Article 1 Definitions
1.1 In these General Terms and Conditions and the Agreement, the following terms, both used in the singular and the plural and always written with a capital letter, have the following meanings:
a. Acceptance Procedure: the acceptance procedure such as this is described in Article 10;
b. General Terms & Conditions: these general terms and conditions of Endouble;
c. Constructive Maintenance: the Service involving maintenance carried out by Endouble which consists of launching upgrades (new releases) and/or updates of the Standard Software;
d. Corrective Maintenance: the Service involving maintenance carried out by Endouble in response to Errors that have occurred;
e. Service: the Service Endouble provides to the Customer, as described in the Agreement;
f. Documentation: the user and technical documentation forming part of the Customised Software and/or the Standard Software;
g. Duration: the duration of the Agreement, as described in Article 23;
h. Errors: the substantial failure to satisfy the functional specifications explicitly agreed between the Parties. An Error may only be considered to exist when it can be demonstrated by the Customer and if it is possible to reproduce it;
i. Restore Time: the time between (i) the time at which Endouble has detected an Error or the Customer has reported an Error and (ii) the time at which the Error was resolved, (the Error in) the Software has been repaired, or a workaround has been created, as determined by Endouble;
j. Intellectual Property Rights: all intellectual property rights and related rights, such as copyrights, trademarks, patents, design rights, trade name rights, database rights and related rights, as well as domain names and rights to knowhow;
k. Customer: the party with whom Endouble has entered into the Agreement;
l. Customised Software: the customised software designed specifically for the Customer on the basis of the Standard Software, including the corresponding Documentation, look-and-feel, interfaces, layout and other aspects as described in further detail in the Agreement;
m. Materials: materials including yet not limited to, analyses, designs, documentation, reports and offers;
n. Additional Work: the work or other activities carried out or to be carried out by Endouble, which fall outside of the content and/or scope of the agreed work and/or activities and/or changes related to these;
o. Endouble: the private company with limited liability Endouble B.V., with its principal place of business at Asterweg 20-B2 in (1031 HN) Amsterdam, the Netherlands;
p. Maintenance: the Service provided by Endouble to the Customer on the basis of a separate Agreement drawn up for this purpose, consisting of Corrective Maintenance and Constructive Maintenance;
q. Agreement: the Agreement between the Customer and Endouble;
r. Parties: the Customer and Endouble;
s. Response Time: the time between (i) the time at which the Customer reports an Error and (ii) the time at which Endouble commences the repair of the Error, as determined by Endouble;
t. Software: the Standard Software and any Customised Software;
u. Standrad Software: Endouble’s standard software, including the corresponding Documentation, look-and-feel, interfaces, layout and other aspects, as described in further detail in the Agreement;
v. Working Day: from 9:00 a.m. through 6:00 p.m., Monday through Friday, with the exception of recognised and official holidays in the Netherlands.
Article 2 Applicability
2.1 The General Terms and Conditions apply to the Agreement, the use of the Software, the provision of Services and all offers by Endouble.
2.2 Any additions and amendments to the General Terms and Conditions shall only be valid to the extent these have been agreed upon in writing between the Parties.
2.3 In the event one of the provisions from the General Terms and Conditions appears to be in violation of provisions arising from the Agreement, then the relevant provision from the Agreement will prevail.
2.4 Endouble explicitly excludes the applicability of any purchasing or other terms and conditions of the Customer.
2.5 If one or more provisions of the General Terms and Conditions is or becomes null and void or invalid, the other provisions of these General Terms and Conditions will remain in full force. In such case, Endouble will replace the void or nullified provisions with new provisions, taking into consideration as much as possible the objective and purport of the void or nullified original provision.
2.6 If any provision in the Agreement is null and void or should be declared null and void, then the Parties will consult with one another in order to agree upon new provisions to replace the null and void provisions, while ensuring that the purport and intention of the null and void provisions are retained as much as possible.
2.7 Endouble’s information will be leading, with the exception of any evidence to the contrary provided by the Customer.
Article 3 Obligations on the part of the Customer and the performance of work
3.1 The Customer acknowledges that the success of the work carried out pursuant to the Agreement, including yet not limited to making the Software available and/or providing Services, as specified in the Agreement, is dependent on proper and timely mutual collaboration. The Customer will promptly provide Endouble with any and all data and/or information Endouble deems useful, necessary and desirable and to fully cooperate in order to properly execute the Agreement. Endouble will undertake to provide the Software and/or Services in exercising sufficient care and expertise.
3.2 In the event the Customer deploys its own personnel and/or agents within the context of granting its cooperation to the execution of the Agreement, this personnel and these agents must possess the necessary knowledge, expertise and experience.
3.3 If it has been agreed that the Customer will make hardware, programs, Materials or data on data carriers available to Endouble, they must meet the specifications required for the execution of the work. The Customer guarantees that no third-party rights oppose the supply or use of any hardware, programs, Materials or data, and will indemnify Endouble against any claims based on the allegation that such supply or use infringes any third-party rights.
3.4 If the Customer fails to provide the data, documents, hardware, programs, materials or employees that Endouble deems useful, necessary or desirable for the execution of the Agreement, or fails to make these available to Endouble in time or in accordance with Endouble’s requirements, Endouble will have the right to suspend the full or partial performance of the Agreement, and will also be entitled to charge for the resulting costs in accordance with Endouble’s standard rates, all of this without prejudice to Endouble’s right to exercise any other statutory and/or agreed right.
3.5 In the event Endouble employees carry out work at the Customer’s location, the Customer will provide the facilities desired by the employees, within reason, and make these available to them at no cost, including yet not limited to a workspace with computer, data and telecommunications facilities. The workspace and facilities will satisfy all legally valid requirements regarding working conditions.
3.6 The Customer is responsible for the selection, use, application and administration of the Software, hardware, programs, websites, data files and Materials and for the Services to be provided by Endouble. The Customer will be responsible for the proper installation, assembly and implementation, and for the proper settings for the Software, hardware, programs, websites, data files and Materials, as well as for the administration and calculation methods to be applied, and for the security of data.
3.7 The Customer will be responsible for the proper choice of computer, data or telecommunications facilities, including Internet, and for the timely and full availability of these.
3.8 The Customer will be responsible for creating back-up copies of the Software, data files and programs, the installation of updates and/or upgrades of the Software, and other normal improvements to existing software and/or data files.
3.9 In cases in which Endouble employees carry out work at the Customer’s premises, the Customer will ensure that these employees are able to carry out their work undisturbed. The Customer will provide the employees with the desired and necessary facilities, within reason, including a PC, at no charge.
3.10 The Customer will indemnify Endouble and its suppliers from any and all claims, proceedings, losses and/or direct and/or indirect damages suffered by third parties that are based on or arise from (i) the accusation that any of the Customer’s activities are illegal in any way, including yet not limited to activities which are in breach of these General Terms and Conditions, the Agreement and/or which result in an infringement of Intellectual Property Rights; and/or (ii) the illegal and/or improper fulfilment of the Agreement by the Customer, more specifically, the requirements based on this article.
Article 4 Payment
4.1 The Customer will pay Endouble the price for the Software and/or the Service as stated in the Agreement.
4.2 The Customer cannot require Endouble to honour special offers or prices for which it should reasonably expect that the special offer and/or the price contains a clear error or typographical error.
4.3 All prices are exclusive of turnover tax (BTW) and other levies imposed by the government.
4.4 All prices are always expressed in Euros. The Customer must execute all payments to Endouble in Euros.
4.5 All cost estimations and estimates issued by Endouble are only indicative in nature, unless Endouble provides explicit notification to the contrary in writing. Any available budget for which the Customer provides notification to Endouble will never qualify as an agreed (fixed) price between the Parties for the services to be provided by Endouble. Endouble will only be bound to notify the Customer if there is a risk that a cost estimation or estimate will be exceeded if this is explicitly agreed in writing between the Parties.
4.6 In respect of the amounts paid and/or owed by the Customer, the relevant documents and information in Endouble’s records will be considered to provide full evidence, without prejudice to the Customer’s right to provide evidence to the contrary.
4.7 The prices in the Agreement may be modified by Endouble without prior notice. In the event the Parties have agreed on a periodic payment obligation, Endouble is entitled to modify the prices and rates in writing to be valid for a term of three (3) months. If the Customer does not agree with this price modification, it is entitled to cancel the Agreement, in writing, within thirty (30) days of the notification of the change, to take effect on the date on which the change becomes effective. The Customer will not be entitled to cancel the Agreement in the event the parties have agreed that the prices and/or rates will be modified on the basis of an index or other criterion that has been agreed between the Parties.
4.8 All invoices will be paid by the Customer in accordance with the Agreement and/or the payment terms stated on the invoice. In the absence of specific terms, the Customer must execute payment within thirty (30) days of invoice date.
4.9 The Customer is not entitled to offset or suspend any payment or amounts owed, regardless of the reason.
4.10 In the event the Customer fails to pay the amounts due within the agreed term of payment, the Customer, without any notice of default being required, will owe the statutory commercial rate of interest on the outstanding amount due, pursuant to Section 6:119a of the Dutch Civil Code [BW]. If, after receiving payment reminders or a notice of default, the Customer remains negligent in paying the demand, Endouble is entitled to turn the claim over to a third party, in which case the Customer, in addition to the total amount due at that time, will also be bound to pay full compensation for all out-of-court and court costs, including all the costs of attorneys and external experts.
4.11 In the event the Customer’s credit rating provides sufficient reason, Endouble may demand additional security, the lack of which will entitle it to suspend the fulfilment of the Agreement. The Customer will guarantee the accuracy and completeness of the information it provides to Endouble, or which is provided on its behalf, and which serves as the basis for Endouble’s offer. The Customer will always exercise the utmost care to ensure that the requirements which the Service of Endouble and/or the Software must satisfy are accurate and complete. Information in images, catalogues, websites, offers, advertising materials and the like are not binding for Endouble.
Article 5 Additional work
5.1 In the event Endouble provides Additional Work either by request or with the Customer’s prior permission, the Customer will pay for this Additional Work at Endouble’s standard prices. Endouble is not obligated to comply with a request from the Customer to perform Additional Work and may demand a separate written agreement for this purpose.
5.2 The Customer accepts that Additional Work can affect and/or alter the agreed and/or expected date for the delivery of the Software, the mutual responsibilities of the Customer and Endouble, and any fixed price agreed beforehand. The fact that (the demand for) Additional Work may occur during the fulfilment of the Agreement does not provide the Customer with grounds for cancellation or dissolution of the Agreement.
5.3 The purchase of new software, licences, hardware and the like, and repairs by third parties falls outside of the scope of the standard rates and will be invoiced to the Customer separately, and if necessary, directly by this third party.
Article 6 Intellectual Property Rights
6.1 The Intellectual Property Rights to the Software (including source codes), Documentation, programs, websites, data files or Materials as well as (other) materials used to prepare these are vested exclusively in Endouble and/or its licensor(s). The Customer will only obtain the rights of use that are assigned to it by the Agreement, all of this unless explicitly agreed otherwise in a written document signed by Endouble and the Customer.
6.2 The Parties may agree that Endouble will make the Software and the corresponding Documentation available to the Customer to use.
6.3 Unless otherwise agreed in writing, the obligation to make this available by Endouble and the Customer’s right of use will extend explicitly to the so-called object code for the Software. The Customer’s right of use does not extend to the source code for the Software.
6.4 Unless otherwise agreed in writing, Endouble is not bound to make anything available other than the agreed Software or program or data libraries, even if these are necessary for the use and/or maintenance of the Software. If, in derogation of the above, information or products other than the agreed Software and/or program or data libraries must be made available to Endouble, Endouble is entitled to demand that the Customer enters into a separate written agreement to that effect.
6.5 Unless otherwise agreed in writing, Endouble’s performance obligations do not include the Maintenance of the Software and/or providing support to the users of the Software. If, in derogation of the above, Endouble must also provide such Maintenance and/or support, Endouble is entitled to demand that the Customer enters into a separate written agreement to that effect.
6.6 Unless otherwise agreed in writing, the right to use the Software will always be nonexclusive and nontransferable for the duration of the Agreement, and may not be sublicenced. Endouble grants a limited right of use to the Software; there is no sale (of rights to) of the Software involved.
6.7 The Customer will always strictly comply with the limitations on the rights of use to the Software agreed between the Parties. The Customer is aware that the violation of any agreed restriction on use, as well as an attributable shortcoming in the fulfilment of the Agreement also implies an infringement of the Intellectual Property Rights for the Software.
6.8 Unless otherwise agreed in writing, the Customer may only use the Software at its own premises and for its own company or organisational purposes, and solely for the intended use.
6.9 The Customer will not take any action that could constitute infringement of the Intellectual Property Rights belonging to Endouble and/or its licensors, including yet not limited to making the Software public and/or reproducing it without permission, licencing it to third parties or selling the Software and registering domain names, brands or Google AdWords search terms (keywords) which are similar or identical to any mark with respect to which Endouble and/or its licensors are entitled to invoke Intellectual Property Rights.
6.10 It is explicitly prohibited to download, copy, modify, make public, or make available in any other way (parts of the) Software, information and files, data, programs and/or Materials, to use these for direct or indirect commercial purposes, or for any purpose other than those specified in the Agreement, unless Endouble or the relevant holder of rights has granted permission for this purpose, or mandatory provisions or regulations determine otherwise.
6.11 The Customer is explicitly prohibited from selling, leasing, transferring, granting or otherwise making rights relating to (parts of) the (rights to the) Software available to third parties. The Customer will not grant access to the Software, remotely or otherwise, or offer the Software to third parties.
6.12 The Customer is explicitly prohibited from modifying all or part of the Software without prior permission from Endouble. Endouble is entitled at all times to refuse permission or to attach conditions to this permission, including any conditions regarding the methods and quality of the implementation of any modifications desired by the Customer. The Customer bears the full risk of all of the modifications it applies or orders third parties to apply, whether or not this has been done with Endouble’s permission.
6.13 The Customer acknowledges and accepts that any unauthorised use of the Software, Documentation, programs, websites, data files or Materials subject to Intellectual Property Rights belonging to Endouble and/or its licensors, is a violation of the General Terms and Conditions and applicable legislation.
6.14 The Customer is not permitted to change (or have changed) or remove (or have removed) any designation or notice regarding Intellectual Property Rights from the Software, Documentation, programs, websites, data files or Materials, including notices regarding the confidential nature and secrecy of the Software, Documentation, programs, websites, data files or Materials.
6.15 Endouble is entitled to take technical measures in order to protect the Software, Documentation, programs, data files, websites or Materials. In the event that Endouble has protected the Software, Documentation, programs, data files, websites or other Materials by means of technical protection, the Customer is not permitted to remove or circumvent this protection or have this done.
6.16 With the exception of cases in which Endouble makes a back-up copy of the Software, programs, data files or websites available to the Customer, the Customer has the right to make no more than one back-up copy thereof. For the purposes of these General Terms and Conditions, ‘back-up copy’ is defined as: physical object on which the Software, programs, data files or websites are recorded, for the sole purpose of replacing the original copy of the Software, programs, data files, or websites in the event of an involuntary loss of possession or damage. The back-up copy must be an identical copy, and must always be equipped with the same labels and indications as the original.
6.17 Endouble will never be bound to provide the Customer (a physical carrier containing) the Software in source code or other programs used in the development of the Software (whether or not this in the form of source code), or preparatory materials.
6.18 Endouble may make programs from third parties available to the Customer. The (licencing) terms and conditions of these third parties may apply, regardless of any provisions in the General Terms and Conditions and the Agreement that may deviate from these. The Customer guarantees that it accepts these terms and conditions of third parties and will comply strictly with these. If and to the extent that the aforementioned terms and conditions of third parties are declared not to be applicable to the relationship between the Customer and Endouble, for whatever reason, or are declared excluded from application, the provisions in the General Terms and Conditions will remain applicable in their entirety.
6.19 Endouble indemnifies the Customer from all legal claims from third parties that are based on the allegation that the Software, Documentation, programs, websites, data files or Materials developed by Endouble infringe Intellectual Property Rights belonging to these third parties, on the condition that the Customer immediately notifies Endouble in writing about the existence and content of the legal claim and leaves the handling of the case, including yet not limited to the making of any settlements, in its entirety to Endouble. To this end, the Customer will grant the necessary authorisations, information and cooperation to Endouble in order to enable it, if necessary, on the Customer’s behalf, to put up a defence against these legal claims. This obligation for indemnification will lapse in the event the violations for which blame is being assigned involve (i) the Customer’s use, modification, processing or incorporation of materials made available to Endouble or (ii) modifications which the Customer has applied to the Software, Documentation, programs, website, data files or Materials without Endouble’s written permission, or has had this done by a third party. In the event it has irrevocably been determined at law that the Software, Documentation, programs, websites, data files or Materials developed by Endouble infringe any Intellectual Property Rights belonging to third parties, or if, in Endouble’s opinion, it is reasonably likely that such an infringement is occurring, Endouble will, if possible, ensure that the Customer will be able to continue to use the programs, websites, data files or materials supplied, or their functional equivalents. If, in Endouble’s sole judgement, it is unable to ensure that the Customer can continue to use the Software unimpeded, or is unable to use it in a manner other than one that is (financially) unreasonably objectionable, Endouble will arrange for the return of the supplied products and credit the purchasing costs less a reasonable fee for use. All other or more extensive indemnification obligations on Endouble’s part are excluded.
6.20 The Customer guarantees that third party rights do not oppose the making available of programs, materials destined for websites (such as images, text, music, domain names, logos), data files or Materials and design materials, the purpose of which is the use, modification, installation or incorporation in the Software and/or Documentation. The Customer indemnifies Endouble from any and all claims from a third party that are based on the allegation that such availability, use, modification, installation or incorporation infringes any rights of this third party, including Intellectual Property Rights.
6.21 Endouble reserves the right to investigate (or have this done by a third party) to determine if the Customer is using the Software, Documentation, programs, websites, data files or Materials and (other) preparatory materials in accordance with the assigned rights. Upon request, the Customer will immediately grant its full cooperation to any investigation carried out by or on behalf of Endouble regarding the Customer’s compliance with the agreed restrictions on use. At Endouble’s first request, the Customer will grant access to its buildings and systems to Endouble, or a third party contracted by Endouble for this purpose.
Article 7 Deliveries, installation
7.1 In the event delivery has been agreed, Endouble will deliver the Software to the Customer in the data carrier format agreed between the Parties, or, in the absence of clear agreements in this regard, a data carrier format to be determined by Endouble, or to deliver this to the Customer using telecommunications facilities (online). Endouble will determine the method of delivery.
7.2 Endouble will only install the Software at the Customer’s premises is this has been agreed in writing between the Parties. In the absence of clear agreements in this regard, the Customer will install, set up, parameterise, tune, and if necessary, adapt the equipment, hardware and user environment to be used. Unless otherwise agreed in writing, Endouble is not obligated to carry out data conversion activities.
7.3 Endouble will take decisions regarding the form, content and language in which the Documentation is provided.
7.4 The risk of loss, theft or damage of items, products, programs or information and/or data that are the object of the agreement shall pass to the Customer at the time the Customer or an agent of the Customer obtains the actual right of possession thereto.
7.5 The Customer will handle any equipment and/or materials that Endouble makes available to the Customer in a manner befitting a proper administrator.
Article 8 Terms of delivery
8.1 All (delivery) terms stipulated by Endouble are, to the best of its knowledge, based on information known to Endouble at the time the Agreement is concluded, and they will be observed to the best possible extent. The (delivery) terms stated by Endouble and/or agreed between the Parties are target dates only, and are not binding for Endouble. These terms are only indicative in nature. Endouble will make a reasonable effort to take final (delivery) terms and final (completion) dates into account as much as possible. Endouble is not bound to a final or non-final (delivery) term or (completion) date which is no longer feasible due to force majeure. Endouble is also not bound to a final or non-mandatory (delivery) term or (completion) date if the Parties have agreed to Additional Work or a change in the approach to the fulfilment of the Agreement.
8.2 The occasional exceeding of a final or non-mandatory (delivery) term or (completion) date stated by Endouble or agreed between the Parties will not cause Endouble to be deemed to be in default. In every case, Endouble will only be considered to be in default for exceeding a deadline if the Customer has first provided it with notice of default in writing. The notice of default must contain a description of the failure that is as detailed and complete as possible, as well as provide a reasonable period of time within which to rectify the shortcoming.
Article 9 Customised Software
9.1 The Parties may agree for Endouble to develop Customised Software for the Customer. In such a case, Endouble will develop the Customised Software on the basis of specifications agreed between the Parties, as described in the Agreement. By signing the Agreement, the Customer declares its agreement with these specifications, and also acknowledges that the specifications are complete, consistent and in keeping with its requirements and preferences.
9.2 In order to test whether or not the Customised Software satisfies the agreed specifications, the Parties will carry out the Acceptance Procedure after the delivery of the Customised Software.
9.3 In the event the Parties agree in writing that Intellectual Property Rights to the Customised Software, Documentation, or (other) programs, websites, data files or Materials developed specifically for the Customer are to be transferred to the Customer, this will not affect Endouble’s right or opportunity to use and/or exploit the components, general principles, ideas, designs, algorithms, documentation, works, programming languages, protocols, standards and the like that lie at the foundation of this development, for other purposes without any restrictions, either for itself or for third parties. The transfer of any Intellectual Property Rights will also not affect Endouble’s right to carry out developments for itself or a third party which are similar to or derived from those which are or will be carried out for the Customer.
Article 10 Acceptance Procedure
10.1 The Customer will subject the Customised Software to acceptance tests within fourteen (14) calendar days of the delivery of the Customised Software. The Customer will carry out the Acceptance Procedure for the Customised Software using sufficiently qualified personnel and in applying a satisfactory scope and depth to the tests.
10.2 During the Acceptance Procedure, the Customer is required to test, under its sole and full responsibility, whether or not the Customised Software delivered satisfies the agreed specifications. Any assistance Endouble provides in the completion of the Acceptance Procedure will be entirely at the Customer’s risk.
10.3 In the event it appears during the performance of the Acceptance Test that the Customised Software contains Errors, the Customer will notify Endouble of this fact in a written, comprehensible and orderly manner in the form of a test report, and will provide this report no later than the last day of the Acceptance Procedure as specified in Article 10.1. Endouble will undertake, to the best of its ability, to repair the aforementioned Errors within a reasonable period, whereby Endouble is entitled to apply temporary solutions, program workarounds or problem-avoiding limitations to the Customised Software. In accordance with this article, the Acceptance Procedure will be repeated until the Customised Software is accepted.
10.4 The Customised Software will be considered accepted by the Parties:
a. on the first day after the testing period as referred to in Article 10.1; or
b. starting at the time that the Customer uses the Customised Software for productive or operational purposes, use which is explicitly at the Customer’s risk and expense;
c. in the event Endouble receives a test report as specified in Article 10.3 prior to the end of the testing period as referred to in Article 10.1:
(i) if, in Endouble’s opinion, the test report indicates the presence of Errors, notwithstanding the presence of shortcomings which cannot preclude acceptance pursuant to Article 10.5, starting on the date of the test report;
(ii) at the time the Errors indicated in the aforementioned test report are repaired, notwithstanding the presence of shortcomings which cannot preclude acceptance pursuant to Article 10.5.
10.5 Acceptance of the Customised Software may not be denied on grounds which are not associated with the agreed specifications, nor due to the presence of minor Errors such as Errors which do not reasonably prevent the operational or productive implementation of the Customised Software. Acceptance may furthermore not be denied due to elements of the Customised Software that may only be evaluated subjectively, such as aesthetic aspects and aspects related to the look-and-feel and layout of the user interfaces.
10.6 Acceptance of the Customised Software in one of the methods referred to in this article will result in the discharge of Endouble from the fulfilment of its obligations regarding the delivery and availability of the Customised Software.
Article 11 Guarantees
11.1 The Customer accepts that the Software only contains the functionalities and other features that the Customer finds in the Software at the time of use (‘as is’), and therefore with all of the visible and hidden errors and defects. Endouble does not guarantee that the Software will be available at all times, in its entirety and without interruptions or defects.
11.2 Endouble does not guarantee that the Software is suitable for the actual and/or intended use by Customer. Endouble also does not guarantee that the Software will function without errors, or that all Errors will always be improved.
11.3 Endouble will undertake, to the best of its ability, to repair Errors in the Software within a reasonable period if these are reported to Endouble, detailed and in writing, within a period of three (3) months after acceptance as specified in Article 10. Endouble is entitled to charge its standard rates for the repair of Errors if these involve use errors or improper use by the Customer or other causes which may not be attributed to Endouble, or if the Errors could have been discovered during the performance of the Acceptance Procedure.
11.4 The aforementioned repair obligation will lapse if the Customer applies (or has applied by a third party) modifications to the Software without prior written permission from Endouble.
11.5 The repair of Errors will take place at a location to be determined by Endouble. Endouble is always entitled to implement temporary solutions, program workarounds or problem-avoiding limitations to the Software.
11.6 Endouble is not required to repair Errors which are reported after the expiry of the guarantee period referred to in Article 11.3, unless a separate Agreement is concluded between the Parties for the purpose of Maintenance and which contains such a requirement.
Article 12 Maintenance
12.1 Endouble will undertake to carry out Maintenance activities in accordance with the agreements and procedures laid down in writing with the Customer, in the event this has been agreed between the Parties.
12.2 In the event the Maintenance relates to programs that Endouble has not supplied to the Customer, the Customer will make the source code and the technical (development) documentation for the programs (including data models, designs, change-logs, etc.) available if Endouble deems this useful, necessary or desirable. The Customer warrants that it is entitled to make these items available, and that no third-party rights oppose this. The Customer grants Endouble the right to use and modify the programs, including the source code and technical (development) documentation, within the scope of its Maintenance activities. The Customer indemnifies Endouble from all claims by third parties relating to the availability for and use by Endouble within the context of the maintenance of the items made available.
12.3 For the purposes of carrying out Maintenance, the Customer is bound to make the systems on which the Software is installed available at an accessible location and with the necessary workspace, all of this in accordance with any changes made by Endouble. The Customer is also bound to make available to Endouble all the linked and connected systems, testing procedures and information carriers in connection with the testing and operation thereof. To the extent Maintenance activities will be performed online, the Customer will ensure that a sound infrastructure and telecommunications facilities are in place in a timely manner for these activities. Endouble is entitled to suspend the performance of its activities or to limit these in the event the Customer’s infrastructure and telecommunications facilities do not satisfy Endouble’s requirements.
12.4 The Maintenance performed by Endouble does not affect the Customer’s responsibility to manage the Software, including checking the settings, the use of the Software, the creation of users, the maintenance of equipment and hardware, and the manner in which the results of the use of the Software are applied. The Customer is also responsible for the instruction of and use by users, regardless of whether or not these users are involved in a position of authority over the Customer. In the absence of explicit agreements in this regard, the Customer will install, set up, parameterise, and tune the (auxiliary) equipment, and if necessary, adapt the hardware, other programs and user environment to be used, and realise the Customer’s preferred interoperability.
12.5 All modifications carried out by the Customer must be reported to Endouble in detail and in writing prior to making the modifications. Without Endouble’s prior written consent, the Customer may not make any changes, and this consent will not be unreasonably refused.
12.6 The Customer is not permitted to have Maintenance performed by a third party without prior written permission from Endouble.
Article 13 Scope of Maintenance
13.1 The Maintenance and the service levels mentioned in the Agreement concluded for that purpose do not apply to the repair of Errors, defects or shortcomings that are the result of or related to:
a. use errors or improper use of the Software, including defects in the Customer’s own materials;
b. changes or additions to the Software made by a party other than Endouble or one acting on its behalf;
c. use of the Software that is in violation of the applicable terms and conditions or in violation of the instructions found in the Documentation;
d. changes to or Errors, defects or shortcomings in equipment or other programs than those falling under the Maintenance;
e. the use of an old version of the Software that is no longer maintained by Endouble;
f. the unavailability of the Software that has been effectuated at the Customer’s own request, and/or the unavailability of the Software during requested work activities;
g. in the determination or isolation of the problem or disruption, Endouble requires assistance from the Customer which the Customer, regardless of the reason, is unable to provide, or to provide in full, or to provide as needed by Endouble;
h. power outage;
i. extreme weather conditions;
k. physical damage to the network caused by third parties;
m. unjustified, incorrect or incomplete reports;
n. other causes which may not be attributed to Endouble, including yet not limited to force majeure.
13.2 In the event Endouble carries out Maintenance or other work in connection with the provisions in Article 9.1, Endouble is entitled to charge for the costs of this Maintenance or other work according to the standard rates, which does not affect the other amounts the Customer owes for Maintenance.
13.3 Endouble is always entitled to elect to refrain from repairing Errors and to replace the Customised and/or Standard Software with other, similar yet not necessarily identical Customised and/or Standard Software.
13.4 The provisions contained in the SLA are also invalid during emergencies, at Endouble’s discretion, and pre-defined and agreed periods during which major modifications are made to the Software.
13.5 Endouble will never be bound to carry out repairs or reconstruction work on lost, corrupt or mutilated data.
Article 14 Corrective Maintenance
14.1 Endouble will undertake to carry out Corrective Maintenance in accordance with the Response Times and Restore Times as stipulated in the Agreement.
14.2 In the event Endouble wishes to carry out Corrective Maintenance on the Software unexpectedly, it will announce this in advance to the extent this is reasonably possible. Critical updates may be carried out faster and without prior notification at Endouble’s discretion.
Article 15 Constructive Maintenance
15.1 The Customer may request that Endouble carries out Constructive Maintenance. Endouble is entitled to refuse such a request, including yet not limited to situations in which carrying out Constructive Maintenance can have a (disadvantageous) effect on the functionality of the Software, the compatibility with the Software, falls outside of the scope of the Agreement and/or involves changes or additions applied to the Software by the Customer or on its behalf.
15.2 In the event Constructive Maintenance is carried out at the Customer’s request, Endouble can send an offer to this Customer for this purpose. If the Customer approves the quotation, the relevant costs will be invoiced to the Customer pursuant to Article X, and this invoice will be accompanied by a specification of the work carried out.
15.3 Endouble does not guarantee compatibility if the Constructive Maintenance is performed on Customised Software. Endouble is not bound to maintain, modify or add features or functionalities of the programs specifically determined for the Customer.
15.4 If the Customised Software appears to be incompatible following the Constructive Maintenance activities, Endouble will take all reasonable efforts, based on subsequent calculation, to offer additional support. The Acceptance Procedure as referred to in Article 10 applies by analogy to Constructive Maintenance on Customised Software.
15.5 Three months after an update and/or upgrade for the Software is made available, Endouble is no longer required to repair any Errors in the previous version nor to provide Maintenance services related to a previous version.
15.6 Endouble can require the Customer to modify its equipment and hardware, software, IT infrastructure and the like if this is necessary to the proper functioning of a new version of the Software.
Article 16 Reporting
16.1 Endouble can notify the Customer online with respect to the hours worked, the Maintenance performed, and other work carried out.
Article 17 Privacy
17.1 In the event that Endouble deems it to be relevant to the fulfilment of the Agreement, the Customer will immediately notify Endouble in writing and on request regarding the manner in which the Customer satisfies its requirements pursuant to the Personal Data Protection Act of the Netherlands and/or other applicable legislation relating to the protection of personal data.
17.2 Endouble will not process any personal data other than that required for the purpose of providing the Software and/or the Service, including yet not limited to the optimisation of the operation of the Software and/or the Service, and the creation of statistics.
17.3 Endouble will not share any personal data originating from the Customer with third parties, unless Endouble has received permission from the Customer to do so, or is required to do so by law.
17.4 The responsibility for the personal data which is processed during the use of the Software and/or the Service lies solely with the Customer. The Customer guarantees that the contents, the use and/or the processing of the personal data is not illegal, and that this does not violate any third-party rights. The Customer indemnifies Endouble from any third-party legal claims, regardless of their basis, in connection with this personal data.
17.5 The Customer indemnifies Endouble from any claims from persons whose personal data is being processed by or on behalf of the Customer, or for which the Customer is otherwise responsible under the law, unless the Customer proves that the facts that underlie the claim should be exclusively attributable to Endouble.
17.6 The Customer acknowledges and guarantees that no persons younger than sixteen (16) use or have access to the Software and/or the Service, unless these persons have permission from their legal representatives.
17.7 In the event Endouble, on the grounds of the Agreement, is bound to supply a form of security, this security must satisfy the written specifications such as these have been explicitly agreed between the Parties. Endouble does not guarantee that the security measures will be effective in every situation and under every circumstance. If the Agreement does not contain any specifications regarding the security, or if the Agreement does not contain an explicit description of security, this must satisfy a level that is not unreasonable, in view of the status of technology, the sensitivity of the data, and the costs associated with the security measures. The Customer bears the responsibility for keeping protective measures intact such as firewalls, anti-virus software and back-ups. Endouble is not liable for this.
Article 18 Confidentiality and publication
18.1 The Customer will ensure that all the information it has received from Endouble, the confidential nature of which it is aware or may reasonably expected to be aware of, will remain confidential. Data is always confidential if it is designated as such by Endouble. The Customer is aware that the programs and other materials made available, including the preparatory materials, could contain confidential information and trade secrets belonging to Endouble. Without prior written permission from Endouble, the Customer will refrain from making the information and information carriers it has at its disposal available to third parties and/or make these known to its personnel and/or third parties outside of the scope of that which is permitted in the Agreement, to the extent this is not necessary for performing the agreed activities. The Customer will only use the confidential information for the purposes for which it was provided.
18.2 The Customer will impose these confidentiality requirements on its personnel and guarantee compliance therewith.
18.3 The Parties:
a. will consult one another before publishing any press release or other publication or advertising communication regarding the Agreement;
b. will refrain from publishing any publications or advertising communications without prior written consent from the other Party, and this consent will not be unreasonably refused or delayed;
c. may, without prior permission from the other Party, make public statements if required to do so by law or a court decision.
Article 19 Noncompetition clause
19.1 With the exception of having written permission to do so, the Customer will refrain from employing or otherwise allowing employees of Endouble to work for it, either directly or indirectly, who were involved in the fulfilment of the Agreement during the prior six (6) months, nor to make any attempts to employ these individuals. This clause will lapse in the event an order for liquidation has been issued for or a suspension of payments has been granted to Endouble.
Article 20 Penalty clause
20.1 In the event of a breach of Article 18 and/or 19, the Customer will immediately notify Endouble in writing regarding the details of the violation, when this was committed, and all other possibly relevant information. The Customer will take all reasonable measures to prevent further breaches. The Customer will provide Endouble with all necessary assistance to protect Endouble’s rights, including yet not limited to providing Endouble with the opportunity to take any (other) (legal) measures to prevent further violations.
20.2 In the event of a breach of Article 18 or 19, the Customer will owe an immediately payable penalty to Endouble of EUR 50,000 (in words: fifty thousand Euros) per violation, and EUR 5,000 (in words: five thousand Euros) per day that the violation continues, and this penalty does not qualify for any setoff. This provision does not affect Endouble’s right to exercise any other statutory and/or agreed right, including yet not limited to the right to demand (additional) compensation for damages (whether or not this is in combination with the aforementioned penalty).
Article 21 Liability
21.1 Endouble’s liability for damage resulting from an attributable shortcoming in the fulfilment of the Agreement or from an illegal act or otherwise is excluded. To the extent the aforementioned liability cannot be excluded, this is limited per event (a series of consecutive events is considered to be a single event) to compensation for direct damage, up to a maximum amount of the compensation paid for the event causing the damage for the month prior to that. Endouble’s liability for direct damage will never exceed a total of EUR 100,000. Direct damage is defined exclusively as all damage consisting of the following:
a. damage directly caused to tangible property (‘property damage’);
b. the reasonable costs incurred in determining the cause and extent of the damage, insofar as this determination relates to direct damage as defined here; and
c. reasonable and demonstrable costs that the Customer has incurred to prevent or limit the direct damage as defined in this article.
21.2 Endouble’s liability for indirect damage is excluded. Indirect damage is defined as all damage which is not direct damage, and therefore, includes at any rate, yet is not limited to, consequential damage, lost profits, lost savings, reduced goodwill, damage due to business interruption, damage due to the failure to determine marketing objectives, damage resulting from claims from the Customer’s customers, damage associated with the use of information or data files prescribed by the Customer, or loss, mutilation or destruction of information or data files.
21.3 The exclusions and limitations stated in this article will lapse if and insofar as the damage is the result of intent or wilful misconduct on the part of Endouble or its management.
21.4 Unless fulfilment on Endouble’s part is rendered permanently impossible, Endouble’s liability due to an attributable shortcoming in the fulfilment of the Agreement will only arise if the Customer provides Endouble with immediate written notice of default, and Endouble continues to fail imputably in the fulfilment of its obligations after the specified term. The notice of default must contain a description of the failure that is as detailed and complete as possible, so that Endouble is given the opportunity to respond adequately.
21.5 Every claim for compensation for damages filed by the Customer against Endouble that is not reported explicitly and with a specification by the Customer will expire by the lapse of twelve (12) months after the claim arises.
Article 22 Force Majeure
22.1 Endouble is not bound to satisfy any obligation if it is hindered in this regard as a result of force majeure. Force majeure is defined, amongst other things, as:
a. force majeure events affecting Endouble’s suppliers;
b. the failure on the part of suppliers the Customer has instructed Endouble to use to satisfy obligations properly;
c. defective goods, equipment, programs or materials from third parties, the use of which by Endouble has been dictated by the Customer;
d. government measures;
e. electrical failures;
f. Internet, computer network or telecommunications facilities breakdowns;
h. staffing problems;
j. general transportation problems and
k. the unavailability of one or more members of staff.
22.2 In the event the force majeure situation persists for longer than ninety (90) days, each of the Parties is entitled to dissolve the Agreement in writing.
Article 23 Third parties
23.1 Endouble is entitled to transfer rights and obligations arising from the Agreement to third parties, and the Customer consents irrevocably now for then to such transfers. Endouble will notify the Customer in the event of such a transfer.
23.2 The Customer is not entitled to sell and/or otherwise transfer the rights and/or obligations arising from the Agreement between the Customer and Endouble without prior written permission from Endouble.
Article 24 Duration and termination
24.1 Unless explicitly agreed otherwise, the Agreement is entered into for a period of one (1) year. The term of the Agreement will then be renewed tacitly each year by a period of one (1) year, unless the Customer or Endouble terminates the Agreement in writing in observation of a term of notice of three (3) months.
24.2 In the event the Parties have concluded a separate Agreement for the purpose of carrying out Maintenance activities, the separate Agreement will be concluded for the same duration as the initial Agreement. The separate Agreement may be terminated – independently of the initial Agreement – prematurely in writing, provided a notice period of three (3) months is observed.
24.3 If the initial Agreement is (prematurely) terminated in any manner, the separate Agreement that is concluded for the purpose of carrying out Maintenance will automatically be terminated at the same time the initial Agreement is terminated, without any legal act being required on the part of the Parties.
24.4 Each of the Parties will be entitled to dissolve the Agreement due to an attributable shortcoming in the performance of the Agreement, in the event the other Party, after the most detailed written notice of default possible is provided, with a reasonable time period for remedying the failure, continues to fail imputably to comply with any actual obligation under the Agreement. The Customer’s obligations as specified in Articles 3, 4, 6, 18 and 19 still apply as actual obligations under the Agreement.
24.5 If, at the time of dissolution as referred to in the previous paragraph, the Customer is still the beneficiary of performance carried out in fulfilment of the Agreement, this performance and the related payment obligation cannot be revoked. Any amounts that Endouble has invoiced prior to the dissolution will remain due notwithstanding, and will be immediately payable at the time of dissolution.
24.6 The authority to dissolve the Agreement in whole or in part, without a notice of default being required, will be vested in Endouble if the Customer is granted a suspension of payments, whether or not this is temporary or permanent, or if a winding-up petition is filed for the Customer, or if the Customer’s company is liquidated or terminated for a purpose other than the restructuring or merging of companies, or if the decisive control over the Customer’s company changes.
24.7 Endouble will never be bound to pay restitution of payments already received or any compensation for damages due to cancellation, dissolution or other means of termination of the Agreement. The Customer’s right to use and have access to the Software and/or its right to Maintenance will lapse in the event of cancellation, dissolution or other means of termination of the agreement, by operation of law. In such a case, the Customer must return all copies of the Software in its possession to Endouble.
24.8 In the event the Customer fails to satisfy its obligations under the Agreement, or fails to do so in full or in time, more specifically, in the event of noncompliance with the provisions of Articles 3, 4, 6, 18 or 19 of the General Terms and Conditions, Endouble is entitled to suspend all or part of the performance of the Agreement without being required to provide any demand or notice of default. Endouble also reserves its right to retain possession of information, data files and/or results of the Software, in spite of any existing obligation to submit or transfer these, until the Customer satisfies its obligations. This provision does not affect Endouble’s right to exercise any other statutory and/or agreed right.
24.9 The provisions which are intended to remain in force after cancellation, dissolution or other means of termination of the Agreement, including yet not limited to Articles 2.4, 4.11, 6, 17, 18, 19, 21, 24 and 25 of the General Terms and Conditions, will extend beyond the cancellation, dissolution or other means of termination of the Agreement.
Article 25 Applicable law and choice of forum
25.1 The Agreement, the General Terms and Conditions, the use of the Software, and the provision of Services are governed by the laws of the Netherlands. The applicability of the Vienna Sales Convention (CISG) is excluded.
25.2 All disputes which may arise between Endouble and the Customer will be submitted for mediation. If the dispute cannot be resolved via mediation, it will be brought before the court having jurisdiction in Amsterdam.