of supplier, unless otherwise specified in the agreement.
Supplier shall use best endeavours to execute the agreed assignment to the best of its knowledge and ability with the aid of Professionals who are experts in this respect. However, no obligation of result is vested in Supplier, unless expressly agreed in writing.
Client will provide all reasonable cooperation necessary for the proper execution of the assignment.
If applicable and/or agreed in writing, client will provide Supplier with all relevant information before the commencement of the assignment, including an accurate description of the required profile of the Professional, the job title, job requirements, working hours, working times, work, workplace, working conditions and the intended duration of the assignment, as well as all applicable terms of employment, as referred to in Section 12a of the Placement of Personnel by Intermediaries Act (in Dutch: Wet allocatie arbeidskrachten door intermediairs (Waadi).
Notwithstanding the provisions of article 5 of these 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 36. Professionals

The choice of the Professional, who will execute the work in the context of the assignment, will be made in close consultation between Supplier and client. Supplier retains the right at any time to withdraw a Professional, who has already been nominated, or to replace this Professional by another qualified Professional. Client can only reject a proposal from Supplier for replacement – if requested in writing stating reasons – if the replacement Professional does not (to a sufficient extent) meet the job requirements set out.
In addition, Supplier will be entitled at any time to make a proposal to client for the replacement of a Professional by another Professional, which will be for the purpose of its business policy and/or personnel policy, preservation of job opportunities or compliance with legislation and regulations. Client can only reject such a proposal on reasonable grounds, if requested in writing stating reasons.
If the Professional is replaced by another Professional, the remuneration for the replacement Professional will be determined by Supplier.
Without prior permission in writing from Supplier, client will not be permitted to have the Professional execute work other than as agreed with the assignment, or to have the Professional execute the work abroad.
Supplier will not be in default vis-à-vis client and will not be obliged to compensate any damage, if Supplier cannot or can no longer deploy a (replacement) Professional at client, alternatively not or no longer in the manner and to the extent as agreed with the assignment or subsequently.
Supplier will not be liable for any damage resulting from the deployment of a Professional, who appears not to meet the requirements set out by client, unless the client submits a complaint in writing to Supplier, within a reasonable period after the commencement of the deployment and the damage suffered by client in this context is directly related to an attributable failure of Supplier in the selection of the Professional.

Article 37. Working Times, Working Hours and Leave of Absence

The working hours and working times of the Professional at client will be recorded in the agreement, or as otherwise agreed. The working hours, the working times and the rest periods of the Professional will be equal to the times and hours that are usual in this respect at the client, unless expressly agreed otherwise. Client guarantees that the working hours, rest periods and working times of the Professional will meet the statutory requirements. Client will ensure that the Professional will not exceed the working hours permitted by law and the agreed working times.
Client undertakes to inform Supplier in advance of the commencement of the assignment of any business closures during the term of the assignment.
During the term of the assignment, client will inform Supplier immediately after notification of a business closure, but in any event four weeks prior to the business closure, in the absence of which client will be obliged to pay Supplier the full payment for the duration of the business closure over the number of hours and extra hours per period most recently applicable or usual pursuant to the assignment and the terms and conditions.
The time and the duration of the leave of absence of the Professional will be recorded as binding by Supplier after consultation with

Article 38. Management and Supervision

The work will take place under the instructions of client but under the direction and supervision of supplier, unless expressly agreed otherwise in writing. During the performance of the agreement, client will behave with regard to the Professional in the same careful manner as client is obliged to with regard to client’s own employees.
The results of the work executed by the Professional will be at the risk of client. Supplier does not accept any liability for the quality of the results of the work, which come into existence under the instructions of client.
Client can only deploy the Professional in derogation from the provisions of the assignment and these Terms and Conditions, if Supplier and the Professional have agreed to this in advance in writing. The employment of the Professional abroad is only possible if this has been agreed in writing with Supplier and after the Professional has agreed thereto in writing.
Client may only second the Professional 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.

Article 39. Payment

The price, as originally agreed and possibly subsequently adjusted in conformity with a further agreement and/or these Terms and Conditions, will be owed over the agreed (working) hours for the services and any extra hours worked.
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.

Article 40. Direct Employment Relationship

If client has the intention to enter into an employment relationship with a (proposed) Professional, this provision will apply. Client will inform Supplier of this in writing and in a timely manner before the client implements this intention.
If client enters into an employment relationship with the (proposed) Professional, client will owe a reasonable payment to Supplier related to the costs of the recruitment and selection of the (proposed) Professional and all further investments made by Supplier, including the professional coaching and supervision of the (proposed) Professional and the training course(s) attended by the (proposed) Professional, as referred to in Section 9a, subsection 2, of the Placement of Personnel by Intermediaries Act (in Dutch: Waadi).
If client enters into an employment relationship with the Professional not consecutive to, but within six (6) months after the end of the Professional’s deployment, client will also owe the payment referred to in subclause 2. This applies in the event that the Client has approached the (proposed) Professional for this purpose – directly or through a third party – as well as if the Professional – directly or through a third party – has applied to client for a job.

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