General Terms and Conditions Software Delivery and Maintenance
Definitions:
In these Terms and Conditions, the following capitalized terms shall have the following meaning:

1.1 Adaptive maintenance: adapting the Software in response to changed circumstances and new developments occurring in the field for which the Software is designed.

1.2 Classification: classifying incidents by urgency and impact of the Imperfection

1.3 Corrective maintenance: the performance of maintenance, whether or not after notification of a Defect, aimed at tracing and remedying a Defect in the Software.

1.4 Documentation: descriptions and user manuals associated with the Software.

1.5 Public holidays: all national holidays established by the government

1.6 Recovery time: the time between the time of reporting a Defect and the elimination of the Defect in question

1.7 IPR: copyrights, design rights, trademark rights, patent rights, database rights and all other intellectual property rights or rights comparable thereto, such as rights in know-how or a domain name, registered or unregistered.

1.8 Supplier: Linguistic Systems established in Nijmegen The Netherlands, registered in the trade register of the Chamber of Commerce under number 09151742

1.9 Malware: collective term for malicious, infected and/or harmful software

1.10 New Version: modified version of The Software which increases functionality as a result of Renewal and/or Adaptive Maintenance

1.11 Maintenance and Support: Support, Adaptive Maintenance, Corrective Maintenance or Renewal Maintenance

1.12 Defect: an imperfection, malfunction or incident with respect to The Software.

1.13 Customer: the other party to the Agreement.

1.14 Agreement: the agreement that the Supplier enters into with the Customer for the purpose of the Software
1.15 Response Time: the time between the moment of notification of a Defect and the start of diagnosis and repair activities by Supplier.

1.16 Software: the computer software and/or software modules supplied and/or maintained by the Supplier on the basis of the Agreement

1.17 Support: the provision of remote telephone, written (e-mail) and/or electronic help desk support regarding the use and operation of the Software.

1.18 Improved version: modified version of the Software with equal functionality which removes Defects and/or improves the performance of the Software.

1.19 Renewal Maintenance: improving and/or extending the functionality of the Software.

1.20 Conditions: these general conditions

1.21 Working days: calendar days excluding weekends and holidays

1.22 Working Hours: the hours on Business Days from 8:30 a.m. to 5:00 p.m.

General Provisions

2.1 These Terms shall apply to the Agreement and to all negotiations or other agreements with Supplier, and to all offers, quotations, and orders of Supplier relating to the Software, unless the parties have expressly agreed otherwise in writing.

2.2 Supplier reserves the right, in its sole discretion, to change the Terms from time to time. Supplier shall give reasonable notice before the updated Terms and Conditions become effective. In the event that Customer does not agree to the proposed changes, Customer may terminate the Agreement, but only if the change results in Customer being provided with a performance that differs materially from the original performance. In the absence of notice, the Customer shall be deemed to have accepted the amended Terms and Conditions in their entirety.

2.3 All offers, quotations or estimates from Supplier shall be without obligation and revocable. Offers, quotations or estimates from Supplier shall automatically lapse 30 days after they are sent, unless an agreement is concluded within that period.

Delivery of the Software

3.1 Supplier shall exercise all reasonable care and skill in the delivery of the Software. However, it cannot guarantee that the Software will be fully protected against Malware, damage, corruption, loss or destruction at all times. The Software is offered by Supplier in the condition it is in at the time of delivery (“as is”), therefore with all visible and invisible errors and defects.

3.2 Supplier shall deliver the Software by means of (among other things) providing a download. Customer is itself responsible for the installation and configuration of the Software on its systems. At Customer’s request and for payment of an hourly rate to be agreed upon, Supplier can assist with this.

3.3 Customer itself shall ensure a proper software environment consisting at least of an adequate backup system, proper system administration and adequate protection of passwords used. In case of unauthorized use of the Software by a third party, Customer shall immediately notify Supplier thereof.

3.4 For the settlement of a Defect and receipt of New or Improved Versions, an agreement for the delivery of Maintenance and Support from the Supplier is mandatory. If Maintenance and Support are not purchased from the Supplier, the Supplier cannot guarantee undisturbed or adequate use of the Software. The Supplier is never liable for damage related to the fact that the Software is not or no longer maintained by the Supplier.

Warranty

4.1 Subject to the limitations set forth in the following article, Supplier warrants for a period of three (3) months after delivery that the Software will conform to the specifications, properties and functions provided in writing by Supplier. During this warranty period, Supplier shall detect and repair any imperfections as soon as possible and free of charge. Restoration of mutilated or lost data is not covered by the warranty. The guarantee does not include any travel and accommodation expenses in connection with the performance of the activities to be carried out, unless otherwise agreed.

4.2 Supplier’s warranty is subject to the following limitations:

The Supplier does not give any more or longer warranty on products or parts purchased from third parties than the supplier concerned gives to the Supplier.
The warranty will lapse if the Software is used by the Customer, users and/or third parties engaged by the Customer in an incompetent or careless manner.
The warranty will lapse if the Customer and/or third parties engaged by it perform work or make changes to the Software.
The warranty will lapse if the Software is used for any purpose other than its intended use.

5. Maintenance and Support

5.1 If Maintenance and Support with respect to the Software has been agreed upon by the Supplier then this article 5 of these Conditions shall apply. Maintenance and Support solely comprises the following activities, unless the parties have agreed otherwise:
Support
Adaptive maintenance
Corrective maintenance
Innovative maintenance

5.2 Maintenance and Support are subject to the following conditions and/or limitations:
Customer shall, upon request, grant access to the location where the equipment is placed or where Supplier’s employees are to perform the work, or shall ensure that the service can be provided remotely.
Customer shall not make any changes to (parts of) the Software.
Customer guarantees that the users of the Software are always sufficiently knowledgeable for this purpose (e.g. by having followed training by Supplier).

Customer guarantees that the hardware and the software environment meets and continues to meet the requirements set by Supplier. At any time Supplier may discontinue Maintenance and Support of the Software with respect to out-of-date hardware or operating systems, or Supplier may no longer guarantee that the Software can be used undisturbed and adequately. The Supplier shall timely indicate which versions of the Software can still be maintained by the Supplier.
The Customer shall follow the Documentation supplied with the Software and any guidelines or regulations of the Supplier to the letter.

Work necessary as a result of a (digital) breach or hack by third parties, use of or a link to third-party software, improper use by Customer, insufficient security by Customer, use of an API or interface not supplied or approved by Supplier, and other causes that must remain at the expense or risk of Customer shall never be included in the agreed fee for Maintenance and Support. If Supplier performs these activities, the costs thereof shall be charged separately to Customer by Supplier at Supplier’s rates applicable at that time.

No changes shall be made to the Software or work performed by third parties without written permission from Supplier.
When reporting Defects, Customer shall use the procedure prescribed by Supplier for that purpose.
The Imperfection must be reproducible and Customer shall provide all necessary information to Supplier about the circumstances under which the Imperfection manifested itself.
Customer shall ensure that the level of knowledge of its users and system administrators regarding the Software is and remains at an adequate level.

5.3 Maintenance and Support shall in principle be performed during work hours on Business Days. The Supplier shall never be responsible for the Software being out of operation or unavailable due to regular activities within the scope of Maintenance and Support.

5.4 In exceptional situations the Supplier may also provide Maintenance and Support outside Working Hours and/or Working Days in order to safeguard the continuity of Customer’s business operations. The determination as to whether and to what extent the activities are to be performed outside Working Hours and/or Working Days shall take place in joint consultation. The related (extra) costs may be charged on the basis of subsequent calculation against the (overtime) hourly rates of Supplier applicable at the time.

5.5 Customer is obliged to follow Supplier’s policy regarding New and Improved versions. If a New Version or Improved Version imposes additional requirements on the hardware or the software environment, Customer is entitled to continue using the current version, in which case Supplier may agree with Customer that Maintenance and Support will be provided on a best-effort basis, and therefore without responsibility as to the proper functioning of the Software.

5.6 Activities connected with the installation of New or Improved versions of the Software are in principle carried out by Supplier remotely or by Customer itself on location. Activities connected with the installation of New or Improved versions of the Software that are carried out by Supplier on Customer’s premises at Customer’s request do not fall under the fee for Maintenance and Support and shall be invoiced on a subsequent basis at Supplier’s hourly rates applicable at the time.

5.7 Maintenance and Support shall not include education, training or user instructions. Supplier is prepared to provide training, but on the basis of a separate agreement and for a fee to be determined.

5.8 If the Software is extended with products or software not originating from Supplier, Supplier shall not be obliged to maintain such products or software and Supplier shall no longer be responsible for the proper functioning of the Software. At Customer’s request Supplier can, for a fee to be determined, also provide Maintenance and Support for software of a third party, but Supplier is not obliged to comply with such a request.

5.9 If there is a change in the location of the hardware or software environment with respect to the Software, Customer shall inform Supplier in a timely manner. This change needs to be formally approved by Supplier in order to achieve the agreed upon service levels. The Customer must take into account that this change may have financial consequences. If the latter is the case, Supplier shall notify Customer in writing before formally approving the change of location.

5.10 All work not covered by Maintenance and Support shall be charged on a subsequent costing basis at Supplier’s then current hourly rates.

5.11 If (an employee of) the Customer requests Support, the computer system on which the Software is installed must be in the immediate vicinity of this (employee of the) Customer and must be permanently available. In addition, the Customer must have an adequate Internet connection with the Supplier. Support can only be offered if the (employee of the) Customer provides the Supplier with the correct licence number and the correct licence name.

5.12 Supplier shall use its best efforts to remedy a Defect, to the extent reasonably possible and subject to the requirements and limitations of this Agreement.

5.13 The reported Defect shall be classified by Supplier, in consultation with Customer, in the following Classifications, which indicate the urgency of remedying a Defect and for which Supplier pursues the corresponding Response Times:

5.14 The Supplier shall make every effort to meet the Response Times and Recovery Times, but a deadline stated by the Supplier shall never be a strict deadline. Supplier is not liable for any damage resulting from Supplier’s failure to meet the specified Response Times and Recovery Times, unless the parties have agreed otherwise in writing.

6. Licenses

6.1 All IPR relating to the Software, including the rights to the software of the Software and the Documentation, are and shall remain the full property of Supplier and can never become the property of Customer or a User. The IPR on all modifications, updates or upgrades, New or Improved versions of the Software, whether resulting from requests, suggestions or ideas originating from the Customer or a user, shall also lie entirely with Supplier.

6.2 To the extent Customer acquires or may acquire IPR under this Agreement, Customer shall transfer ownership of all (future) IPR to Supplier in advance. To the extent necessary, Customer shall at Supplier’s first request cooperate fully in transferring the IPR to Supplier.

6.3 Customer obtains a non-exclusive, non-transferable right of use (license) with respect to the Software for the duration of the Agreement and for the number of users specified therein. The license will not take effect until full payment of the invoice for the license has been made.

6.4 The license granted to the Client is exclusively for internal use within the normal professional or business practice of the Client. The license is limited to the use of the Software for the purpose for which it is generally intended and for the form of use specifically described in the Agreement.

6.5 The Customer is not permitted to rent out, commercially exploit, or otherwise make the Software available to third parties, whether for a fee or not.

6.6 If and insofar as (parts of) Software are wholly or partly obtained from a third party, the license conditions of that third party will also apply to the use of the Software. Where the license conditions of the third party are stricter than the conditions in these Terms and Conditions, the license conditions of that third party will apply.

6.7 The Customer is forbidden to copy, process, compile, combine, assemble, edit, reproduce, dissect or otherwise attempt to derive the source code of the software or application. Furthermore, Customer shall not disclose or use, in altered or unaltered form, any software, applications, data or other materials whose IPR rests with Supplier outside the scope of this Agreement.

6.8 If the Agreement ends, for any reason, the license will also end immediately. Client will permanently remove the Software from its systems after termination of the Agreement and will not use it in any way.

7. Compensation and payment

7.1 Payment of the agreed fees for delivery of the Software must be made prior to delivery, unless otherwise agreed.

7.2 The Customer shall owe the Supplier an annual fee for the license and Maintenance and Support, unless otherwise agreed between the parties. The costs of a license and Maintenance and Support shall be due in advance for the coming period. Invoicing shall take place for the first time upon delivery, in proportion to the remaining calendar year. Invoicing shall subsequently take place at the beginning of each calendar year for a period of twelve (12) months.

7.3 For products or services purchased at a fixed price per user, additional users may be added at the request of Client. This will be done at the same price per user, unless otherwise agreed.

7.4 Upon or after entering into an Agreement, the Supplier is entitled, before performing or continuing to perform, to demand (additional) security from the Customer that both the payment and other obligations will be met.

7.5 Unless stated otherwise, Supplier’s prices are exclusive of VAT and in Euros. Invoices are subject to a payment term of (30) days after the invoice date.

7.6 The Customer shall not be entitled to set off Supplier’s invoices against or offset any claims against the Supplier. Exceeding the term of payment of Customer gives Supplier the right to suspend or terminate its performance.

7.7 If Customer is of the opinion that Supplier’s invoice is wholly or partially incorrect, Customer shall notify Supplier thereof within two (2) weeks of receipt of the invoice. An appeal to the partial incorrectness of the invoice by Customer does not discharge Supplier from the obligation to pay the undisputed part of the invoice.

7.8 If the term of payment is exceeded, Customer shall owe statutory interest, without any further notice of default being required. If the Customer remains in default of payment after notice of default, the Supplier is entitled, in addition to the legal interest due, to claim compensation of extrajudicial costs, the amount of which is set at a minimum of 15% of the total invoice amount.

7.9 The agreed prices and rates shall be indexed annually on 1 January by Supplier with a percentage equal to the index for business services as published by Statistics Netherlands, but at least with the percentage by which Supplier’s costs have actually increased.

8. Duration and termination of the Agreement

8.1 Unless otherwise agreed in writing, the Agreement is entered into for the duration of twelve (12) months. Thereafter, the Agreement shall be tacitly renewed each time until the end of the current calendar year and then again for one year, until the Agreement is terminated by a party with three months notice before the end of the current calendar year.

8.2 Each party shall be entitled to dissolve the Agreement without judicial intervention if the other party fails imputably in the fulfilment of obligations under the Agreement and, after having been given proper notice of default in writing, does not remedy such failure within a reasonable period. Dissolution shall not relieve Customer of any payment obligation with respect to performances already delivered by Supplier.

8.3 The parties shall be entitled to terminate the Agreement with immediate effect, without any further notice of default being required and without incurring any liability to pay damages to the other party, if that party is granted a provisional or definitive suspension of payments, if a petition for bankruptcy has been filed against that party, if any of that party’s goods or part thereof are seized or if that party’s business is liquidated or terminated.

9. Liability

9.1 Outside the guarantees explicitly provided by the Supplier regarding the operation of the Software, the Supplier is only liable for the direct damage of the Customer insofar as the damage in question was caused by intent or deliberate recklessness on the part of the Supplier’s management.

9.2 Supplier shall never be liable for any indirect damage of Customer or third parties, including in any case consequential damage, loss of profit or turnover, loss of customers or data and immaterial damage.

9.3 If Supplier is liable to Customer, the extent of liability shall be limited to the amount paid by Customer to Supplier in the 12 months preceding the event in respect of the products and services supplied by Supplier, subject to a maximum of € 10,000 per event or related series of events.

9.4 A claim for damages shall lapse by the mere lapse of twelve (12) months after the claim arose.

10. Privacy

Without prejudice to the effect of Article 11, both parties shall comply with all applicable laws and regulations pertaining to privacy and data protection, including the General Data Protection Regulation and the Telecommunications Act, when executing this Agreement.

11. Secrecy and non-solicitation
11.1 The parties shall reciprocally observe confidentiality with respect to all data of which the party concerned has become aware in a relationship governed by these terms and conditions (including the quotation and/or order confirmation with any attachments), and of which it is reasonably clear that it concerns confidential data.

11.2 During and within 12 months after the expiry of an Agreement, Customer is not permitted to enter into an employment contract with one of the Supplier’s (former) employees or to have them perform work in any other way, unless this has been permitted in writing by the Supplier. If this article is violated, Customer forfeits to Supplier an immediately payable compensation of € 25,000, without judicial intervention being required, to be increased by a penalty of € 5,000 per day that the violation continues, without prejudice to the right to claim full compensation instead.

12. Transferability

12.1 Supplier shall be entitled to assign the rights and obligations under the Agreement, in whole or in part, to a third party, without the prior consent of Customer.

12.2 Supplier is authorized to make use of the services of third parties in the performance of the Agreement, either in subcontracting or by hiring personnel. In that case Supplier shall remain fully responsible to Customer for the correct performance of the delivery of the products and services and all other obligations as laid down in the Agreement.

13. Applicable law and disputes

13.1 The court within the district where the Supplier is established has exclusive jurisdiction to hear disputes between the Supplier and the Customer, unless provisions of mandatory law dictate otherwise.

13.2 All legal relationships between Supplier and Customer to which these general terms and conditions apply shall be governed by Dutch law. Applicability of the Vienna Sales Convention is expressly excluded.