TERMS AND CONDITIONS

1. Applicability of Reboot Monkey Terms

1.1 These Reboot Monkey Terms (hereinafter also to be referred to as: these general terms) apply to all offers and agreements for which supplier delivers goods and/or services, of whatever nature and under whatever name, to client.

1.2 These general terms can only be departed from or be supplemented if agreed by parties in writing.

1.3 The applicability of any of the client’s purchase or other terms is explicitly excluded.

1.4 If and insofar as supplier makes products or services of third parties available to client or grants access to these products or services, the terms of the third parties in question apply to these products or services in the relationship between supplier and client and replace the provisions in these general terms that depart from those third party terms, provided that client has been informed by supplier about the applicability of the (licensing or sales) terms of those third parties and client has been given a reasonable opportunity to take note of those terms. Contrary to the previous sentence, the client cannot invoke a failure on the part of the supplier to meet the aforementioned obligation if the client is a party as referred to in article 6:235 paragraph 1 or paragraph 3 of the Netherlands Civil Code.

1.5 If and insofar as the terms of third parties in the relationship between client and supplier referred to above prove to be inapplicable or are declared inapplicable for any reason whatsoever, these general terms apply in full.

1.6 If any provision of these general terms should be null and void or is annulled, the other provisions of these general terms remain fully applicable and effective. In that case, supplier and client consult as to arrange for new provisions which have the same purport, as much as possible, and that will replace the provisions that are null and void or that have been annulled.

1.7 Without prejudice to the provisions of article 1.4, the provisions of these general terms prevail if a conflict should arise about any of the arrangements made by parties, unless parties have explicitly departed from these terms in writing, with reference to these terms. In the event of a conflict between the provisions of different sections of these general terms, the provisions of a prior section apply, unless parties have explicitly agreed otherwise.

2. Offers

2.1 All of the supplier’s offers and other forms of communication are without obligation, unless the supplier should indicate otherwise in writing. The Client guarantees the correctness and completeness of the information provided, with the exception of obvious typing errors, by or on behalf of the client to the supplier and on which information supplier has based its offer.

3. Price and payment

3.1 All prices are exclusive of turnover tax (VAT) and other product or service-specific levies imposed by the authorities. All prices quoted by the supplier are in euros and the client must pay in euros.

3.2 Client cannot derive any rights or expectations from any cost estimate or budget issued by the supplier, unless parties have agreed otherwise in writing. A budget communicated by client is only considered a (fixed) price agreed on by parties if this has been explicitly agreed in writing.

3.3 If it should be apparent from the agreement that the client consists of several natural persons and/or legal persons, each of these persons is jointly and severally liable to the supplier for the performance of the agreement.

3.4 Where the activities performed by supplier and the sums due by the client for these activities are concerned, the information in supplier's administration provides full evidence, without prejudice to client's right to provide evidence to the contrary.

3.5 In the event that the client should be under a periodic payment obligation, the supplier may adjust the applicable prices and rates, in writing and in accordance with the index or any other criterion included in the agreement, within the period specified in the agreement. If the agreement does not explicitly provide for the possibility to adjust the prices or rates, the supplier may adjust the applicable prices and rates in writing with due observance of a period of at least three months. If, in the latter case, client does not want to accept the price adjustment, the client is entitled to terminate the agreement by serving notice of termination (opzeggen) in writing, within thirty days following the notification of the adjustment and effective from the date on which the new prices and/or rates would take effect.

3.6 In their agreement parties lay down the date or dates on which the supplier invoices the fee for the activities agreed on with the client. Any sums due are paid by the client in accordance with the payment terms agreed on or as stated in the invoice. Client is neither entitled to suspend any payments nor to set off any of the sums due.

3.7 If the client should fail to pay the sums due or does not pay these on time, the statutory interest for commercial agreements is payable by client on any outstanding sum, without a reminder or notice of default being required? If client should fail to pay the sum due even after a reminder or notice of default, the supplier can pass on the claim for collection and the client is obliged to pay, within reason and in addition to the total sum due at that time, all judicial and extrajudicial costs, including all costs charged by external experts – all of which is without prejudice to any of the supplier's statutory and contractual rights.

4. Duration of the agreement

4.1 If and insofar as the agreement between parties is a continuing performance contract, the agreement is entered into for the term agreed on by parties. A term of one year applies if a specific term has not been agreed on.

4.2 The duration of the agreement for a definite period of time is tacitly extended, each time by the period of time originally agreed on with a maximum of one year, unless client or supplier should terminate the agreement by serving written notice of termination (opzeggen), with due observance of a notice period of three months prior to the end of the relevant term.

5. Confidentiality

5.1 Client and supplier ensure that secrecy is observed with respect to all information received from the other party of which information the receiving party knows or should reasonably know it is confidential. This prohibition does not apply if and insofar as the information concerned must be provided to a third party in compliance with a judicial decision, a statutory requirement, a statutory order by a public authority or for the proper performance of the agreement. The party that receives the confidential information may only use it for the purpose for which it has been provided. Information is in any case deemed confidential if it has been designated as such by either party.

5.2 Client acknowledges that software made available by the supplier is always confidential in nature and that this software contains trade secrets of the supplier and its suppliers or of the producer of the software.

6. Privacy and data processing

6.1 If this should be relevant, in supplier’s opinion, for the performance of the agreement, client informs suppliers in writing, at supplier’s request, about the way in which client performs its obligations under the applicable rules and regulations pertaining to the protection of personal data.

6.2 Client indemnifies supplier against any claims by persons whose personal data are or have been processed and for which processing client is responsible pursuant to the law, unless client proves that the facts on which a claim is based are attributable to supplier.

6.3 Client is fully responsible for the data that it processes when making use of a service provided by the supplier. Client guarantees vis-à-vis the supplier that the content, use and/or processing of the data are not unlawful and do not infringe any third party’s right. Client indemnifies the supplier against any claims by a third party instituted, for whatever reason, in connection with these data or the performance of the agreement.

6.4 If, further to a request or a lawfully issued order by a public authority or in the context of a statutory obligation, client should perform activities with relation to data of client, client’s employees or users, any costs involved in this may be charged to client.

6.5 If the supplier performs activities for the client as a processor as meant in the rules and regulations pertaining to the protection of personal data, Section 2 ‘Standard Clauses for Processing’ also applies.

7. Security

7.1 If the supplier is obliged to provide some form of information security under the agreement, this protection meets the specifications on security that parties have agreed on in writing. Supplier does not guarantee that the information security provided is effective under all circumstances. If the agreement does not include an explicitly defined security method, the security features provided meet a level that is not unreasonable in view of the state of the art, the implementation costs, the nature, scope and context as known to supplier of the information to be secured, the purposes and the standard use of the supplier’s products and services and the probability and seriousness of foreseeable risks.

7.2 The access or identification codes and certificates provided by or on behalf of supplier to client are confidential and must be treated as such by client, and they may only be made known to authorized staff in the client’s own organization or company. The Supplier is entitled to change the access or identification codes and certificates. Client is responsible for managing these authorizations and for providing and duly revoking access and identification codes.

7.3 In the event that security features or the testing of security features pertain to software, hardware, or infrastructure not delivered by the Supplier to the Client, the Client guarantees that all necessary licenses or approvals have been obtained to ensure that such activities are permitted. The Supplier shall not be liable for any damage caused by or in relation to the performance of these activities. The Client indemnifies the Supplier against any claims, regardless of the reason, arising from the performance of these activities.

7.4 The Supplier is entitled to adapt the security measures from time to time if this should be required as a result of a change in circumstances.

7.5 The Client adequately secures its systems and infrastructure and keeps these adequately secured.

7.6 Supplier may give client instructions about security features intended to prevent or to minimize incidents, or the consequences of incidents, that may affect security. If the client should fail to follow the instructions issued by supplier or by a relevant public authority, or should fail to follow these in time, supplier is not liable and client indemnifies supplier against any damage that may arise as a result.

7.7 Supplier is at any time permitted to install technical and organizational facilities to protect hardware, data files, websites, software made available, software or other works to which client has been granted access, whether directly or indirectly, also in connection with a restriction agreed on in the content or the duration of the right to use these objects. The Client may not remove or circumvent any of such technical facilities or have these removed or circumvented.

8. Retention of title, reservation of rights, and suspension

8.1 All goods delivered to the client remain the property of the supplier until all sums due by the client to the supplier under the agreement entered into by parties have been paid to the supplier in full. A client that acts as a reseller may sell and supply all goods that are subject to the supplier’s retention of title insofar as this is customary in the context of the client’s normal course of business.

8.2 The property-law consequences of the retention of title with respect to any goods destined for export is governed by the laws of the state of destination if the relevant laws contain provisions that are more favorable to the supplier.

8.3 Where applicable, rights are granted or transferred to the client on the condition that the client has paid all sums due under the agreement. This obligation to indemnify does not apply if the alleged infringement concerns (me) works or materials provided by the client to the supplier for use, modification, or processing.

8.4 Supplier may retain all information, documents, software and/or data files received or created in the context of the agreement, despite an existing obligation to hand these over or transfer them, until client has paid all sums due to supplier.

1. Transfer of risk

9.1 The risk of loss, theft, misappropriation or damage of goods, information (including user names, codes and passwords), documents, software or data files that are created for, delivered to or used by client in the context of the performance of the agreement pass to client at the moment these are placed under the actual control of client or an auxiliary person of client.

10. Intellectual property

10.1 All intellectual property rights to the software, websites, data files, databases, hardware, training, testing and examination materials, as well as other materials such as analyses, designs, documentation, reports, offers, including preparatory materials for these materials, developed or made available to client under the agreement remain exclusively vested in supplier, its licensors or its suppliers. Client is solely granted the rights of use laid down in these general terms, in the agreement entered into by parties in writing and in the applicable mandatory legal provisions. A right of use granted to the client is non-exclusive, non-transferable, non-pledge able (niet-verpandbaar) and non-sub licensable.

10.2 If the supplier is prepared to undertake the transfer of an intellectual property right, such undertaking may only be explicitly effected in writing. If the parties agree in writing that an intellectual property right concerning software, websites, data files, hardware, know-how, or other works or materials specifically developed for the client is transferred to the client, this does not affect the supplier’s rights or options to use and/or exploit, either for itself or for third parties, and without any restriction, the parts, designs, algorithms, documentation, works, protocols, standards, and similar elements on which the developments are based for other purposes. The supplier is also entitled to use and/or exploit, either for itself or for third parties, and without restrictions, the general principles, ideas, and programming languages that have been used as a basis to create or develop any work for other purposes. The transfer of an intellectual property right does not affect the supplier’s right to continue developing, either for itself or for third parties, software or elements of software that are similar to or derived from software or elements of software that have been or are being developed for the client.

10.3 Client is not permitted to remove or change any indication with respect to the confidential nature of the software, websites, data files, hardware or materials or with respect to copyrights, brands, trade names or any other intellectual property right pertaining to the software, websites, data files, hardware or materials, or have any such indication removed or changed.

10.4 The supplier indemnifies the client against any claim by a third party based on the allegation that software, websites, data files, hardware, or other materials developed by the supplier itself infringe on an intellectual property right of that third party, provided that the client promptly informs the supplier in writing about the existence and content of the claim and leaves the settlement of the claim, including any arrangements to be made in this context, entirely up to the supplier. To this end, the client must provide the supplier with the necessary powers of attorney and information and render the assistance required by the supplier to defend against such claims. This obligation to indemnify does not apply if the alleged infringement concerns (I) works or materials made available by the client to the supplier for use, (ii) modifications the client has implemented, or (iii) modifications the client has had implemented in the software, websites, data files, hardware, or other works and materials without the supplier’s written permission. If it is irrevocably established in court that software, websites, data files, hardware, or other works and materials developed by the supplier itself infringe any intellectual property right belonging to a third party, or if, in the supplier’s opinion, there is a good chance that such an infringement will occur, the supplier will ensure, if possible, that the client can continue to use, or use functional equivalents of, the software, websites, data files, hardware, or other works and materials delivered. Any other or further obligation that the supplier might have to indemnify the client against any infringement of a third party’s intellectual property right is excluded.

10.5 The client guarantees that no rights of third parties preclude making hardware, software, material intended for websites, data files, and/or other materials, designs, and/or other works available to the supplier for the purpose of use, maintenance, processing, installation, or integration; this guarantee also includes having the relevant licenses. The client indemnifies the supplier against any claim by a third party based on the allegation that making any of this available and/or the use, maintenance, processing, installation, or integration infringes on a right of that third party.

10.6 The supplier is never obliged to perform data conversion unless this has been explicitly agreed upon with the client in writing.

10.7 The supplier is entitled to use the client’s figurative mark, logo, or name in its external communication.

11. Performance of services

11.1 The supplier performs its services with care and to the best of its ability, and where applicable, in accordance with the arrangements and procedures agreed upon with the client in writing. All services provided by the supplier are performed based on a best efforts obligation, unless the supplier has explicitly promised a specific result in the written agreement, and the result has been described in sufficient detail in the agreement.

11.2 The supplier is not liable for any damage suffered or costs incurred as a result of the use or misuse of access or identification codes, certificates, or any other security measures, unless the misuse is directly caused by intent or deliberate recklessness on the part of the supplier’s management.

11.3 If the agreement was made with the understanding that it would be performed by a specific person, the supplier is entitled to replace that person with one or more individuals who have the same or similar qualifications.

11.4 The supplier is not obligated to follow the client’s instructions when performing the services, especially if these instructions alter or expand the content or scope of the agreed-upon services. If such instructions are followed, the activities performed will be charged at the supplier’s applicable rates.

1. Obligation to Provide Information and Render Assistance

12.1 The parties acknowledge that the success of activities performed in the field of information and communications technology depends on proper and timely cooperation. The client undertakes to fully cooperate, within reason, and in a timely manner.

12.2 The client vouches for the correctness and completeness of the data, information, designs, and specifications provided by or on behalf of the client to the supplier. If the data, information, designs, or specifications provided by the client contain inaccuracies apparent to the supplier, the supplier will request further information from the client. The client must implement a decision if, in the supplier’s opinion, the decision cannot be reconciled with the content and/or proper performance of the agreement. The client ensures that the individuals assigned to participate in a project or steering group have the authority to make binding decisions for the client.

12.3 For reasons of continuity, the client designates a contact person or contact persons who will act in that capacity for the duration of the supplier’s services. The client’s contact persons must have the relevant experience, specific knowledge of the subject matter, and a proper understanding of the client’s objectives.

12.4 The client bears the risk of selecting the goods and/or services provided by the supplier. The client must exercise the utmost care to ensure that the requirements set for the supplier’s performance are correct and complete. Measurements and data provided in drawings, images, catalogues, websites, offers, advertising material, standardization sheets, and similar documents are not binding on the supplier unless explicitly stated otherwise by the supplier.

12.5 If the client deploys employees and/or auxiliary persons in the performance of the agreement, these individuals must have the required knowledge and experience. If the supplier’s employees perform activities at the client’s premises, the client must provide the necessary facilities, such as workspace with computer and network facilities, on time and free of charge. The supplier is not liable for damage or costs incurred due to transmission errors, malfunctions, or the non-availability of these facilities, unless the client proves that such damage or costs are caused by intent or deliberate recklessness on the part of the supplier’s management.

12.6 The workspace and facilities must meet all statutory requirements. The client indemnifies the supplier against claims by third parties, including the supplier's employees, who suffer damage caused by the client’s acts or omissions or by unsafe situations in the client’s organization or company. Before starting the activities, the client must inform the supplier’s employees about the company rules, information rules, and security rules that apply in the client’s organization.

12.7 The client is responsible for the management, including checks of the settings, and use of the products delivered and/or services provided by the supplier, and for the implementation of the results from these products and services. The client is also responsible for appropriately instructing users and for their use of the products and services.

12.8 The client is responsible for the hardware, infrastructure, and auxiliary software and ensures that the (auxiliary) software for its hardware is installed, organized, parameterized, and tuned. Where required, the client must ensure that the hardware, other (auxiliary) software, and operating environment are modified and kept updated, and that the desired interoperability is achieved.

1. Project and Steering Groups

13.1 If both parties are participating in a project or steering group with appointed employees, the provision of information will occur in the manner agreed upon for that project or steering group.

13.2 Decisions made in a project or steering group in which both parties participate are only binding on the supplier if the decisions are made according to what the parties have agreed upon in writing or, if no written arrangements have been made, if the supplier has accepted the relevant decision in writing. The supplier is never obligated to accept or implement a decision if, in its opinion, the decision cannot be reconciled with the content and/or proper performance of the agreement.

13.3 The client ensures that the individuals assigned to participate in a project or steering group are authorized to make binding decisions for the client.

14. Terms and Deadlines

14.1 The supplier makes reasonable efforts to comply with the terms and delivery periods and/or dates specified or agreed upon by the parties. Interim dates and delivery dates specified by the supplier or agreed upon by the parties are target dates, do not bind the supplier, and are always indicative.

14.2 The supplier is only in default due to exceeding a term or period after the client has served a written notice of default and has given the supplier a reasonable period to remedy the failure to meet its obligations, and this period has passed. The notice of default must describe the supplier’s breach in detail to allow the supplier to respond adequately.

14.3 If a term or period is likely to be exceeded, the supplier and the client will consult to discuss the consequences for further planning.

14.4 If the agreement specifies that activities must be performed in phases, the supplier is entitled to postpone the start of the next phase until the client has approved the results of the preceding phase in writing.

14.5 The supplier is not bound by a date, delivery date, or term if the parties agree on an adjustment in the content or scope of the agreement (such as additional work or a change in specifications) or if the client fails to fulfill its obligations under the agreement or does so late or incompletely. Additional work required during the performance of the agreement does not constitute a reason for the client to terminate or cancel the agreement for breach.

15. Termination of the Agreement for Breach or by Notice of Termination

15.1 Either party has the exclusive right to terminate the agreement for breach (ontbinden) if the other party fails to meet its obligations under the agreement. This termination can only occur after a written notice of default has been served, detailing the breach and granting a reasonable period for the breach to be remedied. If the other party fails to fulfil any of its essential obligations under the agreement within this period, termination may proceed. The client's payment obligations and all obligations of the client or any third party contracted by the client to cooperate and/or provide information are considered essential under the agreement.

15.2 If, at the time of termination for breach, the client has already received goods or services under the agreement, these performances and the corresponding payment obligations cannot be reversed unless the client can prove that the supplier is in default concerning a critical part of the performance. In line with this, any amounts invoiced by the supplier prior to termination for breach in relation to what has already been properly performed or delivered under the agreement remain fully due and become immediately payable upon termination.

15.3 An agreement that, by its nature and content, is not discharged by performance and has been entered into for an indefinite period may be terminated, after consultation between the parties, by either party through written notice of termination to the other party (opzeggen). The reasons for termination must be stated. If a notice period has not been agreed upon by the parties, a reasonable period must be observed when the notice of termination is given. The supplier is not obligated to pay any compensation due to such termination.

15.4 The client is not entitled to terminate (opzeggen) an agreement for services that has been entered into for a definite period before the end of that term. Similarly, the client cannot terminate (opzeggen) an agreement that ends upon completion before the completion has occurred.

15.5 Either party may terminate (opzeggen) the agreement in writing, in whole or in part, without the need for a notice of default and with immediate effect if the other party is granted a suspension of payments, whether provisional or not, if a petition for bankruptcy is filed against the other party, or if the other party's company is liquidated or dissolved, except for restructuring or merger purposes. The supplier may also terminate (opzeggen) the agreement, in whole or in part, without the need for a notice of default and with immediate effect if there is a direct or indirect change in the decisive control of the client’s company. The supplier is never obligated to return any received sums or to pay any compensation as a result of termination as described in this paragraph. If the client is declared irrevocably bankrupt, its right to use the software, websites, and similar resources made available to the client ends, as does its right to access and/or use the supplier’s services, without requiring the supplier to cancel these rights.

16. Supplier's Liability

16.1 The supplier’s total liability for an imputable failure in the performance of the agreement, or arising from any other legal basis whatsoever—including any failure to meet a guarantee or indemnification obligation agreed upon with the client—is limited to the compensation of damages as detailed in this article.

16.2 Liability for direct damage is limited to a maximum of the price stipulated for the agreement in question (excluding VAT). If the agreement is primarily a continuing performance contract with a duration of more than one year, the price stipulated for the agreement is set at the total sum of payments (excluding VAT) stipulated for one year. In no event shall the supplier’s total liability for any direct damage, on any legal basis whatsoever, exceed EUR 500,000 (five hundred thousand euros).

16.3 The supplier’s total liability for any damage arising from death or bodily injury, or from material damage to goods, is limited to EUR 1,250,000 (one million two hundred fifty thousand euros).

16.4 Liability for indirect damage, consequential loss, loss of profits, lost savings, reduced goodwill, loss due to business interruption, loss resulting from claims by the client’s clients, loss arising from the use of goods, materials, or software of third parties prescribed by the client to the supplier, and any damage or loss arising from contracting suppliers recommended by the client to the supplier, is excluded. Liability for corruption, destruction, or loss of data or documents is also excluded.

16.5 The exclusions and limitations of the supplier’s liability described in Articles 16.2 through 16.4 are without prejudice to the other exclusions and limitations of the supplier’s liability described in these general terms.

16.6 The exclusions and limitations referred to in Articles 16.2 through 16.5 cease to apply if and insofar as the damage is caused by intent or deliberate recklessness on the part of the supplier’s management.

16.7 Unless performance by the supplier is permanently impossible, the supplier is only liable for an imputable failure in the performance of an agreement if the client promptly serves the supplier with a written notice of default, granting the supplier a reasonable period to remedy the breach, and the supplier still fails to meet its obligations after that period has passed. The notice of default must describe the supplier’s failure comprehensively and in as much detail as possible to allow the supplier an adequate opportunity to respond.

16.8 The right to compensation for damages arises only if the client reports the damage to the supplier in writing as soon as possible after the damage has occurred. Any claim for compensation of damages filed against the supplier lapses after twenty-four months from the inception of the claim, unless the client has instituted legal action for damages before the expiry of this term.

16.9 The client indemnifies the supplier against any and all claims by third parties arising from product liability due to a defect in a product or system that the client delivered to a third party and that consisted partly of hardware, software, or other materials delivered by the supplier, unless and insofar as the client can prove that the loss was caused by the hardware, software, or other materials referred to.

16.10 The provisions of this article, along with all other exclusions and limitations of liability referred to in these general terms, also apply in favor of all natural and legal persons that the supplier and the supplier’s subcontractors engage in the performance of the agreement.

17. Force Majeure

17.1 Neither party is obligated to fulfil any obligation, including any statutory and/or agreed guarantee obligation, if prevented from doing so by circumstances beyond its control (overmatch). Circumstances beyond the supplier’s control include, but are not limited to: (I) circumstances beyond the control of the supplier’s suppliers, (ii) the supplier's failure to properly meet obligations contracted on the client’s instructions, (iii) defects in goods, hardware, software, or materials of third parties used by the supplier on the client’s instructions, (iv) actions by public authorities, (v) power failures, (vi) failures of the internet, data network, or telecommunication facilities, (vii) (cyber) crime, (cyber) vandalism, war, or terrorism, and (viii) general transport problems.

17.2 If a force majeure situation lasts for more than sixty days, either party has the right to terminate the agreement in writing for breach (ontbinden). In such an event, all that has already been performed under the agreement must be paid for on a proportional basis, without any further obligation between the parties.

18. Service Level Agreement

18.1 Any arrangements regarding a service level (Service Level Agreement) must be explicitly agreed upon in writing. The client must promptly inform the supplier of any circumstances that may affect the service level or its availability.

18.2 If service level agreements have been made, the availability of software, systems, and related services is always measured such that unavailability due to preventive, corrective, or adaptive maintenance or other services that the supplier has notified the client of in advance, and circumstances beyond the supplier’s control, are not considered. Unless proven otherwise by the client, the availability measured by the supplier is considered conclusive.

19. Backups

19.1 If the services provided to the client under the agreement include making backups of the client’s data, the supplier will create a complete backup of the client’s data in its possession, in accordance with the agreed-upon schedule, or once a week if no specific schedule has been agreed upon. The supplier will retain the backup for the duration of the agreed term or for the duration of the supplier’s standard term if no further arrangements have been made. The supplier will handle the backup with due care and diligence.

19.2 The client remains responsible for complying with all applicable statutory obligations regarding record-keeping and data retention.

20. Adjustments and Extra Work

20.1 If the supplier performs activities or delivers goods or services outside the scope of the agreed activities and/or delivery at the client’s request or with the client’s prior consent, the client will be charged for these activities, goods, or services based on the agreed rates or, if no rates have been agreed upon, according to the supplier’s applicable rates. The supplier is not obligated to honor such a request and may require a separate written agreement for this purpose.

20.2 The client acknowledges that adjustments and extra work may result in the postponement of terms, delivery periods, and/or delivery dates. Any new terms, delivery periods, and/or dates provided by the supplier will replace the previous ones.

20.3 If a fixed price has been agreed upon for the agreement, the supplier will inform the client, upon request and in writing, about the financial consequences of the extra work or additional delivery of goods or services mentioned in this article.

21. Transfer of Rights and Obligations

21.1 The client is not entitled to sell, transfer, or pledge its rights and obligations under the agreement to a third party.

21.2 The supplier is entitled to sell, transfer, or pledge any claims it has to payment of any sums due to a third party.

22. Applicable Law and Disputes

22.1 The agreements between the supplier and the client are governed by the laws of the Netherlands. The applicability of the Vienna Convention 1980 (The United Nations Convention on Contracts for the International Sale of Goods (CISG)) is excluded.

22.2 Any disputes arising from the agreement between the parties and/or any subsequent agreements derived from this agreement will be resolved by arbitration in accordance with the Arbitration Regulations of the Foundation for the Settlement of Automation Disputes (Stitching Geschillenoplossing Automatisering – SGOA) (www.sgoa.eu). This does not affect either party's right to seek preliminary relief in judicial or arbitral proceedings or to attach property before judgment.

22.3 If a dispute arising from the agreement or any subsequent agreements falls within the jurisdiction of the cantonal section of the Netherlands District Court (kantongerecht), either party may, notwithstanding the provisions of Article 22.2, bring the case before the competent district court in the Netherlands as a cantonal court case. This right is only available if arbitration proceedings concerning the dispute have not yet been initiated under Article 22.2. If the case is brought before the competent district court, the cantonal judge of that district court will have jurisdiction to hear and decide the case.

22.4 In the event of a dispute arising from the agreement or any subsequent agreements, either party may initiate ICT mediation proceedings in accordance with the ICT Mediation Regulations of the Foundation for the Settlement of Automation Disputes (Stitching Geschillenoplossing Automatisering – SGOA) (www.sgoa.eu). The other party is then obligated to actively participate in the ICT mediation proceedings. This legally enforceable obligation includes attending at least one joint meeting of mediators and parties to give this extrajudicial form of dispute resolution a chance of success. Either party is free to terminate the ICT mediation proceedings at any time after the first joint meeting. The provisions of this paragraph do not prevent either party from seeking preliminary relief in judicial or arbitral proceedings or from attaching property before judgment.

23. Direct Contact with Engineers

23.1 The partner agrees not to directly contact, solicit, or engage in any communication or business dealings with any engineers or employees of the company during the term of this contract and for a period of 5 years after the contract's termination or expiration.

23.2 In the event of a breach of the Non-Direct Contact Clause, the partner will be liable to pay a penalty of €50,000 (Fifty Thousand Euros) per engineer to the company as liquidated damages.

23.3 In cases of repeated breach, the partner will incur an additional penalty of €5,000 (Five Thousand Euros) for each day the partner continues to be in direct contact with the company's engineers or employees beyond the initial breach, until full compliance with the Non-Direct Contact Clause is achieved.

24. General

24.1 The supplier processes personal data on the client’s behalf and in accordance with the written instructions agreed upon by the supplier and the client.

24.2 The client, or the client’s client, is the controller in the sense of the GDPR, has control over the processing of personal data, and has established the purpose and means for the personal data processing.

24.3 The supplier is a processor in the sense of the GDPR and, as such, has no control over the purpose or means of personal data processing. Therefore, the supplier does not make decisions regarding the use of personal data.

24.4 The supplier implements the GDPR as outlined in this section, ‘Standard Clauses on Data Processing,’ and in the agreement. The client is responsible for assessing whether the supplier offers adequate guarantees concerning the application of appropriate technical and organizational measures to meet GDPR requirements and to safeguard the protection of data subjects’ rights.

24.5 The client guarantees to the supplier that it complies with the GDPR, that its systems and infrastructure are always appropriately secured, and that the content, use, and/or processing of the personal data are lawful and do not infringe any third-party rights.

24.6 The client is not entitled to seek recovery from the supplier of any administrative fines imposed on the client by the supervisory authority, regardless of the legal basis. In this section, ‘supervisory authority’ refers to the supervisory authority as defined in the GDPR.

26. Personal Data Breaches

26.1 The supplier does not guarantee that the security measures are effective in all circumstances. If the supplier discovers a personal data breach, the supplier will inform the client without undue delay. The agreement will specify the method of communication between the supplier and the client regarding personal data breaches. If no specific arrangements have been agreed upon, the supplier will contact the client’s designated contact person in the usual manner.

26.2 It is the responsibility of the controller—whether that be the client or the client’s client—to assess whether the personal data breach reported by the supplier must be communicated to the supervisory authority or the data subject. Reporting personal data breaches is always the responsibility of the controller, whether that is the client or the client’s client. The supplier is not obligated to report personal data breaches to the supervisory authority.

26.3 Where required, the supplier will provide further information on the personal data breach and assist the client in providing the information needed to report a breach to the supervisory authority or the data subject.

26.4 The supplier may charge the client for reasonable costs incurred in this context, in accordance with the supplier’s current rates.

27. Confidentiality

27.1 The supplier ensures that the obligation to observe confidentiality is imposed on any person processing personal data under the supplier’s responsibility.

27.2 The supplier is entitled to provide personal data to third parties if and insofar as required by a judicial decision, statutory requirement, an authorized order by a public authority, or in the context of the proper performance of the agreement.

28. Obligations Following Termination

28.1 Upon termination of the processing agreement, the supplier will delete all personal data received from the client within the agreed-upon time frame, rendering them inaccessible, or, if agreed, return the data to the client in a machine-readable format.

28.2 The supplier may charge the client for any costs incurred in relation to the stipulation in the previous paragraph. Further arrangements may be laid down in the agreement.

28.3 The provisions of article 28.1 do not apply if statutory provisions prohibit the supplier from deleting or returning the personal data, in part or in full. In such an event, the supplier will only continue to process the personal data as required under its statutory obligations. The provisions of article 28.1 also do not apply if the supplier is a controller in the sense of the GDPR with respect to the personal data.

29. Data Subjects’ Rights, Data Protection Impact Assessment (DPIA), and Audit Rights

29.1 Where possible, the supplier will assist in reasonable requests by the client related to data subjects exercising their rights against the client. If the supplier is directly contacted by a data subject, the supplier will, whenever possible, refer the data subject to the client.

29.2 If the client is required under the GDPR to carry out a Data Protection Impact Assessment (DPIA) or a prior consultation, the supplier will assist, at the client’s reasonable request, in this DPIA or prior consultation.

29.3 At the client’s request, the supplier will provide all information reasonably required to demonstrate compliance with the arrangements laid down in the agreement regarding personal data processing. This may include providing a valid Data Pro Certificate, another equivalent certificate, an audit report (Third Party Memorandum) prepared by an independent expert commissioned by the supplier, or other relevant information. If the client has reasons to believe that the personal data are not being processed in accordance with the agreement, the client may commission an audit, no more than once per year and at the client’s expense, by an independent, certified external expert with demonstrable experience in the type of data processing carried out under the agreement. The supplier is entitled to refuse an expert if, in the supplier’s opinion, the expert’s involvement affects the supplier’s competitive position. The audit is limited to verifying compliance with the personal data processing arrangements as laid down in the agreement. The expert is obliged to observe confidentiality regarding the findings and will only report issues to the client that result in a failure by the supplier to meet its obligations under the agreement. The expert will provide the supplier with a copy of the report. The supplier may refuse an expert, an audit, or an instruction by the expert if, in the supplier’s opinion, it violates the GDPR or other laws and regulations, or if it constitutes an unacceptable breach of the security measures implemented by the supplier.

29.4 The parties will hold consultations on the findings of the report as soon as possible. The parties will comply with the improvement measures proposed and laid down in the report insofar as reasonably expected. The supplier will implement the proposed measures that are appropriate in the supplier’s opinion, taking into account the processing risks associated with the supplier’s product or service, the state of the art, implementation costs, the market in which the supplier operates, and the intended use of the product or service.

29.5 The supplier is entitled to charge the client for the costs incurred in relation to the provisions laid down in this article.

30. Sub processors

30.1 The supplier has indicated in the agreement whether it contracts third parties (sub processors) for processing personal data, and if so, which third parties are involved.

30.2 The client grants the supplier permission to engage other sub processors in fulfilling the supplier's obligations under the agreement.

30.3 The supplier informs the client about any potential changes concerning the third parties it contracts. The client is entitled to object to such changes made by the supplier.

31. SaaS Implementation

31.1 The supplier provides the SaaS according to the client’s instructions. The client may only use the SaaS for its own organization or company and only as necessary for the intended use specified by the supplier. The client may not allow third parties to use the SaaS.

31.2 The supplier may adjust the content or scope of the SaaS. If such adjustments are substantive and result in a change in the client’s current procedures, the supplier will inform the client as soon as possible, and the costs of the adjustment will be at the client’s expense. In such cases, the client may terminate the agreement, with the termination taking effect on the date the adjustment is implemented, unless the adjustment is related to changes in relevant legislation or other instructions issued by public authorities, or if the adjustment is at the supplier’s expense.

31.3 The supplier may continue providing the SaaS using a new or modified version of the underlying software. The supplier is not obligated to maintain, modify, or add specific features or functionalities of the SaaS specifically for the client.

31.4 The supplier may temporarily suspend all or part of the SaaS for preventive, corrective, or adaptive maintenance services or other forms of service. The supplier will ensure that the duration of the suspension does not exceed what is necessary and will, where possible, schedule maintenance at times when the SaaS is typically used least intensively.

31.5 The supplier is never obligated to provide the client with a physical carrier or download of the underlying software.

31.6 Unless other arrangements have been made, the client is responsible for designing, configuring, parameterizing, and tuning the SaaS, converting and uploading data as needed, and, where required, modifying the hardware and user environment used.

32. Guarantees

32.1 The supplier does not guarantee that the SaaS will be error‑free or function without interruptions. The supplier will make every effort to repair errors in the underlying software, as referred to in Article 37.3, within a reasonable period, provided that the software was developed by the supplier and the client has provided a detailed, written description of the errors. In certain cases, the supplier may postpone repairs until a new version of the underlying software is released. The supplier does not guarantee the repair of errors in SaaS not developed by the supplier. The supplier is entitled to implement temporary solutions, program workarounds, or problem‑avoiding restrictions in the SaaS. If the SaaS, or part of it, was developed on the client’s instructions, the supplier may charge the client for the costs incurred in repairing the errors at the supplier’s applicable rates. The supplier is never obligated to repair any imperfections other than those specified in this article. If the supplier agrees to remedy other imperfections, the supplier is entitled to charge the client a separate fee for doing so.

32.2 Based on the information provided by the supplier regarding measures to prevent and limit the effects of malfunctions, errors, other imperfections in the SaaS, data corruption or loss, or other incidents, the client will identify and assess the risks to its organization or company and take additional measures where necessary. The supplier agrees to assist the client, upon request, to a reasonable extent and according to the financial and other conditions set by the supplier, with implementing further measures. The supplier is never obligated to recover data that has been corrupted or lost, other than by restoring the most recent backup of the data in question, where possible.

32.3 The supplier does not guarantee that the SaaS will be updated promptly to comply with changes in relevant laws and regulations.

33. Commencement of Service; Payment

33.1 The SaaS provided by the supplier, including any relevant support, will commence within a reasonable period after the agreement has been entered into. Unless otherwise agreed, the SaaS begins when the supplier grants the client access to the SaaS. The client must ensure that it has the necessary facilities to use the SaaS immediately after the agreement is entered into.

33.2 The fee payable by the client for the SaaS is included in the agreement. If no payment schedule has been agreed upon, all sums related to the SaaS delivered by the supplier will be due and payable in advance, on a monthly basis.

34. Additional Provisions

34.1 The following articles also apply to the SaaS: 35.3, 35.5, 35.8, 37.1 (excluding the reference to Article 41), 37.11, 49.4, 50.1, 50.2, 63.2, and 63.4. In these articles, the term ‘software’ should be interpreted as ‘SaaS,’ and the term ‘delivery’ as ‘commencement of the service.’

35. Right to Use and Restrictions on Use

35.1 The supplier grants the client a user license to use the software specified in the agreement for the duration of the agreement. The right to use the software is non‑exclusive, non‑transferable, and limited to the object code of the software. The client’s right to use the software does not extend to the software’s source code. The source code of the software and the technical documentation created during its development are not provided to the client, even if the client is willing to pay financial compensation.

35.3 The client must strictly adhere to the agreed restrictions on the use of the software, regardless of the nature or content of these restrictions.

35.4 If the parties have agreed that the software may only be used with specific hardware and that hardware malfunctions, the client is entitled to use the software on other hardware with the same specifications during the period the original hardware is defective.

35.5 The supplier may require that the client only begins using the software after receiving one or more codes necessary for its use from the supplier, the supplier’s supplier, or the software producer.

35.6 The client may only use the software within and for its own organization or company and only as necessary for its intended use. The client may not use the software for the benefit of third parties, such as in the context of SaaS or outsourcing.

35.7 The client is never entitled to sell, lease, or transfer the software or grant limited rights to it. The client may not make the software or the carriers on which it is or will be recorded available to third parties for any purpose or under any title. The client is also not permitted to grant a third party access to the software for hosting purposes, even if the third party uses the software exclusively in the client’s interest.

35.8 If requested, the client must promptly cooperate in any investigation into compliance with the agreed restrictions on software use conducted by or on behalf of the supplier. At the supplier’s request, the client must grant the supplier access to its buildings and systems. The supplier will keep confidential any business information obtained from the client or at the client’s premises during the investigation, except where it pertains to the use of the software itself.

35.9 The parties agree that the agreement between them is never considered a purchase agreement when it relates to making software available for use.

35.10 The supplier is not obligated to maintain the software or provide support to its users or administrators. If, contrary to the foregoing, the supplier is asked to perform maintenance or provide support for the software, the supplier may require the client to enter into a separate written agreement for this purpose.

36. Delivery and Installation

36.1 The supplier, at its discretion, either delivers the software on the agreed type of data carrier or, if no arrangements have been made in this regard, on a type of data carrier determined by the supplier, or makes the software available online to the client. The supplier, at its discretion, makes any agreed‑upon user documentation available in either hardcopy or digital form, in a language determined by the supplier.

36.2 The supplier only installs the software at the client's business premises if this has been agreed upon. If no such arrangements have been made, the client is responsible for the installation, design, parameterization, tuning, and, if necessary, modification of the hardware and operating environment used.

37. Acceptance

37.1 If the parties have not agreed on an acceptance test, the client accepts the software in the state it is in when delivered ("as is, where is"), with all visible and invisible errors and defects, without prejudice to the supplier's obligations under the guarantee scheme as set out in Article 41. In this case, the software is deemed to have been accepted by the client upon delivery or, if installation by the supplier has been agreed upon in writing, upon completion of the installation.

37.2 If an acceptance test has been agreed upon by the parties, the provisions of Articles 37.3 through 37.11 apply.

37.3 Where these general terms refer to an "error," this is understood to mean a substantial failure of the software to meet the functional or technical specifications of the software explicitly made known by the supplier in writing, and, if all or part of the software is customized, a substantial failure to meet the functional or technical specifications explicitly agreed upon in writing. An error exists only if it can be demonstrated by the client and if it is reproducible. The client is obliged to report errors without delay. The supplier has no obligation concerning imperfections in the software other than those related to errors as defined in these general terms.

37.4 If an acceptance test has been agreed upon, the test period is fourteen days following delivery or, if installation by the supplier has been agreed upon in writing, fourteen days following the completion of installation. During the test period, the client may not use the software for production or operational purposes. The client must perform the agreed‑upon acceptance test with qualified personnel, to an adequate extent, and in sufficient detail.

37.5 If an acceptance test has been agreed upon, the client is obliged to check whether the software delivered meets the functional or technical specifications explicitly made known by the supplier in writing and, if all or part of the software is customized, that it meets the functional or technical specifications explicitly agreed upon in writing.

37.6 If testing on the client's instructions involves the use of personal data, the client ensures that the use of such data for this purpose is permitted.

37.7 The software is understood to have been accepted: A. if the parties have agreed on an acceptance test: on the first day following the test period; or B. if the supplier receives a test report as referred to in Article 37.8 before the end of the test period: at the time the errors listed in this test report have been repaired, notwithstanding the presence of errors that, according to Article 37.9, do not prevent acceptance; or C. if the client uses the software in any way for production or operational purposes: at the time it is put into use for production or operational purposes.

37.8 If the agreed‑upon acceptance test reveals that the software contains errors, the client must report the test results to the supplier in a well‑ordered, detailed, and understandable manner no later than on the last day of the test period. The supplier makes every effort to repair the errors within a reasonable period. In this context, the supplier is entitled to install temporary solutions, program bypasses, or problem‑avoiding restrictions.

37.9 The client is neither entitled to refuse to accept the software for reasons unrelated to the specifications explicitly agreed upon in writing by the parties nor entitled to refuse acceptance due to minor errors, i.e., errors that do not, within reason, prevent the productive or operational use of the software. This is without prejudice to the supplier's obligation to repair these minor errors as referred to in Article 41. Acceptance may not be refused due to subjective aspects of the software, such as the aesthetic aspects of the user interfaces.

37.10 If the software is delivered and tested in phases and/or parts, non‑acceptance of a certain phase and/or part does not prejudice the acceptance of a previous phase and/or different part.

37.11 Acceptance of the software in one of the ways referred to in this article results in the supplier being discharged of its obligations concerning making the software available and delivering it and, if installation of the software by the supplier has also been agreed upon, of its obligations concerning installing it.

37.12 Acceptance of the software is without prejudice to the client's rights under Article 37.9 regarding minor errors and Article 41 providing for guarantees.

38. Making the Software Available

38.1 The supplier makes the software available to the client within a reasonable period after the parties have entered into the agreement.

38.2 Immediately after the agreement ends, the client returns all copies of the software in its possession to the supplier. If it has been agreed that the client must destroy the relevant copies when the agreement ends, the client informs the supplier, promptly and in writing, that the copies have been destroyed. When the agreement ends or after it has ended, the supplier is not obliged to assist in any data conversion that the client may wish to carry out.

39. Payment for the Right to Use Software

39.1 The sum due for the right to use is payable by the client at the agreed times or, if a time has not been agreed upon: A. if the parties have not agreed that the supplier is responsible for the installation of the software: Upon delivery of the software; or in the event that periodic payments are due for the right to use, upon delivery of the software and subsequently when each new term of the right to use commences; B. if the parties have agreed that the supplier is responsible for the installation of the software: Upon completion of that installation; in the event that periodic payments are due for the right to use the software, upon completion of that installation and subsequently when each new term of the right to use commences.

40. Modifications in the Software

40.1 Except where mandatory statutory provisions provide otherwise, the client is not entitled to modify all or part of the software without the supplier's prior written permission. The supplier is entitled to refuse permission or to attach conditions to its permission. The client bears the entire risk of all modifications it implements, whether or not with the supplier's permission, or that the client has implemented by third parties on its instructions.

41. Guarantees

41.1 The supplier makes reasonable efforts to repair errors as defined in Article 37.3 within a reasonable period if these errors are reported in detail and in writing to the supplier within three months after delivery or, if an acceptance test was agreed upon, within three months after acceptance. The supplier does not guarantee that the software is suitable for the actual and/or intended use. The supplier also does not guarantee that the software functions without interruptions and/or that all errors are always repaired. Repairs are carried out free of charge unless the software was developed on the client's instructions other than for a fixed price, in which case the supplier charges the costs of the repairs to the client at its applicable rates.

41.2 The supplier may charge the costs of the repairs to the client at its applicable rates if such repairs are required as a result of usage errors or improper use of the software by the client, or as a result of causes that cannot be attributed to the supplier. The obligation to repair errors ends if the client modifies the software or has such modifications implemented without the supplier's written permission.

41.3 Errors are repaired at a location and in a manner determined by the supplier. The supplier is entitled to install temporary solutions, program bypasses, or problem‑avoiding restrictions in the software.

41.4 The supplier is never obliged to recover corrupted or lost data.

41.5 The supplier has no obligation whatsoever with respect to errors reported after the end of the guarantee period referred to in Article 41.1.

42. Specifications and development of software and/or websites

42.1 Development always takes place under a service agreement. If no specifications or design of the software and/or website to be developed have been provided before the agreement is entered into or no specifications or design are provided when the agreement is entered into, the parties will specify, in writing and through consultation, the software and/or website to be developed and the manner in which the software and/or website will be developed.

42.2 The supplier develops the software and/or website with due care and in accordance with the explicitly agreed specifications or design, and where applicable, with due regard for the project organization, methods, techniques, and/or procedures agreed upon in writing with the client. Before starting the development activities, the supplier may require the client to agree to the specifications or design in writing.

42.3 If no specific arrangements have been made in this matter, the supplier will start the design and/or development activities within a reasonable period, to be determined by the supplier, after the agreement has been entered into.

42.4 At the supplier’s request, the client will provide the supplier with the opportunity to perform activities at the client’s premises outside of usual working days and hours.

42.5 The supplier’s obligations with respect to the development of a website do not include making a content management system available.

42.6 If the parties agree that, apart from development activities, the supplier also provides training courses, maintenance, and/or support, or if the supplier applies for a domain name, the supplier may request that the client enter into a separate, written agreement. The supplier will charge the client separately for these services at the supplier’s applicable rates.

42.7 If the supplier provides services to the client in connection with a domain name, such as the application, renewal, alienation, or transfer to a third party of that name, the client is obliged to observe the rules and methods of the relevant authority or authorities. At the client’s request, the supplier will provide the client with a written copy of these rules. The supplier is explicitly not responsible for the correctness or promptness of the services nor responsible for achieving the results the client intends to achieve. The client will be charged for all costs involved in the application and/or registration at the agreed rates, and if no rates have been agreed upon, at the supplier’s applicable rates. The supplier does not guarantee that a domain name the client wishes to use will actually be assigned to the client.

43. Agile development of software/websites

43.1 If the parties use an iterative development method, such as Scrum, they accept: (I) that at the start, the activities are not performed on the basis of complete or fully detailed specifications; and (ii) that specifications, which may or may not have been agreed upon at the start of the activities, may be adapted during the term of the agreement through mutual consultation and in accordance with the project approach.

43.2 Before starting the activities to be performed under the agreement, the parties will assemble one or more teams consisting of representatives from both the supplier and the client. The team ensures that communication lines remain short and direct, and that consultations take place regularly. The parties will ensure the deployment of the agreed capacity (FTEs) in terms of team members with the roles, knowledge, experience, and decision‑making powers required to perform the agreement. The parties accept that the agreed capacity is a minimum requirement to make the project successful. The parties will endeavor to keep key staff available who were initially deployed, as much as reasonably possible, until the end of the project, unless circumstances arise that are beyond the parties' control. During the performance of the agreement, the parties will jointly decide, through consultation, on the specifications that apply for the following phase of the project (e.g., a time box) and/or for the development of the next part. The client accepts the risk that the software and/or the website may not necessarily meet all specifications. The client will ensure permanent and active input from relevant end‑users, supported by the client’s organization or company, for testing and further decision‑making. The client guarantees expeditiousness in progress‑related decisions during the performance of the agreement. If the client fails to make clear and prompt progress‑related decisions in line with the project approach that is part of the relevant development method, the supplier is entitled, though not obliged, to make the decisions that the supplier deems appropriate.

43.3 If the parties have arranged for one or more test moments, testing will exclusively occur on the basis of objective, measurable criteria agreed upon previously, such as compliance with development standards. Errors and other imperfections will only be repaired if the responsible team decides so, and this will be carried out in a subsequent iteration. If an extra iteration is required, the costs will be at the client’s expense. After the last development phase, the supplier is not obliged to repair any errors or other imperfections unless explicitly agreed upon otherwise in writing.

44. Delivery, installation, and acceptance

44.1 The provisions of Article 36 with respect to delivery and installation apply mutatis mutandis.

44.2 Unless the supplier is obliged under the agreement to host the software and/or website for the client on its own computer system, the supplier will either deliver the software and/or website to the client on a data carrier in a form determined by the supplier or make the software and/or website available online to the client.

44.3 The provisions of Article 37 of these general terms with respect to acceptance apply mutatis mutandis.

44.4 If the parties use a development method as referred to in Article 43, the provisions of Articles 37.1, 37.2, 37.4 to 37.9, 37.12, and Articles 41.1 and 41.5 do not apply. The client accepts the software and/or website in the state it is in at the moment the last development phase ends ("as is, where is").

45. Right to use

45.1 The supplier makes the software and/or website developed on the client’s instructions, along with the relevant user documentation, available to the client for use. The source code of the software and the technical documentation prepared during the development of the software will only be made available to the client if this has been agreed upon in writing, in which case the client is entitled to modify the software.

45.2 The supplier is not obliged to make the auxiliary software and program or data libraries required for the use and/or maintenance of the software and/or website available to the client.

45.3 The provisions of Article 35 with respect to the right to use and restrictions on use apply mutatis mutandis.

45.4 Only if the content of the written agreement explicitly indicates that all design and development costs are fully and exclusively at the client’s expense, the restrictions on the use of the software and/or website do not apply to the client, contrary to the provisions of Article 45.3.

46. Payment

46.1 If no payment scheme has been agreed upon, all sums related to the development of software and/or website become due and payable, in arrears, per calendar month.

46.2 The price for the development activities includes payment for the right to use the software and/or website for the term of the agreement.

46.3 The payment for the development of the software and/or website does not include payment for auxiliary software and program and data libraries, any installation services, or any modifications and/or maintenance of the software and/or website required by the client. The payment does not include support services for the users of the software and/or website either.

47. Guarantees

47.1 The provisions of Article 41 with respect to guarantees apply mutatis mutandis.

47.2 The supplier does not guarantee that the software and/or website it has developed will function properly on all new versions of web browsers or other software and/or websites. The supplier also does not guarantee that the software and/or website will function properly on all types of hardware.

48. Maintenance Services

48.1 If agreed, the supplier will perform maintenance services for the software specified in the agreement. The obligation to provide maintenance includes repairing errors in the software as described in Article 37.3 and, only if agreed in writing, making new versions of the software available in accordance with Article 49.

48.2 The client must report any software errors in detail. Upon receiving the report, the supplier will make every effort to repair errors and/or implement corrections in later, new versions of the software, following its applicable procedures. Depending on the urgency and the supplier’s version and release policy, the results will be made available to the client in a manner and within a time frame determined by the supplier. The supplier is entitled to install temporary solutions, program bypasses, or problem‑avoiding restrictions in the software. The client is responsible for installing, organizing, parameterizing, and tuning the corrected software or the new version of the software made available, and, if necessary, for modifying the hardware and operating environment used. The supplier is never obliged to repair any imperfections other than those referred to in this article. If the supplier agrees to correct other imperfections, it is entitled to charge a separate fee for this.

48.3 The provisions of Articles 41.3 and 41.4 apply mutatis mutandis.

48.4 If the supplier performs maintenance services online, the client must ensure that a properly and appropriately secured infrastructure and network facilities are in place in due time.

48.5 The client must provide all necessary assistance to the supplier for the maintenance services, including temporarily stopping the use of the software and making a backup of all data.

48.6 If the maintenance concerns software not delivered to the client by the supplier, and if the supplier deems it necessary or appropriate in the context of maintenance, the client must make the source code and technical (development) documentation of the software, including data models, designs, change logs, and similar materials, available to the supplier. The client guarantees that it is entitled to provide the source code and documentation. The client grants the supplier the right to use and modify the software, including the source code and technical (development) documentation, so that the supplier can perform the agreed maintenance services.

49. New Versions of the Software

49.1 Maintenance includes making new versions of the software available only if this has been agreed upon in writing. If maintenance includes providing new versions, these will be made available at the supplier’s discretion.

49.2 Three months after an enhanced version has been made available, the supplier is no longer obliged to repair errors in the previous version or to provide support and/or perform maintenance services for that version.

49.3 The supplier may require the client to enter into an additional written agreement for a version with new functionality and to make further payments for this version. The supplier may incorporate functionality from a previous version of the software into the new version without modification, but it does not guarantee that each new version will include the same functionality as the previous version. The supplier is not obliged to maintain, modify, or add particular features or functionalities to the software specifically for the client.

49.4 The supplier may require the client to modify its system (hardware, web browser, software, and the like) if necessary for the proper functioning of a new version of the software.

50. Support Services

50.1 If the services provided by the supplier under the agreement include support services for users and/or administrators of the software, the supplier will advise – online, by telephone, or by email – on the use and functioning of the software specified in the agreement. The client is obliged to specify support requests as comprehensively and in as much detail as possible so that the supplier can respond appropriately. The supplier may set conditions regarding the way support is requested and the qualifications and number of persons eligible for support. The supplier will handle properly substantiated support requests within a reasonable period of time and in compliance with its applicable procedures. The supplier does not guarantee the correctness, completeness, or timeliness of responses or support provided. Support services will be performed on working days during the supplier’s usual business hours.

50.2 If the services provided by the supplier under the agreement include standby services, the supplier will ensure that one or more staff members are available on the days and at the times specified in the agreement. If standby services have been agreed upon, the client is entitled, in urgent cases, to call in the support of staff members on standby if there are serious errors, malfunctions, or other significant issues affecting the software's functionality. The supplier does not guarantee that these issues will be promptly repaired.

50.3 The maintenance and other agreed services referred to in this chapter will be performed starting from the date on which the agreement is entered into, unless the parties have agreed otherwise in writing.

51. Payment

51.1 If no payment scheme has been explicitly agreed upon, all sums related to the maintenance of the software and other services mentioned in this section and set out in the agreement will become due and payable, in advance, per calendar month.

51.2 Sums relating to the maintenance of the software and other services mentioned in this section and set out in the agreement are payable when the agreement is entered into. Payment for maintenance and other services is always due, regardless of whether the client has taken the software into use and regardless of whether the client actually makes use of the maintenance or support services.

52. Advisory and Consultancy Services

52.1 The supplier performs advisory and consultancy services in a fully independent manner, at its own discretion, and without the client’s supervision and direction.

52.2 The supplier does not commit to a specific completion time for the assignment because the completion time of an advisory or consultancy service assignment depends on various factors and circumstances, such as the quality of the data and information provided by the client and the assistance rendered by the client and relevant third parties.

52.3 The supplier performs its services only on its usual working days and during its usual business hours.

52.4 The use that the client makes of any advisory and/or consultancy report drafted by the supplier is always at the client’s risk. The burden of proof is on the client to demonstrate that the advisory and/or consultancy services, or the manner in which they were performed, are not in compliance with what has been agreed upon in writing or with what may be expected from a competent supplier acting reasonably, without prejudice to the supplier’s right to provide evidence to the contrary using any legal means.

52.5 Without the supplier’s prior written permission, the client may not disclose the supplier’s methods, techniques, or the content of the supplier’s recommendations or reports to any third party. The client may not provide the supplier’s recommendations or reports to a third party or otherwise make them public.

53. Reporting

53.1 The supplier will periodically inform the client, in the manner agreed upon in writing, about the performance of the services. The client will inform the supplier in advance and in writing about circumstances of importance or circumstances that could be of importance to the supplier, such as the manner of reporting, the issues to be addressed, the client’s prioritization, the availability of the client’s resources and staff, and any special facts or circumstances, or facts or circumstances of which the supplier might be unaware. The client will ensure that the information provided by the supplier is disseminated and considered within the client’s organization or company and will assess this information accordingly and inform the supplier.

54. Payment

54.1 If no payment scheme has been explicitly agreed upon, all sums related to the services provided by the supplier as mentioned in this section will become due and payable in arrears, per calendar month.

55. Employee Secondment

55.1 The supplier makes the employee specified in the agreement available to perform activities under the client's direction and supervision. The results of these activities are at the client's risk.

55.2 The client may only deploy the employee made available to perform activities other than those agreed upon if the supplier has agreed to this in advance and in writing.

55.3 The client may only second the employee made available to a third party for the purpose of performing activities under that third party’s direction and supervision if this has been explicitly agreed in writing.

55.4 The supplier will make reasonable efforts to ensure that the employee made available remains available during the agreed days to perform activities for the term of the agreement, except in the event of the employee’s incapacity for work or if the employee leaves the supplier's employment. Even if the agreement has been entered into with a view to the activities being performed by one particular person, the supplier is always entitled, after consultations with the client, to replace this person with one or more persons who have the same qualifications. The client is entitled to request that the employee made available be replaced (I) if the employee made available demonstrably fails to meet the quality requirements explicitly agreed upon, and the client informs the supplier about this, stating reasons, within three working days after the activities have started, or (ii) in the event of the relevant employee’s prolonged incapacity for work or if the employee leaves the supplier's employment. The supplier complies with such a request without delay and as a matter of priority. The supplier does not guarantee that the employee made available can always be replaced. If the employee cannot be replaced or cannot be replaced promptly, both the client’s rights with respect to further performance of the agreement and all client’s claims arising from non‑performance of the agreement lapse. The client’s payment obligations with respect to the activities already performed continue to apply in full.

56. Duration of the secondment agreement

56.1 Notwithstanding the provisions of article 5 of these general terms, if nothing has been agreed upon by the parties regarding the duration of the secondment, the secondment agreement is considered an agreement for an indefinite period of time, in which case either party must observe a notice period of one calendar month following any initial term of the agreement. Termination by serving notice of termination (opzegging) must be done in writing.

57. Working hours and working conditions

57.1 The working hours, holiday periods, rest periods, and other relevant working conditions of the employee made available are the same as those usually applied by the client. The client guarantees that the working hours, holiday periods, rest periods, and other relevant working conditions are in compliance with relevant laws and regulations.

57.2 The client must inform the supplier of any intended temporary or permanent closure of its organization or company.

58. Overtime pay and travel time

58.1 If, on the client’s instructions or at the client’s request, the employee made available works more hours per day than the agreed or usual number of working hours or works on days other than the supplier’s usual working days, the client is charged for these hours at the overtime rate agreed upon or, if no such rate has been agreed upon, at the supplier’s applicable overtime rate. If requested, the supplier informs the client about its applicable overtime rates.

58.2 The client is charged for travelling expenses and travel time in accordance with the supplier’s applicable rules and standards. If requested, the supplier informs the client about the supplier’s applicable rules and standards.

59. Hirer’s liability and other liability

59.1 The supplier ensures that amounts payable in terms of payroll tax, national insurance contributions, employee insurance contributions, income-related healthcare contributions, and turnover tax for the employee made available under the agreement with the client are paid on time and in full. The supplier indemnifies the client against any and all claims of the Tax Administration or authorities responsible for implementing social insurance legislation that are due and payable under the agreement with the client, provided that the client promptly informs the supplier, in writing, about such claims when they arise, about the content of a claim, and leaves the settlement of that claim, including any arrangements to be made in this regard, entirely to the supplier. The client provides the supplier with the powers of attorney and the information required and assists the supplier in defending itself, if necessary in the client’s name, against such claims.

59.2 The supplier does not accept any liability for the quality of the results of the activities performed under the client's supervision and instructions.

60. Registration and Cancellation for Training Courses

60.1 Registration for a training course must take place in writing and is binding following its confirmation by the supplier.

60.2 The client is responsible for the choice and suitability of the training course for the participants. A participant’s lack of the required prior knowledge does not affect the client’s obligations under the agreement. The client may replace a training course participant with another participant following the supplier’s written permission.

60.3 If, in the supplier’s opinion, the number of registrations should give rise to this, the supplier is entitled to cancel the training course, to combine it with one or more training courses, or schedule it on a later date or at a later time. The supplier reserves the right to change the location of the training course. The supplier is entitled to change the training course in organizational terms and in terms of content.

60.4 If the client or a participant cancels participation in a training course, the consequences of the cancellation are governed by the supplier’s applicable rules. In any case, cancellation must take place in writing and prior to the training course or the part of the training course concerned. Cancellation or non‑attendance does not affect the client’s payment obligations under the agreement.

61. Training Courses

61.1 The client accepts that the supplier determines the content and scope of the training course.

61.2 The client must inform participants of their obligations under the agreement, the rules of conduct, and other rules prescribed by the supplier for participation in the training course. The client ensures that participants comply with these obligations and rules.

61.3 If the supplier uses its own hardware or software in the training course, it does not guarantee that this hardware or software is free of errors or operates without interruption. If the training course is conducted at the client’s premises, the client must ensure that an appropriate classroom and properly functioning hardware and software are available. If the facilities at the client’s premises do not meet the requirements and the quality of the training course cannot be guaranteed, the supplier is entitled to refuse to start, shorten, or stop the training course altogether.

61.4 The agreement does not include administering an exam or test.

61.5 The client will be separately charged for documentation, training materials, or training resources made available or produced for the training course. This also applies to any training course certificates or duplicates thereof.

61.6 If the training course is delivered as an e‑learning course, the provisions of the section ‘Software‑as‑a‑Service (SaaS)’ apply mutatis mutandis as much as possible.

62. Price and Payment

62.1 The supplier may require the client to pay the sums due prior to the start of the training course. The supplier may exclude participants from the training course if the client fails to ensure timely payment, without prejudice to any other rights the supplier may have.

62.2 If the supplier has conducted a preliminary study to create a training course plan or has provided training course recommendations, the client may be separately charged for any associated costs.

62.3 Unless the supplier has explicitly indicated that the training course is VAT‑exempt under Article 11 of the Turnover Tax Act 1968, VAT is payable on the client’s payment. The supplier is entitled to adjust its prices after the agreement has been entered into if there are changes in the VAT regime for training courses as prescribed by law.

63. Hosting Services

63.1 The supplier performs the hosting services agreed upon with the client.

63.2 If the agreement involves providing hard disk space, the client may not exceed the agreed disk space unless the agreement explicitly addresses the consequences of doing so. The agreement pertains to providing disk space on a server specifically reserved for the client only if this has been explicitly agreed in writing. All use of disk space, data traffic, and other usage of systems and infrastructure is limited to the maximums agreed upon by the parties. Unused data traffic in a given period may not be carried over to a subsequent period. If the agreed maximums are exceeded, the supplier will charge the client additional compensation at its applicable rates.

63.3 The client is responsible for the management, including checking the settings, and use of the hosting service, and for the implementation of the services results. If no specific arrangements have been made, the client is responsible for installing, organizing, parameterizing, and tuning the software and auxiliary software, and, if required, modifying the hardware and user environment to ensure interoperability. The supplier is not obliged to perform data conversion.

63.4 Only if explicitly agreed in writing does the agreement also include providing security, backup, contingency, and recovery services or making these available.

63.5 The supplier may temporarily take all or part of the hosting service out of operation for preventive, corrective, or adaptive maintenance. The supplier will ensure that the downtime is minimized and, where possible, takes place outside office hours, and, where appropriate, consults with the client before commencing.

63.6 If, under the agreement, the supplier provides services to the client related to a domain name, such as application for, renewal, transfer, or alienation of that name, the client must comply with the rules and methods of the relevant organization(s). Upon the client’s request, the supplier will provide a written copy of these rules. The supplier is explicitly not responsible for the correctness or promptness of the services or for achieving the results the client intends. The client is charged for all costs involved in the application and/or registration at the agreed rates, and if no rates have been agreed upon, at the supplier’s applicable rates. The supplier does not guarantee that a domain name the client wishes to use will be assigned to the client.

64. Notice and Take Down

64.1 The client must always act with due care and avoid unlawful actions towards third parties, specifically by respecting intellectual property rights and other rights of third parties, privacy, and by refraining from spreading unlawful information, granting unauthorized access to systems, and spreading viruses or harmful programs or data. The client must also refrain from committing criminal offences and violating other legal obligations.

64.2 To prevent or limit liability to third parties, the supplier is entitled to take measures regarding any act or omission of or at the client’s risk. Upon the supplier’s first written request, the client must promptly remove data and/or information from the supplier’s systems. If the client fails to do so, the supplier may, at its option, delete the data and/or information itself or make access to it impossible. Additionally, in the event of a breach or imminent breach of Article 64.1, the supplier is entitled to deny the client access to the supplier’s systems immediately and without prior notice. This is without prejudice to the supplier taking any other measures or exercising any other statutory and contractual rights with respect to the client. In this case, the supplier is also entitled to terminate the agreement immediately without being liable to the client.

64.3 The supplier cannot be expected to form an opinion on the validity of third-party claims or the client’s defense, or to become involved in any dispute between a third party and the client. The client must handle the dispute with the relevant third party and inform the supplier in writing, with proper substantiation and supporting documents.

65. Purchase and Sale

65.1 The supplier sells the hardware and/or other goods according to the nature and quantity agreed upon in writing.

65.2 The supplier does not guarantee that the hardware and/or goods are suitable for the client’s actual and/or intended use upon delivery unless the intended purposes have been clearly specified, without caveats, in the written agreement.

65.3 The supplier’s obligation to sell does not include the assembly and installation of materials, software, consumer items and articles, batteries, stamps, ink and ink cartridges, toner items, cables, and accessories.

65.4 The supplier does not guarantee that the assembly, installation, and operating instructions that accompany the hardware and/or goods are free of errors and that the hardware and/or goods have the features stated in these instructions.

66. Delivery

66.1 The hardware and/or goods sold by the supplier to the client are delivered ex-warehouse. If agreed upon in writing, the supplier will deliver the goods to a location designated by the client or have the goods delivered to this location. In this case, the supplier will inform the client, if possible, in advance about the time when the supplier or the transporter contracted by the supplier intends to deliver the hardware and/or goods.

66.2 The purchase price of the hardware and/or goods does not include transportation, insurance, hauling, hoisting, hiring of temporary facilities, or similar costs. If applicable, the client will be charged for these costs.

66.3 If the client requests the supplier to remove or destroy old materials—such as networks, cabinets, cable ducts, packaging materials, hardware, or data on hardware—or if the supplier is legally obliged to do so, the supplier may accept this request based on a written order and at its applicable rates. If the supplier is prohibited by law from charging for such services, for example, under an old-for-new scheme, no costs will be charged.

66.4 Provided that parties have entered into a written agreement to arrange for this, the supplier is responsible for installing, configuring, and connecting the hardware and/or goods or for having them installed, configured, and connected. Any obligation of the supplier to install and/or configure hardware does not include data conversion or software installation. The supplier is not responsible for obtaining any required licenses.

66.5 The supplier is always entitled to perform the agreement in partial deliveries.

67. Test Setup

67.1 The supplier is only obliged to set up a test environment for the hardware the client is interested in if this has been agreed upon in writing. The supplier may attach financial and other conditions to a test setup. A test setup involves making the standard version of the hardware temporarily available on approval, excluding accessories, in a space provided by the client, before the client makes a final decision on whether to purchase the hardware. The client is liable for the use of, damage to, and theft or loss of the hardware that forms part of a test setup.

68. Requirements for Hardware Environment

68.1 The client ensures an environment that meets the requirements specified by the supplier for the hardware and/or goods, including temperature, humidity, and technical requirements.

68.2 The client ensures that activities performed by third parties do not interfere with the supplier’s obligations.

69. Guarantees

69.1 The supplier makes every effort to repair defects in the material and manufacturing defects in the hardware and/or goods sold, as well as defects in parts delivered by the supplier within the scope of the guarantee, within a reasonable period and free of charge if these defects are reported in detail to the supplier within three months following delivery. If, in the supplier’s reasonable opinion, the defects cannot be repaired or repair would take too long, or if repair would entail disproportionately high costs, the supplier is entitled to replace the hardware and/or goods free of charge with other, similar, though not necessarily identical, hardware and/or goods. The guarantee does not include any data conversion that may be required due to repair or replacement. All replaced parts remain the supplier’s property. The guarantee obligation no longer applies if defects in the hardware, goods, or parts are entirely or partly caused by incorrect, careless, or incompetent use or by external circumstances such as fire or water damage, or if the client modifies the hardware or parts delivered by the supplier under the guarantee or has them modified without the supplier’s permission. The supplier will not unreasonably withhold such permission.

69.2 The client cannot file any claims or further claims concerning non‑conformity of the hardware and/or goods delivered other than those laid down in Article 69.1.

69.3 The client is charged for any costs incurred by activities and repairs performed outside the scope of this guarantee at the supplier’s applicable rates.

69.4 The supplier has no obligation under the purchase agreement concerning defects and/or other faults reported after the guarantee period referred to in Article 69.1 ends.

70. Leasing

70.1 The supplier leases to the client the hardware and relevant user documentation specified in the lease agreement.

70.2 The lease does not include making software available on separate data carriers or providing consumer items and articles required to use the hardware, such as batteries, ink and ink cartridges, toner items, cables, and accessories.

70.3 The lease commences on the date the hardware is made available to the client.

72. Use of the Hardware

72.1 The client exclusively uses the hardware in and for its own organization or company, in compliance with the hardware’s intended use under the agreement and at the specified premises. Use of the hardware by or for the benefit of third parties is not permitted. The right to use the hardware is non-transferable, and the client is not permitted to lease or otherwise enable a third party to use it or to make use of it together with the client.

72.2 The client is responsible for installing and assembling the hardware and making it ready for use.

72.3 The client is not permitted to use the hardware or any part of it as security or collateral, nor to dispose of the hardware or any part of it in another manner.

72.4 The client uses and maintains the hardware with due care and takes adequate measures to prevent damage. Should any damage occur, the client promptly informs the supplier and remains liable for damage, theft, loss, or misappropriation of the hardware for the term of the lease.

72.5 The client is not permitted to modify the hardware, either entirely or partially, nor add anything to it. If any modifications or additions have been made, the client is obliged to undo or remove these no later than at the end of the lease agreement.

72.6 The parties agree that defects in modifications or additions made to the hardware by or under the client’s instructions, and all defects caused by those modifications or additions, are not considered defects within the meaning of Article 7:204 of the Netherlands Civil Code. The client may not file a claim against the supplier with respect to such defects, and the supplier is not obliged to repair or maintain hardware affected by such modifications.

72.7 The client is not entitled to any compensation for modifications or additions made by the client if these are not undone or removed, for any reason whatsoever, when or after the lease agreement ends.

72.8 The client promptly informs the supplier in writing when the hardware is provisionally attached, stating the identity of the attaching party and the reason for the attachment, and allows the bailiff levying the attachment to inspect the lease agreement.

73. Maintenance of the Leased Hardware

73.1 The client is not allowed to maintain the leased hardware itself or have it maintained by a third party. The client must promptly inform the supplier in writing about any defects observed in the leased hardware. The supplier makes every effort, within a reasonable period and by means of corrective maintenance, to repair defects that are at the supplier’s expense. The supplier is also entitled, though not obliged, to perform preventive maintenance services. If requested, the client provides the supplier the opportunity to perform corrective and/or preventive maintenance services. The parties determine together, by consultation and in advance, the dates and times at which maintenance services must be performed. The client is not entitled to replacement hardware during maintenance.

73.2 The supplier’s obligation to repair defects excludes: repairing defects that the client accepted when entering into the lease agreement; repairing defects caused by external circumstances; repairing defects attributable to the client, its staff, or third parties contracted by the client; repairing defects caused by careless, incorrect, or incompetent use or use contrary to the documentation; repairing defects related to the use of parts or consumer articles not recommended or authorized by the supplier; repairing defects caused by using the hardware in a manner contrary to its designated use; and repairing defects caused by unauthorized modifications or additions to the hardware.

73.3 If the supplier repairs such defects, the client is charged, at the supplier’s applicable rates, for the costs incurred.

73.4 The supplier is entitled to decide against repairing defects and to replace the hardware with other, similar (though not necessarily identical) hardware.

73.5 The supplier is never obliged to recover or reconstruct lost data.

74. Final Inspection and Return of Hardware

74.1 At the end of the lease agreement, the client returns the hardware to the supplier in its original state. Any transportation costs incurred by the return are at the client’s expense.

74.2 Prior to or no later than on the last working day of the lease term, the client must assist in a joint final inspection of the hardware’s condition. The findings are documented in a report jointly drafted and signed by both parties. If the client does not assist, the supplier may conduct the inspection alone and draft the report, which is binding on the client.

74.3 The supplier is entitled to have defects listed in the final inspection report, which are reasonably at the client’s risk and expense, repaired at the client’s expense. The client is liable for any loss suffered by the supplier due to temporary downtime or inability to lease the hardware to a third party.

74.4 If, at the end of the lease term, the client has not undone a modification or removed an addition implemented in the hardware, the client is deemed to have waived any rights to those modifications or additions.

75. Maintenance Services

75.1 The supplier performs maintenance services for the hardware specified in the maintenance agreement provided that the hardware is set up in the Netherlands.

75.2 The client is not entitled to temporary replacement hardware during the time that the supplier has the hardware that needs to be maintained in its possession.

75.3 The content and scope of the maintenance services to be performed and the service levels that may apply are laid down in a written maintenance agreement. If maintenance has not been agreed on in writing, the supplier is obliged to make every effort to repair malfunctions, within a reasonable period of time, that have been reported by the client in an appropriate manner. In these general terms, 'malfunction' means non‑compliance of the hardware with the hardware specifications explicitly made known by the supplier in writing or a failure of the hardware to comply with these specifications without interruption. A malfunction only exists if the client can not only demonstrate but also reproduce this malfunction. The supplier is also entitled, though not obliged, to perform preventive maintenance.

75.4 The client promptly informs the supplier of a malfunction in the hardware, by providing a detailed description of it, when this malfunction occurs.

75.5 The client renders all assistance required by the supplier in the context of maintenance services, for example, to temporarily stop using the hardware. The client grants the supplier’s staff or third parties designated by the supplier access to the location of the hardware, renders the required assistance, and makes the hardware available to the supplier so that the maintenance services can be performed.

75.6 The client ensures that a complete and properly functioning backup is made of all software and data recorded in or on the hardware before the hardware is made available to the supplier for maintenance.

75.7 At the supplier’s request, one of the client’s staff members who is an expert in the matter at hand is present for consultation when the maintenance services are performed.

75.8 The client is authorized to connect hardware and systems not delivered by the supplier to the hardware and install software on that hardware.

75.9 If, in the supplier’s opinion, maintenance of the hardware should require testing the hardware’s connections with other hardware or software, the client makes both the other hardware and software in question and the test procedures and data carriers available to the supplier.

75.10 Testing material required for maintenance that is not included in the supplier’s normal range of hardware is to be made available by the client.

75.11 The client bears the risk of loss or theft of, or damage to, the hardware during the time that the supplier has the hardware that needs to be maintained in its possession. It is up to the client to take out insurance against this risk.

76. Maintenance Fees

76.1 The maintenance fee does not include: Costs of consumer articles or their replacement, such as batteries, stamps, ink and ink cartridges, toner articles, cables, and accessories; Costs of parts or their replacement, and maintenance required to repair malfunctions that were entirely or partly caused by repair attempts by parties other than the supplier; Activities related to the overhaul of the hardware; Modifications to the hardware; Costs for moving, relocating, or reinstalling hardware, including transportation costs for hardware that needs to be repaired, or any other activities arising from these actions.

76.2 The maintenance fee is due regardless of whether the client has put the hardware to use, makes use of it, or utilizes the maintenance option.

77. Exclusions

77.1 Activities performed to investigate or repair malfunctions caused by or related to user errors, improper use of the hardware, or external circumstances such as failures of internet services, data network connections, power supplies, or connections to hardware, software, or materials not covered under the maintenance agreement, do not fall within the scope of the supplier’s obligations under the maintenance agreement.

77.2 The supplier’s obligations with respect to maintenance do not cover: Investigating or repairing malfunctions caused by or connected with modifications to the hardware carried out by a party other than the supplier or a party acting on behalf of the supplier; Use of the hardware in breach of applicable conditions and the client’s failure to maintain the hardware in a timely manner. The supplier’s maintenance obligations do not include investigating or repairing malfunctions in the software installed on the hardware.

77.3 Any costs incurred from maintenance services and/or investigations conducted under Articles 77.1 and/or 77.2 may be charged by the supplier at the supplier’s applicable rates.

77.4 The supplier is never obliged to recover corrupted or lost data.