GENERAL TERMS AND CONDITIONS SECTION A: GENERAL
These General Terms and Conditions are drafted by yOur Group B.V., with its principal place of business at Landdrostdreef 124, 1314 SK, Almere, in the Netherlands, registered in the Chamber of Commerce under number 71686606 for its benefit and its subsidiaries (each of them hereafter referred to as “Company”). The Provider means the legal entity that provides the Performance (as defined below) to the Company.
These General Terms and Conditions apply to the purchase by the Company and the provision by the Provider of Services, Goods, or Software, (hereafter referred to as the Performance). The General Terms and Conditions consist of part A, a general part, and then the parts that are applicable being: Part B (Services), Part C (Goods) or Part D (Software). If applicable, the following documents also apply to the Performance:
- Delivery Agreement or Purchase Order
- Any exhibits to the Delivery Agreement or Purchase Order
- Data Processing Agreement
The aforementioned documents together with these General Terms and Conditions constitute the Agreement. In case of a conflict between the provisions of a signed Delivery Agreement or Data Processing Agreement and the General Terms and Conditions the provisions of the signed Data Processing Agreement will prevail.
- No other terms than the terms in the Agreement will apply between the Company and the Provider for the The Agreement can only be modified in writing and signed by duly authorized representatives of each party.
- If the Provider has reason to believe that it will not be able to provide the Performance as agreed, it must promptly notify the Company
- All obligations set out in the Agreement and all obligations set out in a Delivery Agreement or Purchase Order will be interpreted as obligations to achieve a result (in Dutch: “resultaatsverplichtingen”), unless stated
- The Agreement does not provide the Provider any reasonable expectation or right to deliver a minimum level or volume of Services or This Agreement does not prevent Company from ordering any services (including services similar or identical to the Services) and Goods from third parties and to enter into any agreement with third parties for such services or Goods.
- The Agreement is governed by the laws of the The 1980 United Convention on Contracts for the International Sale of Goods (Weens Koopverdrag) and its related instruments will not apply. The competent courts in Amsterdam will have exclusive jurisdiction.
- All fees are in Euro and include all remunerations for the Performance, excluding The Provider is not allowed to adjust the fees unilaterally.
- The Company will pay all undisputed amounts within 30 days after the invoice receipt If a part of an invoice is disputed, the Provider will send 2 separate invoices, respectively 1 relating to the undisputed and 1 relating to the disputed amount of the invoice. Any undisputed amounts not paid within 30 days after the invoice receipt date, may be subjected to a 1 percent annual interest, if the Provider informed the Company of the surcharges beforehand.
- The Provider must invoice all agreed upon fees within 12 months after providing the If the Provider fails to do so, the right to payment of such Performance is automatically cancelled.
- The Provider must pay all taxes and premiums to the relevant authorities in accordance with the relevant tax and labour laws and regulations and must ensure its subcontractors will do the The Provider will indemnify the Company and hold the Company harmless from and against all claims, damages, costs and expenses related to any failure by the Provider or any of its subcontractors to pay any taxes or premiums due.
3 GENERAL RULES AND REGULATIONS
- The Provider must:
- comply with all legislation and regulations relevant for the Performance and its business activities;
- fulfil timely all its obligations under the relevant tax and social security legislation in relation to its employees or the employees of a subcontractor;
- comply with all policies and instructions provided by the Company;
- inform the Company of all incidents which may cause serious harm to the integrity of the business operations and all other incidents with a potential major impact on the Company or the Company’s employees or the Company’s the Company may investigate the reported incidents and require the Provider to cooperate with the investigation and to take additional measures to mitigate the impact of the incident and to prevent future incidents;
- possess (timely obtain and maintain) all applicable permits, registrations or certifications, which are relevant for the Performance and the Provider’s business;
- not harm the Company’s reputation and integrity in any
- If data relating to a natural person is being processed under the Agreement parties will enter into
a data processing agreement according to the Company’s template.
5 INTELLECTUAL PROPERTY RIGHTS
- IP Rights shall mean all intellectual and industrial property rights anywhere in the world, including for example knowhow, copyrights and databank If the Performance is bespoke to the Company, the Provider hereby transfers all related IP Rights to the Company. The Provider will provide all cooperation in effectuating such transfer for which the Company will carry the costs if they are reasonable. The Provider may continue to use its general knowledge, experiences, skills and ideas to the extent it does not infringe on the Company’s IP Rights or the Company’s Confidential Information (as defined below).
- The Provider warrants to the Company that the Performance and any results of the Performance do not infringe any IP Rights of any third The Provider indemnifies the Company and holds it harmless from and against all claims and damages that arise in connection with any claim brought by a party alleging that the Performance or any results of the Performance infringe an IP right of a third party. In case of an infringement claim, the Provider must immediately inform the Company. At the request of the Provider the Company may allow the Provider to control the defence of any infringement claim except that the Provider will not be allowed to make any admission of liability or other statement or enter into any settlement or other agreement without the Company’s prior written consent.
- The Provider must, at the Company’s choice and at the Provider’s expense, (i) procure the right to continue using the allegedly infringing Performance, (ii) modify or replace the allegedly infringing Performance with a non-infringing equivalent with the same functionality, or (iii) refund all fees paid with respect to the allegedly infringing Performance, including any reasonable costs of replacing the allegedly infringing The remedies in this clause 5.3 are in addition to, and do not replace the rights and remedies the Company has under applicable law such as the right to demand specific performance, claim damages, and rescission.
- Confidential Information shall mean all information in any form in relation to the business, structure, systems, operations, employees, clients, potential clients, know-how, including trade secrets, and any third party’s information disclosed on a need to know basis, and all other information that a reasonable person knows or reasonably should understand is
- Each party will: (i) only use Confidential Information received for the purpose it was provided, (ii) prevent disclosure of Confidential Information to third parties, and (iii) restrict the circulation of Confidential Information to persons that have a need to know in connection with the
- The obligations in this clause do not apply if the Confidential Information: (i) is part of the public domain without violation of the Agreement, (ii) can be proven known and on record at the receiving party prior to the first access to such Confidential Information with the exception to any Confidential Information that was prepared for or on behalf of the other party, and (iii) can be proven to have been independently
- Parties will be authorized to disclose Confidential Information at the order of any competent court
or competent authority, provided that (i) such disclosure is covered by protective measures which reasonably protect the interest of the owner of the Confidential Information and (ii) the disclosing party has given prompt written notice to the owner of the Confidential Information before such disclosure occurs to allow the owner of the Confidential Information to prevent such disclosure through appropriate legal means and (iii) the receiving party must inform the relevant authority that the Confidential Information is subject to a confidentiality obligation pursuant to the Agreement. Parties also are entitled to disclose Confidential Information to the extent such disclosure is reasonably necessary to comply with a party’s obligation to disclose price sensitive information to its investors considering the advice of a reputable law firm or the in-house legal department, and as much as possible after consultation of the other party.
- The Company may provide a copy of the Agreement to a third party in connection with a divestiture of a business or merger of business or in case of outsourcing of services or the preparation
- The obligations in this clause apply for a period of five years after termination or ending of the
- The Provider is not allowed to refer to the Company as its customer or to use any of the Company’s trade mark(s) without prior written consent from the
8 CONTROL AND AUDIT
- The Company will have the right to perform audits by a third party auditor in relation to the The Provider will cooperate with such audits. Audits will be announced in advance, provided this is reasonably possible.
- The Provider acknowledges the right of the competent authorities to perform audits at the Provider’s offices and premises in relation to the The Provider must inform the Company immediately in case of such audit, unless it is prohibited to do so. The Provider must promptly comply with any instructions given by such authority, including instructions directed to the Company.
- The Provider must maintain records on the Performance for the term of the Agreement and 7 years
9 RIGHT TO USE
- The Provider acknowledges that the Company might engage various service providers to provide The Provider agrees that the Company may provide its service providers with access to and benefit of the Performance and that these service providers may interact with the Provider, both to the extent necessary for the service provider to perform its services to the Company. The Company is required to enter into an agreement with such service providers that protect the Intellectual Property Rights and Confidential Information to the same degree as they are protected through these General Terms and Conditions.
- The Company can provide the Provider with access to software of other service providers if necessary for the In that case the Provider guarantees that it will comply with all obligations disclosed to the Provider by the Company regarding the access to the software.
- If a business of the Company has been transferred to a third party (Divested Entity), the Company has the right to provide the Divested Entity with access to and benefit of the Performance or, alternatively, the Provider will at the request of the Company continue to provide the Performance to the Divested Entity for such period as an orderly transfer of the Divested Entity reasonably may require, subject to a maximum period of the earlier of 36 months from the completion of such transfer or the termination of the
- The Provider will not subcontract or outsource the Performance, or part thereof, to a third party without the Company’s prior written
- The Provider will be and remains fully responsible to the Company for the acts or omissions of each subcontractor involved in the
- The Provider must ensure each subcontractor will comply with all of the Provider’s obligations under the
11 LIMITATION OF LIABILITY AND INSURANCE
- Unless agreed otherwise, the liability of both parties under the Agreement for damages per event will not exceed the highest of (i) 3 million Euro per year, or (ii) twice the total sum of the annual Fees paid or to be paid to Provider in relation to the The limitation of liability does not apply in case of a breach of the confidentiality, infringement of IP Rights, or in case of gross negligence or wilful misconduct of the other party, its senior management or its employees.
- Any applicable penalty including a penalty under a service level agreement is without prejudice to the Company’s other rights, including its right to claim performance and compensation of If a penalty applies, any damages can only be claimed to the extent these exceed such penalty.
- The Provider will maintain sufficient comprehensive insurances with a reputable insurer to cover the amount of liability in this
- The rights under this Agreement are not transferable and cannot be encumbered without the prior written approval of the In the event of a merger, take over, acquisition or legal or factual split off affecting the Provider, the Provider must inform the Company thereof as soon as possible. In such event parties will negotiate in good faith about all amendments proposed to the Agreement by the Company. If parties do not reach agreement on such amendments within 3 months after the Company proposed the amendments, the Company may terminate the Agreement with immediate effect.
- The Company may transfer its rights and obligations under the Agreement to a third party acquiring a business for which the Performance is being The Company must inform the Provider as soon as possible of such assignment.
- The Company may terminate the Agreement in whole or in part on a 30 days prior written
- Each party may terminate the Agreement in whole or in part on a written notice with immediate effect if one of the following events occur:
- the other party has been declared bankrupt or has been granted suspension of payments;
- the other party fails to comply with its obligations under the Agreement due to a force majeure event for a minimum period of 30 days;
- the other party fails to comply with its obligations under the Agreement and, if the breach is capable of being remedied, fails to remedy such breach within a reasonable period of maximum 30 days following receipt of a written notice from the other party requiring it to do
- Any late payment for undisputed amounts of up to 90 days does not constitute a breach of the This Agreement may only be terminated to the extent provided for in this Agreement.
- In case of termination in accordance with clause 1 the Company will pay for the Performance provided until the Agreement is terminated. In case of termination in accordance with the clauses 13.2, the Company will only be required to pay the fees that are in the Company’s reasonable opinion in accordance with the value of the Performance as received by the Company.
- All clauses which are intended to survive termination including but not limited to the clauses related to Intellectual property rights, Confidentiality, Liability, Transition and exit, License and Escrow will survive
15 TRANSITION AND EXIT
- The Provider must fully cooperate with the Company to arrange for an orderly transition of the Performance to another provider indicated by the Company or to the Company immediately at the Company’s first This includes the assignment of any necessary contract with third parties, which are necessary to provide the Performance.
- The Parties will agree a reasonable exit regime and provide each other with all required The exit regime must provide for a seamless continuity of the Company’s activities and prevent any client impact. The transition may involve a certain period of parallel operations with the Provider and a new provider. In the event the transition is not completed before the termination of the Agreement, the Provider must continue to actively cooperate with the transition
and continue to provide the Performance during an additional period of a maximum of 60 days, during which the Agreement will continue to apply.
SECTION B: SERVICES (INCLUDING HOSTING AND CLOUD SERVICES)
In addition to Section A, this Section B applies if Services are provided under the Agreement.
BCM: has the meaning ascribed to it in clause 6 of this Section B.
Company Data: all data processed in connection with the Services (see below for Services).
Company Software: has the meaning ascribed to it in clause 2.2 of this Section B.
Cloud Services: means using an on-demand service model for the delivery of IT-services, usually based on virtualization and distributed computer environments, as further described in the Agreement.
Hosting Services: means a shared or dedicated hosting of a service, as further described in the Agreement.
Services: all services delivered by the Provider including Cloud Services and Hosting Services.
2. Services at Company appointed locations and access to the Company systems
The Provider must ensure that at any the Company’s appointed location, its employees will:
- be able to identify themselves;
- comply with the rules and regulations applicable pursuant to clause 3 of Section A;
- follow the reasonable instructions of the Company’s employees;
- sign such statements as required by the
3. Replacement of employees
The Company can demand replacement of an employee of the Provider in the event such employee has become incapable of performing its duties, or otherwise requires replacement in the reasonable opinion of the Company. In case of a replacement, the Provider must ensure that the new employee will have the same level of skill, experience, knowledge and appropriate regulatory classifications and credentials as the replaced employee was expected to have.
4. Right to use
- All the Company Data that is processed by the Provider as part of the Services is and remains owned by the The Provider must treat the Company Data strictly confidential and in line with clauses 4 and 6 of Section A, notwithstanding the applicability of the other clauses of Section A.
- The Provider receives for the term of the Agreement a non-exclusive, non-assignable, worldwide, limited right to use the Company Data and the Software made available to the Provider (the Company Software) to the extent necessary to perform the Provider’s obligations under the
- The Provider grants to the Company for the term of the Agreement, and an additional 60 days if needed for the migration of the Company Data as set out in clause 7 of this Section B, a non-exclusive, non- assignable and worldwide right to access and to use the Services from any The Provider must provide the Company with the entitlements hereto.
- If the Provider will provide the Company with access to any third party content or software as part of the Services, the Provider guarantees to have the necessary third party approvals for this The indemnification of clauses 5.2 and 5.3 of Section A. is applicable also for infringement claims in connection with such third party content or software.
- The Provider must ensure that each physical and each virtual service location constitutes a secure environment that is only accessible to authorized If any connection is made between a service location and (i) a system or network of the Company, or (ii) the internet, the Provider will ensure such connection is secure and does not provide unauthorized third parties access to the service location, a system or network of the Company or the Company Data transferred via such connection.
- The Provider must on a continuing basis take appropriate technical and organizational measures to keep the Company Data secure and protect it against unauthorized or unlawful processing and accidental loss, destruction or In addition and without prejudice to any other obligations in the Agreement, the Provider guarantees that it will segregate and keep segregated all the Company Data from that of any other customer.
- The Provider ensures that all the Company Data is backed up and that such backup will at all times be kept up to date and will be stored in a secure Promptly upon the Company’s request and in case of expiration or termination of the Agreement the Provider must provide the Company with a copy of such backup in a format agreed by parties that fits in the systems that the Company uses to store the Company Data.
- The Provider will perform all necessary measures and precautions to achieve the undisturbed rendering of the Services and the undisturbed access to and use of the Therefore, the Provider will implement and document in writing business continuity management (BCM).
- Any incident for which the Provider has agreed to have BCM or disaster recovery procedures and measures in place will be fully attributable to the Provider and the Provider will not be entitled to invoke force
- The Provider must enable the Company to export and retrieve the Company Data from the Services at any time during the term of the Agreement as well as 60 days after the term of the Agreement, subject to the service
- Upon termination of the Agreement, and in addition to other obligations of the Provider, the Provider must provide the Company with all support needed in order to convert, export and retrieve the Company Data in a format agreed between parties that is compatible with the systems that the
Company will use to store the Company Data subsequent to such termination.
- After the Company Data is successfully retrieved by the Company, the Provider must delete all the Company Data in its systems or in its possession or This obligation includes the backups.
- The Provider must promptly inform the Company in the event of serious disruption of the operating process or other irregularities in connection with the Services, including data leakage or security
- The Provider must promptly inform the Company of any request to disclose the Company Data by any law enforcement
SECTION C: GOODS (INCLUDING HARDWARE)
In addition to Section A, this Section C applies if Goods are provided under the Agreement.
Goods: have the meaning as described in article 3:2 of the Dutch Civil Code, corporeal objects susceptible of human control, tangible goods. For the avoidance of doubt, software is not considered to be a Good.
2. Delivery of Goods
- The Provider will deliver the Goods adequately packed D.P. (Incoterms 2010) at location as described in the Delivery Agreement or Purchase Order. Provider will accompany the goods with a packing list describing the goods and identifying the number and type of the goods delivered and the Purchase Order number and any other relevant identifying code.
- After delivery the Provider will remove all packaging materials, at request of the
3. Inspection of the Goods
- The Company may inspect and test all the Goods upon delivery, but is not required to do Any defective Goods may be rejected before delivery and within a reasonable period after delivery. If a Good is rejected, at Company’s reasonable option, Provider must either replace or repair the defective Good. The Provider will recollect any rejected Goods as soon as reasonably requested, upon failure thereof these may be returned to the Provider at the Provider’s expense.
- Acceptance by Company of any Goods does not imply any waiver of any later claim with respect to the non-conformity or late delivery of the Goods or any breach of any warranty or other obligation by Provider, irrespective of the extent to which Company inspected and tested the
4. Documentation and instructions of use
- The Provider will provide the Goods with all materials, instructions and documentation required to properly use the If software is embedded in the Goods, the Provider hereby grants the Company an irrevocable, transferable, worldwide and perpetual license to use such software.
- Ownership of the Goods transfers to the Company at the earliest of (a) when the Goods are delivered or (b) at the date the Company pays at least 30% of the Fees for the specific Goods, whichever is If ownership transfers prior to delivery, the Provider remains fully responsible for the Goods and will ensure that the Goods are marked and identifiable as owned by the Company. This responsibility includes adequate packaging, storing, securing and insuring of the Goods.
6.1 The Provider warrants that: (a) each Good will materially conform to its product specification as stated in the Delivery Agreement or Purchase Order; (b) Goods will be free of material defects in workmanship and materials under normal and reasonable use and proper assembly for a period of three (3) years from the date the Goods are first used.
- Without prejudice to any contractual or statutory maintenance or repair obligations, the Provider
must be able to maintain and repair the Goods during the normal life cycle of the Goods with a minimum of 2 years after delivery of the Goods, unless the Provider proves such defect is the result of fair wear and tear or fault by Company. Every form of incorrect functioning or performance will be deemed to be a defect.
- Goods will be deemed non-compliant if a defect occurs within the normal life cycle of the Goods with a minimum of 3 years after delivery of the Goods, unless the Provider proves that such defect is the result of normal wear and tear, fault or incorrect use of the Goods by the
SECTION D: SOFTWARE
In addition to Section A, this Section D applies if Software (as defined below) is provided under the Agreement.
Materials: has the meaning ascribed to it in clause 6.1 of this Section
Pre-existing materials: the Provider’s or third party’s software that existed before the execution of this Agreement or was created independently thereof but used in the context of the Software.
Release: a new edition of the Software that enhances the existing functionality, addresses errors in the previous versions and integrates patches and bug fixes issued since the previous version of the Software, without providing substantially new functionality.
Software: as described in the Agreement, including its documentation, new Versions, new Releases, updates, alterations and corrections.
Version: a new edition of the Software containing substantial new functionality or incorporating a substantial internal restructuring.
- The Provider grants to the Company an irrevocable, worldwide and perpetual license to use the Perpetual means that the granted license will remain in effect on an as-is basis after the termination of the Agreement. If applicable, the Provider grants the Company a (sub)license to use the Pre-existing materials.
- The Company will have the right to use the Software on separate systems for each of the following purposes: (i) acceptance, (ii) development, (iii) testing, (iv) business continuity, (v) back-up and (vi) disaster recovery (including hot standby).
- The Company may use the Software in object code form and without any other restrictions than the restrictions as specifically agreed in the
- The Company will not reverse engineer, disassemble or decompile the Software except to the extent necessary to obtain operability with other independently created software or if it becomes apparent that the Provider will not provide required maintenance and support
- The Company will have the right to make an unlimited number of copies of the Software for distribution purposes if this is necessary for the Company’s deployment
- If the Provider shows it is reasonably implausible that the Company’s use of the Software is in compliance with the Agreement, the Provider has the right to verify compliance by asking the Company to complete a self-audit during the term of the Only if the Provider shows the self-audit is not performed with reasonable skill and care, it will have the right to have a third party EDP-auditor perform an audit at the Company’s premises. The Company will fully cooperate with such audit, if the scope and details of the audit are agreed between the EDP-auditor, the Company and the Provider in advance. If such audit reveals unlicensed use of Software, the Company must
terminate such use or order sufficient additional licenses to cover all usage revealed. The Company has the right to order such additional licenses against the license fees set out in the Agreement.
- The Company may perform an acceptance test on the Software to verify whether the Software meets the specifications and requirements as set out in the Agreement, and is free from defects and fit for the intended
- The Software will be deemed accepted by the earliest of the Company’s written confirmation of acceptance or the Company using the Software in a production environment for more than 1 week without
- If Software is submitted for acceptance in several parts or if various components of Software will form a system, notwithstanding the intermediate acceptance of the individual parts, the Company may perform acceptance testing on the complete system once
- Upon receipt of a notification of non-conformity, the Provider will, irrespective of the agreed fee structure, and in addition to other rights and remedies the Company may have, at the Company’s choice: (i) correct such non-conformity free of charge within a reasonable time but ultimately after 30 days after receipt of the notification of non-conformity, or (ii) refund the fees already paid by the Company for the Upon receipt of the corrected version of the Software and notification thereof by the Provider, the Company will re-perform acceptance testing.
5. Maintenance and support
- The Provider must ensure that the Software remains compatible with releases of the operating software described by the Provider of the platform on which the Software is installed as upward compatible, or to maintain compatibility with the operating software of a new platform which replaces the original A new Version or Release will not negatively affect the functionality of the Software or platform nor their correct and reliable functioning.
- Maintenance and support services will not affect the availability of the However, if it cannot reasonably be avoided that the Software is temporarily unavailable due to maintenance and support services, the Provider must obtain the Company’s prior consent and parties will seek to limit the impact of such unavailability on the Company’s business as much as possible.
- If required by the Company, the Provider will deposit a copy of the source code of the Software, including the source code documentation, and all technical documentation (jointly the Materials) to an independent third party escrow Source code documentation means information concerning the architecture, structure and programming principles and tools applied in the Software and any particularities concerning the interfaces to other software programs, data sources, and data output as is required to enable reasonable experienced and qualified software engineers to fully understand the structure of the Software, all taking into account the likely experience and training of the average user of such documentation.
- The Provider must ensure that the version of the Software deposited is and remains identical to the version of the Software in use by the The Provider must inform the Company of each deposit.
- The release of the Materials to the Company will immediately occur when:
- it becomes apparent that the Provider will refuse to provide agreed maintenance and support
- the Provider has been declared bankrupt
- the Provider ceases its business undertaking without assigning its obligations under the Agreement to a competent third party
- the Provider breaches its obligations under the Agreement to such an extent that it endangers the Company’s ability to continue to use the Software, or
- the Provider has been taken over by a third party which either does not accept the obligations under the Agreement or offers to accept them only on commercially detrimental
- After the release, the Company is entitled to enhance and maintain the Software, and also to create derivative works from The Company may use its service providers to perform these activities.