General Terms & Conditions

B2B Extensions is a product of Ecomwise. Ecomwise is registerd with the following details:

K.v.K: 56899831
VAT: NL852353595B01

These General Terms & Conditions are constructed of the following Modules:

A: Module: General
B: Module: Software Development and other specific work (Content and System development) C: Module: delivery of Standard Software
D: Module: Service and maintenance
E: Module: Hosted Services
F: Module: Service Reselling

If a specific Module is applicable then it shall take precedence over the General Module. In so far as the general section does not conflict with any applicable provisions contained in specific Modules, then the general section also remains applicable. The definitions of the terms written in capitals can be found at the beginning of the Module: General and are applicable to all Modules.

All issues that parties have explicitly agreed to in writing shall take precedence over these Terms & Conditions.

A: General

1. Definitions

In these Terms & Conditions the following definitions apply:

  1. General Terms & Conditions: the provisions contained in this current document.

  2. Services: the Services that the Service Provider shall perform on behalf of the Client such as:

    • Content Development: the (graphic) design of the house styles, logos, folders, brochures, leaflets, signage, advertisements, marketing and/or communication plans, concepts, images, texts, sketches, documentation, recommendations, reports or any other specific, substantive work (Content);

    • System Development: the development of the software for a website, web shop or application.

    • Hosting: the storage of data (files) and/or applications and the distribution of the information via the internet;

    • Emailing: the provision of the possibility to receive, read and send emails via the Service Providers system and/or via third parties which the Service Provider has appointed;

    • Other services as described in these General Terms & Conditions, in the tender and/or the Contract.

  3. Service Provider: the company Ecomwise located in Utrecht and registered with the Chamber of Commerce (in the Netherlands) under file number 56899831.

  4. Downtime: the time period when a Service, that in so far as possible is continuously delivered via the internet or other ICT network – such as Hosting – is interrupted or suspended.

  5. Term contract: the agreement under which one or more parties commits to perform the services continually or repeatedly during a specific period of time.

  1. User: the (end) user that uses the software/application/Service provided by the Service Provider on behalf of the Client.

  2. Works: Allwebsites,(web) applications, house styles, logos, folders, brochures, leaflets,signage, advertisements, marketing and/or communication plans, concepts, images, texts, sketches, documentation, recommendations, reports and other intellectual property related to the Services, including preparatory material and the data carriers that hold the Work.

  3. Client: the natural or legal person with whom the Service Provider has entered into an agreement that falls under one of the Modules contained in this agreement. This also includes the person who enters into negotiations with the Service Provider or the representative(s), authorised person(s), legal beneficiary (or beneficiaries) and heirs.

  4. Contract: the agreement between the Service Provider and the Client pursuant to the one or more Services that the Service Provider shall deliver.

  5. Service Level Agreement, SLA: agreement between the Service Provider and Client whereby concrete and measurable standards are related to the delivered Services.

  6. Standard Software: the software packages as named on the Website that are provided by the Service Provider. Said software packages may be developed by the Service Provider themselves or by third parties.

  7. Uptime: the time period when a Service, that as far as possible is continuously delivered via the internet or other ICT network – such as Hosting – is not interrupted or suspended.

  8. Website: www.ecomwise.com

2. Tender, offer and acceptance

  1. A tender drafted by the Service Provider is non‐ binding and valid for 14 days after dispatch, unless otherwise specified in the tender. The tenders issued by Service Provider can be withdrawn at any time by the Service Provider, however after receipt of acceptance, this may take place no later than within 2 working days.

  2. The Client shall accept the tender in writing. If the Client fails to do so but nevertheless agrees, or at least implies agreement that the Service Provider shall perform the work in the context of the Contract, then the tender shall be deemed to be accepted.

  3. Provisions or conditions set by the Client that deviate from or are not included in these General Terms & Conditions are only binding for the Service Provider if and in so far as these have been explicitly accepted in writing by the Service Provider.

  4. Without prejudice to the Service Provider’s authority to withdraw the tender in agreement with article 1, after acceptance of the agreement it can only be adapted upon mutual consent. For adaptation of these General Terms & Conditions see article 15.

  5. The Contract commences at the moment notice, including the acceptance of the tender by the Client, is received by the Service Provider; provided that the Service Provider has not withdrawn the tender in due time pursuant to article 1.

 

3. Duration and termination

  1. Every Term Contract is, unless otherwise agreed, entered into for a minimum period of twelve months. The Term Contract shall, in the absence of a written cancellation in due time of a period of notice of two months, be automatically extended for a period of twelve months.

  2. Contracts that are not Term Contracts are deemed to be terminated when both sides have delivered the performances as agreed.

  3. Upon cancellation, termination or dissolution for any reason the Service Provider shall also be entitled, immediately after the date on which the Contract has expired, to delete or render inaccessible all the stored data and to cancel all accounts belonging to the Client. The Service Provider is thereby under no obligation to provide a copy of this data of his own accord. If the Client, prior to termination, requests a copy of this data then the Service Provider shall provide said data at a reasonable fee.

  4. The delivery terms as specified by the Service Provider, unless explicitly stated in writing that they are in regard to a deadline, are always an approximate indication. The Service Provider is, even with an agreed final deadline, in default after the Client has declared him to be in default subject to legally prescribed situations wherein the default occurs by operation of the law.

  5. If the Client fails to comply with any of his obligations under the Contract, then the Service Provider has the right to defer the performance of all agreements entered into with the Client, without the requirement of any notice of default or legal intervention and without prejudice to the rights of the Service Provider for compensation for damages, lost profit and interest, unless the non‐compliance in question is a matter of minor significance.

  6. The Service Provider is authorised to dissolve or to defer the Contract in whole or in part with immediate effect and without legal intervention, by letter, fax or by email and without any liability for damages or compensation, if:

    • The Client fails to comply fully within the set time with his obligations under the agreement;

    • If, upon entering the agreement, the Service Provider learns of circumstances which lead him to doubt that the Service Provider shall be able to fulfil his obligations;

    • The Client, upon entering the agreement, is requested to provide a guarantee for the fulfilment of his obligations arising from this agreement and the guarantee is not provided or is insufficient;

    • That due to a delay on the side of the Client, the Service Provider can no longer be expected to meet the conditions of the agreement as established in the original agreement;

    • The Service Provider passes away;

    • There is a request for the suspension of payments or bankruptcy is filed or the Client’s bankruptcy is requested;

    • The Client’s activities cease or are liquidated;

    • If any of the Client’s assets are seized;

    • Circumstances arise of such a nature that fulfilment of the agreement becomes impossible or the unmodified preservation of the agreement cannot be reasonably demanded of the Service Provider.

     

7. If the agreement is dissolved then the claims on the Client by the Service Provider are due immediately. If the Service Provider defers fulfilment of the commitments then he retains all rights under the law and the Contract.
 
8. If the dissolution is attributable to the Client, then the Service Provider is entitled to compensation for the damage that arises albeit directly or indirectly.
 

4. Performance of the Services

  1. After the Contract has been established the Service Provider shall perform the Services in accordance with the tender within the shortest possible time.

  2. In so far as not otherwise agreed in writing, the Service Provider guarantees that the Services shall be performed to the best of his ability and using adequate care and professionalism.

  3. In as far as the correct performance of the Services should require, the Service Provider retains the right to have certain activities performed by third parties. Any unexpected additional costs related hereto shall be borne by the Client, unless otherwise agreed. These General Terms & Conditions also apply to the activities performed by third parties within the context of this Contract.

  4. The Client is obliged to take all actions that may reasonably be deemed necessary and desirable to ensure the timely and correct performance of the Services. In particular, the Client shall be responsible for ensuring that all data that the Service Provider indicates to be necessary or which the Client can be reasonably expected to understand as being required to perform the Services is provided to the Service Provider in time.

  5. Should this form part of the Services then the Service Provider shall provide the Client with an administrative username and password. Using these details, the Client shall have access to an administrative account and to management software whereby the Client, at their own discretion, can manage the delivery of the Services and the individual User accounts and can set the possibilities and limitations of those Services for those Users within, to the Client, accessible and recognisable location parameters, that are included in the tender or otherwise.

  6. Each action using the administrative account or a User account is considered to be carried out under the responsibility of and at the risk to the Client. In the event of suspected abuse of an account the Client shall notify the Service Provider as soon as possible so that the latter can take appropriate measures.

  1. The Service Provider has the right to take the Service (temporarily) out of use and/or limit its use or limit its supply, if the Client, in respect to the Contract, does not fulfil a commitment or acts in violation of these Terms & Conditions.

  2. No support or maintenance is included with the Services, unless otherwise agreed. However, the Service Provider shall, if he disposes of it, provide the Client with the manuals and information required to enable the correct use of the Service.

 

5. Overrun, Underrun and unexpected costs

  1. With any modifications to the Service, be it at the request of the Client or as result of unforeseen external circumstances that necessitate an alternative implementation, where additional costs are connected it shall be regarded as overrun and when lower costs are connected it shall be regarded as underrun. These costs shall be invoiced to the Client accordingly.

  2. A condition for the right to invoice the overrun to the Client is that the Service Provider has informed the Client in due time about the circumstances referred to therein and the additional costs. In the event that the Client is not in agreement with the additional costs then he retains the right to cancel the portion of the overrun that has not yet been performed, however without being entitled to restitution or remission of the costs for the overrun that has already been performed.

  3. If after entering into the Contract cost increases arise due to circumstances or come to light that are beyond the Service Providers control, then the Service Provider is entitled to adjust the relevant compensation(s) to these circumstances.

 

6. Reservation of ownership

  1. As long as the Client has not completed payment of the full amount as agreed for the goods, then the delivered goods remain the property of the Service Provider.

  2. In the event that the Client fails to fulfil his obligations under this agreement with regard to the delivery of goods to the Service Provider, then the Service Provider is entitled, without notice of default, to seize the goods, in which case, even without legal intervention the agreement is terminated. This, without prejudice to the rights of the Service Provider for compensation for damages, lost profits and interest.

7. Prices

  1. All prices given do not include sales tax(VAT) or other legally imposed levies.

  2. If the price in a tender is based on data provided by the Client and this is proven to be incorrect then the Service Provider has the right to adjust the prices accordingly, even after the Contract has been agreed upon.

  3. All prices on the Service Providers’ website are subject to programmer and typing errors.

  1. If the Contract is a Term Contract then the Service Provider is entitled to adjust the prices he applies at any time. The Service Provider shall notify the Client of any price adjustments at least one month in advance. In the event that the price increase exceeds 2% per annum, the Client is entitled to terminate the agreement, in compliance with a notice period of one month.

  2. Unless otherwise agreed, the Client, upon acceptance of a Contract other than a Term Contract, is liable for an advance payment of 50% of the total price payable as stated in the tender.

 

8. Payment terms

  1. The Service Provider shall send a declaration to the Client for the amount payable by the Client. If a Service is delivered in stages then the Service Provider is entitled to invoice each completed stage. The payment term of an invoice is 14 days after the date of the invoice, unless otherwise indicated on the invoice or specified in the Contract.

  2. Notwithstanding the preceding paragraph, the Service Provider is not required to send an invoice if the Contract is a Term Contract. The Client shall make a monthly, or per other agreed period, advance payment of the amount payable for that period to the Service Provider.

  3. The Service Provider may determine that the payable amount for a Service may only be paid by way of direct debit. The Client shall provide the Service Provider with an authorisation for direct debit. The Client shall ensure that there are adequate funds on the bank or giro account that is known to the Service Provider and against which the payments shall be made.

  4. If the Client fails to pay the full amount in time then from 14 days after the payment period he is legally in default, without any notice being required. If the amount due is not paid within the payment period then an amount of 2% per month of the outstanding amount and €15.00 administration costs shall be due without any further notice from the Service Provider.

  5. Upon late payment, in addition to the amount owed and the payable interest, the Client shall be held accountable for full compensation of both judicial and extrajudicial collection costs, including costs for lawyers, bailiffs and collection agencies.

  6. The claim for payment is due immediately in the event that the Client is declared to be bankrupt, when suspension of payments has been requested, if the Client’s assets have been seized, if the Client dies or if said Client goes into liquidation or is dissolved.

  7. In the aforementioned situations, the Service Provider furthermore has the right to terminate or defer performing that which is under Contract or any portion yet to be performed, without notice or judicial intervention and without any rights to compensation for damage to the Client that might occur.

  8. Only payments made personally to the Service Provider are considered valid payments.

 

9. Intellectual property rights

  1. All intellectual property rights developed or other provided Work in the context of the Services are held solely by the Service Provider or its licensors.

  2. The Client only acquires the user rights and authorities as are established in these Terms & Conditions, the Contract or otherwise explicitly granted in writing and for the remainder, the Client shall not duplicate or publicly disclose the software or other Works.

  3. The Client is not permitted to remove or alter any indications regarding copyright, trademarks, trade names or other intellectual property rights from Works, including indications regarding the confidential nature of the Works.

  4. The Service Provider is permitted to undertake technical measures in order to protect the Works. In the event that theService Provider has secured Works using technical protection then the Client is not permitted to remove or evade this protection.

  5. Each use, duplication or public disclosure of the Works that fall outside the scope of the Contract or granted user rights forms an infringement on the Service Provider’s intellectual property rights. The Client shall pay an immediately payable penalty of € 1,000 per infringing act and € 10,000 per intentional, infringing act to the Service Provider, without prejudice to the Service Provider’s right to receive compensation for the damages caused by the infringement or the right to take other legal measures in order for the infringement to cease and/or to recover damages. After the expiration of one business day after the Service Provider has notified the Client of the infringement, the Client is liable for payment of a penalty of € 5,000 per day that the infringement continues.

 

10. Liability

  1. The Service Provider accepts legal liability to pay compensation only to the extent as stated in this article.

  2. The Service Provider is only liable with respect to the Client in in the event of an attributable breach of the Contract and only for compensatory damages; that means compensation for the value of the omitted performance. Any liability of the Service Provider for any other form of damages is excluded, therein understood to be additional damages in any form, compensation for indirect damage or damage due to loss of sales or profits.

  3. The Service Provider is in no way liable for damages caused by delays, damages caused by loss of data, damages due to exceeding the deadlines as the result of altered circumstances, damages as a result of the Client providing inadequate cooperation, information or materials and damages as a result of information or recommendations given by the Service Provider that do not explicitly form part of the Contract.

  4. The maximum amount in the case of liability under the preceding articles that shall be paid is (in the case that it concerns the delivery performance of software) the purchase price of the applicable software or (in other cases) € 10,000. In the event that the

  5. Contract is primarily a Term Contract with the duration of more than six months then the maximum amount shall be set at the total of the fees (excluding VAT) as stipulated for three months. These maximum amounts shall be cancelled if and insofar that the damage is caused by intent or gross negligence by the Service Provider.

  6. The liability of the Service Provider due to an attributable breach of the Contract arises only if the Client, immediately and properly, notifies the Service Provider of the default in writing, stating a reasonable time period in which to rectify the failures and if the Service Provider, even after that period, continues to accountably fail in fulfilling his commitments. The notice of default should include a detailed description of the failures so that the Service Provider has the opportunity to respond adequately.

  7. In the event of an unlawful act by the Service Provider, an employee or subordinate for which he is held legally liable, the Service Provider is only liable for compensation of damage caused by death or physical injury and other damage, the latter to the extent that it was caused by intent or gross negligence. In this event, the compensation shall in no case exceed the amount that the liability insurance held by the Service Provider shall pay (plus the excess) for the damage causing incident, whereby a series of related events shall be regarded as one event. Liability for other damage is explicitly excluded under Art. 6:170 Dutch Civil Code.

  8. The Client indemnifies the Service Provider from all third party claims of liability due to a defect in Work that has been supplied to a third party by the Client and that consists in part of goods, materials or results delivered by the Service Provider, except if and insofar that the Client proves that the damage was caused by said goods, materials or results.

11. Interruptions and force majeure

  1. Neither of the parties can be accountable to fulfil any commitment in the event of circumstances that are beyond the parties control and which upon entering the Contract could not or should not have been reasonably provided or that nullify every reasonable opportunity to comply.

  2. These circumstances can for example be understood to be: (a)an interruption in the internet connection or other telecommunication facilities,(b)faults of third parties on which the Service Provider is dependent in order to provide the Service (c) defective materials, equipment, software or Works which the Service Provider has specified the Client use, (d) disability of one or more employees (due to illness or otherwise) and (e) government legislation.

  3. In the event that the force majeure exceeds the period of three months, then each party is entitled to dissolve the Contract in writing. That which has already been performed under the contract shall in such an event be settled proportionately, upon which all accounts are considered settled.

 

12. Personnel

  1. The Client shall provide all the necessary support to the Service Provider’s employees working at the Client’s office in order for them to deliver the products and/or services and offer them all the required assistance for the purpose of performing their working activities.

  2. The Client is not permitted, for as long as the relationship between the Client and Service lasts and for one year thereafter, to employ or otherwise recruit the Service Provider’s personnel, either directly or indirectly, or have them work for the Client without prior written consent from the Service Provider. In this context, employees of the Service Provider are considered to be persons employed by the Service Provider or business affiliates of the Service provider or those who were employed less than 6 (six) months ago by the Service Provider or one of the Service Provider’s affiliated companies.

13. Confidentiality

  1. Parties shall treat all the information provided to each other before, during and after performance of the Contract confidentially when this information is marked as confidential or when the receiving party knows or can reasonably be expected to know that the information is meant to be confidential. Parties also apply this requirement to their employees as well as third parties appointed to perform the Contractual obligations.

  2. The Service Provider shall not take cognisance of the data stored by the Client and/or distributed via the Service Provider’s systems, unless this is required in order to correctly perform the Contractual obligations or the Service Provider is required to do so by virtue of law or a court order. In that event the Service Provider will endeavour to limit the cognisance to the extent that this is possible.

  3. The confidentiality obligation continues after the termination of the Contract for any reason and for as long as the disclosing party is reasonably entitled to claim the confidential nature of the information.

14. Statutory limitation

1. All legal claims by the Client under the Contract have a statutory limitation – subject to mandatory provisions – of the expiration of one year from the date of fulfilment of the commitments between the parties in the existing agreement become due for payment.

 

15. Modifications to the T & Cs

  1. The Service Provider reserves the right to modify or amend these Terms & Conditions and all Modules herein.

  2. Modifications also apply to existing agreements and are subject to a period of 30 days after notification of the modification on the Service Provider’s website and per electronic notification. Modifications of insignificant importance can be applied by the Service Provider at any time.

  3. A modified provision in these Terms & Conditions shall not substitute a provision in the tender or agreements that have been entered into between other parties.

  4. In the event that the Client rejects a modification in these Terms & Conditions then he can, up to the date when the new Terms & Conditions will come into force, terminate the agreement by this date or on the date of receipt of the termination if this is after the effective date of the modification.

16. Final provisions for the Module: General

  1. This agreement is governed by Dutch law.

  2. In as far that the orders of legislation do not stipulate otherwise, then all disputes that may arise from this agreement shall be submitted to the authorised Dutch court in the district in which the Service Provider is located.

  3. If any provision set in this Contract is deemed to be invalid then this will not affect the validity of the entire agreement. Parties, shall in that case, establish the replacement of (a) new provision(s) which is formed, as much as is legally permissible, in alignment with the intent of the original Contract and Terms & Conditions.

  4. In these Terms & Conditions, ‘written’ is understood to mean communications by fax and by email provided the identity and integrity of the fax and email are adequately established.

  5. Information and announcements on the Service Provider’s website are subject to programmer and typing errors. In the event of any inconsistency between the website and the Contract then the contract shall prevail.

  6. Any version of the communication that is received or stored by the Service Provider is deemed as authentic, unless proved otherwise by the Client.

  7. Parties shall inform each other in writing and without delay of any changes in postal address, email address, telephone number and requested bank or giro account.

  1. Each party is entitled to transfer their rights and commitments under the Contract to a third party with the prior written consent from the other party.

  2. In order to promote its Services the Service Provider is entitled to show third parties the Services that it is providing for the Client, unless the reasonable interests of the Client make it unacceptable or it has been otherwise agreed in writing.

B: Module: Software Development and other specific Works

This Module applies to customised work, consisting of the design and/or the development and /or modifications of Works, such as websites, (web) application and/or other software, house styles, logos, brochures, leaflets, signage, advertisements, concepts, images, text, sketches, documents, recommendations, reports or other specific substantive Works.

1. Specifications and (source) materials

  1. Parties shall specify in writing which Works shall be developed, the requirements they must meet and in which way this shall occur. The Service Provider shall perform these developments with due care based on the data provided by the Client. The Client is responsible for the accuracy, completeness, consistency and timeliness of the instructions and data.

  2. The Service Provider is entitled, yet not obliged, to assess the correctness, completeness or consistency of the (source) material, requirements or specifications that are provided to him and upon discovery of any failures has the right to defer any agreed activities until the Client has eliminated any of the failures concerned.

  3. The Service Provider has no further obligations than to carry out the assignment. The Client shall set the specifications for the assignment in such a way that the final result satisfies any legal obligations or contractual commitments of the Client to third parties.

  4. If in the event that the (source) materials provided by the Client to the Service Provider are protected by any intellectual property rights then the Client shall, at all times, ensure that he has all the licenses required for the provision thereof and the intended use by the Service Provider in the context of the Contract.

  5. Unless otherwise agreed, the Service Provider has the right to use the images, software and components from third parties, including open source software, for the development of the Works. After delivery the Client is then responsible to ensure compliance to the relevant third party licenses for the use of the developed Works. The Service Provider shall inform the Client about the applicable licensing terms & conditions.

2. Delivery and acceptance

        1.If a Service pertains to a creation or modification of Work or a product then the Client shall evaluate and approve or reject the result within 14 days of delivery. If the Client does not                (either fully or partly) reject these within this period then these are deemed to be approved by default.

  1. If the Client rejects a result, either fully or in part, the Service Provider will endeavour to correct the reason for rejection as soon as possible. This can be achieved by revising the result or by justifying why the reason for rejection is not valid. The Client shall accept or reject the revision or reasoning within 14 days.

  2. If the Client, even after a reasonable number of revisions or justifications continues to reject the result then the Service Provider is entitled to dissolve the Contract. The Service Provider only has this right after the Service Provider has indicated that they are providing the final version and the Client has rejected this revision or reasoning as well.

  3. If the Services are performed in stages then after delivery of each stage the Client shall approve or reject the result of each stage. The Client may not base the approval or rejection of the result in a later stage on issues that have been approved in an earlier stage.

  4. The Service Provider has the right to postpone the commencement of a new stage until the Client has explicitly approved the previous stage, on the condition that the Service Provider has provided forewarning that approval is explicitly required for that stage.

  5. The Service Provider does not guarantee the Client that the Works to be developed or that have been developed by the Service Provider will actually achieve the purposes by the Client.

  6. After delivery has been accepted then all liability for failures in the delivery ends, unless the failure was known or should have been known to the Service Provider at the time of delivery. In any case all liability ends for defective Works after a period of one year after the end of the Contract for any reason whatsoever.

3. Content Development licensing terms

  1. The Service Provider grants the Client the right to duplicate and distribute the developed Works for the aims that the Client intended upon entering the Contract.

  2. Thereby the Service Provider will never transfer any future rights of intellectual property (like copyright) to the Client, unless explicitly agreed otherwise in writing.

  3. The Service Provider retains the explicit right to duplicate and publicly disclose the Works developed by the Service Provider after delivery for the purpose of his own business operation. The Service Provider shall take into account the reasonable interests of the Client and shall not cause any unnecessary damage thereto.

4. Licensing conditions for Software Development

       1. The source code of the software delivered by the Service Provider and the technical documentation for the development of the software shall never be made available to the Client,               nor may the Client apply any modifications thereto unless explicitly agreed otherwise in writing.

  1. The Service Provider grants the Client non‐exclusive rights to use the software developed on behalf of the Client for the purposes that the Client intended when entering into the Contract. The Client shall strictly enforce the restrictions of use as agreed between the parties. The granted user rights are not transferable.

  2. The Client is not permitted to sell, lease, sub‐license, dispose of or grant restricted rights or make them available to third parties in any way or for any purpose even if the third party uses the software exclusively for the purposes of the Client, unless this has been otherwise agreed in writing or if in conjunction with a sale of the Client’s business units or activities.

  3. Unless otherwise agreed in writing the maintenance of the software and User support is not included in the agreement by default.

 

C: Delivery of Standard Software

If it has been agreed that the Service Provider shall deliver the Standard Software to the Client then the provisions in this Module are applicable.
.

1. Provision of and licensing terms for the Standard Software

  1. The Standard Software shall be made available to the Client in the manner agreed by the Service Provider and the Client in the Contract and for the purposes of the aims as specified in the tender.

  2. If the Standard Software requires specific registration or activation procedures then the Service Provider will provide notification of the required procedures and provide information to this end.

  3. Upon making the Standard Software available the Service Provider gives the Client the right to load, run, copy, view and to make it available to authorised users for the purposes of meeting the aims as specified in the first article.

  4. The Service Provider is permitted to apply restrictions with regard to the number of Users of the Standard Software.

  5. The Client is explicitly prohibited, unless otherwise agreed, from:

    • ▪  making modifications in the Standard Software;

    • ▪  removing or obscuring any indications or parts thereof, pertaining to the manufacturer or owner(s) of the Standard Software;

    • ▪  removing or evading any duplication security or other safeguards;

    • ▪  reverse engineering or decompiling the Standard Software’s source code, except to the extent that is permitted by provisions in statutory law.

  6. All rights to the Standard Software, the corresponding documentation and all modifications and enhancements are and remain, unless otherwise agreed, with the Service Provider and its’ suppliers. The Client solely receives the user’s rights and authorisations that arise in the scope of this Contract or are granted in writing and for the remainder; the client shall not duplicate or publicly disclose the Standard Software.

  7. If the Service Provider delivers the Standard Software from third parties to the Client then the licensing conditions of this third party are applicable. The Service Provider shall provide you with the licensing conditions of this third party in due time. In the case of conflict arising between this Module and the licensing conditions from the third party, the conditions in the latter will take precedence.

 

2. Guarantees

  1. The Service Provider makes the Standard Software available to the Client without any form of guarantee or claims with regards to its proper functioning.

  2. Unless otherwise agreed, the Client is responsible for the installation and configuration on the hardware and software chosen by the Client.

  3. The Client is responsible for making backup copies of the data that is generated, processed or stored using the Standard Software. The Service Provider can never be held liable for any loss or corruption of such data.

 

D: Service and Maintenance

This Module applies to the Services which consist of installing, configuring and/or maintaining the software.

1. Specifications and Client cooperation

  1. If agreed, the Service Provider shall install and configure the software on hardware and networks designated by the Client and the Client is obliged, in as far as is possible, to fulfil all actions that are reasonably required and desirable to ensure the timely and proper installation and operation of the software. In particular, the Client shall be responsible for ensuring that all data that the Service Provider indicates to be necessary or which the Client reasonable understands to be required in order to deliver the software, is provided for the Service Provider in time.

  2. The Client shall, upon request by the Service Provider, grant all the necessary access to computer systems in order for the installation, configuration, and maintenance and updating of the software to take place. Physical access to these systems shall only take place when this is absolutely necessary and only after prior consultation with the Client.

  3. The choice, purchase and management of the hardware and networks to be used are the exclusive and full responsibility of the Client. The Service Provider shall provide instructions about the desired configuration. If the specified hardware and networks do not meet the requirements set by the Service Provider then the Service Provider is entitled to refuse to perform installation or configuration.

2. Updates and improvements

  1. Only if this is part of the Contract, the Service Provider shall endeavour from time to time to adapt the software to improve functionality and to correct errors.

  2. Only if this is part of the Contract, the Service Provider shall endeavour to keep the software up‐to‐date. Frequently, the Service Provider is dependent on its supplier(s) and third parties for this service. The Service Provider is entitled not to install certain updates or patches if they are deemed detrimental to the correct operation of the software or if they are not relevant to the Service.

  3. The Service Provider shall endeavour to add modifications and new functionalities to the software as requested by the Client. Module B shall apply mutatis mutandis to such modifications and new functionality. The Service Provider maintains the right to refuse such a request if it deems it to be unachievable or it may impede the proper operation or availability of the software. There are costs associated with the addition of modifications and new functionality to the software performed at the request of the Client. The Service Provider shall inform the Client of these costs in advance.

  4. In the event that an update or patch leads to modified functionality within Mamut or Maganto, which has major implications for the functionality of other software, then the Service Provider and the Client shall consult about the consequences. If it is decided to Implement this update or patch the Service Provider is entitled to separately invoice the hours worked based on the actual costs.

  1. If the Client wishes to implement a modification independently then it shall be done at the risk and responsibility of the Client. The Service Provider is then released from providing any (further) provisions to fix bugs. This, unless the Client has notified the Service Provider in advance of the desired modification and the Service Provider has approved these in writing. The Service Provider may impose conditions to the approval.

  2. If the Client desires to implement a modification independently, then it shall be done at the risk and responsibility of the Client, unless the Client has notified the Service Provider in advance of the desired modification and the Service Provider has approved these in writing. The Service Provider may impose conditions to the approval.

  3. Unless otherwise is agreed, the support to the End User is not included.

 

E: Hosted services

This Module applies to the storage of material by the Service Provider for the purposes of the Client and the provision via the internet by the Service Provider of materials supplied by the Client to third parties, such as in cases of web hosting or email services.

1. Code of conduct

  1. The Client shall refrain from storing and/or distributing material in violation of the statutory provisions as set by Dutch Law, in any event including, but not limited to material that:

    • is libellous, defamatory, offensive, racist, discriminatory or hateful,

    • infringes on the rights of third parties, including but not limited to copyrights, trademarks and portrait rights,

    • constitutes a violation of the rights to privacy of third parties, in any event including but not limited to the unauthorised or unrequired distribution of personal data of third parties or the repeated harassment of third parties through these unsolicited communications,

    • contains hyperlinks, torrentsor equivalent information that the Client knows or should know refers to material that infringes on third party rights,

    • contains unsolicited commercial, charitable or philanthropic communications, or

    • contains malicious content such as viruses or spyware.

  2. Additionally the Clientshall, unless otherwise agreed refrain from storing and/or distributing erotic or pornographic material.

  3. The Client shall refrain from hindering other Clients or internet users or cause damage to the Service Providers servers. The Client is prohibited to start‐up processes or programs, albeit not via the server, that the Client knows or can reasonably presume will hinder the Service Providers other Clients or internet users or will cause damage to them. The Service Provider shall inform the Client of any possible measures.

  4. The Client shall indemnify the Service Provider from all legal claims with respect to the data, information, website(s) and such like stored by the Client.

  5. Beyond the aforementioned specific code of conduct, the Client is generally prohibited from using the Services in such a way that the rights of third parties and/or the Service Provider are violated.

  6. In addition to the obligations set by law, damage that arises due to (technical) incompetence on the part of the Client or by the Client not acting in accordance with the aforementioned points will be attributed to the client.

  7. The Service Provider can set a maximum limit on the amount of storage or data traffic that the Client can use per month within the context of the Service. If this maximum limit is exceeded the Service Provider is authorised to charge additional costs, in accordance with the amounts of extra data traffic, as indicated on the Website. No liability exists for consequences arising from failure to be able to send, receive, store or alter data if the agreed limit for storage or data traffic has been reached.

       8. The Client hereby provides the Service Provider with a perpetual license to distribute, store, transmit or duplicate all the Materials delivered by the Client to the Service Provider’s                   systems in a way considered appropriate by the Service Provider but only to the extent that this is reasonably required in order for the Service Provider to fulfil the Contract.

2. Complaints procedure

  1. The Service Provider maintains a complaints procedure whereby third parties (‘complainants’) can submit a complaint if the Client, in their opinion, has stored or distributed material that is in violation of these Terms & Conditions. If a complaint is deemed to be justified by the Service Provider then the Service Provider is authorised to remove the material or to make it inaccessible. The Service Provider shall inform the Client of the procedural developments.

  2. In the event that there is potentially criminal information then the Service Provider is authorised to report this. The Service Provider shall hereby hand‐over all the relevant information about the Client to the relevant authorities and undertake any actions that are requested by said authorities in the context of the investigation.

  3. If there are repeated complaints about material provided by the Client then the Service Provider is entitled to dissolve the Contract.

3. Availability of services and systems

  1. If the Services are (also) delivered via the Service Provider’s systems and/or networks, then the Service Provider shall endeavour to minimise the existence of Downtime.

  2. The Service Provider offers no guarantees on the amount of Uptime unless otherwise explicitly indicated in the tender or an applicable SLA.In as far as not otherwise provided for in an applicable SLA then the availability is as set by the provisions of this article.

  3. The Service Provider shall endeavour to ensure that the Client can utilise the networks that are directly or indirectly connected to the Service Provider’s network. The Service Provider however cannot guarantee that these networks shall be available at any given time. Legal and contractual provisions can apply to the use of networks by third parties. The Service Provider shall endeavour to inform the Client hereof in time.

  4. If in the opinion of the Service Provider a threat arises to the functioning of the computer systems or the network of the Service Provider or third parties and/or of the service provision via a network, in particular due to the excessive sending of emails or other data, badly secured systems or the activities of viruses, Trojans and comparable software then the Service Provider is entitled to take all measures that he considers to be reasonably necessary in order to avert or to prevent this threat.

  1. The Service Provider is entitled to temporarily take the Service or parts thereof out of use for the purposes of maintenance, adjustments or improvements. The Service Provider shall endeavour that such a suspension of Services take place as much as possible outside office hours and shall endeavour to notify the Client in due time of the planned suspension of the services. The Service Provider however is never obliged to pay compensation which may arise in relation to the service being out of use unless explicitly otherwise agreed in writing for example in a SLA.

  2. The Service Provider is entitled to modify the Services or parts thereof from time to time in order to improve functionality and to repair errors. If such a modification leads to a considerable change in the functionality then the Service Provider shall endeavour to inform the Client thereof. In the event that the modifications are relevant for multiple clients then it is not possible to forego the modification solely for the Client. The Service Provider is not obliged to pay any compensation that may arise from damage caused by such a modification.

  3. Unless otherwise specified in the Contract, the Service Provider cannot be held to account for making reserve (back‐up) copies of the data stored on the Service Provider’s systems by the Client. Any back‐ups that have been made may be destroyed at any time after the Contract has terminated. It is the Client’s responsibility to request a back‐up on termination or dissolution. Costs may be connected for providing this back‐up.

4. Mediation for domain names

  1. Application, allocation and possible use of a domain name occurs through registered agencies like the StichtingInternetDomeinregistratieNederland (Foundation for Internet Domain Registration in the Netherlands) and are subject to the rules and procedures set by the respective registration agency. The respective agency decides on domain name allocation. During registration the Service Provider fulfils solely a mediating role and gives no guarantee that an application will be honoured.

  2. Upon registration the Client is obliged to accept and comply with the respective agencies’ terms and conditions. The Service Provider shall inform Client of these terms & conditions.

  3. The Client shall learn solely from a confirmation from the Service Provider indicating that the requested domain name is registered that the registration has been approved. An invoice for registration costs is not a confirmation of registration.

  4. The Service Provider is not liable for the loss of the right(s) to a domain name by the Client or for the fact that the domain name has been requested by a third party and/or obtained, except in the event of misconduct or gross negligence by the Service Provider.

        5. In the event that the Contract is dissolved due to breach of contract by the Client then the Service Provider retains the right to cancel the domain name in compliance with a notice                 period of two months.

 

F: Service Reselling

This Module applies to the selling on of Services by the Client to third parties, Services that were delivered by the Service Provider (Reselling) such as the reselling of hosting packages.

1. General conditions

  1. When Reselling, The Client trades under his own name, for his own account and own risk and is not entitled to enter into agreements on behalf of the Service Provider or to create the impression that said Client is an agent or representative of the Service Provider.

  2. The Client is free to determine its offer and prices to its customers within the limits specified in the tender provided by the Service Provider. The Client, when Reselling HostedServices to its customers, shall, at least, apply the code of conduct and limitation as set in article E 1.

  3. The Client is fully responsible, at all times, for anything that its customers do or fail to do via the System Provider’s systems or networks. The Client indemnifies the Service Provider of all claims by third parties based on actions or omissions by these customers.

  4. A non‐payment or late payment by the Client’s customers does not absolve the Client from his payment obligations to the Service Provider.

  5. Excepting specific written consent from the Service Provider, the Client is not entitled to use the Service Provider’s trade name, trade mark, logos or symbol in promotional or cooperate communications in order to use the goodwill or good reputation of the Service Provider for the acquisition of customers by the Client. The Client may communicate in a corporate manner that he has used the Service Provider’s products and/or services.

2. Client‐Service Provider relations

  1. The Client shall impose at least the same obligations to his customers as are imposed by the Service Provider in regards to the Services provided. The Service Provider can request that the Client submit proof to this effect.

  2. The Service Provider shall only contact the Client’s customers via the Client, unless the Service Provider has an urgent reason to directly approach these customers or the Client has given permission for direct contact. (Threatened) damage and disturbance to customers by third parties due to customer activities is, in any case, an urgent reason.

  3. If the Service Provider is of the opinion that a Client’s customer has violated the provisions of article E.1 then it will initially contact the Client and request that he take the appropriate measures. If the violation continues then the Service Provider is then entitled to take measures that he deems necessary, of which the Client will be informed.

       4. In the event that the Contract is dissolved as a result of a breach of contract by the Client then the Service Provider obtains the right to approach the Client’s customers and to inform            them of the situation and offer to continue their agreements with the Service Provider or affiliated third parties.