ARTICLE 1 DEFINITIONS
For the time being, these terms and conditions shall mean:
- Terms and Conditions: These terms and conditions.
- Coordinators:Client employees who are appointed for communication with Expansion and will follow training in this context.
- Services: Expansion’s services are not exhaustive: the exploitation of document management and digital archiving products and services.
- Defect: the failure of the Software to function in accordance with the included user documentation.
- Use: use of the Software as defined in the Agreement.
- (Concurrent) Users: Persons at Client who (at the same time) use the Software.
- Client: any natural or legal person who accepts Expansion as the other party to an Contract of Contract.
- Agreement (by contract): the agreement between Expansion and Client(s), including all Attachments.
- Party(s):Expansion and/or Client.
- Software: all Software with accompanying documentation and the related intellectual property rights of Expansion, as being the subject of the Agreement.
- Release: An update of the Software within a specific version of the Software, which includes any Flaws and/or new or revised functionalities.
- Version: Any version of the Software released from time to time by Expansion that incorporates the prior Releases and/or incorporates new or revised functionalities.
- Working day: calendar days, except weekends and generally recognised public holidays.
- Office hours: hours on a Working Day between 09:00 and 17:00
ARTICLE 2 APPLICABILITY
(a) The Terms and Conditions apply to all offers, quotations, orders, deliveries of Services and Invoices by/from Expansion and to all Contract agreements between Expansion and Client, as well as to any request of The Client to provide Services, regardless of whether an contract of contract has been established between Expansion and Client.
(b) General terms or other conditions used by the Client do not apply. Derogatory or additional terms may be invoked by the Client only if and to the extent that they have been expressly accepted in writing by Expansion. Such additional or derogatory provisions shall be without prejudice to the applicability of the other provisions of the Terms and Conditions and shall apply only to the agreement for which it has been expressly agreed in writing.
(c) By accepting these Terms and Conditions, The Client also agrees to the applicability of the Terms and Conditions to all new contract agreements to be concluded and to all follow-up and additional Contract agreements between Expansion and Client.
ARTICLE 3 ASSIGNMENT
(a) any Contract of Contract is only concluded if and as soon as Expansion confirms the content of the Contract of Contract after receipt of a contract from The Client (oral or written, including email explicitly), expressly confirms in writing to The Client, or, if that is earlier, if Expansion begins the implementation of the Services agreed with the Client. With the conclusion of the Contract of Contract, the Client unconditionally commits himself to full payment of the agreed fee.
(b) Each Client is entitled to conclude contracts with Expansion.
ARTICLE 4 MULTIPLE CLIENTS
When an Agreement of contract with Expansion is concluded by two or more Clients, each Client is jointly and severally liable to Expansion for the proper and timely fulfilment of the obligations of those Clients under that Contract of Contract.
ARTICLE 5 SOFTWARE; License
(a) Expansion grants the Client the non-exclusive and non-transferable right to use the Software in accordance with the terms and conditions and contract agreement.
(b) The right of use shall include the use of the standard functionalities contained in the Software as defined in the User Documentation of the Software.
(c) The Software may be used by the Client only within its own organisation. The right of use is limited to the number of Users.
(d) The client is required to use the Software exclusively on the computer systems and locations approved by Expansion.
(e) The right of use and use shall not be transferable in any way, including to related undertakings, such as a parent or subsidiary, except on the basis of written approval of the relevant conditions by Expansion.
ARTICLE 6 RESPONSIBILITY WITH REGARD TO SPECIFICATIONS
The client ensures that the computer systems and infrastructure at Client permanently comply with the agreed specifications.
ARTICLE 7 DELIVERY AND POSSIBLE ACCEPTANCE TEST
(a) The Client accepts the Software in the State as it is made available by Expansion.
(b) Client has the choice to have an acceptance test carried out. If the Client chooses to do so and asks Expansion to take care of all or part of the acceptance test, the Parties will agree on a fee to be agreed.
ARTICLE 8 GUARANTEE
(a) For a period of 4 (four) months after delivery, Expansion will, to the best of its ability, recover any Software defects, provided that they have been reported to Expansion in writing and in detail within the aforementioned period.
(b) Expansion cannot guarantee that the Software will always work without interruptions or defects or that all Defects will be repaired, but will always make every effort to do so.
(c) Recovery of mangled or lost data is not covered by the guarantee obligation.
(d) Recovery will take place at a location to be determined by Expansion, after consultation with the Client.
(e) Expansion is entitled to use temporary solutions or programme detours or problem-avoidable restrictions in the Software.
(f) At the end of the warranty period referred to in this Article, Expansion may repair any Defects in accordance with the agreed maintenance conditions.
ARTICLE 9 EXCEPTION OF REPARATIONS DEFICIENCIES
(a) Expansion shall not be required to repair defects in the aforementioned guarantee period, both during and after the warranty period, provided that it is resulting from:
- extreme causes such as natural disasters, such as natural disasters;
- careless action or omission by the Client;
- misuse of the Software or use of the Software for a purpose for which the Software is not intended;
- Customer-made connections to systems not approved by Expansion;
- changes made to the infrastructure after installation or after delivery of the Software, without consultation with Expansion, have been made to the infrastructure;
- changes, changes and/or adjustments to the Software made by the Client or on behalf of Client by third parties without the written consent of Expansion, other than in the context of repairing errors.
(b) In all these cases, Expansion is prepared to take care of the relevant Defects for an additional fee, in accordance with the agreed prices and rates.
ARTICLE 10 BACKUP
Client undertakes with Expansion to carry out regular backup procedures with regard to the (data) files and Software procedures in accordance with the usual standards in the industry and in such a way that recovery with minimal effort is possible.
ARTICLE 11 PRICES, TARIFFS AND PAYMENT
(a) The prices and rates are set out in the tender agreed and signed by the Parties.
(b) Any additional work and activities requested by Client to Expansion that are not explicitly included in the Agreement with Annexes may be charged to The Client by Expansion for additional consideration. Expansion will at all times notify the Client clearly and if possible in advance if there is additional work, Invoicing of additional work will only take place after agreement of client.
(c) Prices and rates shall not include VAT and other levies imposed by the public authorities.
(d) The maintenance fee shall always be invoiced per calendar year and must be paid in advance. The agreed annual maintenance costs will be increased if the Software is extended or adjusted.
(e) Expansion has the right to adjust prices and rates annually in accordance with the CBS Services Price Index (DPI).
(f) If Expansion adjusts its prices and rates without prejudice to the adjustment referred to in the previous paragraph, it will inform the Client in good time, giving the Client the opportunity to terminate the Agreement by the date of entry into force of the increase introduced by Expansion and without prejudice to the obligation of the Client to have fulfilled any outstanding payment obligation before the termination date.
(g) All invoices will be paid by The Client within 30 (thirty) days of invoice date.
(h) If the Client does not pay the amounts due within the agreed time limit, the Client will be liable for statutory interest on the outstanding amount, without any notice of payment. If payment is not made after summation, the Client will continue to be required to pay the extrajudicial and legal costs that Expansion has to incur in order to debit the claim.
ARTICLE 12 MAINTENANCE
Expansion will perform the agreed maintenance in accordance with the following conditions:
a) Expansion will be able to make every effort to carry out the maintenance with care.
(b) Maintenance includes repairing Defects, making new Software Releases available and support for the use of the Software.
(c) Client, in particular its Coordinator, will always report any Defects to the Expansion helpdesk as soon and in detail as possible, by e-mail (email@example.com) or by telephone via the telephone number 010-2010430, or any other email account or telephone number as disclosed to Expansion to Client.
d) After a Defect has been reported, Expansion will start the repair work as soon as possible, in the professional understanding of Expansion and in close consultation with Client.
(e) Repair work, which cannot reasonably be carried out other than at the Client, will be carried out on the client’s site. In this case, Expansion will charge the Client with travel and subsistence expenses.
(f) For maintenance and repair work to be carried out outside working days and business hours at the client’s request, Expansion will charge additional fees.
(g) If Defects are not caused by the Software, expansion is entitled, after agreement by the Client, to invoice the work carried out to the Client at the then applicable prices and rates.
(h) Expansion informs Client in advance if a new Release or Version of The Software is released. The client can then indicate whether she wishes to use this new Release or Version. Administration, shipping and implementation costs of a new Release or Version will be charged additionally by Expansion to Client based on post-calculation.
(i) If Expansion terminates the maintenance on a previous Version or Release, it will notify the Client in writing in good time.
(j) The client may wish to make an adjustment to the Software known to Expansion. Regarding the possible implementation of these wishes in a subsequent Release or Version, the Parties will come to a decision in good consultation.
(k) Expansion support includes telephone assistance from the Coordinator(s) when using the Software. Support can also be provided through remote support. For this, a site-to-site VPN connection will be used using generally industry-common standards. Both Parties are responsible for their own equipment to enable this connection.
(l) Expansion will record any notification with corresponding priority and status. The parties determine by mutual agreement the priority of a notification. Expansion will monitor the progress of the action points in response to notifications.
ARTICLE 13 COORDINATORS
(a) Client will appoint one Coordinator for communication with Expansion to carry out the maintenance. In addition, Client will appoint a deputy coordinator. For optimal cooperation between the Parties and an understanding of the technical matter, the Coordinators will follow the agreed training courses. Additional training and training will be charged additionally.
(b) The Coordinators will be available during the execution of expansion maintenance if the maintenance takes place at client’s location, as far as reasonably possible.
(c) Given the impact of actual changes, the Coordinator can only make changes to the Software after consulting and approving Expansion.
(d) The Coordinators are responsible for the internal support of the Software Users at Client.
ARTICLE 14 COOPERATION OF THE CLIENT
(a) Expansion will always provide all information or information necessary and relevant to the Agreement in good time and will cooperate fully and a similar obligation rests on Expansion towards Client.
(b) If, for the purposes of the agreed work, the Client provides data or files to Expansion, they will be provided in copy. Original data or original files remain in the possession of the Client at all times and The Client remains responsible and liable in this matter.
(c) If the performance of the Agreement does not provide expansion with any information necessary for the implementation of the Agreement, or if the Client does not otherwise fulfil its obligations, Expansion may be forced to suspend the implementation of the Agreement.
ARTICLE 15 THIRD PARTIES
(a) Expansion is permitted to engage third parties in the execution of its activities, with Expansion remaining responsible vis–y to Client, unless otherwise agreed.
(b) Expansion is permitted to replace the employees involved in the performance of a contract.
The time limits set by Expansion are indicative and as best known on the basis of the information known to Expansion at the time of the agreement. If any deadline is imminent, Client and Expansion will enter into consultations as soon as possible in order to find a mutually satisfactory solution.
ARTICLE 17 CONFIDENTIALITY
(a) Each Party shall ensure that all information received before and after the agreement of the other Party will be treated confidentially, including the content of the Agreement, unless disclosure would be required on the basis of the law.
(b) In the event of a breach of this provision, the infringing Party shall be liable to the other Party a direct fine of € 5,000, without prejudice to the claims of the latter Party.
ARTICLE 18 INTELLECTUAL PROPERTY RIGHTS
(a) All rights of intellectual and industrial property to the Software developed or made available under the Agreement, data files, equipment or other materials such as analyses, designs, (user) documentation, reports, quotations, as well as preparatory material thereof, are exclusively vested in Expansion, its licensors or its suppliers.
(b) The Client is not permitted to remove or amend indications of intellectual and industrial property rights from Software or other materials, including indications of confidentiality and confidentiality of the Software.
ARTICLE 19 PRIVACY / PROTECTION OF PERSONAL DATA
(a) To the extent that the Agreement involves processing of personal data by Expansion, Expansion acts as an operator.
(b) Parties will comply with all legal obligations relating to privacy and personal data.
(c) Expansion will ensure adequate security of personal data to the state of the art.
ARTICLE 20 TRANSFER OF RISK
The risk of loss or damage to the matters that are the subject of the Agreement will be transferred to the Client at the time when they have been put into the actual decision power of the Client.
ARTICLE 21 LIMITED LIABILITY
(a) Expansion’s total cumulative liability to the Client for direct damage is limited to a maximum amount equal to the amount paid by the Client to Expansion in the 12 (12) months preceding the damage done under the Agreement, or an amount of € 50,000,–, if the amount paid is lower.
(b) Expansion is in no case liable for indirect damages, including loss of profit, loss of data, (non-life) claims from third parties, missed returns or savings or other indirect damages or consequential damages resulting from or related to the non-compliance of any obligation of Expansion, or any unlawful action.
(c) Exempts Expansion from any claims made by third parties.
(d) The previous paragraphs of this Article shall not apply if the damage in question was caused by intent or deliberate recklessness of Expansion.
ARTICLE 22 FORCE MAJEURE
(a) In the event of force majeure on the part of one of the Parties, the obligations shall be suspended for the duration of the force majeure period.
(b) If the force majeure situation lasts longer than 90 days, the Parties shall have the right to terminate the Agreement by registered letter, unless it is foreseeable that the force majeure situation will be resolved within a reasonable period of time. In that case, what has already been achieved in accordance with the Agreement is settled proportionately, without the parties owed each other anything.
ARTICLE 23 TERMINATION OF THE AGREEMENT
The Parties shall be entitled to terminate the Agreement immediately by a registered letter, without prejudice to the claims of damages of the rescinding Party, if:
- the other Party, after a proper written default setting a reasonable period of compliance, continues to be attributable to the fulfilment of one or more substantial obligations arising from the Agreement.
- the other Party shall be granted a suspension of payment if bankruptcy is claimed in respect of the other Party or if the other Party’s undertaking is liquidated or terminated.
ARTICLE 24 ANNEXES
In the event of any conflict between the provisions of an Annex and the General Conditions and/or the Agreement, the provisions of the Annex shall prevail.
ARTICLE 25 CONVERSION AND EXPLANATION
(a) The nullity, destruction or non-binding of any of the provisions of these Terms and Conditions shall be without prejudice to the validity of the other provisions. In the event that one or more provisions are found to be inseperplaceable, destroyed or non-binding, replacement provisions are agreed between Expansion and Client that are valid and which most approximate the content and scope of the deed annulled, destroyed or unbindled.
(b) The titles and chapters in the Terms and Conditions are intended solely for ease of reading and cannot affect the content and meaning of the terms and conditions.
ARTICLE 26 APPLICABLE LAW AND CHOICE OF FORUM
(a) Any relationship and commitment between Expansion and Client, including any Contract of Contract between Expansion and Client, is only applicable in Dutch law.
(b) Disputes will be referred by exclusion to the competent court in Amsterdam, without prejudice to Expansion’s power to present a dispute to a court to whom, in the absence of that provision, jurisdiction would be given.
ARTICLE 27 OTHER PROVISIONS
(a) The Parties shall not be permitted to transfer rights and obligations under the Agreement to a third party without the prior written consent of the other Party.
(b) Provisions relating to intellectual property, liability, force majeure, confidentiality, payment and dispute resolution shall continue to apply beyond the end of the Agreement.
(c) Destruction or nullity of one or more of the provisions of the Agreement shall not affect the validity of the other provisions.
(d) Derogations and/or additions to this Agreement shall be valid only if they have been expressly agreed in writing by legally valid representatives of Client and Expansion.
(e) To the extent that the Parties are confronted with issues not covered by the Agreement, they will discuss such issues in good consultation and endeavour to reach a mutually acceptable solution.
ARTICLE 28 FILING GENERAL TERMS AND CONDITIONS
These Terms and Conditions were filed with the Rotterdam Chamber of Commerce on 3 October 2013 under number: 24236320.