ARTICLE 1 DEFINITIONS
In these general terms and conditions, the following terms are defined as follows:
- General Conditions: these General Terms and Conditions
- Coordinators: employees of the Client assigned to coordinate with Expansion who will be trained for such purpose.
- Services: service supplied by Expansion including, but not limited to, the supply of products and services in the field of document management and digital archiving.
- Bug: the failure of Software to function in accordance with the user documentation as supplied.
- Use: use of the Software as described in the Contract.
- (Simultaneous) Users: personnel of the Client using (simultaneously) the Software.
- Client: any natural person or legal entity that enters into a contract for services with Expansion.
- Contract (for Services): the contract between Expansion and the Client, including all Appendices.
- The Party / Parties: Expansion and / or Client.
- Software: all Software, accompanying documentation and the intellectual property rights pertaining thereto belonging to Expansion, that form the subject of the Contract.
- Release: an update of the Software within a specific version of this Software, by which any Bugs are repaired, or containing any new or revised functionality.
- Version: each version of the Software as issued at any time by Expansion in which the previous Releases are incorporated, as well as any new or revised functionality.
- Working Day: calendar days, excluding weekends and generally-recognised public holidays.
- Office Hours: between the hours of 9.00 and 17.00 on Working Days.
ARTICLE 2 APPLICABILITY
a) The General Terms and Conditions (‘General Conditions’) apply to all invitations to treat, offers, orders, supplies of Services, invoices issued by or on behalf of Expansion, all Contracts for Services, and any request by the Client for the supply of Services, irrespective of whether a Contract for Services has been entered into.
b) Any general terms and conditions of the Client, or other conditions, are hereby excluded. The Client can only enforce any alternative or additional provision insofar as this has been expressly accepted in writing by Expansion. Such alternative or additional provisions do not affect the binding nature of the other terms of these General Conditions and they apply only to the specific contract for which they were expressly agreed.
c) The Client accepts that these General Conditions govern all future Contracts for Services and all supplemental and additional Contracts for Services.
ARTICLE 3 INSTRUCTIONS
a) A Contract for Services is created if and at such time as on receipt of instructions from the Client (whether oral, or in writing, expressly including by e-mail). Expansion confirms in writing to the Client the content of the Contract for Services, or, if this occurs earlier, at such time as Expansion commences the supply of the Services to the Client. Once there is a Contract for Service, the Client unconditionally undertakes to pay the contract price in full.
b) The Client guarantees that it has legal authority to enter into a Contract for Service with Expansion.
ARTICLE 4 MULTIPLE CLIENTS
In the event of a Contract for Services between Expansion and two or more Clients, each Client is jointly and severally liable to Expansion for the prompt and proper performance of the Clients’ obligations under the Contract for Services.
ARTICLE 5 SOFTWARE; USER RIGHTS
a) Expansion grants the Client a non-exclusive, non-transferrable right to use the Software in accordance with these General Conditions and the Contract for Services.
b) The user rights include the use of the standard functionality within the Software as described in the Software’s user documentation.
c) The Software may only be used by the Client within its own organisation. The user rights are restricted to the number of Users.
d) Client may only use the Software on computer systems and at locations approved by Expansion.
e) The Use and user rights are under no circumstances transferrable, not even to associated Enterprises, such as a parent company or subsidiary, unless conditions for such transfer are approved in writing by Expansion.
ARTICLE 6 RESPONSIBILITY FOR SPECIFICATIONS
The Client is responsible for ensuring that its computer systems and infrastructure satisfy the agreed specifications at all times.
ARTICLE 7 DELIVERY AND POSSIBLE ACCEPTANCE TEST
a) The Client accepts the Software in the condition supplied by Expansion.
b) The Client has the option to conduct an acceptance test. If the Client elects and requests Expansion to carry out all or part of the acceptance test, the Parties will negotiate a fee for this.
ARTICLE 8 GUARANTEE
a) During a period of four months following delivery, Expansion will use its best endeavours to repair any Bugs in the Software, on condition that they are reported in specific detail to Expansion in writing within the prescribed period.
b) Expansion cannot guarantee that the Software will always work without interruptions or Bugs or that all Bugs will be repaired, but will use its best endeavours to this end at all times.
c) The repair of damaged or lost data is not covered by the guarantee.
d) Repairs will be carried out at such location as is determined by Expansion, after consultation with the Client.
e) Expansion is entitled to provide temporary solutions, workarounds, or problem-avoiding restrictions within the Software.
f) After the guarantee period specified in this article, Expansion may repair any Bugs in accordance with the agreed maintenance conditions.
ARTICLE 9 EXCEPTIONS TO THE OBLIGATION TO REPAIR BUGS
a) At no time during the guarantee period or thereafter is Expansion obliged to repair the Bugs arising in the said guarantee period if these are caused by:
- external effects such as natural disasters;
- any careless act or omission on the part of the Client;
- the misuse of the Software or its use for a purpose for which it is not intended;
- connections made by the Client with systems not approved by Expansion;
- changes made by the Client to the infrastructure after installation or delivery of the Software, without consulting Expansion;
- changes or modifications to the Software made by the Client or by any third party on the Client’s instructions without the written consent of Expansion, except for the purpose of repairing any bugs.
b) In all the above cases, for payment of an additional charge at the agreed rates and prices, Expansion is prepared to be responsible for repairing the relevant Bugs.
ARTICLE 10 BACK-UP
The Client must also implement regular backup-procedures in respect of the data files and Software in accordance with the standards applied in the industry and in such a way that any repair may be carried out with the minimum effort necessary.
ARTICLE 11 PRICES, FEES AND PAYMENT
a) The prices and fees are set out in the offer agreed and signed by the Parties.
b) All additional work and activities required by the Client from Expansion that are not expressly included in the Contract and its Appendices may be charged separately by Expansion. Expansion will always notify the Client clearly, and as far as possible in advance, of any instance of additional work. Additional work will be invoiced after agreement is reached with the Client.
c) Prices and fees are net of VAT and other state-imposed duties.
d) Payment for maintenance work shall be invoiced per calendar year and is payable in advance. The agreed annual maintenance costs will be increased if the Software is expanded or altered.
e) Expansion is entitled to increase the prices and fees in accordance with the CBS price index for services (DPI).
f) If, notwithstanding the increase referred to in the preceding section, Expansion increase its prices and fees, it must notify the Client accordingly well in advance, so that the Client has the opportunity to terminate the Contract as of the date on which the increase comes into effect, and without prejudice to the Client’s obligation to pay all outstanding payment obligations before the date of termination.
9) All invoices shall be paid by the Client within thirty days of the invoice date.
h) If the Client fails to pay a sum owed within the contractual payment term, it is liable for interest on the outstanding sum without the need to first serve notice of default. If even after a formal demand the sum is still not paid, the Client will also become liable for judicial and extrajudicial enforcement costs incurred by Expansion in recovering the debt.
ARTICLE 12 MAINTENANCE
Expansion will carry out the agreed maintenance under the following conditions:
a) Expansion will use its best endeavours to carry out the maintenance with care.
b) Maintenance covers the repair of Bugs, the supply of new Releases, and support in the use of the Software.
c) The Client, more specifically its Coordinator, will report any Bugs as quickly and in as much detail as possible to Expansion’s helpdesk by e-mail (firstname.lastname@example.org) or telephone (010-2010430) or via such other e-mail account or telephone number as indicated to the Client by Expansion.
d) Once a Bug has been reported, Expansion will commence the repair work as soon as possible, having regard to its expertise and in consultation with the Client.
e) Any repair work that can only reasonably be carried out at the Client’s premises shall be carried out at such premises. In such a case, Expansion shall invoice the Client for the travel and accommodation costs thereby incurred.
f) Expansion shall charge extra costs for maintenance and repair work that is carried out at the Client’s request other than on Working Days and outside Office Hours.
g) If any Bugs are not caused by the Software, then Expansion is entitled to invoice the Client for the work carried out at the then current prices and fees, subject to approval by the Client.
h) Expansion shall notify the Client in advance of the issue of any new Release or Version of the Software. The Client may then indicate whether it wishes to use this new Version or Release. The administration, postage and implementation costs for any new Release or Version shall be separately invoiced to the Client by Expansion on the basis of subsequent calculation.
i) In the event that Expansion intends to terminate maintenance to any previous Version or Release, it shall provide the Client with sufficiently advance written warning .
j) The Client may notify Expansion of any wish to alter the Software. If such wishes are to be implemented within any subsequent Release or Version, the Parties will negotiate an appropriate solution.
k) The support provided by Expansion consists of providing telephone assistance to the Coordinator(s) in the use of the Software. Remote support is also available, by making use of a site-to-site VPN connection via standards commonly used in the industry. Each Party is responsible for its own hardware in enabling these connections to be made.
l) Expansion will register every report together with its appropriate priority and status. The Parties shall together determine the priority of a report. Expansion will monitor progress of the action taken in response to reports.
ARTICLE 13 COORDINATORS
a) The Client will designate one Coordinator to communicate with Expansion for the carrying out of maintenance. The Client will also designate a deputy Coordinator for such purpose. To ensure optimum cooperation between the Parties and a good understanding of the technical materials, the Coordinators will undertake the agreed training. Additional training will be additionally charged.
b) If the maintenance is to be carried out by Expansion on the Client’s premises, the Coordinators will make themselves available as much as reasonably possible during this work.
c) Given the impact of the actual changes, Coordinators can only make changes to the Software after consultation with, and with the approval of, Expansion.
d) The Coordinators are responsible for the internal support within the Client’s business of the Software users.
ARTICLE 14 COOPERATION OF THE CLIENT
a) The Client shall provide Expansion in good time with all necessary and relevant information and the cooperation necessary for the proper performance of the Contract, and vice versa.
b) If the Client provides Expansion with data or files for the purpose of performing the agreed work, it shall supply copies thereof, and the original data or files should remain in the possession of, and for the responsibility and liability of, the Client.
c) In the event that data necessary for the performance of the Contract is not supplied to Expansion in time, in accordance with the contract or at all, or if the Client is otherwise in breach of its contractual obligations, then Expansion may be obliged to suspend the performance of the Contract.
ARTICLE 15 THIRD PARTIES
a) Expansion is permitted to engage third parties for the performance of its work with the proviso that Expansion remains responsible to the Client for such work unless agreed otherwise.
b) Expansion may replace workers engaged in the performance of a task.
ARTICLE 16 DELIVERY PERIODS
The delivery periods referred to by Expansion are indicative, based on the best information known to it at the time the Contract is entered into. If it is possible that any delivery date may not be met, then the Client and Expansion shall negotiate a solution as soon as possible.
ARTICLE 17 CONFIDENTIALITY
a) Each Party guarantees that all information received from the other Party before and after commencement of the Contract, including information about the content of the Contract, will be treated in strictest confidence, unless disclosure is required by law.
b) Any breach of this guarantee will render the Party in breach liable to pay the other Party an immediate penalty of €5,000, without prejudice to the liability of the Party in breach to pay compensation for the full amount of any loss.
ARTICLE 18 INTELLECTUAL PROPERTY RIGHTS
a) All intellectual and industrial property rights to the Software, data files, hardware or other materials such as analyses, designs, (user) documentation, reports, offers and materials preparatory thereto that is developed or supplied under the Contract belong exclusively to Expansion, its licensors or suppliers.
b) The Client is not permitted to remove or alter any notices referring to intellectual or industrial property rights from Software or other materials, including notices concerning the confidential nature and confidentiality of the Software.
ARTICLE 19 PRIVACY / PERSONAL DATA PROTECTION ACT
a) Insofar as the Contract involves the processing of personal data by Expansion, Expansion is responsible as the processor.
b) The Parties will comply with all their statutory obligations regarding privacy and personal data.
c) Expansion shall ensure the personal data is adequately protected according to the state of the art.
ARTICLE 20 TRANSFER OF RISK
The risk of damage or loss to items that are the subject of a Contract transfers to the Client at the moment such items are actually put at the disposal of the Client.
ARTICLE 21 LIMITED LIABIITY
a) The total cumulative liability of Expansion to the Client for direct loss is limited to a maximum that is equal to the amount paid by the Client to Expansion under the Contract over the twelve months preceding the loss-causing event or the sum of €50,000, whichever is the lesser amount.
b) Expansion is never liable for indirect loss, including loss of profits, loss of data, claims by third parties, missed opportunities or savings or other indirect or consequential loss arising from or connected with its failure to comply with any of its obligations, or for any tortious act.
c) The Client indemnifies Expansion for any third-party claims.
d) The aforesaid terms of this section do not apply if the relevant loss is caused by the deliberate act or gross negligence of Expansion.
ARTICLE 22 FORCE MAJEURE
a) In the event of force majeure affecting either Party, its obligations shall be suspended for as long as the situation of force majeure continues.
b) If the situation of force majeure continues for longer than ninety days, the Parties are entitled to terminate the Contract by signed notice, unless it is foreseeable that the situation of force majeure will be resolved within a reasonable period. The elements of the Contract already performed shall be charged proportionately, whereafter the Parties shall have no other obligation to each other.
ARTICLE 23 TERMINATION OF THE CONTRACT
The Parties are entitled to terminate the Contract with immediate effect by letter sent by registered post, without prejudice to any claim it may have to compensation, if:
> having been given proper written notice, specifying a reasonable period in which to comply, the other Party continues in attributable breach of any of its substantial obligations under the Contract, or
> the other Party has been granted a moratorium or applied for bankruptcy, or if the other Party’s business is liquidated or otherwise wound up.
ARTICLE 24 APPENDICES
In the event of any discrepancy between the provisions of any Appendix and the General Conditions and/or the Contract, the provisions of the Appendix will take precedence.
ARTICLE 25 REPLACEMENT OF PROVISIONS AND INTERPRETATION
a) If any provision of these General Conditions is void, invalid or otherwise non-binding, it will not affect the binding nature of the other provisions. If any provision of these General Conditions proves to be void, invalid or otherwise non-binding, the Parties shall agree a replacement provision that is binding and that is as close as possible in terms of content and scope to the void, invalid or otherwise non-binding provision.
b) The headings in these General Conditions are purely for ease of reference and have no influence on the content and interpretation of the provisions of these General Conditions.
ARTICLE 26 APPLICABLE LAW AND JURISDICTION
a) Each relationship and obligation between Expansion and the Client, including every Contract for Services, is governed exclusively by Dutch law.
b) Any dispute arising hereunder may be brought only before the court with competent jurisdiction in Amsterdam, without prejudice, however, to the right of Expansion to bring any dispute before a court that would otherwise have jurisdiction to hear it in the absence of this provision.
ARTICLE 27 OTHER PROVISIONS
a) Neither Party is permitted to transfer its rights and obligations under the Contract to any third party without the prior written consent of the other Party.
b) Provisions governing intellectual property, liability, force majeure, confidentiality, payment and resolution of disputes remain binding even after the end of the Contract.
c) If any provision of the Contract is void or voidable, this shall not affect the validity of the other provisions.
d) Any changes to this Contract are only valid if they have been expressly agreed in writing by the lawful representatives of the Client and Expansion.
e) On issues not covered by the issues not provided for in the Contract, the Parties will negotiate to find a solution that is acceptable to them both.
ARTICLE 28 FILING OF THESE GENERAL CONDITIONS
These General Conditions have been filed with the Rotterdam Chamber of Commerce on 3 October 2013 under number: 24236320.