GENERAL TERMS & CONDITIONS CLOUD AVENUE B.V. · Version: November 2026
About these terms
Our quotations and agreements are subject to the General Terms & Conditions of Cloud Avenue B.V., version November 2026. We also send them with every quotation, so you can read them before you agree.
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1. Definitions
In this document, certain terms are capitalized. These terms shall have the meanings as set out below:
Affiliated Company(-ies): company(-ies) within the meaning of article 2:24a and b of the Dutch Civil Code.
Assignment: the totality of reciprocal services and cooperation between the Parties as described in the Specific Terms & Conditions.
Bugs: an error, flaw, malfunction or defect in a computer program or system, as a result of which it does not (entirely) fulfil its function according to specifications and leads to incorrect and/or unexpected results and/or program crashes or shutdowns.
Consultant(s): the Employee(s) to whom the Service Provider appeals for the performance of the Contract.
Contract: these General Terms and Conditions, together with the Specific Terms and Conditions and the General (License) Terms and Conditions of Third-Party Suppliers, as applicable.
Customer: the customer as referred to in the Specific Terms & Conditions and/or purchase order.
Data: the totality of data belonging to the Customer and/or the Users to which the Service Provider gains or can gain access to within the framework of the service.
Employee(s): personnel members, personnel members of Affiliated Companies, independent employees, subcontractors, consultants, and any other natural or legal persons directly or indirectly involved in the provision of the Services.
Force Majeure: the situation in which the defaulting Party cannot be held liable for a default caused beyond the control of the Party, either by law, legal act or under generally accepted view as referred to in article 6:75 of the Dutch Civil Code, regardless of whether the force majeure occurs at the Service Provider or at one of his suppliers.
General (License) Terms & Conditions of Third-Party Suppliers: the applicable general (license) terms & conditions (including payment terms) relating to the products delivered by the Service Provider and/or embedded Products of Third-Party Suppliers, as well as any Third-Party terms of service provided by the maintenance services, as amended from time to time.
General Terms & Conditions: the present document titled “General Terms & Conditions Cloud Avenue B.V.”.
Own Development Products: the hardware and/or software developed by the Service Provider, and to which the General (license) Terms & Conditions of the Service Provider apply in full, and which may also include Products of Third-Parties.
Party/Parties: the Service Provider and/or the Customer.
Products: the Products of Third-Party Suppliers and/or Own Development Products.
Products of Third-Party Suppliers: the hard- and/or software for which the Service Provider acts as a reseller and/or is (partially) included in Own Development Products offered by the Service Provider, and on which the General (License) Terms & Conditions of Third-Party Suppliers apply in full.
Service Provider: Cloud Avenue B.V., located in Breda, registered in the Chamber of Commerce under number 51131846.
Services: the services that the Service Provider shall provide to the Customer, as described in the Specific Terms & Conditions. These services are governed at all times by the General and Specific Terms & Conditions.
Services on Time & Material Basis: Services provided by the Service Provider to the Customer, which are thus invoiced to the Customer per hour and/or per day.
Specific Terms & Conditions: contract and/or purchase order subject to these General Terms & Conditions and describing the specific performance modalities of the Contract, for example in the form of a Statement of Work.
Statement of Work (SOW): a written document outlining the specific scope, deliverables, timelines, responsibilities, and/or performance expectations for the Services and/or Products to be provided by the Service Provider. The SOW may also include milestones, acceptance criteria, and payment terms related to the described work.
Third-Party Suppliers: third parties, more specifically producers and/or suppliers of hard- and/or software specified in the Specific Terms & Conditions, for which the Service Provider acts as a reseller and/or the one included by the Service Provider in its Services, including the maintenance services of these Third-Party Suppliers for the hardware and/or software.
User(s): the end consumer(s). Depending on the Services provided, these are the customers of the Customer and/or the Employees or other (third-party) authorized agents of the Customer, to whom the Customer grants permission to use the Products and/or Services. The Customer is exclusively responsible for the Users to whom he provides access.
2. Contracting and duration
2.1All offers, quotations and other expressions by the Service Provider are without obligation, unless the Service Provider states otherwise in writing. The Customer guarantees that the data provided by or on behalf of the Customer, on which the offer is based, is correct and complete.
2.2All offers and quotations provided by the Service Provider are valid for a period of thirty (30) days from the date of issuance and shall expire automatically thereafter unless otherwise stated in writing.
2.3The Service Provider is only bound to perform the Contract after their explicit acceptance of the order for the Products and/or Services in writing.
2.4If the Service Provider initiates execution of the order or the Services as referred to in the Specific Terms & Conditions at the request of the Customer before the Contract is signed, then the processing of the order and/or the initiation of the Services shall be deemed to be an acceptance of the General Terms & Conditions, the Specific Terms & Conditions and the applicable General (License) Terms & Conditions of Third-Party Suppliers, unless Parties concluded otherwise in writing. By installing the Products or by downloading or in any other way using them, the Customer accepts and takes notice of these General Terms & Conditions, the Specific Terms & Conditions, as well as any General (License) Terms & Conditions of Third-Party Suppliers and/or any general license terms & conditions of the Service Provider.
2.5The Contract is entered into for the term agreed between the Parties as referred to in the Specific Terms & Conditions. If a Contract has been concluded for a fixed term, it shall automatically be renewed for successive periods of the same duration, unless either Party notifies the other Party in writing of its intention not to renew, no later than thirty (30) calendar days before the end of the then-current term. In the absence of timely notice, the Contract shall be renewed automatically, and the Customer shall be obliged to pay the applicable fees for the renewed term.
3. Price and payment modalities
3.1Unless expressly agreed otherwise in the Specific Terms & Conditions, all Services shall be performed on a Time and Material basis. The Customer undertakes the obligation to pay a fee equal to the number of hours of performance times the rates for consultancy services agreed in the Specific Terms & Conditions. The price and payment modalities for the Products are laid down in the Specific Terms & Conditions.
3.2The fees are expressed in euros and exclude VAT (revenue tax) and any other levies imposed or to be imposed by the government. Unless otherwise stated in the Specific Terms & Conditions, these fees exclude travel time, travel costs, accommodation costs, incidental expenses and all other reasonable costs.
3.3If, according to the Contract concluded between the Parties, the Customer consists of several natural persons and/or legal entities, each of those (legal) persons shall be jointly and severally liable towards the Service Provider to perform the Contract.
3.4The Service Provider is entitled to adjust the applicable prices and rates annually effective 1st January – if necessary, subsequently – in accordance with the consumer price index (CPI) published by the Dutch Central Bureau of Statistics (CBS), for all households. The series 2025=100 is applied. The adjusted prices equal the price per 1st January, times the index for the month prior to three months (October) and divided by the index of the month prior to fifteen months (October, one year earlier).
3.5Barring a Contract in writing between the Parties to the contrary, the Consultant will have their performance hours signed off by the Customer in the form of timesheets or some other timekeeping system agreed between the Parties.
3.6The Service Provider shall take all reasonable steps to perform the Services in accordance with the Customer’s work schedule. Barring any agreement to the contrary between the Parties, the work schedule will be assumed to be 40 hours per week. If there are more than 40 hours, the following increases are applied (not cumulated):
- performance > 40 hours/week: + 50%;
- performance > 8 hours/day: + 50%;
- performance between 10 PM and 7 AM: + 100%;
- performance on Saturday: + 50%;
- performance on Sunday or public holiday: + 100%.
Overtime rates shall only apply where the Customer has explicitly requested work to be performed outside of regular working hours
3.7Excepting where agreed otherwise in the Specific Terms & Conditions, the Service Provider will invoice the Customer on a monthly basis. All invoices are payable thirty (30) calendar days after the date of invoice, unless specified otherwise in the Specific Terms & Conditions. The absence of written contestation of an invoice within ten (10) business days from the date of sending of the invoice constitutes irrevocable acceptance of the invoice, the Products mentioned therein, any corresponding maintenance agreements and/or the Services listed therein.
3.8If the Customer fails to pay the amounts due, or fails to pay them on time, the Customer will be liable to pay statutory interest for commercial transactions on the outstanding amount, without the need for any reminder or notice of default. Such interest shall accrue from the due date of the relevant invoice until the date of full payment.
3.9In the event of non-payment or late payment of an invoice after the Customer has received at least one written payment reminder and has been granted a final payment term of fourteen (14) days: (i) all reasonable costs related to the extrajudicial collection of the outstanding amount, as well as all costs of legal proceedings and enforcement, shall be borne by the Customer; (ii) all claims of the Service Provider against the Customer that are not yet due shall become immediately due and payable; and (iii) the Service Provider shall be entitled to suspend the performance of all Services for the Customer, in whole or in part, without prior notice and without any liability for damages arising from such suspension.
This shall be without prejudice to any other legal or contractual rights and remedies available to the Service Provider, including the right to terminate the Agreement.
3.10The Customer cannot attribute legal rights or expectations to the estimate calculation delivered by the Service Provider, unless Parties have concluded otherwise in writing. The available budget made known to the Service Provider by the Customer acts solely as an agreed (fixed) price between Parties for the delivery of services by the Service Provider if and insofar this has been explicitly concluded in writing.
4. Implementation modalities and cooperation obligations
4.1The Service Provider undertakes to execute the Services to the best of their ability on behalf of the Customer and will take the technical instructions and guidelines they receive from the Customer into account.
4.2The Customer declares that they have been fully informed by the Service Provider regarding the available options for the Products and/or Services (including type, characteristics, operation, potential uses and limitations, warranties, required environment, and costs), as well as regarding any issues of modification, installation, integration, or expansion that may arise and their impact on the existing hardware, software, and/or licenses installed at the Customer’s premises. The Parties agree that the Service Provider cannot be held liable for such matters.
4.3The selection of Products and Services is based on the needs and expectations of the Customer that initially were entirely and explicitly described in the Contract. The contractual obligations of the Service Provider can only be derived from the Contract or from additional written agreements. The Products and Services shall be developed and/or delivered by the Service Provider in the state in which they are at the moment of delivery (‘as is’), and therefore with all visible and invisible errors and defects. Under no circumstances does the Service Provider warrant the suitability or marketability of the Products and/or Services for the performance of specific tasks envisioned by the Customer unless said tasks are explicitly covered in the Specific Terms & Conditions and/or the description of the functional specifications. As a consequence, the Customer is responsible for the order itself, the suitability of the Products and/or Services rendered to achieve the results the Customer intends. Under no circumstances can the Service Provider be held liable in the event of incorrect services and/or an incorrect choice of product or failings in product specification in the Specific Terms & Conditions.
4.4Insofar as the Specific Terms & Conditions do not refer to any other capacity of the Customer, the Customer is irrevocably deemed to be a professional user acting in the context of their professional activities. The Customer is deemed to possess the relevant know-how in relation to the Products and/or Services to be performed, and to provide personnel with the relevant expertise.
4.5For the performance of the Contract the Service Provider will draw on the services of one or more Consultants. The Service Provider reserves the right to determine which Consultant shall be assigned to the performance of the Services, and to replace the Consultant as the Service Provider sees fit throughout the duration of the Contract, while ensuring continuity of the Services.
4.6If the Customer motivates the wish or necessity to have the Consultant replaced, either temporarily or permanently, the Service Provider shall endeavour to end the complaints in all fairness and appoint a new Consultant if necessary.
4.7If the Consultant fails to meet, or no longer meets, the agreed requirements, brings the Customer’s good name into disrepute, or fails to perform the Contract in accordance with any reasonable standard, the Customer shall be entitled to request the Service Provider to replace the Consultant. This shall not release the Customer from its obligation to pay for Services duly performed under the Contract. If the Service Provider agrees to the replacement, it shall use reasonable efforts to provide a suitable replacement as quickly as reasonably possible. If the Service Provider is unable to provide a qualified replacement within two (2) weeks, the Customer shall be entitled to terminate the part of the Contract relating to the Consultant to be replaced. To the extent possible, the Service Provider must report any scheduled interruptions of the performance of the Services (such as short-term illness, Consultant leave days, etc.) to the Customer in a timely manner.
4.8Unless otherwise specified in the Specific Terms & Conditions, the Services shall be performed remotely or, where necessary, at the Customer’s premises. The Customer shall grant the Service Provider free access to the work environment and provide all necessary facilities, including but not limited to a workspace with computer, printer, data, internet, telephone, and network access. Where required, the Customer shall implement and provide all necessary security measures, such as (but not limited to) VPNs and tokens. Furthermore, the Customer shall ensure the availability of the facilities required for the design, testing, and operational use of the ICT system to be developed. If deemed necessary by the Service Provider, the Customer’s system and related services (including system administration) must also be available outside normal business hours. The Service Provider shall not be liable for any damage or costs resulting from transmission errors, malfunctions, or unavailability of such facilities, unless the Customer demonstrates that such damage or costs were caused by intent or wilful misconduct on the part of the Service Provider. The workspace and facilities will be in compliance with all legal requirements. The Customer indemnifies the Service Provider against claims of third parties, including the Employees of the Service Provider, who suffered damages in connection with the performance of the Contract and resulting from the acts or omissions of the Customer or from unsafe situations in the Customer’s organisation. The Customer shall notify the Consultant(s) of the house rules and safety procedures prior to the initiation of the Services.
4.9If the unavailability of Employees and/or facilities and/or material of the Customer reasonably deemed necessary for the performance of the Services result in extra costs, including but not limited to extra time spent by Employees of the Service Provider, these extra costs will be invoiced to the Customer.
4.10The Parties acknowledge that the success of activities in the field of information and communication technology depends on adequate and timely cooperation. The Customer shall at all times promptly grant all reasonable cooperation desired by the Service Provider and/or provide crucial information.
4.11If the Customer employs his own personnel and/or auxiliary staff during the execution of the Contract, this personnel will have the necessary knowledge and experience at their disposal.
4.12The Service Provider provides the Services within the limits of the Contract and the information provided by the Customer. The Customer warrants the accuracy, completeness and timeliness of the information they provide, stated dimensions, requirements, specifications of the Services and other data crucial to allow the Services Provider to fulfil the obligations under the Contract. The Customer indemnifies the Service Provider for all damages resulting from incorrect, late or incomplete provision of information.
4.13If the Customer provides software, equipment or other resources to the Service Provider in connection with the Products and Services of the Service Provider, the Customer is solely responsible for obtaining all necessary licenses and/or approvals with regard to these resources that the Service Provider may require.
4.14The Customer is responsible for the management, including monitoring of the settings, the correct use of the Products and/or Services provided by the Service Provider and the manner in which the results of the Products and Services are used. The Customer is also responsible for the instruction of Users, as well as their use.
4.15The Customer shall install, set up, parametrize, refine the (auxiliary) software needed on their own hardware and, if necessary, adapt the equipment used for this, including other auxiliary equipment, other auxiliary software operating environments and ensure the interoperability required by customers.
4.16On the whole, the Customer shall at all times bear the end responsibility for the ongoing projects of which the Products and Services of the Service Provider may be a part.
4.17The performance is rendered by the Service Provider with all due care that can be reasonably expected in accordance with the state of the art.
5. No transfer of supervision
5.1The Parties expressly agree that, notwithstanding the fact that Consultants may perform Services at the Customer’s premises, the overall supervision, direction, and control over the Consultants shall remain with the Service Provider at all times. The Customer shall only be entitled to give the Consultants such technical or functional instructions as are strictly necessary for the proper performance of the agreed Services.
5.2The Parties acknowledge and agree that the Services provided under this Contract do not constitute the supply of temporary agency workers within the meaning of the Dutch Allocation of Labour through Intermediaries Act (Wet allocatie arbeidskrachten door intermediairs – WAADI), and that the provisions of the WAADI therefore do not apply.
5.3The Parties further agree that the performance of Services under the Contract shall not create, or be deemed to create, any employment relationship between the Customer and the Consultant(s).
6. Products of Third-Party Suppliers
6.1Products of Third-Party Suppliers and/or open-source technology may be required for the delivery of the Services.
6.2If Products of Third-Party Suppliers and/or open-source technology are offered as part of the Services provided by the Service Provider, the Customer agrees that such Products and technologies are licensed under the terms and conditions of the respective Third-Party Supplier’s general (license) terms and not under the Terms & Conditions. The general (license) terms of such Third-Party Suppliers shall apply in full and form an integral part of this Contract. The Service Provider shall inform the Customer which third-party terms and conditions apply and shall either provide the Customer with a copy thereof or provide him with a link where these terms and conditions can be consulted.
6.3The Customer hereby expressly accepts the applicability of the General (License) Terms & Conditions of Third-Party Suppliers as amended from time to time, and acknowledges to have taken notice. If Parties agree that new Products from Third-Party Suppliers and/or open- source technology will be used in the implementation of the Services, the applicable General (License) Terms & Conditions of Third-Party Suppliers will automatically become part of the present Contract and will be applicable to the Customer, who will strictly comply with them.
6.4For Products of Third-Party Suppliers, the Service Provider’s liability shall in no event exceed the liability accepted by such Third-Party Supplier under its applicable General (License) Terms & Conditions. The liability clauses contained in the General (License) Terms & Conditions of the relevant Third-Party Supplier shall prevail over any liability limitations contained in these Terms & Conditions (including Article 16), and the Customer shall not be entitled to any greater rights or remedies against the Service Provider than those the Service Provider can enforce against the Third-Party Supplier.
6.5If and to the extent that the aforementioned General (License) Terms & Conditions of Third-Party Suppliers, for whatever reason shall not apply to the relationship between Customer, Service Provider and Third-Party Suppliers or if these General (License) Terms & Conditions of Third-Party Suppliers are declared inapplicable, the provisions of the Contract will be integral, and fully applicable.
6.6The Customer shall not exercise more rights regarding the open-source technology and/or Products provided by the Third-Party Suppliers than in the corresponding General (License) Terms & Conditions of Third-Party Suppliers.
6.7The Customer is exclusively responsible for compliance with all license(information) obligations and the associated usage limits.
6.8The Service Provider is not responsible for any activities and/or orders that take place under the account keys (obtained from the Service Provider and/or Third-Party Suppliers that provide direct access to Services), regardless of whether these activities have been carried out by the Customer or a third party (including Customer’s Employees). The Service Provider is also not responsible for unauthorized and/or fraudulent access to these accounts.
6.9The Customer acknowledges that the Service Provider is not liable for any Third-Party Products and open-source technology which was introduced into the environment upon request of the Customer and the related maintenance services. The Customer will only be able to address the Third-Party Suppliers within the limits of the relevant General (License) Terms & Conditions of the Third-Party Supplier or of the maintenance agreement. The Customer guarantees that he has received the commercial rights to use the rolled-out applications on the virtual machines. The provisions above also apply to any changes, updates or upgrades.
6.10The Customer is aware that installation of the Third-Party Supplier Products supplied by the Service Provider may have consequences for the existing hardware and/or software and/or the licenses already installed at the Customer’s end. The Parties agree that the Service Provider cannot be held liable for this.
6.11The Service Provider is not liable for damage caused by the use of the Products purchased from Third-Party Suppliers by the Customer or for damage caused by the Customer’s non-compliance with the present Contract, the Specific Terms & Conditions and/or the General (License) Terms & Conditions of Third-Party Suppliers. The Customer undertakes to indemnify the Service Provider and hold it harmless against any reimbursements, losses, liabilities, damages, costs or expenditures that the Service Provider may suffer or incur as a result of the use of the open-source technology and Products of Third-Party Suppliers and/or resulting from the Customer’s non-compliance with the General (License) Terms & Conditions set forth above as well as against claims and settlements with any third parties.
6.12The prices for Products of Third-Party Suppliers shall be set out in the Specific Terms & Conditions. If a Third-Party Supplier increases the prices or fees charged to the Service Provider for such Products (including licence, subscription, maintenance and support fees), the Service Provider shall be entitled to pass on the resulting cost increase to the Customer in full. Such increase shall apply from the date on which it takes effect for the Service Provider, including where fixed prices have been agreed, unless the Parties have expressly agreed otherwise in writing. The Service Provider shall notify the Customer thereof in writing as soon as reasonably practicable. The foregoing shall also apply to cost increases resulting from exchange rate fluctuations. Such pass-through increases are separate from and are not subject to the indexation mechanism in Article 3.4; the conditions and limitations set out therein shall not apply.
6.13Unless otherwise agreed in the Specific Conditions, Products of Third-Party Suppliers shall be invoiced annually in advance.
6.14In the event of early termination or rescission of the Contract – other than due to a proven material breach attributable to the Service Provider – the Customer shall remain liable to pay the full license fees for all Products of Third-Party Suppliers for (i) the period elapsed up to the effective termination date, and (ii) the entire remaining contractual term agreed for such licenses. Under no circumstances shall any license fees already paid be refunded.
7. Terms
7.1The (interim) delivery dates specified by the Service Provider or agreed between the Parties shall be considered target dates only, are non-binding on the Service Provider, and are solely indicative in nature, unless expressly designated as binding by the Parties in the Specific Terms & Conditions.
7.2If agreed deadlines, milestones, planning or delivery dates are not met as a result of decisions, actions, or delays attributable to the Customer, the overall project planning and schedule shall be adjusted accordingly, and any revised deadlines shall automatically replace the previously agreed dates. Any resulting additional costs, expenses, or damages incurred by the Service Provider shall be borne exclusively by the Customer. This includes, without limitation, costs related to rescheduling, extended resource allocation, or any other consequences directly resulting from such Customer-caused changes or delays.
8. Change Management
8.1All changes and/or additions to the original specifications and any changes to the conditions of the Services shall be governed by the provisions of this Article.
8.2If the Customer wishes to change or supplement the specifications previously agreed in the Specific Conditions, or to amend the agreed acceptance criteria, such changes shall be formalised through the change management procedure described below.
8.3The change procedure shall consist of:
(a)a written description of the requested change in specifications or assignment;
(b)an assessment by the Service Provider of the impact of the change on the scope, deliverables, timeline, dependencies, and risks of the Project;
(c)(c) the preparation of an updated budget and, if required, a revised project plan.
8.4The change shall only take effect after written approval by the Customer of the change documentation and the new budget, formalised through an addendum to the Specific Conditions signed by both Parties.
8.5The time required by the Service Provider to analyse, plan, and implement the change shall be invoiced to the Customer on a time-and-materials basis, in accordance with the Service Provider’s then-current rates. The estimated time shall be determined in advance by the Service Provider and submitted to the Customer for approval. Authorising the Service Provider to commence the additional activities shall constitute sufficient proof of the Customer’s order and consent to invoicing.
8.6A change shall only be implemented upon the Customer’s written instruction and after approval of the corresponding budget and schedule.
8.7Each change request shall, where applicable, include the following elements:
(a)a description of the requested change;
(b)the name of the requestor and date of submission;
(c)the reason for the change;
(d)an estimate of the time required to analyse its impact;
(e)approval of the estimate referred to in point d;
(f)a detailed description of the change, including specifications and use cases;
(g)the cost impact (additional or reduced cost) of the change;
(h)a revised schedule for implementing and, if applicable, testing the change;
(i)a revised payment schedule, if applicable;
(j)a description of any impact on other parts of the Project;
(k)signature blocks for both Parties.
8.8Any situations, prerequisites, or dependencies that are the Customer’s responsibility — including but not limited to the provision of training to Consultants or timely delivery of required information — which result in additional effort or delay shall be invoiced separately to the Customer as additional Services.
8.9If the Services to be performed by the Service Provider form part of a broader implementation of IT systems, the planning may depend on the timely delivery and proper functioning of other systems, which may or may not be provided by third parties. The Service Provider shall not be liable for any damage caused by delays in planning or execution that are outside his reasonable control or not attributable to him.
9. Acceptance test
9.1When an acceptance test for the Services is explicitly provided for in the Specific Conditions, the Customer shall be responsible for organising and conducting the acceptance test in close consultation with the Service Provider and in accordance with the provisions, procedures, and timing agreed in the Specific Conditions. The Customer shall bear all costs associated with the organisation and execution of the acceptance test, unless expressly agreed otherwise.
9.2If the acceptance test is passed in whole or in part, the relevant part of the Services shall be deemed accepted by the Customer.
9.3For the purpose of this Article, “minor deviations” shall mean deviations or defects that do not materially affect the agreed functionality, performance, security, or usability of the Services, nor prevent their operational use. Minor deviations shall not prevent acceptance and shall be remedied by the Service Provider within a reasonable period after acceptance. Where the outcome of the acceptance test shows only minor deviations, the Services shall be deemed accepted, even if the Customer withholds formal approval.
9.4If the acceptance test is not carried out within the agreed period, or if the Customer fails to cooperate, the Services shall be deemed accepted by default. During the test period, the Customer shall not use the Services or any Products of Third-Party Suppliers for production or operational purposes.
9.5The Customer shall appoint and notify the Service Provider of a designated contact person who shall be responsible for coordinating and confirming the acceptance of each part of the Services.
9.6During the acceptance test, it shall be assessed whether the deliverables conform to the specifications expressly agreed in the Specific Conditions. Additional or modified acceptance criteria shall only apply if they have been agreed in writing and signed by both Parties prior to the commencement of the test.
There are three possible outcomes of an acceptance test:
(a)Unconditional Acceptance: the Services are accepted without reservation.
(b)Conditional Acceptance: the Services are accepted subject to the resolution of listed defects or issues. Conditional acceptance must be accompanied by a written list of the Customer’s considerations. After the Service Provider has resolved these issues or refuted them with written justification, the Services shall be resubmitted for evaluation and, in the absence of a written notice of non-acceptance within five (5) working days, shall be deemed accepted.
(c)Unconditional Non-Acceptance: the Services are rejected. Non-acceptance must be accompanied by a clear written description of the justified reasons for rejection. After correcting the identified issues, the Service Provider shall once again be entitled to submit the Services for acceptance testing.
9.7If no acceptance test is foreseen in the Specific Conditions, the Customer shall inspect and assess the delivered Services within five (5) working days from delivery. If the Service Provider has not received a written notification of justified objections within this period, the Services shall be deemed accepted unconditionally and irrevocably. Any use, commissioning, or production deployment of the Services or Products of Third-Party Suppliers by the Customer shall in any case constitute full, unconditional, and irrevocable acceptance.
10. Confidentiality
10.1Confidential Information means all information, in any form whatsoever (including oral, written, graphic, electronic, or other forms), exchanged between the Parties in connection with the Contract. Information shall be considered confidential if it is designated as such by either Party or if, by its nature, a reasonably prudent and trustworthy person would consider it to be confidential.
10.2Each Party, including its employees, agents, and contractors, shall keep strictly confidential all Confidential Information received from the other Party in connection with the performance of the Contract. Confidential Information may only be used for the purposes of performing the Contract and shall not be disclosed to any third party without the prior written consent of the disclosing Party, except where disclosure is required by law or by a competent authority.
10.3The following is not considered to be Confidential Information:
(a)information obtained legally from a third party not bound by any confidentiality obligation or secrecy;
(b)information already known to a Party before it was provided for the purposes of the Contract;
(c)information a Party developed independently without violating the Contract;
(d)information that came into the public domain without the doing or error of the Party receiving the information;
(e)information that must be made public pursuant to a judicial or administrative decision.
10.4Where the Services include the delivery or use of Products of Third-Party Suppliers, the Customer explicitly acknowledges and accepts the confidentiality obligations set out in the applicable General (License) Terms & Conditions of the relevant Third-Party Supplier.
10.5The confidentiality obligations set forth in this Article shall remain in effect for a period of three (3) years from the date of disclosure of the relevant Confidential Information and, in any event, shall expire no later than three (3) years after termination or expiration of the Contract, regardless of the cause of such termination or expiration.
10.6Upon termination or expiration of the Contract, each Party shall, at the request of the other Party, promptly return or securely destroy all Confidential Information (including any copies thereof) received from the other Party, unless retention is required by applicable law or regulation. Upon completion of such return or destruction, the receiving Party shall confirm this to the disclosing Party in writing.
11. Intellectual Property Rights
11.1All intellectual property rights on the Products and/or the results of the Services of the Service Provider are exclusively vested in the Service Provider and/or Third-Party Suppliers, their licensors or their suppliers. Excepting where stated otherwise in the Specific Terms & Conditions, the Service Provider extends the Customer a limited, non-exclusive, non-sublicensable, non-encumberable and non-transferable right of use with respect to the Products and/or results of the Services they perform, as from the moment of full payment of all invoices and all other amounts that the Customer owes as a result of the failure in payment obligation. The aforementioned right of use of the results of the delivered Services of the Service Provider is applicable for an unlimited duration without usage restraints for the Customer. The Customer is entitled to transfer this right of use to third parties if they sell their business to a third party. The Customer shall only use the Products and/or results of the Services in the manner prescribed by the Service Provider.
11.2The General Terms & Conditions and modalities related to the intellectual property rights and usage rights, as contained in the relevant General (License) Terms & Conditions of these Third-Party Suppliers, are fully applicable to the Products of Third-Party Suppliers. The Customer indemnifies the Service Provider for all damages, claims and liabilities arising from an infringement of the intellectual property rights of Third-Party Suppliers, unless the infringement is committed by or can be ascribed to the Service Provider.
11.3If a third party institutes a claim against the Customer because of a deliberate violation of his or her intellectual property rights by the Service Provider, the Service Provider will, at their own expense, either (i) defend the Customer against such legal action and indemnify damage and costs assigned by a court to the claimant third party, or (ii) reach an amicable settlement with this third party regarding the dispute with the Customer.
The aforementioned obligation is only entered into if and insofar as:
(a)the Customer notifies the Service Provider in writing within seven (7) calendar days after the Customer has received the claim, or as soon as legally required;
(b)the Service Provider has exclusive control over the defence or settlement of such a claim; and
(c)the Customer assists the Service Provider and cooperates with the Service Provider at first request.
11.4If the Product and/or the result of the Services delivered by the Service Provider violates the intellectual property rights of third parties or, in the opinion of the Service Provider, could potentially violate them, the Service Provider has the choice to at their expense:
(a)replace or change the Product and/or the result of the Services (with significant retention of the use options and functionalities) to ensure there is no more risk of infringement;
(b)acquire the right to continue their use on behalf of the Customer; or
(c)accept the return of the Product and/or the result of the Services and reimburse the payments made by the Customer under the Contract with deduction of a reasonable fee for the period that the Customer has used the Product and/or the result of the Services.
11.5The obligation to indemnify infringements expires if the infringement is related (i) to materials made available to the Service Provider by the Customer for use, processing, handling or maintenance, or (ii) if the Customer made or had changes made to software, website, data files, equipment or other materials.
11.6The Customer warrants that no rights of third parties obstruct making equipment, software, material intended for websites, data files and/or other materials and/or designs available to the Service Provider, with the aim of use, maintenance, processing, installation or integration. The Customer indemnifies the Service Provider against any claim by a third party that is based on the assertion that such provision, use, maintenance, processing, installation or integration infringes any right of that third party.
12. Use of Artificial Intelligence (AI)
12.1The Customer expressly acknowledges and accepts that, for the purpose of performing the Services, the Service Provider may:
(a)use technologies that are wholly or partly based on artificial intelligence, including AI applications, models and services provided by Third-Party Suppliers; and/or
(b)develop, configure, customise, train, implement, make available or otherwise provide AI systems, AI functionalities, AI agents, AI workflows or other AI-based solutions for or on behalf of the Customer.
Depending on the nature of the Services and the relevant AI solution, the Service Provider may act as a deployer or provider within the meaning of applicable European artificial intelligence legislation, including Regulation (EU) 2024/1689 (the “AI Act”).
12.2The Service Provider shall use AI Technologies in a careful and professional manner and shall, taking into account the nature of the Services, the state of the art and the associated risks, take reasonable and appropriate measures to:
(a)safeguard the confidentiality and security of (personal) data and business information; and
(b)ensure that results generated (in whole or in part) by AI Technologies are subject to appropriate human oversight before being provided to the Customer or used in further decision-making.
12.3Where AI Technologies of Third-Party Providers are used and insofar as this is relevant to the provision of the Services, the applicable terms of use of such AI Technologies shall apply solely to the extent and insofar as necessary for the performance of the Services, without creating any direct contractual relationship between the Customer and the relevant Third-Party Provider.
12.4If the Customer does not wish certain AI Technologies to be used or requires additional security, compliance or confidentiality measures, the Customer must notify the Service Provider thereof in writing prior to the commencement of the Services. In such case, the Parties shall consult on possible alternative working methods and/or additional measures. Any additional costs, delays or limitations in the Services resulting therefrom shall be borne by the Customer, unless expressly agreed otherwise and recorded in the Specific Terms.
12.5At the Customer’s request, the Service Provider may provide information regarding the nature of the AI Technologies used, the applicable terms of use and the reasonable measures taken to comply with applicable laws and regulations, without being obliged to disclose confidential business information, source code, models, datasets or security architecture.
12.6Intellectual property rights in results created (in whole or in part) with the assistance of AI Technologies shall be governed by the intellectual property provisions of this document, insofar as such results are eligible for protection and insofar as the rights of Third-Party Suppliers, third parties and applicable law permit. The Service Provider does not warrant that such results are eligible for intellectual property protection or that exclusive rights can be obtained therein.
12.7To the extent that the Service Provider develops, customises, makes available or places on the market an AI system in such a manner that it qualifies as a provider within the meaning of the AI Act, the Service Provider shall use commercially reasonable efforts to ensure that such AI system complies with those obligations of the AI Act that are applicable to the Service Provider in its capacity as provider, taking into account the intended purpose of the AI system as agreed between the Parties.
12.8The Customer acknowledges and agrees that compliance with the AI Act may depend on the intended purpose, deployment environment, instructions, data, integrations and other information provided by the Customer. The Customer shall provide all information reasonably required by the Service Provider to determine the intended purpose and risk classification of the AI system and shall use the AI system solely in accordance with the documentation, specifications and instructions provided by the Service Provider.
12.9Where the Customer modifies the AI system, uses it for a purpose other than the agreed intended purpose, combines it with third-party systems or data sources not approved by the Service Provider, or otherwise acts in a manner that may affect compliance with applicable laws and regulations, including the AI Act, the Service Provider shall not be responsible for any resulting loss of compliance and the Customer shall be solely responsible for any obligations, liabilities or consequences arising therefrom.
12.10Unless expressly agreed otherwise in writing, the Service Provider does not warrant that an AI system developed or supplied under the Agreement qualifies as a low-risk, limited-risk or high-risk AI system under the AI Act, nor that any specific regulatory classification shall apply. Any assessment regarding the regulatory qualification, intended purpose and applicable obligations shall be made on the basis of the circumstances known at the time the Services are performed.
12.11If, due to changes in applicable laws, regulations, regulatory guidance, case law or competent authority requirements relating to artificial intelligence, additional measures, documentation, testing, monitoring, conformity assessments, registrations or modifications become necessary after the commencement of the Services, the Parties shall consult in good faith regarding the implementation thereof. Any additional work and associated costs shall constitute Additional Services and shall be charged separately.
12.12Following implementation, acceptance or go-live of the AI system, the Customer shall be solely responsible for the manner in which the AI system is deployed, used, monitored and applied within its organisation and for any decisions, actions or omissions based on outputs, recommendations, predictions, classifications or other results generated by the AI system. The Customer shall ensure that appropriate human oversight is exercised where required by law or reasonably necessary in view of the nature of the AI system and its intended use.
12.13The Service Provider shall not be liable for any loss, damage, claims, fines, sanctions or other liabilities arising from or related to the Customer’s use of the AI system, the interpretation or reliance upon AI-generated outputs, or decisions taken on the basis thereof, except to the extent caused by the Service Provider’s wilful misconduct or gross negligence.
12.14Unless expressly agreed otherwise in writing, the AI system is not designed, intended, certified or authorised for use in:
(a)any prohibited AI practice referred to in Article 5 of the AI Act; or
(b)any high-risk AI system or high-risk AI use case within the meaning of Annex III of the AI Act.
12.15The Customer shall not use, and shall ensure that its employees, contractors, end users and Affiliates do not use, the AI system for any such purpose.
12.16The Customer shall not use the AI system as the sole basis for decisions producing legal effects concerning natural persons or similarly significant effects on natural persons, including decisions relating to employment, recruitment, dismissal, promotion, compensation, access to education, creditworthiness, insurance, migration, public services, law enforcement or other comparable matters, unless expressly agreed otherwise in writing and all applicable legal and regulatory requirements have been satisfied.
12.17If the Customer intends to use the AI system for a purpose that may qualify as a high-risk AI system under Annex III of the AI Act or for any other regulated, safety-critical or compliance-sensitive purpose, the Customer shall notify the Service Provider in advance and obtain the Service Provider’s prior written approval. The Parties shall separately agree on any additional technical, organisational, contractual or compliance measures required for such use. The Service Provider shall have no obligation to permit, support or maintain such use.
12.18Any use of the AI system by the Customer in violation of Articles 12.14, 12.15 or 12.16 shall be at the Customer’s sole risk and responsibility and shall constitute a material breach of the Agreement.
12.19The Customer shall indemnify, defend and hold harmless the Service Provider, its Affiliates and their respective directors, officers, employees and subcontractors against any and all claims, damages, losses, fines, penalties, regulatory measures, costs and expenses (including reasonable legal fees) arising from or relating to:
(a)the Customer’s use of the AI system for prohibited AI practices or high-risk AI use cases;
(b)decisions taken by the Customer or third parties based on outputs generated by the AI system;
(c)the Customer’s failure to exercise appropriate human oversight;
(d)the Customer’s non-compliance with applicable laws and regulations relating to artificial intelligence, data protection, employment, consumer protection, anti-discrimination or other applicable legislation; or
(e)claims brought by data subjects, end users, employees, applicants, customers, supervisory authorities or other third parties arising from the Customer’s deployment, use, interpretation or application of the AI system or its outputs after implementation, acceptance or go-live, except to the extent that such claim directly results from the Service Provider’s wilful misconduct or gross negligence.
12.20For the avoidance of doubt, following implementation, acceptance or go-live, the Customer remains solely responsible for assessing, validating and approving any output generated by the AI system before such output is relied upon, communicated, implemented or used as the basis for any business, operational or legal decision.
13. Secondment of Consultants
13.1In deviation from Article 5 (No transfer of supervision), this Article 13 shall apply exclusively where and to the extent that the Parties have expressly agreed in writing that one or more Consultants are made available to the Customer and perform their activities under the supervision and direction of the Customer (“Secondment”).
13.2The Parties expressly acknowledge and agree that:
(a)the Service Provider is and remains at all times the employer of the Consultant(s) within the meaning of Dutch employment law; and
(b)where this Article 13 applies, the Secondment qualifies as the supply of labour within the meaning of the Dutch Allocation of Labour through Intermediaries Act (Wet allocatie arbeidskrachten door intermediairs – WAADI), with the Customer qualifying as the hirer (inlener).
13.3Nothing in the Contract or the Secondment shall create, or be deemed to create, an employment relationship between the Customer and the Consultant(s). The Consultant(s) shall at no time be considered employees, agents or representatives of the Customer.
13.4The Customer shall ensure that the inlenerbeloning within the meaning of the WAADI is correctly determined. To enable the Service Provider to comply with its statutory obligations as employer, the Customer shall, prior to the commencement of the Secondment and upon any change thereafter, provide the Service Provider in a timely manner with complete, accurate and up-to-date information regarding all elements relevant to the inlenerbeloning, including but not limited to:
(a)applicable salary scales and wage components;
(b)working hours, overtime schemes and allowances;
(c)expense reimbursements;
(d)holiday entitlements and public holidays;
(e)applicable collective labour agreements (CAOs) and internal remuneration policies.
13.5The Customer warrants the accuracy and completeness of such information. The Service Provider shall not be liable for any failure to apply the correct inlenerbeloning insofar as this results from incorrect, incomplete or untimely information provided by the Customer.
13.6The Service Provider indemnifies and holds harmless the Customer against all third-party claims, liabilities, damages, costs and expenses (including penalties, interest and reasonable legal costs) arising out of or in connection with:
(a)chain liability (ketenaansprakelijkheid) and hiring liability (inlenersaansprakelijkheid), including claims relating to wages, holiday pay, social security contributions, pension premiums and wage tax, insofar as such claims relate to the Consultant(s);
(b)the Service Provider’s failure to comply with its obligations as employer under applicable employment, tax or social security legislation;
(c)non-compliance by the Service Provider with its obligations under the WAADI.
13.7Where the Service Provider maintains a blocked account (G-rekening) within the meaning of Dutch tax legislation, the Customer shall be entitled, at its discretion, to pay part of the fees into such G-account. The amount paid into the G-account shall not exceed:
(a)fifty-five per cent (55%) of the total invoiced amount relating to the Secondment; or
(b)twenty-five per cent (25%) of the total invoiced amount relating to the Secondment, where the Service Provider holds a valid SNA quality mark (Stichting Normering Arbeid, NEN 4400-1 or NEN 4400-2), as applicable at the time of invoicing.
13.8Payments made by the Customer into the G-account in accordance with this Article shall constitute valid and discharging payment (bevrijdende betaling) of the corresponding part of the fees.
13.9The Service Provider shall, upon reasonable request, provide the Customer with evidence of:
(a)the existence of the G-account; and
(b)the validity of the SNA quality mark, if applicable.
13.10If the Service Provider does not maintain a G-account, if the SNA quality mark lapses, or if payment into the G-account is not possible or no longer permitted under applicable law, this shall not affect the Service Provider’s indemnification obligations pursuant to Article 13.6.
13.11During the Secondment, the Customer shall:
(a)provide a safe and compliant working environment in accordance with applicable health and safety legislation (including the Dutch Working Conditions Act – Arbeidsomstandighedenwet);
(b)refrain from issuing instructions that are contrary to applicable law or outside the agreed scope of the Services;
(c)promptly inform the Service Provider of any incidents, complaints or circumstances that may give rise to employer-related claims.
13.12The indemnity set out in Article 13.6 shall not apply to the extent that the relevant claim results from (i) incorrect or incomplete information provided by the Customer pursuant to Article 13.4 or ii) instructions or working conditions imposed by the Customer in violation of applicable law.
14. Privacy and data processing
14.1Each Party must at all times adhere to its respective obligations under applicable law in regards to the processing of personal data in connection with personal data processed pursuant to the Contract. The Customer is solely responsible at all times for the determination of the objectives for which the Service Provider processes personal data pursuant to the Contract. For the sake of clarity, the Parties acknowledge that the Customer acts as the party responsible for the data processing (the controller), and the Service Provider acts as the processor of the personal data that must be stored, used or otherwise processed at the instruction of the Customer under the Contract, as these terms are defined in the legislation governing the processing of personal data.
14.2If necessary for the performance of the Contract, the Customer will, upon request, inform the Service Provider in writing about the manner in which the Customer performs his obligations under the legislation on the protection of personal data.
14.3The Customer declares that they have obtained all approvals necessary for the use and processing of the personal data transferred to the Service Provider for the purposes of the Contract. The Customer further warrants that the content, use and/or processing of the personal data is not wrongful and does not violate the rights of third parties. The Customer shall indemnify the Service Provider against claims from persons whose personal data is registered or processed in the context of a personal registration held by the Customer or for which the Customer is otherwise responsible under the law, unless the Customer proves that the facts that are relevant to the claim are exclusively attributable to the Service Provider.
14.4The responsibility for the personal data processed by the Customer using a Product and/or Service of the Service Provider lies entirely with the Customer. The Customer indemnifies the Service Provider against any legal claim by a third party, on any grounds whatsoever, in connection with this personal data or the performance of the Contract.
14.5On the grounds of the legislation governing the processing of personal data, the Customer has obligations towards third parties, such as the obligation to provide information and provide access to, correcting and deleting the personal data of data subjects. The responsibility for the fulfilment of these obligations rests entirely with the Customer. The Service Provider will, as far as technically possible, provide support for the aforementioned obligations to be met by the Customer. The costs associated with this support are not included in the Service Provider’s agreed prices and fees and are borne by the Customer.
14.6The Customer acknowledges and accepts that the conditions, modalities and (possible) guarantees in the sphere of privacy, as included in the General (License) Terms & Conditions of Third-Party Suppliers, are applicable in full and as a priority.
14.7The Customer gives consent to the Service Provider to process the customer data that they receive in the context of the implementation of the Contract. The main purpose of processing the data of the Customer is to manage the future and current customers of the Service Provider, which i.a. includes management of and access to the section of the website(s) reserved for the customers as well as offering and promoting products and services.
15. Security
15.1If the Service Provider is expressly bound by the Contract to provide a form of information security, this security shall comply with the security specifications agreed in writing between the Parties. The Service provider does not guarantee that the information security will be effective under all circumstances. If an explicitly described method of security in the Contract is lacking, the security will meet a level which, in view of the state of the technology, the sensitivity of the data and the costs involved in achieving a secure environment is not unreasonable.
15.2The access or identification codes and certificates provided to the Customer by or on behalf of the Service Provider are confidential and must be treated as such by the Customer and will only be shared with authorised personnel from the Customer’s own organisation. The Service provider is entitled to change assigned access or identification codes and certificates.
15.3The Customer will adequately secure their systems and infrastructure and will always ensure that antivirus software is in operation. The Service Provider can never be held liable for viruses in the Customer’s system and the consequences thereof.
15.4The Customer is solely responsible for setting up procedures that allow them to reconstruct lost or modified files, data or programs at any time, regardless of the cause of the loss or modification. The Customer must be able to dispose of the necessary back-up copies of their computer programs, files and data on a daily basis.
15.5At all times the Customer bears the responsibility for their existing infrastructure (including, but not limited to: hardware, software, websites, databases, monitoring and security procedures, adequate system management, etc.) and the proper functionality and safety of all their working materials.
16. Liability
16.1In view of the nature and technical characteristics of computer programs, the Customer acknowledges and accepts that, given the current state of technology and knowledge, it is not possible to guarantee that the Products and/or Services will be free from defects, inaccuracies, or bugs, or that they will operate without interruption under all circumstances in accordance with the agreed specifications or the Customer’s expectations. The Products and/or Services are provided on an “as is” basis, and the Service Provider makes no warranties, express or implied, that the Products and/or Services will meet the Customer’s specific purposes or intended use, except to the extent expressly provided for in the Contract.
16.2To the maximum extent permitted by applicable law, the total liability of the Service Provider – regardless of the legal ground on which a claim is based, including but not limited to breach of contract, attributable failure, unlawful act (tort), or any other legal theory – shall be limited to the reimbursement of direct damages only, up to a maximum equal to the fees (excluding VAT) paid or payable by the Customer for the specific Products and/or Services that gave rise to the damages. If the Contract covers multiple years, the Service Provider’s total liability for direct damages shall in any case be limited to the amounts invoiced (excluding VAT) for the relevant Products and/or Services during the twelve (12) months preceding the event giving rise to the damage. Under no circumstances shall the Service Provider’s total liability for direct damages over the entire term of the Contract exceed the total fees (excluding VAT) paid by the Customer for the specific Products and/or Services.
16.3Where the damage is partly attributable to the Customer and/or any third party, the Service Provider shall only be liable, within the above limits, for the proportion of the damage demonstrably caused by the Service Provider’s own acts or omissions, and shall not be jointly and severally liable with other debtors. Related, similar, or connected damages shall be deemed a single damage event for the purposes of this limitation.
16.4The Customer must inform the Service Provider in writing of any event that may call upon the latter’s liability or of any disadvantage the Customer suffers within the shortest possible time and at the latest within twenty (20) calendar days from the occurrence of this event or disadvantage, or at least to be counted from the moment the Customer becomes aware of or reasonably could have been aware of this event or disadvantage and shall grant the Service Provider a reasonable period of time to remedy the shortcoming. This is in order to enable the Service Provider to determine the origin and cause(s) of the damage within a reasonable period of time, or to possibly rectify the shortcoming of their obligations. The notice of default must contain as complete and detailed a description of the shortcoming as possible, so that the Service Provider is given the opportunity to respond adequately. In the event of failure to comply with the written notification, the Service Provider reserves the right to refuse any compensation and they cannot be held liable.
16.5Under no circumstances shall the Service Provider be liable for (i) indirect, incidental or consequential loss, including but not limited to financial or commercial losses, loss of profit, increase of general expenses, missed savings opportunities, diminished goodwill, damages resulting from business stoppage, damages resulting from claims of customers of the Customer, disruptions in scheduling, loss of expected profit, loss of capital, loss of customers, missed opportunities, loss of information, loss of advantages, or compromising and loss of files and/or data resulting from the performance of the Contract, (ii) damages resulting from error or negligence of the Customer and/or their Users, (iii) compensation of any direct and indirect damages caused by the (incorrect) use of the Product and/or result of the Services, (iv) compensation of any direct and indirect damages caused in whole or in part by software or hardware supplied or created by third parties, or any other element introduced into the Customer’s business after the signing of the Contract, and (v) all claims of third parties brought against the Customer.
16.6The limitation of liability as set out in this Article shall not apply with respect to damages caused by an intentional and/or fraudulent error by the Service Provider.
16.7The Service Provider can in no way be held liable for the purchase and/or proper functioning of the infrastructure of the Customer, any Users and/or other third parties.
16.8In the event that the delivered developments are used for further development or commercialisation, the Customer will hold the Service Provider harmless against any third-party damage claims, even if it were established that such originated from the services and developments supplied by the Service Provider.
16.9The Service Provider is not liable for any claims of intellectual property rights infringement based upon:
(a)use of a modified or old version of any or all of the developments, if the infringement could have been prevented by using the unmodified or last version which the Service Provider has made available; or
(b)information, design, specifications, instructions, software, data or other materials that were not developed by the Service Provider.
16.10The Customer shall indemnify the Service Provider against all third-party claims due to product liability as a result of a defect in a product or system supplied to a third party by the Customer and which also consisted of equipment, software or other materials supplied by the Service Provider, unless and insofar as the Customer proves that the damage is exclusively caused by that equipment, software or other materials.
16.11Except as otherwise agreed between the Parties, the Customer is responsible for the use of the Services and the manner in which the results of the Services are deployed. The Customer is also responsible for instructions provided to possible end Users and their use of this information.
16.12The provisions of this Article, alongside all other limitations and exclusions of liability specified in the Contract, are stipulated in part for the benefit of the Service Provider, the Employees of the Service Provider and their Affiliated Companies.
16.13Insofar as a claim falls within the mandatory scope of Article 13 of Regulation (EU) 2023/2854 (the Data Regulation or EU Data Act), the exclusions and limitations of liability contained in this Article and elsewhere in the Agreement do not apply to intentional acts or gross negligence of the Service Provider within the meaning of Article 13(4)(a) of that Regulation. This exception is not limited to management and also covers conduct of Employees and other auxiliary persons insofar as such conduct is legally attributable to the Service Provider. In the event of a conflict, this provision prevails over other provisions of the Agreement; indemnities may not negate this exception. The other mandatory protections of Article 13 remain unaffected. Outside that scope, the agreed exclusions and limitations remain applicable, subject to Article 16.6 and other mandatory law.
17. Force Majeure
17.1Neither Party is obliged to fulfil any obligation, including any statutory and/or agreed warranty obligation, if it is prevented from doing so as a result of Force Majeure.
17.2However, if full or partial performance of the obligations of a Party under the Contract is delayed or prevented as a result of Force Majeure for a period expected to last longer than fourteen (14) consecutive calendar days, the Parties shall consult and endeavour to reach a reasonable solution with a view to the continued execution of the Contract. If a situation of Force Majeure lasts longer than sixty (60) calendar days, either Party is entitled to rescind the Contract in writing. In that event, all performances already rendered under the Contract will be settled in proportion to the state of completion, without the Parties owing anything to each other beyond this proportionate compensation.
18. Transfer – Subcontracting
18.1Neither the Contract nor the rights or obligations arising from it may be transferred in whole or in part without the express written consent of both Parties. Without prejudice to the foregoing, the Service Provider is at all times authorised to transfer the Contract or the rights or obligations derived from it, in whole or in part, to an Affiliated Company without requiring the explicit and written consent of the Customer.
18.2For the performance of the Contract, the Service Provider may call upon the services of subcontractors without requiring the written consent of the Customer in advance. The Service Provider is entitled to sell, transfer or pledge his claims for compensation payment to a third party.
19. Non-solicitation
19.1The Customer agrees not to actively approach, directly or indirectly, any Employees of the Service Provider for the purpose of engaging or recruiting them during the entire term of the Contract and for a period of twelve (12) months following its termination, unless otherwise agreed in writing by the Parties.
19.2If, in breach of Article 19.1, the Customer engages, recruits, or otherwise uses the services of any Employee of the Service Provider — whether under an employment relationship, as an independent contractor, or through a company — the Customer shall pay the Service Provider a lump-sum compensation equal to the total gross remuneration, fees, and benefits that the Employee received from the Service Provider during the six (6) months immediately preceding the termination of their employment or engagement with the Service Provider. This amount shall become immediately due and payable on the date the Employee is first engaged or their services are first used by the Customer.
19.3The Customer warrants and shall be responsible for ensuring that its Affiliated Company(-ies), as well as any third parties or auxiliary persons engaged by the Customer in the performance of the Contract, comply with the obligations set out in this Article and do not solicit, engage, or recruit any Employees of the Service Provider.
20. Anti-Corruption and Compliance
20.1Each Party shall at all times comply with all applicable laws and regulations relating to anti-bribery, anti-corruption, anti-money laundering, fraud prevention, sanctions, and export control, insofar as applicable to the negotiation, conclusion and performance of the Contract.
20.2Neither Party, nor any of its Employees, directors, officers, agents, consultants, subcontractors, or any other person acting on its behalf, shall, directly or indirectly:
(a)offer, promise, give, solicit, agree to receive, or accept any undue financial or other advantage of any kind;
(b)make or receive any bribe, kickback, facilitation payment, or other improper payment; or
(c)engage in any conduct that would cause the other Party to be in breach of any applicable anti-bribery, anti-corruption, anti-money laundering, sanctions, or export control laws or regulations,
in connection with the Contract.
20.3Each Party shall promptly notify the other Party in writing if it becomes aware of, or reasonably suspects, any breach of this Article in connection with the Contract. The Parties shall cooperate in good faith, to the extent reasonable, in order to assess the relevant circumstances and determine appropriate remedial measures.
20.4Any breach of this Article shall be deemed a material breach of the Contract. In such event, the non-breaching Party shall be entitled, without prejudice to any other rights or remedies available under the Contract or applicable law, to suspend performance of the Contract with immediate effect and/or terminate or rescind the Contract, in whole or in part, by written notice with immediate effect, without any liability to the breaching Party.
21. Termination
21.1Without prejudice to its right to claim damages, each Party may, at its sole discretion, suspend performance of the Contract, or terminate or rescind the Contract, in whole or in part, without judicial intervention and with immediate effect, by means of a registered letter in any of the following cases:
(a)in the event of an attributable breach of contract by the other Party, provided that: (i) such breach has occurred, (ii) the breaching Party has been given written notice of default granting a reasonable period to cure the breach, and (iii) the breach has not been cured within the specified cure period;
(b)if the other Party is granted (whether provisionally or definitively) a suspension of payment, is declared bankrupt, discontinues payment, is obviously insolvent, its creditworthiness is in jeopardy, or if the other Party is liquidated or terminated other than for the purpose of reconstruction or a merger;
(c)if the other Party offers a composition or settlement to its creditors or discontinues its business activities;
(d)if any or all of the assets of the other Party are subject to foreclosure, garnishment, seizure, or other enforcement or protective measures at the request of a creditor;
(e)in the event of proven or seriously suspected fraud, deception, or other unlawful conduct by the other Party;
(f)if the other Party refuses to provide information reasonably requested for the performance of the Contract or provides incorrect and/or false information;
(g)if the continuation of the Contract becomes impossible or unreasonably onerous for the terminating Party due to circumstances attributable to the other Party.
21.2Suspension or termination of the Contract under Article 21.1 shall not affect the Service Provider’s right to payment for all Services performed, hours worked, and Products delivered up to the effective date of suspension or termination.
21.3Except where the Customer terminates the Contract due to a material breach by the Service Provider, the Customer shall compensate the Service Provider for:
(a)all ordered Products, including all Products or Services supplied by Third Parties, including the full license fees for all Products of Third-Party Suppliers for (i) the period elapsed up to the effective termination date, and (ii) the entire remaining contractual term agreed for such licenses. Under no circumstances shall any license fees already paid be refunded;
(b)all Services performed; and
(c)all effective work hours performed up to the date of termination, billed at the Service Provider’s applicable hourly rates.
This is without prejudice to the Service Provider’s right to claim compensation for damages exceeding the amounts referred to above, using any and all legal means. The Service Provider shall never be obliged to refund amounts already received or to pay damages as a result of termination, except where termination is based on a proven serious error or material breach by the Service Provider.
21.4If the Contract is rescinded by one of the Parties, this rescission is considered to be effective as of the date of the postmark on the registered letter giving notice that the Contract is rescinded.
21.5If the Contract has been entered into for a fixed term, neither Party shall be entitled to terminate or cancel the Contract prematurely for convenience, unless such termination right has been expressly agreed in this Contract. This is without prejudice to the right of either Party to suspend or terminate the Contract pursuant to Article 21.1 or as otherwise permitted by law.
21.6If a Contract which, by its nature and content, does not end with completion, has been concluded for an indefinite period of time, it can be terminated in writing by either Party after proper consultation and stating the reasons therefore. If no notice period has been agreed between the Parties, a reasonable period must be observed in the case of the termination.
22. Other provisions
22.1The invalidity or unenforceability of any provision or part of a provision of the Contract shall not affect the validity or enforceability of the remaining provisions. The Parties shall, in good faith, use their best efforts to replace any invalid or unenforceable provision with a valid provision that reflects as closely as possible the intent and economic effect of the original provision.
22.2The Contract shall be governed exclusively by and construed in accordance with the laws of the Netherlands, with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG, Vienna Sales Convention, 11 April 1980).
22.3In the event of any dispute arising out of or relating to the performance or interpretation of this Contract that cannot be resolved amicably within a reasonable period, such dispute shall be submitted exclusively to the competent courts of Amsterdam, the Netherlands.