General Conditions Latest update: February 12, 2016

Transcription

1 General Conditions Latest update: February 12, 2016 Herein you will find the General Conditions of AttachingIT. These are applicable in case you receive a service from AttachingIT. We advise you to read the General Conditions thoroughly and save them to your computer so you are able to read them again. The General Conditions (GC) are entered into between you (the Customer, client or you ) and AttachingIT B.V. ( AttachingIT, we, us or our ). Please read the GC carefully. You can only use our SaaS-services if you are authorized to enter into a contract with us. The GC can be amended by us. The date of the most recent version is always on the first page of the document. We kindly ask you to read the GC from time to time whether an update has taken place. In case you continue the use of our SaaS-services, then you are deemed to have approved the changes to the GC, whether you have seen these or not. If you do not agree, you are obliged to discontinue the use of our SaaS-service and forthwith notify us of the same in writing or by . The GC apply to all the proposals, tenders, quotations and agreements arising therefrom, to which AttachingIT is a party. The GC are divided in several Sections, for your convenience, these can be found in our Index.

2 Index ADDRESS: Herestraat Section 1 Definitions Section 2 Applicability and interpretation Section 3 Proposal and acceptance Section 4 Cooperation Parties Section 5 Obligations Customer Section 6 Intellectual Property Rights Section 7 Educations Section 8 Prices, rates, invoicing and payment Section 9 Duration, termination, extension and exit Section 10 Security Section 11 Guarantees Section 12 Liability Section 13 Force Majeure Section 14 Confidentiality Section 15 Privacy and security Section 16 Transfer of rights and obligations Section 17 Applicable laws and dispute resolution Section 18 Miscellaneous

3 Section 1 Definitions In the Agreement, certain terms are being used, in single or plural, which commence with a capital letter and such terms have the meaning of the words defined in this Section in italic. 1.1 General Conditions: the underlying terms and conditions 1.2 AttachingIT: AttachingIT B.V. vested in Groningen at the address Herestraat 106, registered with the Chamber of Commerce under number Availability: indicates the percentage of the time that the SaaS-service is available. 1.4 Schedule: schedule to this Agreement, which forms integral part of this Agreement. 1.5 Documentation: the documentation relating to the SaaS-service and/or the functionality that will be provided by AttachingIT to the Customer. 1.6 Functionality: the user functions and -possibilities of the computer programs upon which the SaaS-service is based, whether or not divided in partial functionalities and/or modules. The functionalities are further specified in the SLA of AttachingIT. 1.7 Fault: the circumstance that the Functionality does not, wholly partially, match the agreed upon specifications. 1.8 User: a person attributable to the Customer that makes use of the Functionality. 1.9 Education: service, comprising the taking care of some form of transfer of knowledge which purpose is to make Users familiar with the Functionally to be delivered by AttachingIT and the training in the use thereof, so they will be able to adequately work with it in their specific activities Agreement: the contract, whether or not entered into in writing, which contains key clauses relating to the SaaS-service, performance and or the product that is delivered, including the accompanying schedules and these General Conditions, which form an integral part thereof Party(ies): AttachingIT and the Customer jointly or separately SaaS-service: service comprising the delivery of Functionality, remotely and via electronic ways, by AttachingIT, including among others Support and Documentation Written: Written also includes in these General Conditions, and facsimile communication, provided that the identity of the sender and the integrity of the message are sufficiently established SLA: the Service Level Agreement containing the service conditions between the Parties U: the Customer, client, or you Website: and other relating sub domains, if any Business Days: Monday to Friday, except national holidays in the Netherlands, provided that 5 May is a national holiday once in five years Business Hours: hours on Business Days between 9.00 and (Dutch time).

4 Section 2 Applicability and interpretation ADDRESS: Herestraat info@attachingit.com 2.1 The General Conditions apply to and form part of every act relating to the preparation, creation or performance of the Agreement. 2.2 The General Conditions also apply to every further Agreements between the Customer and AttachingIT, in the event that the Customer has not accepted the applicability thereof in previous Agreements with AttachingIT. 2.3 Deviations of and supplements to the General Conditions and/or the Agreement and/or conditions suggested by the Customer that deviate from or are not covered by the General Conditions, are only valid in case these are Written agreed upon between the Parties. 2.4 In case of contradictions between the various documents, the following order of preference applies: a. Additional Written agreements; b. Agreement; c. SLA; d. General Conditions. Section 3 Proposal and acceptance 3.1 An offer of AttachingIT is non-binding, unless the offer contains an express term for acceptance. 3.2 An offer is in any case deemed to be accepted, if the Agreement is being performed without objections made in this respect. 3.3 If the Customer has accepted the offer electronically, AttachingIT will forthwith confirm receipt of the acceptance of the offer. As long as the receipt of the acceptance has not been confirmed, the Customer has the possibility to cancel the Agreement. 3.4 AttachingIT reserves its rights to refuse to enter into agreements, without stating reasons. 3.5 The Customer shall timely provide AttachingIT with all (technical) information, decisions and information that he believes is necessary for the performance of the Agreement. The Customer is responsible for the correctness and completeness thereof. Section 4 Cooperation Parties 4.1 AttachingIT shall use its endeavors to meet the agreed upon dates, terms et cetera. Nonetheless, all dates and terms are always indicative, unless it is expressly stated that it concerns fatal dates or terms. 4.2 AttachingIT will supply its Saas-service within a week after receiving the signed Agreement. After this, AttachingIT will send the invoice to the Customer. 4.3 All SaaS-services will be delivered by AttachingIT on best effort-basis: AttachingIT shall use endeavors to deliver the SaaS-services as good as possible, but does not provide guarantees as to the performances. 4.4 As far as an adequate performance of the Agreement so requires, AttachingIT has the right to engage third parties in relation to the partial performance of the Agreement. AttachingIT shall only do this after consultation with the Customer. 4.5 In the event that the Customer is in negligence with providing information that is required for the performance of the Agreement, including information of which the Customer can suspect that it is necessary for the performance, AttachingIT is not held to other performances than to use its best efforts, for the duration of such negligence. 4.6 The Customer undertakes to observe the greatest possible care in relation to the performance of the Agreement.

5 4.7 The applicability of the Sections 7: 404 and 7: 402 paragraph 2 Dutch Civil Code is excluded. Customer may not deviate from the provision of Section 7:413 Dutch Civil Code. Section 5 Obligations Customer 5.1 If the Customer opts for an on premise version of our SaaS-service, the Customer shall insure that the aspects written in the Checklist for on-premise installation AttachingIT Outlook are implemented or taken care of before the planned installation date between Parties. This document is sent separately to the Customer. 5.2 The Customer is not entitled to such use of the SaaS-service that could cause damage to the SaaS-service, to AttachingIT and/or to third parties, or such use that could cause disruptions in the Availability. 5.3 AttachingIT offers its SaaS-service based on "fair use", that is, in principal it imposes no restrictions to the system- and network load caused by the Customer. In case of excessive use, being significantly higher use than that of AttachingIT s average customer, AttachingIT reserves its rights to take measures. In this respect, AttachingIT assumes 10 gigabytes of bandwidth per user per month. Parties will discuss upfront appropriate measures. 5.4 Customer must, immediately after the first notification by AttachingIT of excessive system and/or network load, take measures to stop such excessive load. AttachingIT is entitled to suspend the SaaS-service and/or the performance of any other obligation under the Agreement in the event of a continuing excessive system and/or network load. 5.5 In case of a structural excessive system and/or network load, the costs thereof shall be paid by the Customer. 5.6 Customer will ensure the careful handling by Users of the (login) data supplied by AttachingIT. AttachingIT is not liable for abuse of the (login) data and may always assume that a Customer who is registered on the Website and/or SaaS-service is actually the Customer. Everything that is done through the Customer's account, is for the Customer s responsibility and risk. If the Customer knows or suspects that his credentials have come into the hands of unauthorized persons, he is obliged to change its password as soon as possible and/or notify AttachingIT so AttachingIT is able to take appropriate measures. 5.7 Customer will use (browser) software indicated by AttachingIT when making use of the SaaSservice. This is specified in the SLA of AttachingIT. 5.8 The Customer indemnifies AttachingIT against claims from third parties for acts of Customer that are not in compliance with the Sections 5.1 and The Customer agrees to itself enter into an agreement with a supplier of the services referred to in the previous paragraph and can provide a proxy to AttachingIT to do that on his behalf, if and to the extent possible. AttachingIT is prepared to take a coordinating role between the Customer and the supplier if necessary in relation to the entering into such an agreement regarding a (tele) communications service, AttachingIT will require a pre-agreed fee in this respect. Customer acknowledges and accepts that in this respect it itself will be bound by all terms and conditions of the supplier AttachingIT is not liable for the costs relating to the (tele) communication services, which costs are caused by the use of the SaaS service. Section 6 Intellectual Property Rights 6.1 AttachingIT guarantees that it has all the necessary rights for providing the SaaS-service, including all rights related to the underlying computer software.

6 6.2 The Intellectual Property Rights, including any database rights and/or copyrights, remain fully vested in AttachingIT or its suppliers. Except for the intellectual property rights to data which the Customer itself creates through the use of the SaaS service, the intellectual property relating to this data remain with the Customer. 6.3 For the duration of the Agreement, the Customer only receives the user rights and authorities ensuing from the scope of the Agreement or are granted in Writing. Otherwise, Customer shall not multiply or publish the software or other materials. 6.4 The Customer is not allowed to remove or modify from the data any indication regarding copyrights, trademarks, trade names or other intellectual property rights, including notices regarding the confidential nature and secrecy of the data. 6.5 AttachingIT is allowed to take technical measures to secure the data. If AttachingIT through technical protection has protected the data, the Customer is not permitted to remove or evade such security. 6.6 Any use, reproduction or disclosure of data outside the scope of the Agreement or granted usage rights, is considered a violation of copyright. Customer will pay to AttachingIT an immediately due penalty, which is not subject to judicial mitigation, of EUR. 2,500.- for each day of violation, notwithstanding the right of AttachingIT to require compensation of the damages arising from the infringement or to take other legal measures to terminate the infringement. 6.7 AttachingIT has the right to use its knowledge increased by the performance of an Agreement for other purposes, provided that no strictly confidential information of the Customer is released to third parties. 6.8 The Customer is not allowed to use domains or social media channels containing the name AttachingIT without having asked AttachingIT s prior approval. This can at any time be claimed by AttachingIT. Section 7 Educations 7.1 AttachingIT can provide adequate Educations to Users and/or other personnel of the Customer for the purpose of using the Functionality. 7.2 AttachingIT ascertains that teachers have sufficient knowledge of the subject and have sufficient pedagogical skills to properly provide the Education. 7.3 AttachingIT provides each student adequate course material for personal use and which may not be distributed to the employees of the Customer. The (ownership and) copyright on the course material rests with AttachingIT. The Customer is not permitted to reproduce the course material and/or made public unless it is for personal use. 7.4 Cancellation and/or replacement of the Education(s) by Customer is only allowed until five days before the scheduled date of Education. The cancellation of the Education(s) after such term implies that the agreed fee for this Education(s) will be borne by Customer in full. Section 8 Prices, rates, invoicing and payment 8.1 Prices and rates are listed in the Agreement. Also here are the agreements made between the Customer and AttachingIT regarding the number of users and the price per month and/or per year. All prices and rates are exclusive of VAT. 8.2 Support outside Business Hours may be charged with additional fees, if and to the extent specified in the SLA.

7 8.3 AttachingIT is entitled to increase the agreed prices and tariffs annually, effective January 1 by a percentage equal to the index for business services as published by the Dutch CBS (with basis 2000 is 100). 8.4 Price changes as a result of substantial Functionality enhancements are due to be invoiced directly and are immediately payable. 8.5 AttachingIT will send an invoice covering 50% of the total invoice value after the Agreement has been signed. The remaining amount and any additional costs (e.g. installation fee) will be invoiced upon delivery. 8.6 AttachingIT will indicate on the invoices to the Customer date, the scope and the total amount in euros (including VAT). 8.7 The fee for the SaaS-service is invoiced annually in advance, unless both Parties reach an alternate agreement in relation to the terms. AttachingIT will always invoice upfront. 8.8 If other services and activities are not covered by the Agreement, then AttachingIT will bill the hours actually worked against the, for that time, usual hourly rate. If AttachingIT is requested to provide additional services, then AttachingIT will offer an additional proposal in this respect. Only after approval of this proposal, AttachingIT may perform these additional services. For additional work of which AttachingIT can demonstrate this is reasonably necessary or reasonably following from instructions of the Customer/Client, no approval is needed. When an offer or job description mentions a fixed price, additional work will not be charged unless it falls outside the job description and prior approval was given. 8.9 Functionality that was added to the Agreement during the term, will be pro rata invoiced up to the following invoice date Subject to the correctness of the invoices, Customer shall pay the amounts payable by him on the basis of the Agreement within 14 (fourteen) days after the invoice date to AttachingIT If Customer claims incorrectness of the invoice(s), this will not affect its obligation to at least pay the undisputed part of the invoice(s) If Customer does not pay the invoiced amounts within the payment term, the statutory interest on the outstanding amount shall be owed by the Customer without any notice is required, unless the Customer has within 10 (ten) days claimed inaccuracy of the invoice. If the Customer fails to pay the invoice, AttachingIT is entitled to also claim compensation for extrajudicial collection costs, the amount of which is determined at least 15% of the total invoice amount, in addition to the statutory interest If the Customer is in arrears of more than 2 (two) months, AttachingIT is entitled to suspend its services, provided that it has informed the Customer of such intention in writing/ and Customer has been granted at least 5 (five) Business Days to fully meet its payment obligations, i.e. including statutory interest, extrajudicial and other costs. Section 9 Duration, termination, extension and exit 9.1 The Agreement shall enter into force on the date that is specifically mentioned in the Agreement. 9.2 The Agreement is concluded for a minimum duration of 1 (one) year, unless otherwise specified in the Agreement. 9.3 An agreement of 1 (one) year will always be automatically renewed for 1 (one) year, if none of the Parties has terminated the Agreement by registered letter to the other no later than 3 (three) months before the expiry of the end date. 9.4 Irrespective of what is otherwise provided in the Agreement: a. each Party shall be entitled to terminate the Agreement with immediate effect by means of a registered letter if the other party fails to fulfill its obligations under the Agreement and continues such failure after notice to the other Party granting him a reasonable time limit in order to meet its obligations. b. each Party shall be entitled, without any further notice being required, to terminate the

8 Agreement outside of court by means of a registered letter with immediate effect if the other Party applies for a moratorium or a moratorium is granted; the other Party requests or is declared bankrupt; the company of the other Party is liquidated or terminated other than for the purpose of merger of companies; a substantial part of the assets of the other Party or the infrastructure and/or the computer software related to the performance of the Agreement is seized, or the other party can no longer be deemed to fulfil the obligations under the Agreement. 9.5 If the Agreement is terminated by Customer pursuant to Section 9.4, the Customer on first demand has the right to continue the use of the Functionality for a period of 2 (two) consecutive months, i.e. against a reasonable fee to be determined by AttachingIT and to be prepaid by Customer. 9.6 All the rights of the Customer arising from the Agreement expire upon termination of the Agreement, except as provided for in Section Unless provided otherwise, the obligations which by their nature are intended to continue also after termination of the Agreement, remain valid after its termination. The termination of the Agreement does explicitly not release the Parties from provisions relating to confidentiality, liability, intellectual property rights, transfer of personnel, applicable law and jurisdiction. 9.8 In the event of termination of the SaaS-service(s), the Parties will forthwith discuss the (method of) transfer of data, services and/or other moderation measures required for a smooth progress of the Customer's use of its data and/or SaaS-service 9.9 All work carried out by AttachingIT under the preceding paragraph shall be charged on the basis of actual costs at the then prevailing rates. Section 10 Security 10.1 The security that AttachingIT uses in its SaaS-service is specified in the SLA. The SLA is attached to the Agreement between the Parties. Section 11 Guarantees 11.1 AttachingIT guarantees that the SaaS-services are conducted in a professional manner AttachingIT guarantees the availability in accordance with SLA and its infrastructure. AttachingIT is not responsible or liable for the (tele)communications links of the infrastructure of the Customer. Section 12 Liability 12.1 The aggregate liability of AttachingIT for breach in the performance of the Agreement is limited to compensation for direct financial loss up to a maximum of the fees (excluding VAT and other government levies) received by AttachingIT from the Customer in six (6) months, immediately prior to the month in which the harmful event occurred. Direct financial damage only comprises: a. Reasonable expenses the Customer would have to incur to ensure that AttachingIT s would meet the Agreement; these costs however are not reimbursed if the Agreement is dissolved by or on behalf of the Customer. b. Reasonable costs incurred by Customer for the necessary continuance of his old system or systems and related facilities.

9 c. Reasonable costs incurred in determining the cause and extent of the damage, insofar as the determination relates to direct financial loss within the meaning of these terms. d. Reasonable costs incurred to prevent or mitigate damage, insofar as the Customer demonstrates that these expenses resulted in mitigation of direct damage within the meaning of these terms Liability for damages other than those mentioned in the preceding paragraph, including at least - but explicitly not exclusively - consequential damages, lost profits, lost savings, loss of data and loss due to business interruption, are explicitly excluded The aforementioned limitations of liability are lapsed: a. in case of claims for damages followed by death or bodily injury; b. if there is intent or gross negligence of the Party causing damage, including its employees and third parties engaged The liability of AttachingIT due to failure to perform the Agreement only arises after the Customer has notified AttachingIT that it is in default, unless the fulfillment of the relevant obligations is already permanently impossible, in which case AttachingIT is immediately in default. The notice shall be in Writing, and AttachingIT shall be given a reasonable time to still fulfill its obligations Damage as mentioned in the first paragraph of this Section shall, as soon as possible but no later than two (2) weeks after the occurrence, be reported in Writing to AttachingIT. Damage that has not been brought to the attention of AttachingIT within such period, is not recoverable unless the Customer can demonstrate that it was not able to report the damage earlier The parties agree that Section 6: 271 of the Dutch Civil Code and the elaboration of the provisions of the Sections following are excluded The provisions of this Section shall not apply if the Customer is a natural person not acting in the exercise of his profession or business, albeit that in relation to such Customer, the provisions concerning liabilities under the laws apply. Section 13 Force majeure 13.1 In the event of force majeure, fulfillment of the Agreement and all related obligation(s) are totally or partially suspended for the duration of the force majeure situation, without Parties being liable to each other for any compensation. A Party may only make an appeal to the other Party in relation to existence of a force majeure situation, if the Party making such appeal notifies the other Party as soon as possible, on submission of evidence, in Writing of its claim for a force majeure situation If a Party fails to fulfill any obligation under the Agreement by reasons of force majeure, the other Party can, if it is established that fulfillment will be permanently impossible or if a period of more than thirty (30) days has lapsed, terminate the Agreement with immediate effect out of court, wholly or partially, by means of a registered letter terminate, without Parties being liable against each other for compensation. The activities that have already been performed by AttachingIT will immediately be paid by Customer The following situations on the side of AttachingIT will in any event be deemed force majeure: sickness, lack of staff, strike or not attributable failures of suppliers, loss of data, power failures, failures in the telecommunications infrastructure, license refusals, (distributed) denial of service attacks and/or loss of network connections from one and other on the side of AttachingIT.

10 Section 14 Confidentiality ADDRESS: Herestraat Both parties shall observe strict confidentiality regarding the information about each other s organization plus any personal data provided, the operation of the files, Functionality, the SaaSservice, etc. Without the express prior written consent of the other Party, AttachingIT shall not release to third parties, information, media and data which are available to it, and only disclose to its staff only to the extent necessary to carry out the agreed services. Parties will oblige their staff to comply with these confidentiality provisions. The above does not apply for AttachingIT if legally required Regarding data from the other Party, which are in any form or by whatever means in the possession of a Party or have been supplied to him, a Party undertakes: a. All observe all reasonable measures for safe storage; b. Not to use the data for any other than the agreed purpose; c. Not to keep under its control for longer than reasonably necessary to carry out the agreed obligations and to return or destroy, after obtaining approval from the other Party, such data, including copies made immediately after the complete fulfillment of those obligations; d. Have the obligations agreed upon only carried out by persons who are deemed reliable by the party upon whom the relevant obligation rests; e. Cooperate with the exercise of supervision by or on behalf of the other Party with respect to the storage and use of data; 14.3 Each Party shall ensure that its employees and/or third parties involved in the exercise are contractually bound to secrecy as stipulated in this Section. Section 15 Privacy and security 15.1 The personal data to be processed by AttachingIT in the performance of the SaaS-services are covered by the Dutch Personal Data Protection Act ( Wet Bescherming Persoonsgegevens ), in relation to which according to the terminology of that law, Client is considered "responsible" and AttachingIT as the "processor" AttachingIT will ensure a level of security appropriate to the risks involved with the processing and the nature of personal data protection. However, only if and insofar as these are processed in the systems or infrastructure AttachingIT AttachingIT ensures that every person acting under the authority or instructions of AttachingIT will only process personal data in relation to which the Customer is responsible after prior Written instruction of Customer. AttachingIT guarantees that it will only entirely lawfully process personal data If the Customer is under a legal obligation, for example under the Dutch Personal Data Protection Act, to change, remove or release data stored in the systems of AttachingIT, AttachingIT will fully cooperate with such. The costs for the relating additional work can be billed separately. Section 16 Transfer of rights and obligations 16.1 Customer is not entitled to transfer the rights and obligations under the Agreement to third parties without written consent of AttachingIT AttachingIT is at all times entitled to transfer the rights and obligations arising under the Agreement.

11 16.3 In the performance of the Agreement, AttachingIT is authorized to use the services of third party, either as a subcontractor or through temporary hiring of personnel. This right of AttachingIT does not affect its responsibility and liability for the performance of its obligations pursuant to the Agreement and its obligations as an employer and/or principal contractor under tax and social insurance legislation. Section 17 Applicable law and dispute resolution 17.1 The Agreement and agreements arising therefrom are governed by Dutch law In the event of a dispute, the most diligent Party notifies the other Party in Writing that there is a dispute, together with a brief statement of what in the opinion of that Party is the subject of the dispute. Any disputes that may arise in relation to or from the Agreement will be submitted to the competent court in the district where AttachingIT is established, including the president of the district court adjudicating in summary proceedings The provision of Section 17.2 shall not affect the obligation of both Parties to use maximum efforts to resolve disputes in connection with the Agreement by mutual agreement. Section 18 Miscellaneous 18.1 Verbal statements, promises or agreements related to the execution of the Agreement have no legal force unless they are confirmed in Writing by the other Party In situations which are not covered by the Agreement, or in the event amendment of the Agreement is necessary, the Parties will enter into joint consultation in this respect. Modifications and/or additions are only valid if agreed in writing The failure of a Party to demand compliance with any provision within a period specified in the Agreement, does not affect the right to still demand such compliance, unless the Party has expressly agreed in writing to such non-compliance If any provision of this Agreement is void or unenforceable, the remaining provisions of this Agreement shall remain in force and the Parties shall consult to agree on a substitute provision which will maximally approach the invalid (destroyed/void) clause within the scope of the agreement In the event of a conflict between the Agreement and a Schedule to this Agreement, the provision in the Agreement will prevail. Do you have questions about the general conditions of AttachingIT? Please contact us via info@attachingit.com