Terms and Conditions
These are the Terms and Conditions of Bexter B.V.
CHAPTER I: LICENSE TERMS
Article 1 – DEFINITIONS
Capitalized terms in these License Terms shall have the meanings ascribed to them in Article 1 of the General Terms & Conditions (chapter IV).
Article 2 – LICENSE AGREEMENT, START, TERM AND TERMINATION
2.1 BEXTER and Licensee enter into a License Agreement with regard to the Software by written or electronic acceptance by Licensee of the proposal thereto from BEXTER. These License Terms and the General Terms & Conditions (chapter IV) form an integral part of the License Agreement. Other terms and conditions may apply to customized software. If applicable, BEXTER will inform Licensee about such other terms and conditions.
2.2 The License Agreement is entered into for an indefinite period of time. Termination is possible as described in article 11 of the General Terms & Conditions (chapter IV). Upon expiry of the License Agreement Licensee will immediately cease using the Software and will refrain from using it again. The provisions of article 6.1 of the General Terms & Conditions apply.
Article 3 – LICENSE FEE
Licensee will pay BEXTER a license fee for the use of the Software from the date of delivery of the Software as defined in the License Agreement, unless the parties have made different agreements in writing about the start date of payment. The license fee is payable even if, for any reason, Licensee does not use the Software (any more).
Article 4 – Right of Use
4.1 At the conclusion of the License Agreement the non-exclusive right arises for Licensee to use the Software and the accompanying user documentation in accordance with the provisions in the License Agreement and in these License Terms.
4.2 The right of use entails the right for Licensee to install the Software or have it installed on a server, once in a live environment and once in a OTAP environment, to create the maximum number of users and administrations defined in the License Agreement and to use the Software for this number of users and administrations in accordance with these License Terms.
The right to use also includes any additional orders to the Software (additional users and/or administrations) Software ordered by Licensee under the same License Agreement.
Licensee may only use the Software within its own organization. The Software may not be used for the execution of assignments from third parties, unless the parties have made different agreements in writing.
4.3 Licensee will take care of the installation and implementation of the Software, unless BEXTER and Licensee agree in writing that BEXTER will take of this, against payment.
4.4 When installing and using the Software, Licensee will observe the System Requirements set by BEXTER.
4.5 Licensee may not copy, reproduce, translate, adjust, decompile, imitate, change, reconstruct or otherwise duplicate and/or adapt the Software in any other manner, wholly or in part except to the extent allowed under mandatory legislation.
4.6 Licensee is entitled to make copies of the Software as backup and for recovery purposes and install such copy on a separate server.
4.7 Licensee is responsible for making regular backups of all data files that are used, registered, generated and or applied with the Software.
Article 5 – TRANSFERABILITY AND HOSTING
5.1 Licensee may not transfer the Software, the right of use on the Software and/or the License Agreement to third parties irrespective of the nature of the action, unless BEXTER and Licensee explicitly make different agreements in writing. It is not important whether a fee is asked for and/or paid. Transfer includes but is not limited to hiring out, selling, disposing of, pledging and sub-licensing.
5.2 Licensee shall, when requested, cooperate in full with a research to be conducted by or on behalf BEXTER, with the goal to determine whether Licensee complies with the agreed rights and restrictions regarding the use of the Software. BEXTER will treat (and is responsible that any third party used by BEXTER to conduct research shall teat) all confidential business information of Licensee obtained from or with Licensee during the investigation, confidentially. BEXTER shall, where possible, give Licensee notice before conducting a research in accordance with this article 5.2 and such notice shall be at least 1 (one) week.
5.3 If Licensee grants a third party the right of use without the explicit written consent of BEXTER, Licensee will be liable for the payment of the license fees for the unauthorized use by that third party, in addition to the license fees for its own use. Furthermore BEXTER has the right to recover such fees as well as other damages directly from the third party.
5.4 Licensee is authorized to host the Software with a third party. Licensee is responsible that such third party complies with these License Terms as well as – when applicable – the Maintenance Terms. BEXTER is not responsible or liable for any non-compliance with the License and Maintenance terms by the third (hosting)party engaged by Licensee. Licensee shall hold BEXTER harmless against any claims from the third (hosting)party.
Article 6 – WARRANTY
6.1 BEXTER guarantees that the Software is functioning substantially in accordance with the functional and technical specifications, announced by BEXTER in writing. BEXTER does not guarantee that the Software provided to Licensee is suitable for the actual and/or intended use by Licensee. BEXTER also does not guarantee that the Software will at all time work without Error, interruption or defect, or that all Errors and defects will always be resolved.
6.2 BEXTER will use commercially reasonably efforts to repair Errors in the Software within a reasonable period of time when these Errors are reported to BEXTER within a period of 3 (three) months from installation of the Software in writing and in sufficient detail. Corrected and new versions of the Software that are provided to Licensee after the aforementioned period of 3 (three) months, are not covered by the warranty.
6.3 The repair as described in article 6.2 will be performed by BEXTER for free, except in the case of operation errors, improper use by Licensee, adjustments to the Software not performed by or on behalf of BEXTER, errors or latencies (such as viruses, Trojan horses, etc.) in software, hardware or peripherals not derived from BEXTER or other causes not attributable to BEXTER.
6.4 BEXTER is not obliged to restore corrupted or lost data or to provide maintenance services in respect of Errors or defects that are not attributable to BEXTER.
If BEXTER nevertheless provides such services, it is entitled to charge the costs of those services to Licensee.
Article 7 – Acceptance
7.1 If an acceptance test has been agreed between BEXTER and Licensee, the test period shall, unless BEXTER and Licensee agree otherwise in writing, be 14 (fourteen) days after delivery of the Software or, if the parties agreed that BEXTER installs and implements the Software, 14 (fourteen) days after the implementation is completed. Licensee shall not use the Software during the test period for productive or operational purposes. The acceptance test will be performed by Licensee who will engage suitably qualified people. The test results will be provided to BEXTER in writing. Upon Licensee’s request, BEXTER will assistance Licensee during the acceptance test. Such assistance is subject to payment of a consultancy fee.
7.2 Through the acceptance test Licensee assesses if the Software supplied meets the functional and technical specifications stated by BEXTER in writing.
7.3 The Software will be accepted by Licensee:
a. if no acceptance test has been agreed between the parties: at the time of delivery of the Software. Licensee accepts the Software ‘as is’, notwithstanding the obligations BEXTER has under the warranty clause (article 6).
b. if an acceptance test has been agreed between the parties: on the first day after the test period if Licensee has not by then reported any Errors in the Software, or
c. if BEXTER receives a test report which includes information about Errors as referred to in article 7.4 before the end of the test period: at the time that the Errors mentioned in test report have been fixed, notwithstanding the existence of imperfections which do not preclude acceptance under article 7.5;
d. at the time Licensee starts making any use of the Software for productive or operational purposes before acceptance, without explicit approval of BEXTER.
7.4 If it turns out during the agreed acceptance test that the Software contains Errors, Licensee will inform BEXTER about this in a written and detailed report, no later than on the last day of the test period. BEXTER will try to resolve the Errors with commercial reasonably efforts within a reasonable time. BEXTER is entitled to provide temporary solutions or work-arounds.
7.5 Acceptance of the Software may not be withheld:
a. on other grounds besides those relating to the explicitly agreed specifications between the parties;
b. because of the existence of errors which do not reasonably preclude the operational or productive use of the Software;
c. with regard to aspects of the Software which can only be evaluated subjectively, such as esthetical aspects and the design of user interfaces.
7.6 If the Software is delivered and tested in parts and/or stages, the non-acceptance of a particular part and/or stage shall not affect any acceptance of another part and/or an earlier stage.
7.7 Acceptance of the Software shall have the effect that BEXTER is fully discharged for performing its obligations concerning providing and delivering of the Software. Acceptance of the Software shall not in any way impair Licensee’s rights under article 6 (warranty).
CHAPTER II: MAINTENANCE TERMS
Article - DEFINITIONS
Capitalized terms in these Maintenance Terms shall have the meanings ascribed to them in Article 1 of the General Terms & Conditions (chapter IV).
Article 2 – MAINTENANCE AGREEMENT
2.1 BEXTER and Licensee enter into a Maintenance Agreement with regard to the Software by written or electronic acceptance by Licensee of the proposal thereto from BEXTER.
These Maintenance Terms and the General Terms & Conditions (chapter IV) form an integral part of the Maintenance Agreement.
2.2 The Maintenance Agreement covers all Software for which BEXTER and Licensee entered into a License Agreement, unless the parties have made different agreements in writing. Other terms and conditions may apply to customized software. If applicable, BEXTER will inform Licensee about such other terms and conditions.
2.3 Licensee is only entitled to Maintenance Services in respect to the Software when he has concluded both a License and Maintenance Agreement with BEXTER in respect to the Software.
Article 3 - START, TERM AND TERMINATION
3.1 The Maintenance Agreement is deemed to take effect on the date and for the term agreed upon in the Maintenance Agreement. If no start date is agreed upon, the Maintenance Agreements takes effect on the date the License Agreement with respect to the Software takes effect. If no term is agreed upon, the duration will be 1 (one) year. After expiry of the initial term, the Maintenance Agreement will be tacitly renewed for subsequent periods of 1 (one) year each, unless either BEXTER and/or Licensee terminates the agreement in writing no later than 3 (three) months prior to the end of the then current term. Early termination is possible as defined in article 11 of the General Terms & Conditions.
3.2 The term of the Maintenance Agreement will not change as a result of Licensee adding additional orders to the Software under the same License Agreement. The maintenance fee for additional orders will be invoiced pro rata per the delivery date until the end date of the then current maintenance term and thereafter invoiced on a yearly basis with the Software.
3.3 The Maintenance Agreement ceases automatically when the License Agreement in respect to the Software is terminated. When the Maintenance Agreement ceases before the end of the then current term, BEXTER will not reimburse any maintenance fees.
3.4 Termination of a part of the Maintenance Agreement is possible with regard to one or more users and/or administrations and Licensee clearly states in writing which users and/or administrations it regards. The notice period defined in article 3.1 applies.
Article 4 – MAINTENANCE FEE
4.1 Licensee will pay a yearly maintenance fee to BEXTER for the Maintenance Services described in article 5. The amount of the maintenance fees is agreed upon in the Maintenance Agreement. The Maintenance Fee is payable even if, for any reason, Licensee does not use the Maintenance Services (any more).
4.2 BEXTER is entitled to adjust the maintenance fee on an annual basis based on the CBS (Dutch Central Statistics Bureau) Consumer Price Index figure (series: all households 2015=100). Licensee explicitly agrees to such price increase. Any price increases that exceed the aforementioned indexation must be mutually agreed upon in writing between BEXTER and Licensee in order to apply.
Article 5 - MAINTENANCE AND SUPPORT SERVICES
5.1 Maintenance Services contain Support as described in article 5.2 and Maintenance as described in article 5.3.
All Maintenance Services are carried out to the best of its ability without a result being guaranteed.
5.2 Support means the provision of telephonic, written and/or electronic helpdesk support relating to the use and functioning of the Software.
5.3 Maintenance includes:
a. corrective maintenance: the tracing and repairing, with commercially reasonably efforts, of all Errors in the Software reported by Licensee to BEXTER (article 5.10 applies);
b. preventive maintenance: on its own initiative, with commercially reasonably efforts, BEXTER takes appropriate measures (both preventive and corrective) to ensure that the Software will operate during the term of the Maintenance Agreement;
c. innovative maintenance: the provision of new versions of the Software, at the discretion of BEXTER.
5.4 It may be required for new versions that Licensee adjusts its computer system to new System Requirements. If Licensee installs a new version of the Software without complying with new System Requirements, BEXTER is not obliged to perform Maintenance Services. Any repairs needed and performed by BEXTER will be charged to Licensee.
BEXTER is not liable for any damages caused as a result of the use of incorrect or outdated System Requirements.
5.5 BEXTER will maintain a version of the Software for the period of 1 (one) year after the release of a new version.
5.6 Maintenance Services will as much as possible, be performed online. Licensee will realize a data connection with BEXTER in its computer system.
5.7 BEXTER is not obliged to provide Maintenance Services if these are necessary because of:
a. modification to the Software that is not made by or on behalf of BEXTER;
b. use of the Software by or on behalf of Licensee in a manner or in combination with other software or hardware in contradiction with the Software documentation or BEXTER’s written instruction or otherwise in a way that is not permitted pursuant to these Maintenance Terms and/or the License Terms;
c. use of an old version of the Software 1 (one) year after BEXTER has released a new version of the Software;
d. intentional incorrect use of the Software by or on behalf of Licensee;
e. viruses, worms, Trojan horses, logic bombs etc. in software not provided by BEXTER or in hardware or peripherals not derived from BEXTER;
f. errors in software, hardware or other equipment of Licensee or third parties not derived from BEXTER.
5.8 If BEXTER upon Licensee’s request, nevertheless performs Maintenance Services for the reasons set out in article 5.7, BEXTER will charge these services to Licensee.
5.9 Maintenance Services will be performed on Work Days between 09.00 a.m. and 05.00 p.m. BEXTER is entitled to charge Licensee for any Maintenance Services provided per the request of Licensee outside these hours based on its usual rates including its usual increases for evenings, Sundays and public holidays.
5.10 Licensee will report Errors in the Software to BEXTER as soon as possible after discovery and as detailed as possible. After receipt of the notice, BEXTER will, according to its usual procedures and with commercially reasonably efforts, try to resolve the reported Error(s). BEXTER does not warrant that all Errors or defects will be resolved (this is inherent to software).
BEXTER is entitled to provide temporary solutions or work-arounds.
Licensee will rend every assistance to BEXTER in connection with Error correction that can be reasonably asked from Licensee.
BEXTER is entitled to set priorities in remedying Errors in the Software on the basis of their seriousness.
When the parties have entered into a Service Level Agreement (‘SLA’) on top of the Maintenance Agreement, the types of urgencies and reaction times as set out in the SLA will apply.
Article 6 – EXCEPTIONS
The following services are not covered by the Maintenance Agreement and may be charged separately by BEXTER to Licensee in case these services are nevertheless requested by Licensee and performed by BEXTER:
a. installation and implementation of the Software, training with regard to the use of the Software;
b. work relating to system configurations, hardware and networks
c. data conversions;
d. on-site support;
e. extensions to the functionality of the Software or other adjustments to the Software at the request of Licensee;
f. repair of Errors in an old version of the Software which is no longer maintained by BEXTER;
g. file repairs, the cause of which cannot be attributed to the Software of BEXTER;
h. reproduction of corrupted or lost data;
i. maintenance or support for software supplied by BEXTER other than the Software and/or for software of producers or suppliers other than BEXTER;
j. maintenance or support for hardware.
CHAPTER III: CONSULTANCY TERMS
Article 1 – DEFINITIONS
Capitalized terms in these Consultancy Terms shall have the meanings ascribed to them in Article 1 of the General Terms & Conditions (chapter IV).
Article 2 – CONSULTANCY AGREEMENT
BEXTER and Licensee enter into a Consultancy Agreement by written or electronic acceptance by Licensee of the proposal thereto from BEXTER.
These Consultancy Terms and the General Terms & Conditions (chapter IV) form an integral part of the Consultancy Agreement.
Article 3 – START, TERM AND TERMINATION
3.1 The Consultancy Agreement is deemed to take effect on the date and for the term agreed upon in the Consultancy Agreement. If no start date is agreed upon, the Consultancy Agreements takes effect on the date BEXTER starts with the performance of the agreed Consultancy Services. If no term is agreed upon, the Consultancy Agreement will end on the day BEXTER has performed the last of the agreed Consultancy Services.
3.2 Early termination of the Consultancy Agreement is possible as described in article 11 of the General Terms & Conditions.
Article 4 –CONSULTANCY FEE
4.1 Licensee will pay BEXTER the consultancy fees as described in the Consultancy Agreement. If no fee is agreed upon, the normal rates of BEXTER will apply.
All prices and rates are exclusive of travel, subsistence and hotel costs, unless the parties have made different agreements in writing.
4.2 BEXTER invoices Consultancy Services on a time-spent basis per full hour.
For Consultancy Services provided on Work Days after 06.00 pm the hourly rate is increased to 150% of the normal rate. For Consultancy Services provided on non-Work Days the hourly rate is increased to 200% of the normal rate.
Article 5 – CONSULTANCY SERVICES
5.1 Consultancy Services may include installation and implementation of Software, training regarding the use and operation of the Software, project management and other activities agreed between the parties.
The Consultancy Services to be provided by BEXTER for Licensee will be defined in the Consultancy Agreement.
5.2 BEXTER will carry out the Consultancy Services to the best of its ability and make every effort to carry out the Consultancy Services with care and professionalism, in accordance with the agreements and procedures laid down in writing.
5.3 If it is agreed that the Consultancy Services will be performed in stages, BEXTER is entitled to postpone the provision of Consultancy Services in a next stage until Licensee has approved the results of the previous stage in writing.
5.4 Consultancy Services will be carried out on Work Days between 08.30 a.m. and 05.00 p.m., unless the parties have made different agreements in writing. In the execution of Consultancy Services that last an entire day, the consultant will take a 30 (thirty) minute lunch break.
5.5 Licensee may cancel agreed Consultancy Services up to 5 (five) Work Days before the agreed (start)date or ask for a new, later (start)date free of charge.
If the cancellation or request to move to another date is received by BEXTER less than 5 (five) Work Days before the planned (start) date or if Licensee cancels the Consultancy Services when the delivery has already commenced, BEXTER is entitled to invoice Licensee for any services provided up until the cancellation and as well for the cancelled Consultancy Services if the allocated consultants cannot be immediately reallocated by BEXTER to other assignments, until they are reallocated. BEXTER shall make active attempts to reallocate the consultants as soon as possible.
Article 6 – INDIVIDUAL CONSULTANCY ASSIGNMENT
For Consultancy Services not (yet) agreed upon in
a Consultancy Agreement, Licensee shall submit a request to BEXTER. Such request must be received by BEXTER at least 1 (one) Work Day before the desired execution day.
BEXTER will confirm the Consultancy Services to Licensee by drafting a Consultancy Agreement, but can’t guarantee the desired execution day(s).
BEXTER will only perform Consultancy Services when Licensee has signed the Consultancy Agreement drafted by BEXTER and this Agreement is received by BEXTER.
Article 7 – ADDITIONAL WORK
7.1 BEXTER is not obliged to follow up instructions from or on behalf of Licensee which will lead to a change in the agreed Consultancy Services. If such instructions are followed up the related services will be invoiced to Licensee as additional work.
7.2 Consultancy Services that are not defined in the Consultancy Agreement but which are performed by BEXTER per request of Licensee, will be charged to Licensee based on the hourly rate as agreed between BEXTER and Licensee.
Also hours in addition to the estimated number of hours in the Consultancy Agreement will be charged to Licensee as additional work. If no hourly rate is agreed upon, the normal rates of BEXTER apply. BEXTER will, where possible, inform Licensee in advance if and how the instructions from or on behalf of Licensee will affect the agreed planning and/or the agreed or estimated price for Consultancy Services.
CHAPTER IV: GENERAL TERMS & CONDITIONS
Article 1 – DEFINITIONS
The following words have the following meaning in the Terms (including these General Terms & Conditions) and in the Agreements:
a. ‘Error: a failure in the Software that significantly prevents the Software from functioning in accordance with the accompanying documentation.
The lack of certain functionality in a new version of the Software that was present in an earlier version is not considered to be a Defect unless such functionality is known to BEXTER to be essential to Licensee;
b. ‘Licensee’: the natural person or legal entity who entered into a License Agreement and possibly other Agreement(s) with BEXTER;
c. ‘License Agreement’: the agreement between BEXTER and Licensee that contains the rights and obligations relating to the use of the Software;
d. ‘Maintenance Agreement’: the agreement between BEXTER and Licensee that contains the rights and obligations relating to the maintenance of the Software;
e. ‘Agreement’: the License Agreement and/or the Maintenance Agreement and/or Consultancy Agreement and/or any other agreement entered into or to be entered into between BEXTER and Licensee;
f. “Party”: BEXTER and/or Licensee;
g. ‘Software’: the standard executable software of BEXTER that is supplied to Licensee or made available to Licensee pursuant to the License Agreement including any corrected or new versions issued by BEXTER to Licensee. ‘Software’ does not refer to third-party software that is also supplied, except where such third party software forms an integral part of the Software;
h. ‘System Requirements’: the minimum requirements set for Licensee’s hardware and software for a proper use of the Software;
i. ‘BEXTER’: BEXTER BV, registered at the Chamber of Commerce under number 27253802 and having its office at Papsouwselaan 119T in Delft, the Netherlands;
j. ‘Terms’: the License Terms, Maintenance Terms, Consultancy Terms and General Terms & Conditions of BEXTER;
k. ‘Work Days’: Monday to Friday, with the exception of official public holidays in the Netherlands.
Article 2 – APPLICABILITY
2.1 Unless BEXTER and Licensee explicitly agree otherwise in writing, these General Terms & Conditions apply to all offers and to all agreements pursuant to which BEXTER offers and/or supplies software and/or services of any nature or name to Licensee.
2.2 The application of any purchase conditions or other terms and conditions of Licensee is explicitly rejected.
2.3 BEXTER is entitled to unilaterally change the Terms. Where possible Licensee will be notified of such changes 2 (two) months before the changes come into effect. Licensee is entitled to terminate an Agreement within 2 (two) weeks after BEXTER has announced the changes to the Terms if the changes are material and/or unreasonable onerous for Licensee.
The Agreement will terminate at the date the changes come into effect. Such termination will not result in a reimbursement of license, maintenance and/or any other fee to Licensee.
2.4 The Agreement fully reflects everything that has been agreed between the parties and replaces all earlier and concurrent, explicit or implied agreements, contracts, declarations and guarantees, both written and verbal.
With the exception of the provisions in article 4.2 of the Maintenance Agreement and article 2.3 of the General Terms & Conditions, changes to and additions to an Agreement and/or the Terms are only valid if agreed by both parties in writing.
2.5 If any provision in the Terms and/or an Agreement is void or voidable, the other provisions of the Terms and/or Agreement remain in full force and effect. BEXTER and Licensee will then consult with each other in order to replace the void or voidable provision by a new provision, while the purpose and intent of the void or voidable provision will be observed to the extent possible.
2.6 Delays or omission in respect of enforcing any rights pursuant to the Agreement never constitutes a waiver of a party’s right.
If a party waives any right it has pursuant to the Agreement this does not mean that the party in question will or can be obliged to waive this right or any other rights in a subsequent matter.
Article 3 – OFFERS
3.1 All offers and other statements of BEXTER are not binding and revocable, unless otherwise indicated by BEXTER.
3.2 BEXTER will base its offer on the information provided by or on behalf of Licensee. If such information turns out to be incorrect, this may influence the offer or other (price) statements of BEXTER.
Article 4 – PRICE AND PAYMENT
4.1 All prices are exclusive of VAT and of any other government levies.
Unless otherwise agreed, all prices are in Euros and Licensee will make all payments in Euros.
4.2 All budgets and price indications given by BEXTER are indications, unless the parties have made different agreements in writing. Licensee may not derive any rights or expectations from the budgets and price indications of BEXTER. When Licensee informs BEXTER about an available budget, this budget will never be a fixed price agreed by the parties for Software and/or services to be provided by BEXTER.
BEXTER will where possible, inform Licensee of any risk that the budget or price indication given by BEXTER may be exceeded.
4.3 In case of periodic payment by Licensee, BEXTER has the right to adjust the prices in force based on the CBS (Dutch Central Statistics Bureau) Consumer Price Index figure (series: all households 2015=100). The new prices will apply 3 (three) months after the announcement of the new prices. Licensee agrees to such price increases. Any price increases that exceed the aforementioned indexation must be mutually agreed upon in writing between BEXTER and Licensee in order to apply.
4.4 Licensee must make payments in accordance with the payment terms agreed upon in the Agreement or else the payment terms stated on the invoice. If no such terms are mentioned payment must be made within 30 (thirty) days after the invoice date.
Licensee shall be entitled to withhold payment of a disputed invoice from BEXTER, however in respect of the disputed amount only, provided that the complaint about the invoice is lodged by Licensee before the due date of the invoice.
4.5 If Licensee wholly or in part fails to meet its payment obligations or fails to meet its payment obligations on time, Licensee is in default when upon written notice and a reasonable period for payment has been provided, Licensee still fails to meet its payment obligations. Furthermore Licensee owes BEXTER in such case an interest of 1.5% per month or part thereof on the outstanding amount.
4.6 All costs incurred by BEXTER, both judicial and extrajudicial, as a result of Licensee not meeting its payment obligations towards BEXTER, will be at the expense of Licensee.
4.7 If Licensee is in default according to article 4.5, BEXTER is entitled to suspend any obligation towards Licensee until such time as Licensee has paid all outstanding amounts in full.
Article 5 – CONFIDENTIALITY
5.1 Both BEXTER and Licensee will assure that all information received from the other party of which is known or reasonably should be known that such information is confidential, is kept secret. Information is at least confidential when indicated as such by one of the parties.
5.2 Confidential information may only be used for the purpose for which it has been obtained, unless use outside that end is necessary to perform an Agreement.
5.3 Both Parties take all reasonable measures to observe their confidentiality obligations.
5.4 None of the provisions of this article 5 imposes any restrictions on the receiving party in respect of confidential information or data if such information or data:
a. was already the legal property of the receiving party before it was obtained from the party in question;
b. was developed independently by the receiving party without using information or data of the party in question;
c. is or will be generally known or accessible other than by an act or omission on the part of the receiving party; or
d. is disclosed to the receiving party by a third party without an obligation of confidentiality toward the party in question being infringed.
5.5 Confidentiality does not apply if the confidential information of the other party must be made public pursuant to the law, an ordinance, a court order or a decision by another government agency, on condition that the receiving party makes every effort to limit the scope of the publication and notifies the party concerned in advance of any such intended publication.
5.6 The Parties guarantee that their employees and third parties engaged by the Parties will comply with the confidentiality obligations as described above in this article 4.
Article 6 – RETENTION OF TITLE
6.1 All items BEXTER supplies to Licensee, such as disks, CD-ROMs, DVDs and user documentation, are on loan to Licensee for the term of the License Agreement. These items remain the full property of BEXTER at all times.
Licensee is prohibited from encumbering, disposing of or renting out the items loaned to him, or making these items available to third parties in any other manner. Upon the expiry of the License Agreement Licensee is obliged to return the items loaned to him to BEXTER within 2 (two) weeks.
6.2 When any items or property rights BEXTER has provided to Licensee are seized, Licensee must notify BEXTER immediately.
In the event of such a seizure, or if Licensee is granted a suspension of payments or if Licensee is declared bankrupt, Licensee must notify the process server charged with seizing the items, the trustee, the administrator or the receiver immediately of the fact that BEXTER is the owner of the items and/or property rights.
Article 7 – INTELLECTUAL PROPERTY RIGHTS
7.1 All intellectual property rights in respect of Software developed for and/or licensed to Licensee, other software, data files, user documentation, tools, reports and other material are the exclusive property of BEXTER or its licensors or its suppliers.
Licensee only receives the non-exclusive, non-transferrable and non-sublicensable right of use.
7.2 Licensee is prohibited from removing, changing or making unrecognizable any notice in respect of the intellectual property rights, trademarks or trade names of BEXTER.
7.3 BEXTER is entitled to make technical provisions for the purpose of protecting the Software, data files etc. with a view to enforcing the agreed restrictions in the content and term of use of these objects. The Licensee is prohibited from removing or circumventing such technical provisions.
7.4 BEXTER indemnifies Licensee against any third-party legal claim based on the assertion that software, data files and other materials developed and/or provided by BEXTER infringe an intellectual property right of a third party, provided that Licensee informs BEXTER immediately in writing about the existence and content of the legal claim, and leaves the handling of the case, including taking any settlement, up to BEXTER.
The obligation to indemnify expires if the alleged infringement relates to (a) materials which have been made available by Licensee to BEXTER for use, adaption or processing or (b) changes made by or on behalf of Licensee in the Software, data files or other materials.
7.5 If an injunction is imposed prohibiting the use of the Software, data files and/or materials because of an infringement within the meaning of the previous paragraph or if, in the opinion of BEXTER, there is a chance that the Software, data files and/or materials will become the subject of a successful claim for infringement, BEXTER is entitled, at its own discretion and own expense, to (a) obtain the right for Licensee to continue to use the Software, data files and/or materials as per the Agreement(s); (b) replace the Software, data files and/or materials or adjust them in such a way that they no longer constitute an infringement, provided the functionality remains materially unchanged; or (c) terminate the Agreement(s) with regard to the infringing Software, data files and/or materials. If an Agreement is terminated by BEXTER on this ground, Licensee is entitled to a refund of license fees paid by Licensee for use of the infringing Software, data files and/or materials, which can no longer be used by Licensee, it being understood that the refunded licensee fee is amortized over a period of 3 (three) years from the day the License Agreement takes effect, so the effective use of the Software and services is discounted during that period. Furthermore, Licensee shall be entitled to damages, subject to the terms of article 12.
Article 8 – COOPERATON OF LICENSEE
Licensee shall provide BEXTER with all information that is necessary and useful to BEXTER to perform the Agreement(s). Licensee shall ensure the accuracy of the information provided to the extent reasonably possible.
Article 9 – COMPLAINTS
In case Licensee has a complaint in respect of an incorrect delivery or in respect of an incorrect or deficient service, Licensee will inform BEXTER within 2 (two) weeks after the delivery or provision of the service in writing.
Article 10 – PERIODS
All (delivery) terms and deadlines related to Software, Maintenance Services, Consultancy Services and other services are target dates, determined by BEXTER in good faith based on the information then known to BEXTER and are not binding unless explicitly agreed in writing between BEXTER and Licensee.
Unless fatal terms are agreed, violation of deadlines does not mean that BEXTER is in default and does not lead to liability for damages.
Article 11 – DISSOLUTION AND TERMINATION
11.1 BEXTER and Licensee are both entitled to dissolve an Agreement due to an attributable shortcoming in the fulfillment of an Agreement if the other party upon written notice and a reasonable period for remedying being provided, still fails to meet essential obligations of the Agreement.
11.2 BEXTER and Licensee are both entitled to terminate an Agreement, wholly or in part, with immediate effect without a notice of default being required if:
- the other party is granted suspension;
- bankruptcy is requested for the other party;
- the company of the other party is being liquidated or terminated other than for reason of reorganization or merger;
- there is a change of control in the company of Licensee.
In case of such termination BEXTER is not obliged to reimburse any amounts already received or to pay damages.
When Licensee is declared bankrupt the right of Licensee to use the Software lapses by operation of law and Licensee or the administrator or receiver will return the Software, user documentation and other materials to BEXTER (article 6.1 of these General Terms & Conditions applies).
Article 12 – LIABILITY
12.1 Subject to the limitations set out below, each Party is responsible for any direct damage caused to the other Party due to attributable shortcomings in the fulfillment of an Agreement and/or due to negligence.
12.2 The total liability of either Party due to a attributable shortcoming in the fulfillment of an Agreement or due to any other ground, is limited to direct damage up to maximum the price agreed for said Agreement (exclusive of VAT).
If the Agreement is primarily a continuing performance agreement with a term longer than 1 (one) year, the price agreed for the Agreement will be the total of the fees (exclusive of VAT) of 1 (one) year.
In no event the total liability for direct damage, on whatever ground, will exceed EUR 500,000 (five hundred thousand Euros).
12.3 The liability of either Party for damage for death or physical injury or for material property damage shall not exceed EUR 1,000,000 (one million Euros) per damage causing event per year. A series of related events is considered a single incident.
12.4 Either Party is never liable for indirect damage, consequential damage, lost profits, missed savings, reduced goodwill, damage resulting from operational stagnation, damage resulting from Licensee not complying with the System Requirements, damage resulting from claims by Licensee’s clients, damage associated with the use of third-party items, materials or software prescribed to BEXTER by Licensee, damage associated with the deployment of suppliers prescribed to BEXTER by Licensee, corruption or loss of data and documentation.
Some countries and/or states and jurisdictions do not allow the exclusion or limitation of special, indirect, incidental or consequential damage, so the above limitation and exclusion may not apply to all Licensees. In that case the liability of either Party is limited to the maximum extent possible by law.
12.5 The exclusions and limitations set out in articles 12.2, 12.3 and 12.4 do not apply in case and to the extent that the damage is resulting from an intentional act or omission, willful misconduct or gross negligence.
12.6 Unless fulfillment of an obligation is permanently impossible, liability on the part of either Party with regard to attributable shortcomings in the fulfillment of an Agreement will in any case only exist if the defaulting Party is served with proper notice of default, whereby a reasonable period must be given for the defaulting Party to remedy the breach, and the defaulting Party remains in breach of its obligations even after this period. The notice of default must contain the most complete and detailed description of the breach possible, allowing the defaulting Party to respond adequately.
12.7 A claim for compensation cannot be considered unless written notice of the loss has been given to the defaulting Party as soon as possible after it occurs. Any claim for compensation against the defaulting Party expires by the mere lapse of time 12 (twelve) months after the damage has manifested itself.
12.8 Licensee indemnifies BEXTER against claims from third parties, employees of Licensee included, who suffer damage in connection with the execution of an Agreement which is the result of actions or omissions of Licensee or of unsafe situations in its organization.
Article 13 – EXCLUSION/ DISCLAIMER
With the exception of provisions that have been explicitly included in the Agreement, BEXTER does not make any other or further guarantees, promises or conditions in respect of the Software, user documentation, materials or services supplied to Licensee, and BEXTER hereby rejects all other guarantees, promises or conditions, either explicit, implicit or in pursuant the law (including but not limited to guarantees or conditions relating to salability, non-infringement of other rights or suitability for a specific purpose or resulting from a specific use or commercial use) in respect of the Software, user documentation, materials and services.
Some countries and/or states and jurisdictions do not allow the exclusion of implied warranties; thus, the above exclusion may not apply to all Licensees. In that case the minimum warranties as prescribed by the applicable law apply.
The warranties contained in the Agreements give Licensee specific legal rights, and Licensee MAY also have other rights, which vary from state to state or jurisdiction to jurisdiction.
Article 14 – FORCE MAJEURE
14.1 Neither party is obliged to comply with an obligation, including any agreed warranty obligation, if such compliance is prevented by a situation of force majeure.
Force majeure includes amongst other things:
- force majeure of suppliers of BEXTER;
- government actions;
- disruption of electricity;
- disruption of internet, computer network or telecommunication connections;
14.2 If a force majeure continues for longer than 90 (ninety) days, either party is entitled to terminate the Agreement in writing. All that is performed under the Agreement(s) will be settled proportionately.
Article 15 – TRANSFER OR RIGHTS AND OBLIGATIONS
15.1 Licensee is not entitled to sell or transfer rights and/or obligations pursuant to an Agreement to a third party without the prior explicit written consent of Bexter, which consent will not be unreasonably withheld.
15.2 BEXTER is entitled to transfer or outsource its rights or obligations pursuant to the Agreement to a third party. In the event of transfer or outsourcing the provisions of the Agreement(s) and Terms continue to apply.
Article 16 – PRIVACY/ PERSONAL DATA
A. Personal data of Licensee
16.1 In connection with the execution of the Agreement, BEXTER has the right to use personal data of Licensee that may fall under the scope of national and / or - if applicable - international legislation relating to the protection of personal data. This includes, but is not limited to, names, telephone numbers and e-mail addresses. Licensee expressly agrees to this by accepting these Terms and Conditions. BEXTER may also use personal data of Licensee for marketing-related purposes. Licensee can always withdraw the consent granted by means of a written message to BEXTER, but this may affect the performance of the Agreement.
16.2 BEXTER is entitled to share Licensee's personal data with third parties engaged by BEXTER for the execution of the Agreement. These third parties are prohibited from using this personal data for any other purpose. BEXTER also has the right to disclose personal data to third parties in connection with the sale, transfer or delivery of (part of) the company of BEXTER or in the context of an audit. BEXTER will ensure that the third party will maintain confidentiality with regard to the personal data and that this party complies with the necessary security measures and instructions from BEXTER.
B. Personal data processed on behalf of Licensee
16.4 If and insofar as BEXTER processes personal data (of Licensee and/or others) in the scope of an Agreement on behalf of Licensee, Licensee is the (personal data) controller and BEXTER is the (personal data) processor (within the meaning of the applicable privacy law (amongst other General Data Protection Agreement, “GDPR”) and the Agreement is seen as a contract within the meaning of article 28 paragraph 3 GDPR (data protection agreement).
BEXTER will only process personal data on the instructions of Licensee and in accordance with Licensee's instructions. Licensee determines which personal data of which categories of persons will be processed by BEXTER on behalf of Licensee.
16.5 Except where explicitly provided otherwise in an Agreement or in these Terms and/or may reasonably be necessary for BEXTER to meet its obligations under an Agreement, BEXTER will not look at (personal) data that Licensee places or has placed in or though the Software and BEXTER will not make (personal) data available to third parties, unless BEXTER is obliged to do so under the law, a regulation, a court order or by a decision of a public authority.
16.6 In relation to any personal data that Licensee has entered in/through the Software, the Licensee:
a. guarantees that it will process, store and use the personal data in accordance with all applicable (privacy) laws, regulations and codes of practice;
b. shall ensure that it has secured all necessary consents and authorizations which are required to enable it to process and store personal data in or via the Software. BEXTER shall have no responsibility or liability to Licensee to secure any required consents or authorizations on its behalf; and
c. shall deal with any and all requests from data subjects (like requests with regard to the right of access, rectification, erasure, restriction of processing, objection and data portability) and/or any other regulatory authority relating to personal data. In case such requests are received from data subjects by BEXTER, BEXTER will refer those data subjects to Licensee.
16.7 It is Licensee's responsibility to ensure adequate compliance with applicable statutory (retention) periods with regard to the personal data entered via the Software.
16.8 Licensee shall indemnify BEXTER in full against any and all claims, costs, (financial) damage, revenue, lawsuits and fines which BEXTER may suffer or incur or have imposed on it in relation to any claims by Licensees, its employees, (potential) customers or any other third party or by a supervisory authority regarding data which is processed by Licensee and/or BEXTER in the scope of an Agreement (including as a result of any claim or allegation that such processing is an infringement of any local and/or international data protection legislation and/or other legislation related to the processing of personal data). Such indemnification shall not apply to the extent that any matter complained of is reasonably and attributable to any failure by BEXTER to comply with any of its obligations under an Agreement.
16.9 BEXTER ensures it shall take appropriate technical and organizational measures against loss, damage, destruction and/or unauthorized or unlawful processing of personal data which Licensee enters in or through the Software. At the request of Licensee an overview of the then current security measures will be handed over to Licensee Licensee also has the responsibility for taking the necessary security measures within its own organization to prevent loss, damage, destruction and / or unauthorized or unlawful processing of personal data that Licensee enters in or via the Software.
16.10 BEXTER shall inform Licensee as soon as reasonably possible in case of a security breach of personal data that leads or may lead to a substantial risk of serious adverse effects on the protection of personal data. If possible BEXTER will also recommend measures to mitigate negative effects of the infringement. The notification of data breaches to the Supervisory Authority [Autoriteit Persoonsgegevens] and, if necessary, to data subject, is done by Licensee. BEXTER is not in any way responsible or liable for such notification.
16.11 BEXTER may outsource the processing of personal data in the context of execution of an Agreement to a third party taking into account the applicable laws and regulations, whereby BEXTER will remain responsible for compliance with the Agreement and these General Terms and Conditions. BEXTER will ensure that the third party will treat the personal data confidentially and that it will take the necessary instructions and appropriate technical and organizational security measures as foreseen in the Agreement and in these General Terms and Conditions. Licensee is entitled to have an independent third party check if BEXTER and the third parties hired by BEXTER adhere to the agreements made. The costs for this check are borne by Licensee.
Article 17 – APPLICABLE LAW AND DISPUTES
17.1 The Agreement(s), including the Terms, is governed by Dutch law only. The provisions of the Vienna Sales Convention (CISG) do not apply. However if the Software was acquired by and supplied to Licensee outside the Netherlands, and if local law prohibits the use of Dutch law, the law of the country where the Software license is bought and delivered to Licensee will apply.
17.2 BEXTER and Licensee will resolve their disputes preferably amicably.
17.3 If BEXTER and Licensee are not able to solve any dispute amicably within a reasonable period of time, the dispute shall be submitted to the court in the district where BEXTER is located.
If the Software license was acquired by and supplied to Licensee outside the Netherlands and this clause is not valid under local law, any dispute will be submitted to the competent court in the capital of the country where the Software license was acquired by and supplied to Licensee.
Article 18 – TRANSLATION
In the event of any disagreement or difference of opinion about or obscurity in respect of the provisions in the Terms and/or an Agreement, the Dutch text prevails over the translation.