GENERAL TERMS AND CONDITIONS SOFTWARE-AS-A-SERVICE of Dentalcloud Nederland B.V. and / or affiliated companies all office in Deurne
1.1 These general terms and conditions apply to all offers, orders, agreements and obligations whereby DentalCloud Nederland B.V. and / or the affiliated companies, hereinafter referred to in singular as “the supplier”, delivers goods and / or services of any kind to the other party, hereinafter referred to as “(the) customer”.
1.2 The applicability of general terms and conditions used by the customer is explicitly rejected. Deviations from these general terms and conditions can only be agreed in writing and only apply after written confirmation by the supplier. Such a deviation applies only once or during the period as stated in the aforementioned confirmation.
OFFERS AND FORMATION OF AGREEMENTS
2.1 All offers and other expressions of the supplier are without obligation, unless the supplier explicitly indicates otherwise in writing. The supplier can always revoke its offers, unless it is explicitly stated in writing that the offer is irrevocable.
2.2 The customer guarantees the correctness and completeness of the dimensions, requirements, specifications, information and other data on which the supplier bases his offer by or on behalf of him to the supplier.
2.3 Agreements are concluded when the customer confirms the supplier’s offer in writing before it expires. An agreement is also concluded if the supplier confirms the order in writing after the customer’s request.
2.4 An agreement can also be concluded via the website of the supplier, after an order has been issued by the customer based on the invitation to place an order on the supplier’s website, and this order has been accepted by the supplier. acceptance is accessible to the customer.
2.5 The supplier is never obliged to accept an order. A single acknowledgment of receipt does not imply that the supplier accepts the order.
2.6 When entering into an agreement, the customer must include a valid email address. The customer declares that all correspondence sent to this email address is deemed to have reached the customer.
EXECUTION OF AGREEMENTS
3.1 Unless explicitly stated otherwise in writing, all obligations of the supplier ensuing from an agreement are best efforts obligations.
3.2 The supplier is entitled to engage third parties in the performance of its obligations.
3.3 The supplier is always entitled to change the equipment, software and working method it uses. The supplier is therefore never liable towards the
customer for the damage that the customer may suffer as a result of these adjustments. The supplier shall publish or otherwise notify the customer of
modifications that require customer efforts a reasonable period of time before they are carried out.
3.4 In the context of maintenance, the supplier is entitled to put its systems out of use in whole or in part for a limited period of time, without owing
any compensation or costs to the customer in this regard.
PRICE AND PAYMENT
4.1 All prices are exclusive of turnover tax (VAT) and other levies imposed by the government.
4.2 If there is a periodic payment obligation on the part of the customer, the supplier is entitled to adjust the applicable prices and rates in writing
within a period of at least three months. If the customer does not wish to agree to such an adjustment, the customer is entitled to terminate the
agreement within thirty days of the notification by the date on which the adjustment would take effect.
4.3 The parties will record in the agreement the date or dates on which the supplier charges the fee for the agreed performance to the customer. Invoices are paid by the customer according to the payment conditions stated on the invoice. In the absence of a specific arrangement, the customer will pay within fourteen days of the invoice date.
The customer is not entitled to set off or to suspend a payment.
4.4 The customer is obliged to issue an authorization for direct debit for the payments due at the supplier’s first request.
4.5 If the customer does not pay the amounts due on time, the customer owes statutory commercial interest on the outstanding amount, without any reminder or notice of default being required. If, after a reminder or notice of default, the customer continues to fail to pay the claim, the supplier can hand over the claim, in which case, in addition to the total amount owed, the customer is also obliged to reimburse all judicial and extrajudicial costs, including costs calculated by external experts in addition to the costs established in court. The extrajudicial costs owed by the customer amount to at least 10% of the outstanding invoice amount (including sales tax).
CONFIDENTIAL INFORMATION AND PRIVACY
5.1 Each party guarantees that all information received from the other party that is known or should be known to be of a confidential nature, will remain secret, unless a legal obligation requires disclosure of that information. The party that receives confidential information will only use it for the purpose for which it was provided. Information is in any case regarded as confidential if it is designated as such by one of the parties.
5.2 If this is necessary for the performance of the agreement, the customer will inform the supplier in writing at his first request about the way in which the customer will fulfill his obligations under the legislation in the field of personal data protection.
5.3 The customer indemnifies the supplier against claims from persons whose personal data have been registered or are processed in the context of a personal registration held by the customer or for which the customer is otherwise responsible under the law.
5.4 The responsibility of the data that is processed using a service of the supplier by the customer lies entirely with the customer. The customer
guarantees that the content, use and / or processing of the data is / are not unlawful and does not infringe any right of a third party. The supplier is
indemnified by the customer against any legal claim by a third party, on whatever grounds, in connection with this data or the execution of the agreement.
RETENTION OF TITLE AND RIGHTS, SPECIFICATION AND RETENTION
6.1 All goods delivered to the customer remain the property of the supplier until all amounts owed by the customer for the goods delivered or to be
delivered or work performed or to be performed under the agreement, as well as all other amounts that the customer owes failure to pay is due to the
supplier in full.
6.2 Where appropriate, rights are always granted or transferred to the customer on the condition that the customer pays the agreed fees on time and in full.
6.3 The Supplier can retain possession of the goods, products, property rights, data, documents, data files and (interim) results of the services provided by the Supplier within the framework of the agreement, despite an existing obligation to deliver them, until the customer has the supplier has paid amounts due.
7.1 The risk of loss, theft or damage to goods, products, software, data (including: usernames, codes and passwords), documents or data files that are produced, delivered or used in the context of the performance of the agreement to the customer at the time when they are placed in the actual control of the customer or an auxiliary person of the customer.
RIGHTS OF INTELLECTUAL OR INDUSTRIAL PROPERTY
8.1 All rights of intellectual and industrial property to the software, websites, data files, equipment or other materials such as analyzes, designs,
documentation, reports, quotations, as well as preparatory material thereof, developed or made available under the agreement, rest exclusively with the
supplier, its licensors or its suppliers. Customer only obtains the rights of use expressly granted by these terms and conditions and by law. Any other
or further right of the customer to reproduce software, websites, data files or other materials is excluded. A right of use accruing to the customer is
non-exclusive, non-transferable, non-pledgeable and non-sublicensable to third parties.
8.2 If, contrary to article 8.1, the supplier is willing to commit to transferring an intellectual or industrial property right, such an obligation can only be entered into explicitly in writing. If the parties explicitly agree in writing that intellectual or industrial property rights with regard to
software, websites, data files, equipment or other materials specifically developed for the customer will be transferred to the customer, then this does not affect the supplier’s authority to determine the to apply and exploit the underlying components, general principles, ideas, designs, documentation, works, programming languages and the like, without limitation, for other purposes, whether for oneself or for third parties. Nor does a transfer of intellectual or industrial property rights affect the right of the supplier to undertake developments for itself or for third parties that are similar to those that have been or will be made for the benefit of the customer.
8.3 The customer is not permitted to remove or change any designation concerning the confidential nature or concerning copyrights, brands, trade names or other rights of intellectual or industrial property from the software, websites, data files, equipment or materials.
8.4 The supplier is permitted to take technical measures to protect the software, data files, websites and equipment or with a view to agreed limitations in the duration of the right to use the software. The customer is not permitted to remove or avoid such a technical measure. If security measures result in the customer not being able to make a backup copy of software, the supplier will, on request (for a fee), give the customer access to view data.
8.5 Unless the supplier makes a backup copy of the software available to the customer, the customer may make one backup copy of the software, which may only be used to protect against involuntary loss of possession or damage. Installation of the backup occurs only after involuntary loss of possession or damage. A backup copy must bear the same labels and copyright notices as present on the original copy (see Article 8.3).
8.6 With due observance of the other provisions of these general terms and conditions, the customer is entitled to correct errors in software made available to it if this is necessary for the intended use with the software. Where these general terms and conditions refer to “errors”, this is understood to mean the substantial non-compliance with the functional or technical specifications made known by the supplier in writing and, in the case of custom software and websites, the functional or technical specifications expressly agreed in writing between the parties. There is only an error if the customer can demonstrate this and if it is reproducible. The customer is obliged to immediately report errors to the supplier.
8.7 The supplier indemnifies the customer against any legal claim from a third party based on the allegation that software developed by the supplier itself, websites, data files, equipment or other materials violate an intellectual or industrial property right of that third party valid in the Netherlands, on the condition that the customer immediately informs the supplier in writing about the existence and content of the legal claim and the settlement of the case, including making any arrangements, which is entirely left to the supplier. To this end, the customer will provide the necessary powers of attorney, information and cooperation to the supplier to defend itself against these claims. This indemnification obligation lapses if the alleged infringement is related (i) to materials made available to the supplier by the customer for use, processing, processing, maintenance or incorporation, or (ii) to changes made by the customer to the software, website, has applied data files, equipment or other materials or has them installed by third parties. Any other or further liability or indemnification obligation of the supplier due to violation of intellectual or industrial property rights of a third party is completely excluded, including liability and indemnification obligations of the supplier for infringements caused by the use of the delivered software, websites, data files, equipment. and / or materials (i) in a form not modified by the supplier, (ii) in connection with goods or software not delivered or provided by the supplier or (iii) in a manner other than for which the equipment, software, websites, data files and / or other materials have been developed or intended.
8.8 The Customer guarantees that no rights of third parties oppose the provision to the supplier of equipment, software, material intended for websites (image material, text, music, domain names, logos, etc.), data files, or other materials, including design material, for the purpose of use, editing, installation or incorporation (e.g. in a website). The customer will indemnify the supplier against any action based on the allegation that making such available, use, editing, installation or incorporation infringes any right of third parties.
8.9 The supplier is never obliged to perform data conversion, unless this has been expressly agreed in writing with the customer.
COOPERATION BY THE CUSTOMER
9.1 The customer will always provide the supplier with all data or information that is useful and necessary for the proper execution of the agreement and provide full cooperation, including providing access to its buildings.
9.2 The customer bears the risk of the selection, use and application in his organization of the equipment, software, websites, data files and other products and materials.
9.3 If the customer does not make the data, equipment, software necessary for the execution of the agreement available to the supplier, or does not timely or not in accordance with the agreements, or if the customer does not fulfill his obligations in some other way, the supplier has the right to make full or partial suspension of the performance of the agreement and he has the right to charge the resulting costs in accordance with his usual rates, all this without prejudice to the right of the supplier to exercise any other legal right.
9.4 In the event that employees of the supplier perform work at the location of the customer, the customer shall provide the facilities reasonably desired by those employees free of charge, such as a workspace with computer and telecommunication facilities. Supplier is not liable for damage or costs due to transmission errors, malfunctions or unavailability of these facilities, unless the customer proves that these damage or costs are the result of intent or deliberate recklessness on the part of the management of the supplier. The workspace and facilities will comply with all applicable (legal)
requirements and regulations regarding working conditions. The customer indemnifies the supplier against claims from third parties, including employees of the supplier, who suffer damage in connection with the execution of the agreement which is the result of acts or omissions of the customer or unsafe situations in its organization. The customer will inform the supplier’s employees to be deployed in good time of the house and security rules applicable within its organization.
9.5 If in the execution of the when telecommunications facilities are used, including the internet, the customer is responsible for the correct choice and the timely and adequate availability thereof, except for those facilities that are under the direct use and management of the supplier. The supplier is never liable for damage or costs due to transmission errors, malfunctions or unavailability of these facilities, unless the customer proves that these
damage or costs are the result of intent or gross negligence on the part of the supplier or its supervisors. If telecommunication facilities are used in
the performance of the agreement, the supplier is entitled to assign access or identification codes to the customer. Supplier can change assigned access
or identification codes. The Client treats the access codes confidentially and with care and only makes them known to authorized staff members. The
supplier is never liable for damage or costs that are the result of misuse of access or identification codes. 9.6 The customer will act and behave in
accordance with what may be expected of a responsible and careful internet user. The customer is not permitted to use the systems of the supplier for actions that violate the then applicable laws and regulations, the generally accepted rules of conduct on the internet, the agreement and these conditions.
9.7 The customer indemnifies the supplier against all claims from third parties with regard to damage caused by the use of the services offered by the supplier to the other party, or by the customer otherwise not complying with his obligations under the agreement or these conditions.
9.8 The customer must observe confidentiality with regard to access codes and order codes sent to him and must protect them effectively. If the customer no longer owns these codes or if third parties also own them, he must immediately report this to the supplier.
10.1 All (delivery) periods stated or agreed by the supplier have been determined to the best of its knowledge on the basis of the information known to the supplier when the agreement was concluded. The Supplier makes every effort to observe agreed (delivery) periods as much as possible. Interim (delivery) dates stated by the supplier or agreed between the parties are always target dates, are not binding for the supplier and are always indicative in nature. The mere fact that a stated or agreed (delivery) term is exceeded does not place the supplier in default. In all cases, therefore also if the parties have explicitly agreed a deadline in writing, the supplier will only be in default due to exceeding of time after the customer has given him written notice of default, whereby the customer sets the supplier a reasonable term to remedy the shortcoming and this reasonable term is expired. The notice of default must contain a description of the shortcoming that is as complete and detailed as possible, so that the supplier is given the opportunity to respond adequately.
10.2 If the parties have agreed that fulfillment will take place in phases, the supplier is entitled to postpone the commencement of the activities belonging to a phase until the results of the preceding phase have been approved by the customer.
10.3 The Supplier is not bound by final or non-final delivery or other terms that can no longer be met due to circumstances beyond its control that have
arisen after entering into the agreement. Neither is the supplier bound by a delivery term, whether or not final, if the parties have agreed on a change
in the content or scope of the agreement (additional work, change of specifications, etc.). If during the execution of the agreement (the demand for) additional work arises, this will never be a ground for the customer to suspend, terminate or dissolve the agreement. If any term is likely to be
exceeded, the supplier and the customer will enter into consultation as soon as possible.
TERMINATION OF THE AGREEMENT
11.1 Each party has the power to dissolve the agreement only if the other party is attributable, always in all cases after a proper and as detailed as possible notice of default, setting a reasonable period for remedying the shortcoming. fails to fulfill essential obligations under the agreement. Payment obligations of the customer and all obligations to cooperate and / or provide information by the customer or a third party to be engaged by the customer apply in all cases as essential obligations under the agreement.
11.2 Unless otherwise agreed in writing, an agreement for certain services is entered into for a fixed period of 12 months and, subject to cancellation, is each time extended by operation of law for the period for which it was initially entered into. A fixed-term agreement, whether or not extended, can only be terminated in writing by the customer and by the supplier at the end of the extended or otherwise term, subject to a notice period of 3 months.
11.3 Contrary to what the law has determined in this respect by means of regulatory law, the customer can only cancel a service agreement in the cases regulated in these conditions. The customer is not entitled to cancel a contract for services entered into by the parties for a definite period.
11.4 Either party may terminate the agreement in writing, in whole or in part, with immediate effect, without notice of default, if the other party is granted a suspension of payments, whether or not provisionally, if bankruptcy is filed with regard to the other party or if the other party’s company is liquidated or terminated other than for the purpose of reconstruction or merger of companies. The Supplier is never obliged to refund any money already received or to pay compensation on account of this termination. In the event of bankruptcy of the customer, the right to use software, websites, rights and the like made available to the customer, as well as the right of the customer to access and / or use the services of the supplier, will lapse by operation of law.
11.5 The supplier is entitled, in the event of repeated non-compliance with the customer’s payment obligation, to suspend its services.
11.6 If at the time of dissolution as referred to in Article 11.1 the customer has already received performances for the implementation of the agreement, these performances and the related payment obligation will not be subject to reversal, unless the customer proves that the supplier is in default with regard to those performances. is. Amounts that the supplier has invoiced before the dissolution in connection with what it has already properly performed or delivered in the performance of the agreement, will remain payable in full with due observance of the previous sentence and become immediately due and payable at the time of the dissolution.
ATTACHABLE DEFICIENCY, LIABILITY AND INDEMNITY
12.1. In the event of attributable shortcomings on the part of the supplier in the fulfillment of the agreement, the client will give the supplier the
opportunity to still perform the agreed performance within a reasonable period of at least 1 month. If the supplier still performs the agreed
performance, the supplier is never obliged to pay compensation of any kind.
12.2. Any liability of the supplier, for whatever reason, is limited to the amount paid out in the relevant case by the supplier’s liability insurance. If the insurer does not pay out, the damage is not covered by the insurance or the supplier is not insured, the liability of the supplier is limited to a
maximum of 50% of the amount invoiced by the supplier to the client and paid by the client to the supplier. amount exclusive of turnover tax for the
goods delivered or the service provided to which the event causing the damage is directly related and, in the absence of such a link, up to a maximum of € 5,000.00. 12.3. Liability of the supplier for indirect or consequential loss, including loss of business or loss due to loss of turnover, loss of profit, lost savings, business interruption, loss as a result of claims by customers or patients of the client, delay loss and the like, is completely excluded at all times.
12.4. The client only bears the risk of the selection, compatibility, use and whether or not combined application in his company of equipment, software, websites, data files and all related products and materials. 12.5. When delivering a digital system, the supplier is never responsible or liable for the transfer of data to the system supplied by the supplier, nor for
any communication between that system and systems already present or to be purchased. Also fully excluded is the liability of the supplier for damage
caused by the loss, destruction or corruption of digitally stored data and by or in connection with imperfections in or with the network, the data system, the data storage, the backup, the data capacity, delays in the client’s network, inadequate system management, etc.
12.6. A condition for the creation of any right by virtue of the provisions of this article is always that the client has immediately reported in writing to
the supplier any shortcoming attributable to the supplier as well as the resulting damage.
12.7. Without prejudice to the provisions of Article 6:89 of the Dutch Civil Code, any claim to compensation against the supplier lapses in any case one year after the day on which the event causing the damage first occurred.
12.8. The client indemnifies the supplier against all claims from third parties related to the agreement and its implementation by or on behalf of the client.
12.9. All limitations and exclusions of liability included in these terms and conditions also apply to the benefit of all (legal) persons used by the supplier in the performance of the agreement.
12.10.The limitations of the supplier’s liability included in these terms and conditions do not apply if and insofar as the damage is the direct result of
intent or willful recklessness on the part of the supplier or its managerial subordinates.
13.1 If the supplier, at the request or with the prior consent of the customer, performs work or other performances that fall outside the content or scope of the agreed work and / or performances, these activities or performances will be reimbursed by the customer in accordance with the agreed or – in the absence thereof. – the usual rates of the supplier. The supplier is not obliged to comply with a request for additional work. The Supplier may require that a separate written agreement be concluded for this.
FORCE OF THE MAJORITY
14.1 Neither party is obliged to fulfill any obligation if prevented from doing so as a result of force majeure. Force majeure on the part of the supplier
also includes force majeure on the part of suppliers of the supplier, the failure to properly fulfill obligations of suppliers prescribed by the customer to the supplier, as well as inadequacy of goods, materials, equipment, software of third parties, the use of which is made by the customer to the supplier. is prescribed, illness and / or absence of crucial employees, defects in or failure of equipment or facilities including telecommunication facilities, data network and energy supplies, disruptions to the internet, strikes, riots, government measures, fire, natural disasters, floods and war damage.
14.2 If a force majeure situation has lasted longer than ninety days, the parties have the right to terminate the agreement by written dissolution. That which has already been performed under the agreement will in that case be settled proportionately, without the parties owing each other anything else.
CHANGES, NON-BINDINGNESS AND CONTRADICTION
15.1 The supplier is authorized to make changes to these general terms and conditions. These changes take effect at the time announced by the supplier. The supplier will send the amended conditions to the customer as soon as possible.
15.2 If any clause in these general terms and conditions is null and void or is nullified or made inoperative, the parties undertake to further consult and negotiate with regard to the content of the clause in question, whereby the purpose and scope of the inoperative clause may be observed. The other
provisions remain fully applicable.
15.3 In the event of a conflict between the provisions in the General Provisions and in the various special provisions included below, the provisions in the special provisions prevail.
GOVERNING LAW AND DISPUTES
16.1 The agreements between supplier and customer are governed by Dutch law. Applicability of the Vienna Sales Convention 1980 is excluded.
16.2 Any disputes between the supplier and the customer can only be submitted to the competent court in the district of Limburg, unless the supplier chooses to submit the dispute to another competent court.
TRANSFER OF RIGHTS AND OBLIGATIONS
17.1 The rights and obligations that the customer has under the agreement, he can never sell, transfer or pledge to a third party with the express written consent of the supplier.
17.2 The supplier is entitled to sell, transfer or pledge its claims for payment of fees to a third party.
18.1 Products ordered and delivered with the aid of the SaaS service at third parties are under subject of terms applied by the third parties where customer ordered. No responsibility is taken by the supplier.
The provisions stated in this section “Software as a Service”, to be further referred to as SaaS, apply, in addition to the General Provisions of these general terms and conditions, if the supplier provides services under the name or in the area of SaaS. For the application of these general terms and conditions, SaaS means: The remote provision and keeping available of software by the supplier to the customer via the internet or another data network, without the customer being provided with a physical carrier with the relevant software.
1.1 The SaaS service is only provided by the supplier on behalf of the customer. The customer is not free to allow third parties to use the SaaS service provided by the supplier.
1.2 In the event that a request or an authorized order from a government body is given to the supplier, or in connection with a legal obligation, activities are performed with regard to data of the customer, its employees or users, all associated costs will be charged to the customer. brought.
1.3 The implementation of the SaaS service can be continued by the supplier using a new or modified version of the software. The supplier is not obliged to maintain, change or add specific functionalities of the service or software specifically for the customer.
1.4 The Supplier can make changes to the content or scope of the SaaS service. If the changes result in a change in the procedures applicable at the customer, the customer will be informed by the supplier as soon as possible. The costs of the change will be borne by the customer.
1.5 The supplier is under no circumstances obliged to provide the customer with a physical carrier containing the software made available in the context of the SaaS service.
2.1 The supplier shall make every effort to detect errors in the software (being the substantial non-compliance of the software with the functional or technical specifications of the software expressly made known by the supplier in writing, and, if the software concerns wholly or partly customized software, the written expressly agreed upon functional or technical specifications, where there is only a question of an error if it is reproducible) to be repaired within a reasonable period of time if and insofar as it concerns software developed by the supplier itself and the relevant defects described in detail by the customer in writing without delay. supplier. The repair of defects can be postponed by the supplier until a new version of the software is taken into use. In the event of defects in software occur that has not been developed by the supplier itself, the supplier does not guarantee that these defects will be remedied. Temporary solutions, program bypasses or problem-avoiding limitations may be introduced by the supplier in the software. The supplier can charge the costs of repair to the customer in accordance with its usual rates, if the software has been developed on behalf of the customer.
2.2 Based on the information provided by the supplier about measures to prevent and limit the consequences of malfunctions, defects in the SaaS services, mutilation or loss of data or other incidents, the customer will inventory the risks for his organization and, if necessary, take additional measures. At the request of the customer, the supplier is willing to reasonably cooperate with further measures to be taken by the customer, under conditions to be set by the supplier. The supplier is under no circumstances obliged to repair mutilated or lost data.
2.3 The Supplier does not guarantee that the software to be made available within the framework of the SaaS service will be adapted in a timely manner to changes in relevant laws and regulations.
PRIVACY AND RETENTION PERIODS
3.1 The Client guarantees that all statutory regulations regarding the processing of personal data, including the regulations provided by or pursuant to the Personal Data Protection Act, are strictly observed and that all prescribed notifications have been made and all required permissions to process personal data. are obtained. The customer will immediately provide the supplier with all requested information in writing.
3.2 The customer indemnifies the supplier against all claims from third parties, including government institutions, that may be instituted against the supplier due to a violation of the Personal Data Protection Act and / or other legislation regarding the processing of personal data that cannot be attributed to the supplier.
3.3 The customer indemnifies the supplier against all claims from third parties, including government institutions, that may be instituted against the supplier due to a violation of legislation regarding the legal retention periods.
COMMENCEMENT OF THE PROVISION OF SERVICES
4.1 Implementation of the SaaS service starts within a reasonable term after entering into the agreement. Immediately after entering into the agreement, the customer will ensure that he has the facilities required for the use of the SaaS service.
4.2 The customer owes the fee for the SaaS service that is included in the agreement. In the absence of an agreed payment schedule, all amounts relating to the SaaS service provided by the supplier are payable in advance per calendar month.
The provisions stated in this section “Services” apply, in addition to the General Provisions of these general terms and conditions, if the supplier provides services, such as advice, consultancy, education, courses, training, support, hosting, design, development, implementation or management. of software, websites or information systems and services relating to networks. These provisions do not affect the provisions contained in these general terms and conditions regarding specific services, such as computer services, the development of software and maintenance.
5.1 The Supplier will make every effort to provide the services with due care, where appropriate in accordance with the agreements and procedures laid down in writing with the customer. All services of the supplier are performed on the basis of a best efforts obligation, unless and insofar as the supplier has explicitly promised a result in the written agreement and the result concerned has also been described with sufficient certainty. Any agreements regarding a service level are always expressly agreed in writing only. In the event that agreements have been made about a service level, the availability of software, systems and related services is always measured in such a way that the shutdown due to preventive, corrective or adaptive maintenance or other forms of service, as announced by the supplier in advance, as well as circumstances beyond its control. are located from the supplier, be disregarded. Unless proof to the contrary to be provided by the customer, the availability measured by the supplier will be considered complete proof.
5.2 If it has been agreed that the services will be provided in phases, the supplier is entitled to postpone the start of the services that belong to a phase until the customer has approved the results of the preceding phase in writing.
5.3 In the absence of an expressly agreed invoicing schedule, all amounts pertaining to services provided by the supplier are due once per calendar month in arrears.
6.1 In the event that the service to the customer on the basis of the agreement also involves the making of backups of the customer’s data, the supplier will make a full backup of the customer’s data, subject to the periods agreed in writing, and failing that, once a week the customer’s data in his possession. The back-up will be kept by the supplier for the agreed term. The backup will be carefully stored by the supplier with due diligence.
6.2 The customer remains responsible for compliance with all legal administration and retention obligations applicable to him.
USE OF PROGRAMS
The provisions stated in this section “Use and maintenance of software” apply, in addition to the General Provisions of these general terms and conditions, to all software made available by the supplier. The rights and obligations referred to in this chapter only relate to computer software in a form that is readable for a data processing machine and recorded on material that can be read by such a machine, as well as to the accompanying documentation, all including any new versions to be provided by the supplier. Where software is referred to in this chapter, this also includes websites
RIGHT OF USE
7.1 Without prejudice to the provisions of Article 8, the supplier grants the customer the non-exclusive right to use the software. The customer will always strictly comply with the restrictions on use agreed between the parties. Without prejudice to the other provisions of these general terms and conditions, the customer’s right of use only includes the right to load and run the software.
7.2 The software may only be used by the customer in his own company or organization on the one processing unit and for a specific number or type of users or connections for which the right of use has been granted. Unless otherwise agreed in this respect, the processing unit of the customer on which the software was used for the first time and the number of connections that were connected to that processing unit at the time of first use, apply as processing unit and number of connections for which the right of use has been granted. In the event of a malfunction of the said processing unit, the software can be used on another processing unit for the duration of the malfunction. The right of use can relate to several processing units insofar as this is explicitly clear from the agreement.
7.3 The right of use is not transferable. The customer is not permitted to sell, rent, sublicense, dispose of or grant limited rights to the software and carriers on which it is recorded or to make it available to a third party in any way or for any purpose whatsoever, a third party. to grant access to the software, whether or not remotely, or to place the software with a third party for hosting, even if the third party concerned uses the software exclusively for the benefit of the customer. The customer will not change the software other than in the context of correcting errors. Customer will pay the not use software in the context of the processing of data for third parties (“time-sharing”), or in the context of SaaS or outsourcing. The source code of the software and the technical documentation produced during the development of the software will not be made available to the customer, not even if the customer is prepared to pay a financial compensation for this availability. The customer acknowledges that the source code is confidential in nature and that it contains trade secrets of the supplier.
7.4 Immediately after the end of the right to use the software, the customer will return all copies of the software in its possession to the supplier. If the parties have agreed that the customer will destroy the relevant copies at the end of the right of use, the customer will immediately notify the supplier in writing of such destruction. At or after the end of the agreement, the supplier is not obliged to provide assistance with a view to a data conversion desired by the customer.
7.5 The supplier is always entitled to take technical measures to protect the software against unlawful use and / or against use in a manner or for other purposes than agreed between the parties. Under no circumstances will the customer remove or circumvent technical provisions that have been made to protect the software. The customer will immediately cooperate with any investigation to be carried out by the supplier regarding compliance with the restrictions on use. The customer will grant access to its buildings and systems at the supplier’s first request.
DELIVERY, INSTALLATION AND ACCEPTANCE
8.1 The supplier shall deliver the software to the customer on the agreed type and format of information carriers and / or make it available and, if an installation to be carried out by the supplier has been agreed in writing, install the software at the customer. In the absence of explicit agreements in this regard, the customer will install, organize, parameterize and tune the software himself and, if necessary, adjust the equipment and operating environment used for this. Unless explicitly agreed otherwise, the supplier is not obliged to perform data conversion.
8.2 If the parties have not agreed an acceptance test, the customer accepts the software in the state in which it is at the time of delivery and / or made available, therefore with all visible and invisible errors and other defects, “as is, where is”, without prejudice to the obligations of the supplier under the guarantee in article 3.
8.3 In the absence of an expressly agreed invoicing schedule, all amounts pertaining to the provision of software and the right to use the software are due upon delivery of the software or, if appropriate, an installation to be carried out by the supplier in writing. agreed upon completion of the installation.
9.1 Supplier will make every effort to ensure errors in the to repair software within the meaning of Article 8.6 within a reasonable period of time if it is described in detail in writing to the supplier within a period of three months after delivery and / or making it available, or, if an acceptance test has been agreed between the parties, within three months after acceptance. have been reported. The supplier does not guarantee that the software will operate without interruption, errors or other defects or that all errors and other defects will be corrected or that the software is suitable for the actual and / or intended use. The repair will be carried out free of charge, unless the software has been developed on behalf of the customer other than for a fixed price, in which case the supplier will charge the costs of repair according to its usual rates. The supplier may charge the costs of repair in accordance with its usual rates in the event of user errors or improper use by the customer or of other causes that cannot be attributed to the supplier, or if the errors could have been established during the performance of the agreed acceptance test. Recovery of corrupted or lost data is not covered by the warranty. The warranty obligation lapses if the customer makes changes to the software or has it made without written permission from the supplier, which permission will not be withheld on unreasonable grounds.
9.2 Errors will be corrected in a location and manner to be determined by the supplier. Supplier is entitled to install temporary solutions, program detours or problem-avoiding restrictions in the software.
9.3 The Supplier has no obligation to rectify errors that occur after the end of the Article 3.1 the guarantee period referred to are reported, unless a maintenance agreement has been concluded between the parties which includes such a duty to repair. 3.4 The supplier is never obliged to repair mutilated or lost data.