Terms and Conditions

NLdigital Terms 

The NLdigital Terms have been deposited by NLdigital at the District Court Midden-Nederland, location Utrecht. In the event of disputes concerning the interpretation of the English version of the NLdigital Terms, the Dutch text  takes precedence. © 2020 NLdigital 

Section 1. General provisions 

Article 1 Applicability NLdigital Terms 

1.1 These NLdigital Terms (hereinafter also to be referred to as:  these general terms) apply to all offers and agreements for  which supplier delivers goods and/or services, of whatever  nature and under whatever name, to client. 

1.2 These general terms can only be departed from or be  supplemented if agreed by parties in writing. 

1.3 The applicability of any of the client’s purchase or other terms is  explicitly excluded.  

1.4 If and insofar as supplier makes products or services of third  parties available to client or grants access to these products or  services, the terms of the third parties in question apply to  these products or services in the relationship between supplier  and client and replace the provisions in these general terms  that depart from those third party terms, provided that client has  been informed by supplier about the applicability of the  (licensing or sales) terms of those third parties and client has  been given a reasonable opportunity to take note of those  terms. Contrary to the previous sentence, client cannot invoke a  failure on the part of supplier to meet the aforementioned  obligation if client is a party as referred to in article 6:235  paragraph 1 or paragraph 3 of the Netherlands Civil Code.  

1.5 If and insofar as the terms of third parties in the relationship  between client and supplier referred to above prove to be  inapplicable or are declared inapplicable for any reason  whatsoever, these general terms apply in full. 

1.6 If any provision of these general terms should be null and void  or is annulled, the other provisions of these general terms  remain fully applicable and effective. In that case, supplier and  client consult as to arrange for new provisions which have the  same purport, as much as possible, and that will replace the  provisions that are null and void or that have been annulled. 

1.7 Without prejudice to the provisions of article 1.4, the provisions  of these general terms prevail if a conflict should arise about any of the arrangements made by parties, unless parties have  explicitly departed from these terms in writing, with reference to  these terms. In the event of a conflict between the provisions of  different sections of these general terms, the provisions of a  prior section apply, unless parties have explicitly agreed  otherwise. 

Article 2 Offers 

2.1 All off supplier’s offers and other forms of communication are  without obligation, unless supplier should indicate otherwise in  writing. Client guarantees the correctness and completeness of  the information provided, with the exception of obvious typing  errors, by or on behalf of client to supplier and on which  information supplier has based its offer.  


Article 3 Price and payment 

3.1 All prices are exclusive of turnover tax (VAT) and other product  or service-specific levies imposed by the authorities. All prices  quoted by supplier are in euros and client must pay in euros. 

3.2 Client cannot derive any rights or expectations from any cost estimate or budget issued by supplier, unless parties have  agreed otherwise in writing. A budget communicated by client is  only considered a (fixed) price agreed on by parties if this has  been explicitly agreed in writing. 

3.3 If it should be apparent from the agreement that client consists of several natural persons and/or legal persons, each of these  persons is jointly and severally liable to supplier for the  performance of the agreement.  

3.4 Where the activities performed by supplier and the sums due by  client for these activities are concerned, the information in  supplier’s administration provides full evidence, without  prejudice to client’s right to provide evidence to the contrary. 

3.5 In the event client should be under a periodic payment  obligation, supplier may adjust the applicable prices and rates,  in writing and in accordance with the index or any other criterion  included in the agreement, within the period specified in the  agreement. If the agreement does not explicitly provide for the  possibility to adjust the prices or rates, supplier may adjust the  applicable prices and rates in writing with due observance of a  period of at least three months. If, in the latter case, client does  not want to accept the price adjustment, client is entitled to  terminate the agreement by serving notice of termination  (opzeggen) in writing, within thirty days following the notification  of the adjustment and effective from the date on which the new  prices and/or rates would take effect. 

3.6 In their agreement parties lay down the date or dates on which  supplier invoices the fee for the activities agreed on with client.  Any sums due are paid by client in accordance with the  payment terms agreed on or as stated in the invoice. Client is  neither entitled to suspend any payments nor to set off any of  the sums due. 

3.7 If client should fail to pay the sums due or does not pay these  on time, the statutory interest for commercial agreements is payable by client on any outstanding sum, without a reminder  or notice of default being required. If client should fail to pay the  sum due even after a reminder or notice of default, supplier can  pass on the claim for collection and client is obliged to pay,  within reason and in addition to the total sum due at that time, all judicial and extrajudicial costs, including all costs charged by  external experts – all of which is without prejudice to any of  supplier’s statutory and contractual rights. 


Article 4 Duration of the agreement 

4.1 If and insofar as the agreement between parties is a continuing  performance contract, the agreement is entered into for the  term agreed on by parties. A term of one year applies if a  specific term has not been agreed on.  

4.2 The duration of the agreement for a definite period of time is  tacitly extended, each time by the period of time originally  agreed on with a maximum of one year, unless client or  supplier should terminate the agreement by serving written  notice of termination (opzeggen), with due observance of a  notice period of three months prior to the end of the relevant  term. 

Article 5 Confidentiality 

5.1 Client and supplier ensure that secrecy is observed with  respect to all information received from the other party of which  information the receiving party knows or should reasonably  know it is confidential. This prohibition does not apply if and  insofar as the information concerned must be provided to a  third party in compliance with a judicial decision, a statutory  requirement, a statutory order by a public authority or for the  proper performance of the agreement. The party that receives  the confidential information may only use it for the purpose for  which it has been provided. Information is in any case deemed  confidential if it has been designated as such by either party.  

5.2 Client acknowledges that software made available by supplier  is always confidential in nature and that this software contains  trade secrets of supplier and its suppliers or of the producer of  the software. 

Article 6 Privacy and data processing 

6.1 If this should be relevant, in supplier’s opinion, for the  performance of the agreement, client informs suppliers in  writing, at supplier’s request, about the way in which client  performs its obligations under the applicable rules and  regulations pertaining to the protection of personal data. 

6.2 Client indemnifies supplier against any claims by persons  whose personal data are or have been processed and for which  processing client is responsible pursuant to the law, unless  client proves that the facts on which a claim is based are  attributable to supplier. 

6.3 Client is fully responsible for the data that it processes when  making use of a service provided by supplier. Client guarantees  vis-à-vis supplier that the content, use and/or processing of the  data are not unlawful and do not infringe any third party’s right.  Client indemnifies supplier against any claims by a third party  instituted, for whatever reason, in connection with these data or  the performance of the agreement. 

6.4 If, further to a request or a lawfully issued order by a public  authority or in the context of a statutory obligation, client should  perform activities with relation to data of client, client’s  employees or users, any costs involved in this may be charged  to client. 

6.5 If supplier performs activities for client as a processor as meant  in the rules and regulations pertaining to the protection of  personal data, Section 2 ‘Standard Clauses for Processing’ also  applies. 

Article 7 Security 

7.1 If supplier is obliged to provide some form of information  security under the agreement, this protection meets the  specifications on security that parties have agreed on in writing.  Supplier does not guarantee that the information security  provided is effective under all circumstances. If the agreement  does not include an explicitly defined security method, the  security features provided meet a level that is not unreasonable  in view of the state of the art, the implementation costs, the  nature, scope and context as known to supplier of the  

information to be secured, the purposes and the standard use  of supplier’s products and services and the probability and  seriousness of foreseeable risks. 

7.2 The access or identification codes and certificates provided by  or on behalf of supplier to client are confidential and must be  treated as such by client, and they may only be made known to  authorised staff in client’s own organisation or company.  Supplier is entitled to change the access or identification codes  and certificates. Client is responsible for managing these  authorisations and for providing and duly revoking access and  identification codes. 

7.3 In the event security features or the testing of security features  pertain to software, hardware or infrastructure that has not been  delivered by supplier to client, client guarantees that all licences  or approvals have been obtained so that the performance of  such activities is actually allowed. Supplier is not liable for any  damage caused by or in relation to the performance of these  activities. Client indemnifies supplier against any claims, for  whatever reason, arising from these activities being performed. 

7.4 Supplier is entitled to adapt the security measures from time to  time if this should be required as a result of a change in  circumstances.  

7.5 Client adequately secures its systems and infrastructure and  keeps these adequately secured. 

7.6 Supplier may give client instructions about security features  intended to prevent or to minimalize incidents, or the  

consequences of incidents, that may affect security. If client  should fail or follow the instructions issued by supplier or by a  relevant public authority, or should fail to follow these in time,  supplier is not liable and client indemnifies supplier against any  damage that may arise as a result.  

7.7 Supplier is at any time permitted to install technical and  organizational facilities to protect hardware, data files websites,  software made available, software or other works to which  client has been granted access, whether directly or indirectly,  also in connection with a restriction agreed on in the content or  the duration of the right to use these objects. Client may not  remove or circumvent any of such technical facilities or have  these removed or circumvented. 

Article 8 Retention of title, reservation of rights  and suspension 

8.1 All goods delivered to client remain the property of supplier until  all sums due by client to supplier under the agreement entered  into by parties have been paid to supplier in full. A client that  acts as a reseller may sell and supply all goods that are subject  to the supplier’s retention of title insofar as this is customary in  the context of client’s normal course of business. 

8.2 The property-law consequences of the retention of title with  respect to any goods destined for export is governed by the  laws of the state of destination if the relevant laws contain  provisions that are more favourable to supplier.

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

8.4 Supplier may retain all information, documents, software and/or  data files received or created in the context of the agreement,  despite an existing obligation to hand these over or transfer  them, until client has paid all sums due to supplier. 

Article 9 Transfer of risk 

9.1 The risk of loss, theft, misappropriation or damage of goods,  information (including user names, codes and passwords),  documents, software or data files that are created for, delivered to or used by client in the context of the performance of the  agreement pass to client at the moment these are placed under  the actual control of client or an auxiliary person of client. 

Article 10 Intellectual property 

10.1 All intellectual property rights to the software, websites, data  files, databases, hardware, training, testing and examination  materials, as well as other materials such as analyses, designs,  documentation, reports, offers, including preparatory materials  for these materials, developed or made available to client under  the agreement remain exclusively vested in supplier, its  licensors or its suppliers. Client is solely granted the rights of  use laid down in these general terms, in the agreement entered  into by parties in writing and in the applicable mandatory legal  provisions. A right of use granted to client is non-exclusive,  non-transferable, non-pledgeable (niet-verpandbaar) and non sublicensable. 

10.2 If supplier is prepared to undertake to transfer an intellectual  property right, such undertaking may only be explicitly effected  in writing. If parties agree in writing that an intellectual property  right with respect to software, websites, data files, hardware,  know-how, or other works or materials specifically developed  for client is transferred to client, this does not affect supplier’s  rights or options to use and/or exploit, either for itself or for third  parties and without any restriction, the parts, designs,  

algorithms, documentation, works, protocols, standards and the  like on which the developments referred to are based for other  purposes. Supplier is also entitled to use and/or exploit, either  for itself or for third parties and without any restrictions, the  general principles, ideas and programming languages that have  been used as a basis to create or develop any work for other  purposes. The transfer of an intellectual property right does not  affect supplier’s right to continue developing , either for itself or  for third parties, software – or elements of software – that are  similar to or derived from software – or elements of software – that have been or are being developed for client. 

10.3 Client is not permitted to remove or change any indication with  respect to the confidential nature of the software, websites,  data files, hardware or materials or with respect to copyrights,  brands, trade names or any other intellectual property right  pertaining to the software, websites, data files, hardware or  materials, or have any such indication removed or changed. 

10.4 Supplier indemnifies client against any claim of a third party  based on the allegation that software, websites, data files,  hardware or other materials developed by supplier itself infringe  an intellectual property right of that third party, provided always that client promptly informs supplier in writing about the  existence and content of the claim and leaves the settlement of  the claim, including any arrangements to be made in this  context, entirely up to supplier. To this end, client provides supplier with the powers of attorney and information required  and renders the assistance supplier requires to defend itself against such claims. This obligation to indemnity does not apply  if the alleged infringement concerns (i) works or materials made  available by client to supplier for use, modification, processing  or maintenance or (ii) modifications client has implemented or  modifications client has had implemented in the software,  websites, data files, hardware or other works and materials  without supplier’s written permission. If it is irrevocably  established in court that software, websites, data files,  hardware or other works and materials developed by supplier  itself should infringe any intellectual property right belonging to  a third party, or if, in supplier’s opinion, there is a good chance  that such an infringement will occur, supplier ensures, if  possible, that client can continue to use, or use functional  equivalents of, the software, websites, data files, hardware or  other works and materials delivered. Any other or further  obligation that supplier might have to indemnify client against  any infringement of a third party’s intellectual property right is  excluded.  

10.5 Client guarantees that no rights of third parties preclude making  hardware, software, material intended for websites, data files  and/or other materials, designs and/or other works available to  supplier for the purpose of use, maintenance, processing,  installation or integration; this guarantee also pertains to client’s  having the relevant licences. Client indemnifies supplier against  any claim of a third party based on the allegation that making  any of this available and/or the use, maintenance, processing,  installation or integration infringes a right of that third party. 

10.6 Supplier is never obliged to perform data conversion unless this  has been explicitly agreed on with client in writing. 

10.7 Supplier is entitled to use client’s figurative mark, logo or name  in its external communication. 

Article 11 Performance of services 

11.1 Supplier performs its services with care to the best of its ability,  where applicable in accordance with the arrangements and  procedures agreed on with client in writing. All services  provided by supplier are performed on the basis of a best efforts 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.  

11.2 Supplier is not liable for any damage suffered or costs incurred  as a result of the use or misuse that is made of access or  identification codes or certificates or any other security means  unless the misuse is the direct result of any intent or deliberate  recklessness on the part of supplier’s management. 

11.3 If the agreement has been entered into with a view to it being  performed by one specific person, supplier is always entitled to  replace this person by one or more persons who have the same  and/or similar qualifications. 

11.4 Supplier is not obliged to follow client’s instructions when  performing the services, more particularly not if these  instructions change or add to the content or scope of the  services agreed on. If such instructions are followed, however,  the activities performed are charged at supplier’s applicable rates.


Article 12 Obligation to provide information and  render assistance 

12.1 Parties acknowledge that the success of activities to be  performed in the field of information and communications  technology depends on proper and timely cooperation of  parties. Client undertakes always to fully cooperate, within  reason, and in time.

12.2 Client vouches for the correctness and completeness of the  data, information, designs and specifications provided by on or  behalf of client to supplier. If the data, information, designs or  specifications provided by client should contain inaccuracies  apparent to supplier, supplier requests client to provide further  information. 

12.3 For reasons of continuity, client designates a contact person or  contact persons who act in that capacity for the time supplier  performs it services. Client’s contact persons have the relevant  experience required, specific knowledge of the subject matter  and a proper understanding of the objectives that client wishes  to achieve. 

12.4 Client bears the risk of selecting the goods and/or services to  be provided by supplier. Client always exercises the utmost  care to guarantee that the requirements set for supplier’s  performance are correct and complete. Measurements and  data provided in drawings, images, catalogues, websites,  offers, advertising material, standardisation sheets and the like  are not binding on supplier unless explicitly stated otherwise by  supplier.  

12.5 If client deploys employees and/or auxiliary persons in the  performance of the agreement, these employees and auxiliary  persons must have the knowledge and experience required. If  supplier’s employees perform activities at client’s premises,  client ensures the facilities required are available, such as a  workspace with computer and network facilities, on time and  free of charge. Supplier is not liable for damage suffered or  costs incurred by transmission errors, malfunctions or the non availability of these facilities unless client proves that this  damage or these costs are caused by intent or deliberate  recklessness on the part of supplier’s management .  

12.6 The workspace and facilities must meet all statutory  requirements. Client indemnifies supplier against claims of third  parties, including supplier’s employees, who, when performing  the agreement, suffer damage caused by client’s acts or  omissions or by unsafe situations in client’s organisation or  company. Before the activities to be performed start, client  informs the employees deployed by supplier about the  company rules, information rules and security rules that apply in  client’s organisation or company.  

12.7 Client is responsible for the management, including checks of the settings, and use of the products delivered and/or services  provided by supplier, and the way in which the results of the  products and services are implemented. Client is also responsible for appropriately instructing users and for the use of  the products and services that is made by users. 

12.8 Client itself is responsible for the hardware, infrastructure and  auxiliary software and ensures that the (auxiliary) software for its own hardware is installed, organised, parameterised and  tuned and, where required, that the hardware, other (auxiliary)  software and the operating environment used are modified and  kept updated, and that the interoperability wanted by client is  effected.  

Article 13 Project and steering groups 

13.1 If both parties are participating in a project or steering group in  which one or more of their employees have been appointed, the  provision of information takes place in the manner agreed on  for that project or steering group. 

13.2 Decisions made in a project or steering group in which both  parties are participating are only binding on supplier if the  decisions are made in accordance with that which parties have  agreed on in writing in this regard or, if no written arrangements have been made in this context, if supplier has accepted the  relevant decision in writing. Supplier is never obliged to accept or implement a decision if, in its opinion, the decision cannot be  reconciled with the content and/or proper performance of the  agreement. 

13.3 Client ensures that the persons that it has assigned to  participate in a project or steering group are authorised to make  decisions that are binding on client. 

Article 14 Terms and deadlines 

14.1 Supplier makes reasonable efforts, within reason, to comply to  the greatest extent possible with the terms and delivery periods  and/or dates and delivery dates, whether or not these are  deadlines and/or strict dates, that it has specified or that have  been agreed on by parties. The interim dates and delivery  dates specified by supplier or agreed on by parties always  apply as target dates, do not bind supplier and are always  indicative. 

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

14.3 In all cases – therefore, also if parties have agreed on  deadlines and strict delivery periods or dates and delivery dates  – supplier is only in default because of a term or period of time  being exceeded after client has served supplier with a written  notice of default and has set a reasonable period of time for  supplier to remedy the failure to meet its obligations and this  reasonable term has passed. The notice of default must  describe supplier’s breach to meet its obligations as comprehensively and in as much detail as possible so that  supplier has the opportunity to respond adequately. 

14.4 If it has been agreed that the activities to be performed under  the agreement must be performed in phases, supplier is entitled  to postpone the start of the activities for a next phase until client  has approved the results of the preceding phase in writing. 

14.5 Supplier is not bound by a date or delivery date or term or  delivery period, whether or not these are deadlines and/or strict  dates, if parties have agreed on an adjustment in the content or  scope of the agreement (additional work, a change of  specifications, etc.) or a change in approach with respect to the  performance of the agreement, or if client fails to fulfil its  obligations under the agreement or fails to do so on time or in  full. If additional work should be required during the performance of the agreement, this never constitutes a reason  for client to give notice of termination of the agreement  (opzeggen) or to terminate the agreement for breach (ontbinden). 

Article 15 Termination of the agreement for  breach or by serving notice of termination 

15.1 Either party is exclusively entitled to terminate the agreement  for breach (ontbinden) following an imputable failure of the  other party to meet it is obligations under the agreement if the  other party, in all cases after a written notice of default has  been served that is as detailed as possible and in which the  other party is granted a reasonable period of time to remedy the  breach, should still imputably fail to meet any of its essential  obligations under the agreement. Client’s payment obligations  and all obligations of client or a third party contracted by client  to cooperate and/or to provide information apply in all cases as  essential obligations under the agreement. 

15.2 If, at the time of the termination for breach, client has already  received goods or services in the performance of the agreement, this performance and the relevant payment  obligations cannot be undone unless client proves that supplier is in default with respect to the essential part of the performance due. With due regard to the provisions of the  preceding sentence, sums invoiced by supplier prior to the  termination for breach in connection with what has already been properly performed or delivered in the performance of the  agreement remain due in full and become immediately payable  at the time of the termination for breach. 

15.3 An agreement which, due to its nature and content, is not  discharged by performance and which has been entered into  for an indefinite period of time may be terminated, following  consultation between parties, by either party by serving written  notice of termination to the other party (opzeggen). Reasons for  the termination must be stated. If a notice period has not been  agreed on between parties, a reasonable period must be  observed when notice of termination is served. Supplier is  never obliged to pay any compensation because of this termination. 

15.4 Client is not entitled to terminate (opzeggen) an agreement for  services that has been entered into for a definite period of time before the end of the term; client is not entitled either to  terminate (opzeggen) an agreement that ends by completion  before it has been completed. 

15.5 Either party may terminate (opzeggen) the agreement in  writing, in whole or in part, without notice of default being  required and with immediate effect, if the other party is granted  a suspension of payments, whether or not provisional, a petition  for bankruptcy is filed against the other party or the company of  the other party is liquidated or dissolved other than for  restructuring purposes or for a merger of companies. Supplier  may also terminate (opzeggen) the agreement, in whole or in  part, without notice of default being required and with immediate effect, if a direct or indirect change occurs in the  decisive control of client’s company. Supplier is never obliged  to repay any sum of money already received or pay any sum of  money in compensation because of termination as referred to in  this paragraph. If client is irrevocably bankrupted, its right to  use the software, websites and the like made available to client ends, as does its right to access and/or use supplier’s services,  without supplier being required to cancel these rights. 


Article 16 Supplier’s liability 

16.1 Supplier’s total liability for an imputable failure in the  performance of the agreement or arising from any other legal  basis whatsoever, explicitly including each and every failure to  meet a guarantee or indemnification obligation agreed on with  client, is limited to the compensation of damages as described  in more detail in this article. 

16.2 Direct damage is limited to a maximum of the price stipulated  for the agreement in question (excluding VAT). If the agreement  is mainly a continuing performance contract with a duration of  more than one year, the price stipulated for the agreement is  set at the total sum of the payments (excluding VAT) stipulated for one year. In no event does supplier’s total liability for any  direct damage, on any legal basis whatsoever, exceed EUR  500,000 (five hundred thousand euros). 

16.3 Supplier’s total liability for any damage arising from death or  bodily injury or arising from material damage to goods is limited to the amount of EUR 1,250,000 (one million two hundred fifty  thousand euros). 

16.4 Liability for indirect damage, consequential loss, loss of profits,  lost savings, reduced goodwill, loss due to business interruption, loss as a result of claims of client’s clients, loss  arising from the use of goods, materials or software of third  parties prescribed by client to supplier and any damage and  loss arising from contracting suppliers client has recommended  to supplier is excluded. Liability for corruption, destruction or  loss of data or documents is also excluded. 

16.5 The exclusions and limitations of supplier’s liability described  articles 16.2 up to and including 16.4 are without any prejudice  whatsoever to the other exclusions and limitations of supplier’s  liability described in these general terms. 

16.6 The exclusions and limitations referred to in articles 16.2 up to  and including 16.5 cease to apply if and insofar as the damage  is caused by intent or deliberate recklessness on the part of  supplier’s management. 

16.7 Unless performance by supplier is permanently impossible,  supplier is exclusively liable for an imputable failure in the  performance of an agreement if client promptly serves supplier  with a written notice of default, granting supplier a reasonable  period of time to remedy the breach, and supplier should still  imputably fail to meet its obligations after that reasonable term  has passed. The notice of default must describe supplier’s  failure as comprehensively and in as much detail as possible so  that supplier has the opportunity to respond adequately. 

16.8 The right to compensation of damages exclusively arises if client reports the damage to supplier in writing as soon as  possible after the damage has occurred. Any claim for  compensation of damages filed against supplier lapses by the  mere expiry of a period of twenty four months following the  inception of the claim unless client has instituted a legal action  for damages prior to the expiry of this term. 

16.9 Client indemnifies supplier against any and all claims of third  parties arising from product liability because of a defect in a  product or system that client delivered to a third party and that  consisted in part of hardware, software or other materials  delivered by supplier, unless and insofar as client is able to  prove that the loss was caused by the hardware, software or  other materials referred to. 

16.10 The provisions of this article and all other exclusions and  limitations of liability referred to in these general terms also  apply in favour of all natural persons and legal persons that  supplier and supplier’s suppliers contracts for the performance  of the agreement. 

Article 17 Force Majeure 

17.1 Neither party is obliged to meet any obligation, including any  statutory and/or agreed guarantee obligation, if it is prevented  from doing so by circumstances beyond its control (overmacht).  Circumstances beyond supplier’s control include, among other  things: (i) circumstances beyond the control of supplier’s  suppliers, (ii) the failure by supplier to properly meet obligations  that were contracted by supplier on client’s instructions, (iii)  defects in goods, hardware, software or materials of third  parties that supplier uses on client’s instructions, (iv) measures  by public authorities, (v) power failures, (vi) failures of the  Internet, data network or telecommunication facilities, (vii)  (cyber) crime, (cyber) vandalism, war or terrorism and (viii)  general transport problems. 

17.2 If a force majeure situation lasts for more than sixty days, either  party has the right to terminate the agreement, in writing, for  breach (ontbinden). In such event, all that has already been  performed under the agreement must be paid for on a  proportional basis, without anything else being due by either  party to the other party. 

Article 18 Service Level Agreement 

18.1 Possible arrangements about a service level (Service Level  Agreement) are exclusively agreed on in writing. Client promptly informs supplier about any circumstances that may  affect the service level or its availability. 

18.2 If any arrangements have been made about a service level, the  availability of software, systems and related services is always  measured in such a way that unavailability due to preventive,  corrective or adaptive maintenance service or other forms of  service that supplier has notified client of in advance and  circumstances beyond supplier’s control are not taken into  account. Subject to proof to the contrary offered by client, the  availability measured by supplier is considered conclusive. 

Article 19 Backups 

19.1 If the services provided to client under the agreement include  making backups of client’s data, supplier makes a complete  backup of client’s data in its possession, with due observance  of the periods of time agreed on in writing, or once a week if  such terms have not been agreed on. Supplier keeps the  backup for the duration of the agreed term or for the duration of  supplier’s usual term if no further arrangements have been  made in this regard. Supplier keeps the backup with due care  and diligence. 

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

Article 20 Adjustments and extra work 

20.1 If, at client’s request or after client’s prior consent, supplier has  performed activities or has delivered goods or services that are  outside the scope of the agreed activities and/or delivery of  goods or services, client is charged for these activities or for  these goods or services on the basis of the agreed rates or, if  no rates have been agreed on by parties, on the basis of supplier’s applicable rates. Supplier is not obliged to honour  such request and may require that, to that purpose, a separate  agreement should be entered into in writing. 

20.2 Client realises that adjustments and extra work (may) result in  terms and delivery periods and/or dates and delivery dates  being postponed. Any new terms and delivery periods and/or  dates and delivery dates indicated by supplier replace the  previous terms and delivery periods and/or dates and delivery  dates. 

20.3 Insofar as a fixed price has been agreed on for the agreement,  supplier informs client, at client’s request and in writing, about  the financial consequences of the extra work or additional  delivery of goods or services referred to in this article. 

Article 21 Transfer of rights and obligations 

21.1 Client is not entitled to sell, transfer or pledge (verpanden) its  rights and obligations under an agreement to a third party. 21.2 Supplier is entitled to sell, transfer or pledge (verpanden) any  claims it has to payment of any sums due to a third party. 

Article 22 Applicable law and disputes 

22.1 The agreements between supplier and client are governed by  the laws of the Netherlands. Applicability of the Vienna  Convention 1980 (The United Nations Convention on Contracts  for the International Sale of Goods (CISG)) is excluded.  

22.2 Any disputes that may arise from an agreement between  parties and/or from any further agreements deriving from this  agreement are resolved by arbitration in accordance with the  Arbitration Regulations of the Foundation for the Settlement of  Automation Disputes (Stichting Geschillenoplossing  

Automatisering – SGOA – (www.sgoa.eu), this without  prejudice to either party’s right to request preliminary relief in  preliminary relief proceedings or arbitral preliminary relief  proceedings and without prejudice to either party’s right to  attach property before judgment. Arbitration proceedings take  place in Amsterdam, or in any other place designated in the  Arbitration Regulations.  

22.3 If a dispute that arises from an agreement entered into by  parties or from any further agreements deriving from this  agreement is within the jurisdiction of the cantonal section of  the Netherlands District Court (kantongerecht), either party is  entitled, notwithstanding the provisions of article 22.2, to bring  the case as a cantonal court case before the competent district  court in the Netherlands. Parties are only entitled to initiate these proceedings if arbitration proceedings concerning the  dispute have not yet been instituted under the provisions of  article 22.2. If, with due observance of the provisions of this  article 22.3, either party has brought the case before the  competent district court to be heard and decided, the cantonal  judge of that district court is competent to hear the case and to  decide on it. 

22.4 Regarding a dispute that arises from an agreement entered into  by parties or from any further agreements deriving from this  agreement, either party is always entitled to institute ICT  mediation proceedings in accordance with the ICT Mediation  Regulations of the Foundation for the Settlement of Automation  Disputes (Stichting Geschillenoplossing Automatisering – SGOA – (www.sgoa.eu). The other party is then obliged to  actively participate in the ICT mediation proceedings that have  been instituted. This legally enforceable obligation in any case  includes having to attend at least one joint meeting of mediators  and parties, in order to give this extrajudicial form of dispute  resolution a chance of success. Either party is free to terminate  the ICT mediation proceedings at any time after this first joint  meeting of mediators and parties. The provisions of this  paragraph do not prevent either party, if this party deems doing  so necessary, from requesting preliminary relief in preliminary  relief proceedings or in arbitral preliminary relief proceedings  nor do they prevent either party from attaching property before  judgment. 

Section 2. Standard clauses on data  processing 

The provisions in this section ‘Standard clauses on data  processing’ apply, apart from the General provisions of  these general terms, if supplier processes personal data, in  the context of the performance of an agreement, for the  controller(s) as (sub)processor as meant in the laws and  regulations on personal data protection. These ‘Standard  clauses on data processing’ together with the practical  arrangements made on personal data processing in the  agreement or in a separate appendix (for example a Data  Pro Statement) form a processing agreement as meant in  article 28, paragraph 3 of the General Data Protection  Regulation (GDPR). 

Article 23 General 

23.1 Supplier processes the personal data on client’s behalf and in  accordance with the written instructions agreed on by supplier  and client. 

23.2 Client, or client’s client, is the controller in the sense of the  GDPR, has control over the processing of personal data and has established the purpose of and the means for the personal  data processing.  

23.3 Supplier is processor in the sense of the GDPR and, for that  reason, has no control over the purpose of and the means for  the personal data processing and, therefore, does not take any  decisions on, amongst other things, the use of the personal  data. 

23.4 Supplier implements the GDPR as laid down in this section  ‘Standard clauses on data processing’ and in the agreement.  Client is responsible for assessing, on the basis of this  information, whether supplier offers adequate guarantees with  respect to applying appropriate technical and organisational  measures for the processing to meet the requirements posed  by the GDPR and to adequately safeguard the protection of the  data subjects’ rights.  

23.5 Client guarantees vis-à-vis supplier that it acts in compliance  with the GDPR, that its systems and infrastructure are at any  time appropriately secured and that the content, the use and/or  the processing of the personal data are not unlawful and do not  breach any third party rights.  

23.6 Client is not entitled to seek recovery from supplier of an  administrative fine imposed on client by the supervisory  authority, on whatever legal ground. In the present section  (Section 2) ‘supervisory authority’ is understood to mean the  supervisory authority referred to in the GDPR. 

Article 24 Security 

24.1 Supplier takes all the technical and organisational security  measures described in the agreement. When implementing these technical and organisational measures, supplier has  taken into account the state of the art, the costs involved in  implementing the security measures, the nature, scope and  context of the processing, the nature of its products and  services, the processing risks and the varying risks, in terms of  likelihood and severity, posed to the rights and freedoms of the  data subjects that supplier could expect in view of the use  iintended to be made of its products and services. 

24.2 Unless explicitly stated otherwise in the agreement, supplier’s  product or service is not intended for processing special  categories of personal data or data relating to convictions under  criminal law or criminal offences. 

24.3 Supplier endeavours to ensure that the security measures to be  taken by supplier are appropriate for the use of the product or  service intended by supplier. 

24.4 The security measures described offer a security level, in  client’s opinion and taking the factors referred to in article 24.1  into account, appropriate to the risk involved in processing  personal data used or provided by client.  

24.5 Supplier may adjust the security measures implemented if this  should be required, in supplier’s opinion, to continue to offer an  appropriate security level. Supplier keeps a record of important  adjustments and informs client of these adjustments where  relevant. 

24.6 Client may request supplier to implement further security  measures. Supplier is not obliged to implement any  

adjustments in its security measures following such request.  Supplier may charge client for the costs involved in  

implementing the adjustments requested by client. Supplier is  not obliged to actually implement these adjusted security  measures before the security measures requested by client  have been agreed on in writing.  

Article 25 Personal data breaches 

25.1 Supplier does not guarantee that the security measures are  effective in all circumstances. If supplier discovers a personal  data breach, supplier informs client of this without undue delay.  The agreement stipulates in which way supplier informs client  of personal data breaches. If no specific arrangements have  been agreed on, supplier contacts the client’s contact person in  the usual way.  

25.2 It is up to the controller – i.e. client or client’s client – to assess  whether the personal data breach reported by supplier must be  reported to the supervisory authority or the data subject.  Reporting personal data breaches is, at any time, controller’s – i.e. client’s or client’s client’s – responsibility. Supplier is not  obliged to report personal data breaches to the supervisory  authority and/or the data subject.  

25.3 Where required, supplier provides further information on the  personal data breach and renders assistance in providing the  information to client that client needs to report a breach to the  supervisory authority or the data subject.  

25.4 Supplier may charge client for the costs involved in this context,  within reason and at supplier’s current rates.  

Article 26 Confidentiality 

26.1 Supplier ensures that the obligation to observe confidentiality is  imposed on any person processing personal data under  supplier’s responsibility.  

26.2 Supplier is entitled to provide personal data to third parties if  and insofar as this should be required pursuant to a judicial  decision or a statutory requirement, on the basis of an  authorised order by a public authority or in the context of the  proper performance of the agreement. 

Article 27 Obligations following termination 

27.1 In the event the processing agreement ends, supplier deletes,  within the period of time agreed on in the agreement, all  personal data received from client that it has in its possession in such a way that they can no longer be used and are  rendered inaccessible, or, if agreed on, returns these data to  client in a machine readable format.  

27.2 Supplier may charge client for any costs possibly incurred in the  context of the stipulation in the previous paragraph. Further  arrangements on this may be laid down in the agreement.  

27.3 The provisions of article 27.1 do not apply if statutory provisions  should prohibit supplier to delete the personal data or return  these, in part or in full. In such event supplier only continues to  process the personal data insofar as required under its  statutory obligations. The provisions of article 27.1 do not apply  either if supplier is a controller in the sense of the GDPR with  respect to the personal data.  

Article 28 Data subjects’ rights, Data Protection  Impact Assessment (DPIA) and audit rights 

28.1 Where possible, supplier renders assistance in reasonable  requests by client that are related to data subjects exercising their rights against client. If supplier is directly contacted by a  data subject, supplier refers this data subject, whenever  possible, to client.  

28.2 If client should be obliged under the GDPR to carry out a Data  Protection Impact Assessment (DPIA) or a prior consultation  following this, supplier renders assistance, at client’s reasonable request, in this DPIA or prior consultation.

28.3 At client’s request, supplier provides all information that would  be reasonably required to demonstrate compliance with the  arrangements laid down in the agreement with respect to  personal data processing, for example by means of a valid Data  Pro Certificate or another certificate at least equal to it, an audit  report (Third Party Memorandum) drafted by an independent  expert commissioned by supplier or by means of other  information to be provided by supplier. If client should  

nevertheless have reasons to assume that the personal data  are not processed in accordance with the agreement, client  may commission an audit, no more than once per year and at  client’s expense, by an independent, certified external expert  who has demonstrable experience in the type of data  

processing that is carried out under the agreement. Supplier is  entitled to refuse an expert if this expert affects, in supplier’s  opinion, supplier’s competitive position. The audit is limited to  verifying compliance with the arrangements on personal data processing as laid down in the agreement. The expert is  obliged to observe confidentiality with respect to his findings  and only reports issues to client which result in a failure by  supplier to meet its obligations under the agreement. The  expert provides supplier with a copy of his report. Supplier may  refuse an expert, an audit or an instruction by the expert if this  should be, in supplier’s opinion, in violation of the GDPR or  other laws and regulations or if this should be an unacceptable  breach of the security measures implemented by supplier.  

28.4 Parties hold consultations on the findings of the report as soon  as possible. Parties comply with the improvement measures  proposed and laid down in the report insofar as this can be  reasonably expected from them. Supplier implements the  proposed measures insofar as these are appropriate in  supplier’s opinion, taking into account the processing risks  associated with supplier’s product or service, the state of the  art, the implementation costs, the market in which supplier  operates and the intended use of the product or service.  

28.5 Supplier is entitled to charge client for the costs it has incurred  in the context of the provisions laid down in this article.  

Article 29 Subprocessors 

29.1 Supplier has stated in the agreement if and, if so, which third  parties (subprocessors) supplier contracts for the processing of  personal data.  

29.2 Client grants supplier permission to contract other  subprocessors in the performance of supplier’s obligations  under the agreement.  

29.3 Supplier informs client about possible changes with respect to  the third parties it contracts. Client is entitled to object to said  change by supplier. 


Section 3. Software-as-a-Service (SaaS) 

The provisions in this section ‘Software-as-a-service  (SaaS)’ apply, apart from the General provisions of these  general terms, if supplier performs services under the  name or in the field of Software-as-a-Service (also referred  to as: SaaS). For the application of these general terms,  SaaS is understood to mean a service by which supplier  makes functionality available to and keeps functionality available for client remotely, through the Internet or  another data network, without providing client with a  physical carrier with or download of the relevant underlying software. 

Article 30 SaaS Implementation 

30.1 Supplier provides the SaaS on client’s instructions. Client may  solely use the SaaS for its own organisation or company and  only insofar as required for the use intended by supplier. Client  may not allow third parties to make use of the SaaS. 

30.2 Supplier may adjust the content or scope of the SaaS. If such  adjustments are substantive and result in a change in client’s  current procedures, supplier informs client about this as soon  as possible and the costs of this adjustment are at client’s expense. In this case client may serve notice of termination of  the agreement (opzeggen), which termination takes effect on  the date on which the adjustment takes effect, unless the  adjustment is related to amendments in relevant legislation or  other instructions issued by public authorities, or the adjustment is at supplier’s expense.  

30.3 Supplier may continue to provide the SaaS using a new or  modified version of the underlying software. Supplier is not  obliged to maintain, modify or add particular features or  functionalities of the SaaS specifically for client. 

30.4 Supplier may temporarily put all or part of the SaaS out of  service for preventive, corrective or adaptive maintenance  services or other forms of service. Supplier ensures that the  period of time during which the SaaS is out of operation does  not take longer than necessary and ensures, where possible,  that the service takes place at times when the SaaS is usually used least intensively. 

30.5 Supplier is never obliged to provide client with a physical carrier  or download of the underlying software. 

30.6 If no further arrangements have been made in this regard, client  itself is responsible for designing, configuring, parameterising and tuning the SaaS, converting and uploading possible data  and, where required, for modifying the hardware and user  environment used. 

Article 31 Guarantees 

31.1 Supplier does not guarantee that the SaaS is free of errors and  functions without any interruptions. Supplier makes every effort  to repair the errors in the underlying software referred to in  article 36.3 within a reasonable period of time if and insofar as  underlying software is concerned that has been developed by  supplier itself and client has provided supplier with a detailed,  written description of the relevant errors. In a particular case, supplier may postpone repairing errors until a new version of  the underlying software is put into service. Supplier does not  guarantee that errors in the SaaS that has not been developed  by supplier itself are repaired. Supplier is entitled to install  temporary solutions, program bypasses or problem-avoiding  restrictions in the SaaS. If the SaaS, or part of it, has been developed on client’s instructions, supplier may charge client  for the costs incurred by repairing the error(s) at supplier’s  applicable rates. Supplier is never obliged to repair other  imperfections than those referred to in this article. In the event  supplier is prepared to remedy other imperfections than those  referred to in this article, supplier is entitled to charge client a  separate fee for this.  

31.2 On the basis of the information provided by supplier on measures to prevent and restrict the effects of malfunctions,  errors and other imperfections in the SaaS, corruption or loss of  data or other incidents, client identifies and lists the risks to its  organisation or company and, where necessary, takes additional measures. Supplier declares itself prepared to render assistance, at client’s request, to the extent reasonable and  according to the financial and other conditions set by supplier,  with respect to further measures to be taken by client. Supplier is never obliged to recover data that have been corrupted or  lost other than placing back – where possible – the most recent  back-up of the data in question. 

31.3 Supplier does not guarantee that the SaaS is timely adapted to  any amendments in the relevant laws and regulations. 

Article 32 Commencement of the service;  payment 

32.1 The SaaS provided by supplier – and, where relevant, support  – commences within a reasonable period of time after the  agreement has been entered into. Unless agreed on otherwise,  the SaaS commences by supplier client granting access to the  SaaS that is made available by supplier. Client ensures that it  has the facilities required to use the SaaS immediately after the  agreement has been entered into. 

32.2 The fee payable by client for the SaaS is included in the  agreement. If no payment scheme has been agreed on, all  sums related to the SaaS delivered by supplier become due  and payable, in advance, per calendar month. 

Article 33 Additional provisions 

33.1 The following articles apply equally to the SaaS: 34.3, 34.5,  34.8, 36.1 (excluding the reference to art. 40), 36.11, 48.4,  49.1, 49.2, 62.2 and 62.4 and 63. In these articles the word  ‘software’ should be read as ‘SaaS’ and the word ‘delivery’ as  ‘commencement of the service’. 

Section 4. Software 

The provisions in this section ‘Software’ apply, apart from  the General provisions of these general terms, if supplier makes software and apps available to client for use,  together with the relevant data or databases and/or user  documentation for this software– in these general terms  together to be referred to as ‘software’ – other than on the  basis of a SaaS. 

Article 34 Right to use and restrictions on use 

34.1 Supplier makes the software agreed on available for use by  client on the basis of a user licence and for the term of the  agreement. The right to use the software is non-exclusive, non transferable, non-pledgeable and non-sublicensable.  

34.2 Supplier’s obligation to make the software available and client’s  right to use the software exclusively extend to the so-called  object code of the software. Client’s right to use the software  does not pertain to the software’s source code. The source  code of the software and the technical documentation drafted  when the software was developed are not made available to  client, not even if client is prepared to pay a financial  compensation. 

34.3 Client always strictly complies with the agreed restrictions on  the use of the software, regardless of the nature or the content  of these restrictions. 

34.4 If parties have agreed that the software may only be used in  combination with particular hardware and this hardware has a  malfunction, client is entitled to use the software on other  hardware with the same qualifications during the period of time  that the original hardware remains defective. 

34.5 Supplier may require that client should only start using the  software after it has received one or more codes needed for the  use from supplier, from supplier’s supplier or from the producer  of the software. 

34.6 Client is only entitled to use the software in and for its own  organisation or company and only insofar as required for the  intended use. Client does not use the software for the benefit of  third parties, for example in the context of Software-as-a Service (SaaS) or outsourcing. 

34.7 Client is never entitled to sell, lease or alienate, or grant limited  rights to, or make the software and the carriers on which the  software is or will be recorded available to third parties, in any  way whatsoever, for whatever purpose or under whatever title.  Neither is client entitled to grant, whether or not remotely  (online), a third party access to the software or place the  software with a third party for hosting, not even if the third party  concerned exclusively uses the software in client’s interest. 

34.8 If so requested, client promptly renders assistance in any  investigation into compliance with the agreed restrictions on  use to be carried out by or on behalf of supplier. At supplier’s  first request, client grants supplier access to its buildings and  systems. Insofar as such information does not concern the use  of the software itself, supplier observes secrecy with respect to all confidential business information that it obtains from client or  at client’s business location in the context of an investigation. 

34.9 Parties agree that the agreement entered into by parties is  never seen as a purchase agreement where it is related to  making software available for use.  

34.10 Supplier is not obliged to maintain the software and/or provide support to users and/or administrators of the software. If,  contrary to the foregoing, supplier is asked to perform maintenance activities and/or provide support for the software,  supplier may require that client should enter into a separate,  written agreement for this purpose. 

Article 35 Delivery and installation 

35.1 At its discretion, supplier either delivers the software on the  agreed type of data carrier or, if no arrangements have been  made in this regard, on a type of data carrier determined by  supplier, or makes the software online available to client. At  supplier’s discretion, any agreed user documentation is made  available in hardcopy or digital form, in a language determined  by supplier. 

35.2 Supplier only installs the software at client’s business premises  if this has been agreed on. If no arrangements have been made  in this respect, client itself is responsible for installing, designing, parameterising, tuning and, if necessary, for  modifying the hardware and operating environment used. 

Article 36 Acceptance 

36.1 If parties have not agreed on an acceptance test, client accepts  the software in the state that it is in when delivered (‘as is,  where is’), therefore, with all visible and invisible errors and  defects, without prejudice to supplier’s obligations under the  guarantee scheme as set out in article 40. If this should be the case, the software is deemed to have been accepted by client  upon delivery or, if installation by supplier has been agreed on  in writing, upon completion of the installation. 

36.2 If an acceptance test has been agreed on by parties, the  provisions of articles 36.3 up to and including 36.10 apply. 36.3 Where these general terms refer to ‘error’ this is understood to  mean a substantial failure of the software to meet the functional  or technical specifications of the software explicitly made known  by supplier in writing and, if all or part of the software is  customised software, a substantial failure to meet the functional  or technical specifications explicitly agreed on in writing. An  error only exists if it can be demonstrated by client and if it is  reproducible. Client is obliged to report errors without delay. 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 general terms. 

36.4 If an acceptance test has been agreed on, the test period is  fourteen days following delivery or, if installation by supplier has  been agreed on in writing, fourteen days following the completion of installation. During the test period, client may not  use the software for production or operational purposes. Client  performs the agreed acceptance test with qualified personnel, to an adequate extent and in sufficient detail. 

36.5 If an acceptance test has been agreed on, client is obliged to  check whether the software delivered meets the functional or  technical specifications explicitly made known by supplier in  writing and, if and to the extent that all or part of the software is  customised software, that it meets the functional or technical  specifications explicitly agreed on in writing. 

36.6 If testing on client’s instruction involves personal data being  made use of, client ensures that using these data for this  purpose is permitted. 

36.7 The software is understood to have been accepted: a if parties have agreed on an acceptance test: on the first  day following the test period, or b if supplier receives a test report as referred to in article 36.8  prior to the end of the test period: at the time the errors  listed in this test report have been repaired, notwithstanding  the presence of errors that, according to article 36.9, do not  prevent acceptance, or c if client uses the software in any way for production or  operational purposes: at the time it is put into use for production or operational purposes. 

36.8 If it should become clear when the agreed acceptance test is  carried out that the software contains errors, client reports the  test results to supplier in writing in a well-ordered, detailed and  understandable manner no later than on the last day of the test  period. Supplier makes every effort to repair the errors referred  to within a reasonable period of time. In this context, supplier is  entitled to install temporary solutions, program bypasses or  problem-avoiding restrictions. 

36.9 Client is neither entitled to refuse to accept the software for  reasons that are not related to the specifications explicitly agreed on in writing by parties nor entitled to refuse to accept  the software because it has minor errors, i.e. errors that do not  prevent – within reason – the productive or operational use of  the software, all of this without prejudice to supplier’s obligation  to repair these minor errors as referred to in article 40.  Acceptance may not be refused either because of aspects of  the software that can only be assessed subjectively, such as  aesthetic aspects of the user interfaces.  

36.10 If the software is delivered and tested in phases and/or parts,  non-acceptance of a certain phase and/or part is without  prejudice to the acceptance of a previous phase and/or a  different part. 

36.11 Acceptance of the software in one of the ways referred to in this  article results in supplier being discharged of its obligations in  the context of making the software available and delivering it  and, if installation of the software by supplier has also been  agreed on, of its obligations in the context of installing it.  

36.12 Acceptance of the software is without prejudice to client’s rights  under article 36.9 regarding minor errors and article 40  providing for guarantees. 

Article 37 Making the software available 

37.1 Supplier makes the software available to client within a  reasonable period of time after parties have entered into the  agreement. 

37.2 Immediately after the agreement ends, client returns all copies  of the software in its possession to supplier. If it has been  agreed that client is obliged to destroy the relevant copies when  the agreement ends, client informs supplier, promptly and in  writing, that the copies have been destroyed. When the  agreement ends or after it has ended, supplier is not obliged to  render assistance in any data conversion that client may  possibly want to carry out.  

Article 38 Payment for the right to use  the software 

38.1 The sum due for the right to use is payable by client at the  agreed times or, if a time has not been agreed on: 

a if parties have not agreed that supplier is responsible for  the installation of the software: 

● upon delivery of the software; or 

● in the event periodic payments are due for the right to  use, upon delivery of the software and subsequently  

when each new term of the right to use commences; 

b. if parties have agreed that supplier is responsible for the  installation of the software:  

● upon completion of that installation; 

● in the event periodic payments are due for the right to  use the software, upon completion of that installation  

and subsequently when each new term of the right to use commences. 

Article 39 Modifications in the software 

39.1 Except where mandatory statutory provisions should provide  otherwise, client is not entitled to modify all or part of the  software without supplier’s prior written permission. Supplier is  entitled to refuse permission or to attach conditions to its  permission. Client bears the entire risk of all modifications that it  implements – whether or not with supplier’s permission – or that  client has implemented by third parties on its instructions. 

Article 40 Guarantees 

40.1 Supplier makes reasonable efforts to repair errors in the sense  of article 36.3 within a reasonable period of time if these errors  are reported, in detail and in writing, to supplier within a period  of three months after delivery or, if an acceptance test was agreed, within three months after acceptance. Supplier does  not guarantee that the software is suitable for the actual and/or  the intended use. Supplier does not guarantee either that the  software functions without interruptions and/or that all errors are always repaired. Repairs are carried out free of charge unless  the software was developed on client’s instructions other than  for a fixed price, in which case supplier charges the costs of the  repairs to client at its applicable rates. 

40.2 Supplier may charge the costs of the repairs to client at its  applicable rates if such repairs are required as a result of usage  errors or client not using the software properly, or as a result of  causes that cannot be attributed to supplier. The obligation to  repair errors ends if client modifies the software or has such  modifications implemented without supplier’s written permission. 

40.3 Errors are repaired at a location and in a manner to be  determined by supplier. Supplier is entitled to install temporary  solutions, program bypasses or problem-avoiding restrictions in  the software.  

40.4 Supplier is never obliged to recover corrupted or lost data.

40.5 Supplier does not have any obligation whatsoever, of whatever  nature or content, with respect to errors reported after the end  of the guarantee period referred to in article 40.1. 

Section 5. Development of software  and websites 

The provisions in this section ‘Development of software  and websites’ apply, apart from the General provisions of  these general terms, if supplier develops and/or designs  software as described in Section 4 and/or websites for  client and possibly installs the software and/or websites. 

Article 41 Specifications and development of  software and/of websites 

41.1 Development always takes place under an agreement for  services. If no specifications or design of the software and/or  website to be developed have been provided before the  agreement is entered into or no specifications or design are  provided when the agreement is entered into, parties specify,  by consultation and in writing, the software and/or website to be  developed and the manner in which the software and/or  website will be developed. 

41.2 Supplier develops the software and/or website with due care  and in accordance with the explicitly agreed specifications or  design and, where applicable, with due regard for the project  organisation, methods, techniques and/or procedures agreed on in writing with client. Before starting the development  activities, supplier may require that client should agree to the  specifications or design in writing. 

41.3 If no specific arrangements have been made in the matter,  supplier starts the design and/or development activities within a  reasonable period or time, to be determined by supplier, after  the agreement has been entered into.  

41.4 At supplier’s request, client provides supplier with the  opportunity to perform activities at client’s premises outside the  usual working days and working hours. 

41.5 Supplier’s obligations to perform with respect to the  development of a website do not include making a content  management system available.  

41.6 If parties agree that, apart from development activities, supplier  also provides training courses, maintenance and/or support  and/or that supplier also applies for a domain name, supplier  may request that client should enter into a separate, written  agreement. Supplier charges client separately for these  services, at supplier’s applicable rates. 

41.7 If supplier provides services to client in the context of a domain  name, such as the application for, renewal, alienation or  transfer to a third party of that name, client is obliged to observe  the rules and methods of the relevant authority or authorities. At  client’s request, supplier provides client with a written copy of  these rules. Supplier is explicitly neither responsible for the  correctness or the promptness of the services nor responsible  for achieving the results client intends to achieve. Client is  charged for all costs involved in the application and/or registration at the agreed rates and, if no rates have been  agreed on, at supplier’s applicable rates. Supplier does not  guarantee that a domain name client should want to use will  actually be assigned to client. 

Article 42 Agile development of software/websites 

42.1 If parties use an iterative development method – scrum, for  example – parties accept: (i) that, at the start, the activities are  not performed on the basis of complete or fully detailed  specifications; and (ii) that specifications which may or may not  have been agreed on at the start of the activities, may be adapted during the term of the agreement, in mutual consultation and with due observance of the project approach  that forms part of the development method concerned. 

42.2 Before starting the activities to be performed in the context of  the agreement, parties put together one or more teams that  consist of representatives of both supplier and client. The team  ensures that the communication lines remain short and direct  and that consultations take place regularly. Parties provide for the deployment, by both of them, of the capacity agreed on  (FTEs) in terms of team members in the roles and with the  knowledge and experience and the decision-making powers  required to perform the agreement. Parties accept that in order  to make the project successful, the capacity agreed on is a  minimum requirement. Parties endeavour to keep key staff available that have been deployed in first instance, as much as  reasonably possible, until the end of the project, unless  circumstances should arise that are beyond parties’ control.  During the performance of the agreement, parties jointly decide,  by consultation, on the specifications that apply for the following  phase of the project – for example a time box – and/or for the  development of a following part. Client accepts the risk that the  software and/or the website may not necessarily meet all  specifications. Client ensures permanent and active input by  and contributions from relevant end users who are supported  by client’s organisation or company in the context of, among  other things, testing and (further) decision making. Client  guarantees expeditiousness in progress-related decisions that  have to be made during the performance of the agreement. If  client fails to make clear and prompt progress-related decisions  in conformity with the project approach that forms part of the  relevant development method, supplier is entitled, though not  obliged, to make the decisions that supplier considers to be  appropriate. 

42.3 If parties have arranged for one or more test moments, a test  exclusively takes place on the basis of objective, measurable  criteria agreed on previously, such as confirming to development standards. Errors and other imperfections are only  repaired if the responsible team decides so and this will be  carried out in a subsequent iteration. If an extra iteration should  be required, the costs are at client’s expense. After the last  development phase, supplier is not obliged to repair any errors  or other imperfections, unless explicitly agreed on otherwise in  writing.  

Article 43 Delivery, installation and acceptance 

43.1 The provisions of article 35 with respect to delivery and  installation apply mutatis mutandis. 

43.2 Unless supplier is obliged, under the agreement, to host the  software and/or website for client on its own computer system,  supplier either delivers the software and/or website to client on  a data carrier and in a form determined by supplier, or makes  the software and/or website online available to client. 

43.3 The provisions of article 36 of these general terms with respect  to acceptance apply mutatis mutandis.  

43.4 If parties make use of a development method as referred to in  article 42, the provisions of article 36.1, 36.2, article 36.4 up to and including 36.9, article 36.12 and article 40.1 and 40.5 do  not apply. Client accepts the software and/or website in the  state it is in at the moment the last development phase ends  (‘as is, where is’). 

Article 44 Right to use 

44.1 Supplier makes the software and/or website developed on  client’s instructions, together with the relevant user documentation, available to client for use. 

44.2 The source code of the software and the technical documentation prepared when the software is developed is only  made available to client if this has been agreed in on writing, in  which case client is entitled to modify the software. 

44.3 Supplier is not obliged to make the auxiliary software and  program or data libraries required for the use and/or maintenance of the software and/or website available to client.  44.4 The provisions of article 34 with respect to the right to use and  restrictions on the use apply mutatis mutandis.  

44.5 Only if the content of the written agreement explicitly indicates that all design and development costs are fully and exclusively  at client’s expense, restrictions on the use of the software  and/or website do not apply for client, contrary to the provisions  of article 44.4. 

Article 45 Payment 

45.1 If no payment scheme has been agreed on, all sums related to  the development of software and/or website become due and  payable, in arrears, per calendar month. 

45.2 The price for the development activities includes payment for  the right to use the software and/or website for the term of the  agreement. 

45.3 The payment for the development of the software and/or  website does not include payment for auxiliary software and  program and data libraries, and any installation services and  any modifications and/or maintenance of the software and/or  website required by client. The payment does not include  support services for the users of the software and/or website either.  

Article 46 Guarantees 

46.1 The provisions of article 40 with respect to guarantees apply  mutatis mutandis.  

46.2 Supplier does not guarantee that the software and/or website it  has developed function properly on all sorts of new versions of  web browser types and possibly other software and/or  websites. Supplier does not guarantee either that the software  and/or website function properly on all types of hardware. 

Section 6. Maintenance and support of  software 

The provisions in this section ‘Maintenance and support of  software’ apply, apart from the General provisions of these  general terms, if supplier provides services in the field of  software maintenance and software support for the use of  the software.  

Article 47 Maintenance services 

47.1 If agreed, supplier performs maintenance services for the  software specified in the agreement. The obligation to provide maintenance includes repairing errors in the software in the  sense of article 36.3 and, only if this has been agreed in writing,  making new versions of the software available in accordance  with article 48. 

47.2 Client is to report, in detail, any errors discovered in the  software. Following receipt of the report, supplier makes every  effort to repair errors and/or implement corrections in later, new  versions of the software in compliance with its applicable procedures. Depending on the urgency and supplier’s version  and release policy, the results are made available to client in a  manner and within the period of time determined by supplier.  Supplier is entitled to install temporary solutions, program  bypasses or problem-avoiding restrictions in the software.  Client itself is responsible for installing, organising, parameterising and tuning the corrected software or the new  version of the software made available, and, if necessary, for  modifying the hardware and operating environment used.  Supplier is never obliged to repair other imperfections than  those referred to in this article. In the event supplier is prepared  to correct other imperfections than those referred to in this  article, supplier is entitled to charge a separate fee for this. 

47.3 The provisions of article 40.3 and 40.4 apply mutatis mutandis. 47.4 If supplier performs maintenance services online, client  ensures, in due time, that a properly and appropriately secured  infrastructure and network facilities are in place.  

47.5 Client renders every assistance required by supplier for the maintenance services, which includes that client should temporarily stop using the software and should make a backup  of all data.  

47.6 If maintenance concerns software that was not delivered to  client by supplier and if supplier believes this is necessary or  appropriate in the context of maintenance, client makes the  source code and the technical (development) documentation of  the software, including data models, designs, change logs and  the like, available to supplier. Client guarantees that it is entitled  to make the source code and documentation available. Client  grants supplier the right to use and modify the software,  including the source code and technical (development)  documentation, so that supplier can perform the maintenance  services agreed on. 

Article 48 New versions of the software 

48.1 Maintenance includes making new versions of the software  available only if and insofar as this has been agreed in writing.  If maintenance includes making new versions of the software  available, these new versions are made available at supplier’s  discretion. 

48.2 Three months after an enhanced version has been made  available, supplier is no longer obliged to repair errors in the  previous version and to provide support and/or perform  maintenance services for a previous version.  

48.3 Supplier may require that client should enter into an additional  written agreement with supplier for a version with new  functionality and that a further payment should be made for this version. Supplier may incorporate functionality from a previous  version of the software in the new version without any  modifications, but supplier does not guarantee that each new  version includes the same functionality as the previous version.  Supplier is not obliged to maintain, modify or add particular  features or functionalities in the software especially for client.  

48.4 Supplier may require that client should modify its system  (hardware, web browser, software and the like) if this should be  necessary for the proper functioning of a new version of the  software. 

Article 49 Support services 

49.1 If the services provided by supplier under the agreement  include support services to users and/or administrators of the  software, supplier advises – online, by telephone or by email – on the use and functioning of the software specified in the  agreement. Client is obliged to specify the requests for support  as comprehensively and in as much detail as possible so that  supplier can respond appropriately. Supplier may set conditions  with respect to the way in which support is requested and the  qualifications and the number of persons eligible for support.  Supplier handles properly substantiated requests for support  within a reasonable period of time and in compliance with its  applicable procedures. Supplier does not guarantee the  correctness, completeness or timeliness of responses or of the  support offered. Support services are performed on working  days during supplier’s usual business hours. 

49.2 If the services provided by supplier under the agreement  include standby services, supplier ensures that one or more  staff members are available on the days and at the times  specified in the agreement. If standby services have been  agreed on, client is entitled, in urgent cases, to call in the  support of staff members on standby if there are serious errors, serious malfunctions and other serious imperfections in the  functioning of the software. Supplier does not guarantee that  these are promptly repaired. 

49.3 The maintenance and other agreed services referred to in this  chapter are performed starting from the date on which the  agreement is entered into, unless parties have agreed  otherwise in writing.  

Article 50 Payment 

50.1 If no payment scheme has been explicitly agreed on, all sums  related to the maintenance of the software and other services  as meant in this section and set out in the agreement become  due and payable, in advance, per calendar month. 

50.2 Sums relating to the maintenance of the software and the other  services as meant in this section and set out in the agreement  are payable when the agreement is entered into. Payment for  maintenance and other services is always due, regardless  whether client has taken the software into use and regardless  whether client actually makes use of the maintenance or  support services. 

Section 7. Advisory and consultancy services 

The provisions in this section ‘Advisory and consultancy services’ apply, apart from the General provisions of these  general terms, if supplier provides services in the field of  advice and consultancy, which services are not provided  under client’s direction and supervision. 

Article 51 Performance of advisory and consultancy services 

51.1 Supplier performs the advisory and consultancy services in a  fully independent manner, at its own discretion and without  client’s supervision and directions. 

51.2 Supplier does not commit to a completion time of the  assignment because the completion time of an assignment in  the field of advisory or consultancy services depends on  various factors and circumstances, such as the quality of the data and the information provided by client and the assistance  rendered by client and relevant third parties. 

51.3 Supplier only performs its services on supplier’s usual working  days and during supplier’s usual business hours. 

51.4 The use that client makes of any advisory and/or a consultancy  report drafted by supplier is always at client’s risk. The burden  of proof is on client to prove that the advisory and/or consultancy services or the way in which these are performed  is not in compliance with that which has been agreed on in  writing or that which may be expected from a competent  supplier acting reasonably, without prejudice to supplier’s right  to provide evidence to the contrary, using any legal means. 

51.5 Without supplier’s prior written permission, client may not  inform any third party about supplier’s way of working, methods  and techniques and/or the content of supplier’s recommendations or reports. Client may not provide supplier’s  recommendations or reports to a third party or otherwise make  supplier’s recommendations or reports public. 

Article 52 Reporting 

52.1 Supplier periodically informs client, in the manner agreed on in  writing, about the performance of the services. Client informs  supplier, in advance and in writing, about circumstances of  importance or circumstances that could be of importance to  supplier, such as the manner of reporting, the issues to be  addressed, client’s prioritisation, the availability of client’s  resources and staff, and special facts or circumstances or facts  or circumstances of which supplier is possibly unaware. Client  ensures that the information provided by supplier is spread and  actually taken notice of within client’s organisation or company  and client assesses this information, also on this basis, and  informs supplier of this. 

Article 53 Payment 

53.1 If no payment scheme has been explicitly agreed on, all sums  related to the services provided by supplier as meant in this  section become due and payable, in arrears, per calendar  month. 

Section 8. Secondment services 

The provisions in this section ‘Secondment services’  apply, apart from the General provisions of these general  terms, if supplier makes one or more of its employees  available to client to perform activities under client’s  supervision and instructions. 

Article 54 Secondment services 

54.1 Supplier makes the employee specified in the agreement available to perform activities under client’s direction and  supervision. The results of these activities are at client’s risk.  Unless otherwise agreed in writing, the employee is made  available to client for forty hours a week, during supplier’s usual  working days. 

54.2 Client may only deploy the employee made available to perform  activities other than the activities agreed on if supplier has  agreed to this in advance and in writing. 

54.3 Client may only second the employee made available to a third  party for the purpose of performing activities under that third  party’s direction and supervision if this has been explicitly  agreed in writing. 

54.4 Supplier makes reasonable efforts to ensure that the employee  made available remains available, during the agreed days, to  perform activities for the term of the agreement, except in the  event of the employee’s incapacity for work or if the employee  leaves supplier’s employment. Even if the agreement has been  entered into with a view to the activities being performed by one  particular person, supplier is always entitled, after consultations  with client, to replace this person by one or more persons who  have the same qualifications.  

54.5 Client is entitled to request that the employee made available  should be replaced (i) if the employee made available demonstrably fails to meet the quality requirements explicitly  agreed on and client informs supplier about this, stating  reasons, within three working days after the activities have  started, or (ii) in the event of the relevant employee’s prolonged  incapacity for work or if the employee leaves supplier’s  employment. Supplier complies with such a request without  delay and as a matter of priority. Supplier does not guarantee  that the employee made available can always be replaced. If  the employee cannot be replaced or cannot be replaced promptly, both client’s rights with respect to further performance  of the agreement and all client’s claims arising from non performance of the agreement lapse. Client’s payment  obligations with respect to the activities already performed  continue to apply in full. 

Article 55 Duration secondment agreement 

55.1 Notwithstanding the provisions of article 4 of these general  terms, if nothing has been agreed by parties considering the  duration of the secondment, the secondment agreement is  seen as an agreement for an indefinite period of time, in which  case either party must observe a notice period of one calendar  month following any initial term of the agreement. Termination  by serving notice of termination (opzegging) must be served in  writing. 

Article 56 Working hours and working conditions  

56.1 The working hours, holiday periods, rest periods and other  relevant working conditions of the employee made available are  the same as those usually applied by client. Client guarantees  that the working hours, holiday periods, rest periods and other  relevant working conditions are in compliance with relevant  laws and regulations. 

56.2 Client informs supplier about any intended temporary or  permanent closure of its organisation or company. 

Article 57 Overtime pay and travel time 

57.1 If, on client’s instructions or at client’s request, the employee  made available works more hours per day than the agreed or  usual number of working hours or works on days other than  supplier’s usual working days, client is charged for these hours  at the overtime rate agreed on, or, if no such rate has been  agreed on, at supplier’s applicable overtime rate. If so  requested, supplier informs client about its applicable overtime  rates. 

57.2 Client is charged for travelling expenses and travel time in  accordance with supplier’s applicable rules and standards. If so  requested, supplier informs client about supplier’s applicable rules and standards. 

Article 58 Hirer’s liability and other liability 

58.1 Supplier ensures that amounts payable in terms of payroll tax,  national insurance contributions, employee insurance contributions, income-related healthcare contributions and  turnover tax for the employee made available under the  agreement with client are paid on time and in full. Supplier  indemnifies client against any and all claims of the Tax  Administration or authorities responsible for implementing  social insurance legislation that are due and payable under the  agreement with client, provided that client promptly informs  supplier, in writing, about such claims when they arise and  about the content of a claim and leaves the settlement of that claim, including any arrangements to be made in this regard,  entirely up to supplier. Client provides supplier with the powers  of attorney and the information required and assists supplier in defending itself, if necessary in client’s name, against such  claims. 

58.2 Supplier does not accept any liability for the quality of the  results of the activities performed under client’s supervision and  instructions. 

Section 9. Training courses 

The provisions in this section ‘Training courses’ apply,  apart from the General provisions of these general terms, if  supplier provides services, under whatever name and in  whatever way – for example in electronic form – in the field  of education, courses, workshops, trainings, seminars and  the like (hereinafter to be referred to as: training courses). 

Article 59 Registration and cancellation 

59.1 Registration for a training course must take place in writing and  is binding following its confirmation by supplier. 

59.2 Client is responsible for the choice and suitability of the training  course for the participants. A participant’s lack of the required  prior knowledge does not affect client’s obligations under the  agreement. Client may replace a training course participant by another participant following supplier’s written permission. 

59.3 If, in supplier’s opinion, the number of registrations should give  rise to this, supplier is entitled to cancel the training course, to  combine it with one or more training courses or schedule it on a  later date or at a later time. Supplier reserves the right to  change the location of the training course. Supplier is entitled to  change the training course in organisational terms and in terms  of content. 

59.4 If client or a participant cancels participation in a training  course, the consequences of the cancellation are governed by  supplier’s applicable rules. In any case, cancellation must take  place in writing and prior to the training course or the part of the  training course concerned. Cancellation or non-attendance  does not affect client’s payment obligations under the agreement. 

Article 60 Training courses 

60.1 Client accepts that supplier determines the content and the  scope of the training course. 

60.2 Client informs the participants about the obligations under the  agreement and the rules of conduct and other rules prescribed  by supplier for participation in the training course, and client  ensures compliance by participants with these obligations and  rules. 

60.3 If supplier uses its own hardware or software in the training  course, supplier does not guarantee that this hardware or  software is free of errors and operates without interruption. If  the training course is at client’s premises, client ensures that an  appropriate classroom and properly operating hardware and  software are available. In the event the facilities at client’s  premises appear not meet the requirements and the quality of  the training course, therefore, cannot be guaranteed, supplier is  entitled not to start or to shorten the training course or to stop it  altogether.  

60.4 The agreement does not include administering an exam or a  test.  

60.5 Client is separately charged for the documentation, training  materials or training resources made available or produced for  the training course. This also applies for possible training  course certificates or duplicates of training course certificates.  

60.6 If the training course takes place as an e-learning training  course, the provisions of the section ‘Software-as-a-Service  (SaaS)’ apply mutatis mutandis as much as possible. 

Article 61 Price and payment 

61.1 Supplier may require that client should pay the sums due prior  to the start of the training course. Suppler may exclude  participants from participating in the training course if client fails  to ensure the payment is made in time, without prejudice to any  other rights supplier may have. 

61.2 If supplier has carried out a preliminary study to make a training  course plan or has given training course recommendations,  client may be separately charged for any costs involved. 

61.3 Unless supplier has explicitly indicated that the training course  is VAT exempt within the meaning of article 11 of the Turnover  Tax Act 1968, VAT is payable on client’s payment. Supplier is entitled to adjust its prices after the agreement has been  entered into in the event of any changes in the VAT regime for  training courses as this applies under or pursuant to the law. 

Section 10. Hosting 

The provisions in this section ‘Hosting’ apply, apart from  the General provisions of these general terms, if supplier  provides services, under whatever name, in the field of  hosting and hosting-related services. 

Article 62 Hosting services 

62.1 Supplier performs the hosting services agreed on with client. 62.2 If the agreement’s object is to make hard disk space available,  client may not exceed the agreed disk space unless the  agreement explicitly arranges for the consequences of doing  so. The agreement pertains to making disk space available on  a server specifically reserved for client only insofar as this has  been explicitly agreed in writing. All use of disk space, data  traffic and other use made of systems and infrastructure is  restricted to the maximums agreed on by parties. Data traffic  that is not used by client in a given period may not be transferred to a subsequent period. If the agreed maximums  are exceeded, supplier charges client for an additional  compensation at its applicable rates. 

62.3 Client is responsible for the management, including checks of  the settings, and use of the hosting service, and the way in  which the results of the service are implemented. If no specific  arrangements have been made in this regard, client itself is  responsible for installing, organising, parameterising and tuning the software and auxiliary software, and, where required,  modifying the hardware and user environment used and for  effecting the interoperability wanted. Supplier is not obliged to  perform data conversion.  

62.4 Only if this has been explicitly agreed in writing, the  agreement’s object also is to ensure security, back-up,  contingency and recovery services or to make these available.  

62.5 Supplier may temporarily put all or part of the hosting service  out of operation for preventive, corrective or adaptive maintenance. Supplier ensures that the period of time during  which the service is out of operation does not take longer than  necessary and also ensures, where possible, that this takes  place outside office hours, and, according to circumstances,  have this commence after client has been consulted.  

62.6 If, under the agreement, supplier provides services to client in  the context of a domain name, such as the application for,  renewal, alienation or transfer to a third party of that name,  client is obliged to observe the rules and methods of the  relevant organisation or organisations. At client’s request,  supplier provides client with a written copy of these rules.  Supplier is explicitly neither responsible for the correctness or  the promptness of the services nor responsible for achieving  the results client intends to achieve. Client is charged for all  costs involved in the application and/or registration at the  agreed rates and, if no rates have been agreed on, at supplier’s  applicable rates. Supplier does not guarantee that a domain  name client should want to use will actually be assigned to  client. 

Article 63 Notice and Take Down 

63.1 At all times, client acts with due care and does not act  unlawfully vis-à-vis third parties, more in particular by respecting the intellectual property rights and other rights of  third parties and the privacy of third parties, by refraining from  spreading information in a manner that is in violation of the law,  from granting unauthorised access to systems and from  spreading viruses or other harmful programs or data, and by  refraining from committing criminal offences and violating any  other legal obligations. 

63.2 To prevent liability to third parties or limit the consequences,  supplier is always entitled to take measures with respect to an  act or omission of or at client’s risk. At supplier’s first request in  writing, client promptly removes data and/or information from  supplier’s systems. If client fails to do so, supplier is entitled, at  its own option, to delete the data and/or information itself or to  make access to the data and/or information impossible. In  addition, in the event of a breach or an imminent breach of the  provisions of article 63.1, supplier is entitled to deny client  access to supplier’s systems with immediate effect and without  prior notice. All of this is without prejudice to supplier taking any  other measures or exercising any other statutory and contractual rights with respect to client. Supplier is also entitled  in this case to terminate the agreement by serving notice of  termination (opzeggen) with immediate effect without being  liable to client for doing so.  

63.3 Supplier cannot be expected to form an opinion on the validity  of the claims of third parties or of client’s defence, or to become  involved, in any way whatsoever, in any dispute between a third  party and client. Client is to deal with the relevant third party in  this matter and is to inform supplier in writing, properly  substantiated and supported by documents.

Section 11. Hardware purchases 

The provisions in this section ‘Hardware purchases’ apply,  apart from the General provisions of these general terms, if  supplier sells hardware, of whatever nature, and/or other  goods (corporeal objects) to client. 

Article 64 Purchase and sale 

64.1 Supplier sells the hardware and/or other goods according to the  nature and number agreed on in writing. 

64.2 Supplier does not guarantee that the hardware and/or goods  are suitable, on delivery, for client’s actual and/or intended use  unless the intended purposes have been clearly specified,  without caveats, in the written agreement. 

64.3 Supplier’s obligation to sell does not include assembly and  installation of materials, software, consumer items and articles,  batteries, stamps, ink and ink cartridges, toner articles, cables  and accessories. 

64.4 Supplier does not guarantee that the assembly, installation and  operating instructions that come with the hardware and/or  goods are free of errors and that the hardware and/or goods  have the features stated in these instructions. 

Article 65 Delivery 

65.1 The hardware and/or goods sold by supplier to client are  delivered to client ex warehouse. If this has been agreed on in  writing, supplier delivers the goods sold to client at a location to  be designated by client, or has these goods delivered at this  location. In this case, supplier informs client, if possible in good  time before the delivery, about the time when supplier or the  transporter contracted by supplier intends to deliver the  hardware and/or goods. 

65.2 The purchase price of the hardware and/or goods does not  include the costs of transportation, insurance, hauling and  hoisting, the hiring of temporary facilities and the like. If  applicable, client is charged for these costs.  

65.3 If client requests supplier to remove or destroy old materials – such as networks, cabinets, cable ducts, packaging materials,  hardware or data on hardware – or if supplier is legally obliged  to do so, supplier may accept this request on the basis of a  written order and at its applicable rates. If and insofar as  supplier is prohibited by law from requiring payment, for  example in the context of the old-for-new scheme, supplier  does not charge, where applicable, any costs. 

65.4 Provided parties have entered into a written agreement to  arrange for this, supplier is responsible for installing, configuring  and connecting the hardware and/or goods or for having the  hardware and/or goods installed, configured and connected.  Any obligation of supplier to install and/or configure hardware  neither includes data conversion nor software installation.  Supplier is not responsible for obtaining any of the licences  possibly required. 

65.5 Supplier is always entitled to perform the agreement in partial  deliveries.  

Article 66 Test setup 

66.1 Supplier is only obliged to set up a test environment for the  hardware client is interested in if this has been agreed in  writing. Supplier may attach financial and other conditions to a  test setup. A test setup involves making the standard version of  the hardware temporarily available on approval, excluding  accessories, in a space made available by client, prior to client’s final decision on whether or not to purchase the  hardware in question. Client is liable for the use of, damage to  and theft or loss of the hardware that forms part of a test setup. 

Article 67 Requirements hardware environment 

67.1 Client ensures an environment that meets the requirements  specified by supplier for the hardware and/or goods, among  other things in terms of temperature, humidity and technical  requirements. 

67.2 Client ensures that activities to be performed by third parties,  such as constructional work, are performed adequately and on  time. 

Article 68 Guarantees 

68.1 Supplier makes every effort to repair defects in the material and  manufacturing defects in the hardware and/or goods sold, as  well as defects in parts delivered by supplier within the scope of  the guarantee, within a reasonable period of time and free of  charge if these defects are reported, in detail, to supplier within  a period of three months following delivery. If, in supplier’s  reasonable opinion, the defects cannot be repaired or repair  would take too long, or if repair would entail disproportionately  high costs, supplier is entitled to replace the hardware and/or  goods free of charge with other, similar, though not necessarily  identical, hardware and/or goods. The guarantee does not  include any data conversion that should be required because of  any repair or replacement. All replaced parts are supplier’s  property. The guarantee obligation no longer applies if defects  in the hardware, goods or parts are entirely or partly caused by  incorrect, careless or incompetent use or by external circumstances such as fire or water damage, or if client  modifies the hardware or parts delivered by supplier under the  guarantee, or has these modified, without supplier’s permission.  Supplier does not withhold such permission on unreasonable  grounds. 

68.2 Client cannot file any claims or further claims concerning non conformity of hardware and/or goods delivered other than those  laid down in article 68.1. 

68.3 Client is charged for any costs incurred by activities and repairs  performed outside the scope of this guarantee at supplier’s  applicable rates. 

68.4 Supplier does not have any obligation whatsoever under the  purchase agreement with respect to defects and/or other faults  reported after the guarantee period referred to in article 68.1  ends. 

Section 12. Leasing hardware 

The provisions in this section ‘Leasing hardware’ apply,  apart from the General provisions of these general terms, if  supplier leases hardware of whatever nature to client.  

Article 69 Leasing 

69.2 Supplier leases to client the hardware and relevant user  documentation specified in the lease agreement. 

69.3 The lease neither includes making software available on  separate data carriers nor does it include making the consumer  items and articles available that are required to use the  hardware, such as batteries, ink and ink cartridges, toner articles, cables and accessories. 

69.4 The lease commences on the date the hardware is made  available to client. 

Article 70 Prior inspection 

70.1 By way of prior inspection, supplier may draft a report, in  client’s presence and prior to making the hardware available or  when it is made available, describing the state of the hardware,  including any defects observed. Supplier may require that client  should sign this report, prior to making the hardware available  to client for use, to indicate client’s agreement with the text of the report. The defects in the hardware listed in this report are  at supplier’s account. If any defects are observed, parties  arrange whether, and if so, how and when, the defects listed in  the report must be repaired. 

70.2 If client does not properly cooperate in the prior inspection  referred to in Article 70.1, supplier is entitled to carry out this  prior inspection without client being present and to draft the  report itself. This report is binding on client. 

70.3 If no prior inspection is carried out, client is deemed to have  received the hardware in a proper and undamaged state. 

Article 71 Use of the hardware 

71.1 Client exclusively uses the hardware in and for its own  organisation or company, in compliance with the hardware’s  intended use under the agreement and at the premises specified in the agreement. Use of the hardware by or for the  benefit of third parties is not permitted. The right to use the  hardware is non-transferable. Client is not permitted to lease the hardware to a third party or otherwise enable a third party to  use the hardware or to make use of it together with client. 

71.2 Client itself is responsible for installing and assembling the  hardware and making it ready for use. 

71.3 Client is not permitted to use the hardware or any part of it as a  security or collateral, in any way whatsoever, or to dispose of  the hardware or any part of it in another way. 

71.4 Client uses and maintains the hardware with due care. Client  takes adequate measures to prevent any damage to the  hardware. Should there be any damage, client promptly informs supplier about this. For the term of the lease, client is always  liable to supplier for damage to the hardware and theft, loss or  misappropriation of the hardware.  

71.5 Client is neither permitted to modify the hardware, either  entirely or partly, nor permitted to add anything to it. If any  modifications or additions have nevertheless been made, client  is obliged to undo or remove these modifications or additions  no later than at the end of the lease agreement. 

71.6 Parties agree that defects in the modifications or additions  made to the hardware by or under client’s instructions and all  defects in the hardware caused by those modifications or  defects are not considered defects within the sense of article  7:204 of the Netherlands Civil Code. Client can never file a  claim against supplier with respect to such defects. Supplier is  not obliged to carry out repairs or perform maintenance  services with respect to such defects.  

71.7 Client is not entitled to any compensation for modifications or  additions made by client to the leased hardware if these  modifications or additions are not undone or removed, for any  reason whatsoever, when or after the lease agreement ends. 

71.8 Client promptly informs supplier in writing when the hardware is  provisionally attached, stating the identity of the attaching party  and the reason for the attachment. Client promptly allows the  bailiff levying the attachment to inspect the lease agreement. 

Article 72 Maintenance of the leased hardware 

72.1 Client is not allowed to maintain the leased hardware itself or  have the hardware maintained by a third party. 

72.2 Client promptly informs supplier in writing about any defects  that it observes in the leased hardware. Supplier makes every  effort, within a reasonable period of time and by means of  corrective maintenance, to repair defects in the hardware that  are at supplier’s account. Supplier is also entitled, though not  obliged, to perform preventive maintenance services on the  hardware. If so requested, client provides supplier with the  opportunity to perform corrective and/or preventive maintenance services. Parties determine together, by consultation and in advance, the dates on which and the times  at which maintenance services must be performed. Client is not  entitled to replacement hardware during periods of time  maintenance services are performed. 

72.3 Supplier’s obligation to repair defects excludes: 

● repairing defects that client accepted when entering into the  lease agreement; 

● repairing defects that are caused by external circumstances; 

● repairing defects that can be attributed to client, its staff  members and/or third parties contracted by client; 

● repairing defects that are caused by careless, incorrect or  incompetent use or use that is contrary to the use  

described in the documentation; 

● repairing defects that are related to the use of parts or  consumer articles that have not been recommended or  authorised by supplier; 

● repairing defects that are caused by the hardware being  used in a manner that is contrary to its designated use; ● repairing defects that are caused by unauthorised modifications of or additions to the hardware. 

72.4 If supplier repairs the defects referred to in the preceding  paragraph or has such defects repaired, client is charged, at  supplier’s applicable rates, for the costs incurred by the repairs carried out. 

72.5 Supplier is always entitled to decide against repairing the  defects and to replace the hardware with other, similar, though  not necessarily identical, hardware. 

72.6 Supplier is never obliged to recover or reconstruct data that  have been lost.  

Article 73 Final inspection and return of  hardware 

73.1 At the end of the lease agreement, client returns the hardware  to supplier in its original state. Any costs of transportation  incurred by the return of the hardware are at client’s expense. 

73.2 Prior to or no later than on the last working day of the lease’s  term, client renders its assistance in a joint, final inspection of  the hardware’s condition. The findings of this final inspection  are laid down in a report to be jointly drafted by parties. This  report must be signed by both parties. If client does not render  assistance in the final inspection, supplier is entitled to carry out  this inspection without client being present and to draft the  report itself. This report is binding on client. 

73.3 Supplier is entitled to have the defects that are listed in the final  inspection report and that are – within reason – at client’s risk  and expense, repaired at client’s expense. Client is liable for  any loss supplier suffers because the hardware is temporarily  out of operation or because supplier cannot lease the hardware to a third party. 

73.4 If, at the end of the term of the lease, client has not undone a  modification or removed an addition that client implemented in the hardware, parties agree that client is deemed to have  waived any and all rights to those modifications and/or  additions. 

Section 13. Maintenance of hardware 

The provisions in this section ‘Maintenance of hardware’  apply, apart from the General provisions of these general  terms, if supplier maintains hardware, of whatever nature,  for client. 

Article 74 Maintenance services 

74.1 Supplier performs maintenance services for the hardware  specified in the maintenance agreement provided that the  hardware is set up in the Netherlands. 

74.2 Client is not entitled to temporary replacement hardware during  the time that supplier has the hardware that has to be maintained in its possession. 

74.3 The content and scope of the maintenance services to be  performed and the service levels that possibly apply are laid  down in a written maintenance agreement. If maintenance has  not been agreed on in writing, supplier is obliged to make every  effort to repair malfunctions, within a reasonable period of time,  that have been reported by client in an appropriate way. In  these general terms, ‘malfunction’ means non-compliance of  the hardware with the hardware specifications explicitly made  known by supplier in writing or a failure of the hardware to  comply with these specifications without interruption. A  malfunction only exists if client cannot only demonstrate but  also reproduce this malfunction. Supplier is also entitled,  though not obliged, to perform preventive maintenance.  

74.4 Client promptly informs supplier of a malfunction in the  hardware, by providing a detailed description of it, when this  malfunction occurs. 

74.5 Client renders all assistance required by supplier in the context  of maintenance services, for example to temporarily stop using  the hardware. Client grants supplier’s staff or third parties  designated by supplier access to the location of the hardware,  renders the assistance required and makes the hardware  available to supplier so that the maintenance services can be  performed.  

74.6 Client ensures that a complete and properly functioning backup  is made of all software and data recorded in or on the hardware  before the hardware is made available to supplier for maintenance.  

74.7 At supplier’s request, one of client’s staff who is an expert in the  matter at hand is present for consultation when the maintenance services are performed. 

74.8 Client is authorised to connect hardware and systems not  delivered by supplier to the hardware and install software on  that hardware. 

74.9 If, in supplier’s opinion, maintenance of the hardware should  require testing the hardware’s connections with other hardware  or software, client makes both the other hardware and software  in question and the test procedures and data carriers available  to supplier.  

74.10 Testing material required for maintenance that is not included in  supplier’s normal range of hardware is to be made available by  client.  

74.11 Client bears the risk of loss or theft of, or damage to, the  hardware during the time that supplier has the hardware that  has to be maintained in its possession. It is up to client to take out insurance against this risk. 

Article 75 Maintenance fees 

75.1 The maintenance fee does not include: 

● costs of consumer articles, or of replacing these articles,  such as batteries, stamps, ink and ink cartridges, toner  articles, cables and accessories; 

● costs of parts, or of replacing these parts, and of maintenance to repair malfunctions that were entirely or  partly caused by attempts at repair by parties other than  supplier;  

● activities performed for overhaul of the hardware; 

● modifications of the hardware; 

● moving, relocating or reinstalling hardware, or costs for  transportation where hardware is to be repaired or any  other activities arising from these activities. 

75.2 The maintenance fee is due regardless whether client has put  the hardware to use and makes use of it and regardless  whether client makes use of the maintenance option. 

Article 76 Exclusions 

76.1 Activities performed to investigate or repair malfunctions that  are caused by or connected with user errors, improper use of  the hardware or external circumstances such as failures of  internet services, data network connections, power supplies or  connections to hardware, software or materials that do not  come under the maintenance agreement, do not fall within the  scope supplier’s obligations under the maintenance agreement. 

76.2 Supplier’s obligations with respect to maintenance do not cover: ● investigating or repairing malfunctions that are caused by or  connected with a modification of the hardware carried out  by a party other than supplier or a party acting on behalf of  supplier; 

● use of the hardware in breach of the applicable conditions  and client’s failure to have the hardware maintained in time. Supplier’s maintenance obligations do not include investigating  or repairing malfunctions in the software installed on the  hardware. 

76.3 Any costs incurred by maintenance services and/or  investigations carried out under articles 76.1 and/or 76.2 can be  charged by supplier, or charged as extra costs by supplier, at  supplier’s applicable rates.  

76.4 Supplier is never obliged to recover corrupted or lost data.