General terms and conditions
These General Terms and Conditions (hereinafter referred to as: “Terms”), are used by Gen25 B.V. and its affiliated corporations: Social25 B.V., GoMeddo B.V., Subscription25 B.V. and Gen25 Ltd.
Gen25 B.V. or its affiliates are hereinafter referred to as: “the Company”.
Clause 1: Definitions
1.1 The definitions in these Terms shall have the following meaning:
Agreement: any agreement or legal relationship between the Parties in respect of the provision of Services, any amendment thereof or supplement thereto, as well as all and any acts related to the implementation of the Agreement;
Application: standard software solutions that are created and licensed to the Customer by the Company and referred to and described in the Agreement, Customer Order Form or Statement of Work;
Business Day: a calendar day from 08:30 and 17.00 Central European Time (CET), except for weekends and official national holidays in the Netherlands.
Customer: any person or legal entity with whom the Company wishes to enter into, or has entered into a legal relationship;
Customer Order Form: a written service order concerning certain Services related to Applications, as entered into between the Customer and the Company, as part of the Agreement;
Fee: the fee(s) due and owed by the Customer to the Company as consideration arising from the Services and relating to the Agreement;
Party: the Customer or one of the entities belonging to the Company;
Services: services provided by the Company as described in the Agreement, Customer Order Form or Statement of Work;
Statement of Work: a written service order concerning certain Services, as entered into between the Customer and the Company, as part of the Agreement;
Supplier: a supplier, subcontractor or licensor of the Company with which one of the corporations of the Company has a legal relationship;
Clause 2: Applications
2.1 From the Service Start Date, the Company shall commence provision of the Services in accordance with the applicable Customer Order Form, Statement of Work and other content of the Agreement. In case Customer uses more licences than the contracted amount. Company has the right to invoice Customer for the additional licences in use by Customer.
2.2 During the term of the Agreement, the Company shall make commercially reasonable efforts to provide access to the Application. The Company aims at achieving availability of the Application of twenty-four hours a day, seven days a week, but has the right to temporarily suspend the Application when required for maintenance, changes and improvements. When possible these interruptions will be announced by the Company and activities will be planned outside Business Days, where possible. The Company cannot be held liable for any damage related to these maintenance interruptions.
2.3 The Customer acknowledges that the Application is a ready and generic product that has not been developed for the Customer specifically. The Customer is responsible for the use and application of the product.
2.4 The Company may make changes to the content and scope of the Services due to changes in the relevant laws or on the basis of directives issued by other authorized bodies. The Company shall inform the Customer about this as soon as possible and the costs of the changes are for the Customer's account. In such case the Customer shall be entitled to terminate the Agreement, in writing, on the date when the change takes effect.
2.5 The Company is entitled to - after notification and consultation with the Customer - make changes to, replace, suspend or block the Application.
Clause 3: Services
3.1 The provision of Services shall take place at a date set by the Company at its discretion, and on a case by case basis as set forth in the Agreement and the Company is authorized to deliver the Services in parts and to request payment for each (sub)delivery, unless otherwise agreed by Parties in writing.
3.2 The Customer will use the Services at its own discretion, for its own account and at its own risk. The Company will provide the Services using reasonable skill and care, but does not provide any guarantees that they will lead to any particular outcome.
3.3 In the case that the Customer has not entered into an Agreement with the Company concerning support services, the Company cannot be obliged by the Customer to conclude such a service level agreement at a later point in time.
Clause 4: Customer Obligations
4.1 The Customer is responsible for the required communication, data, backup and storage facilities for the use of the Services, including the internet, as well as where it concerns the choice of staff members and their timely and complete availability.
4.2 The Customer is solely responsible for the use of the Service provided by the Company, maintaining due care and confidentiality in respect of access thereto and use thereof, and for its configuration of the Service. The Customer has the obligation to only use the Services within the boundaries of the terms of the Agreement, these Terms and the applicable laws.
Clause 5: Company Obligations
5.1 The Company shall make available qualified persons for the delivery of Services and shall make every effort to carry out delivery to the best of their knowledge and ability.
5.2 The Company shall not be liable for entire or partial failure to comply with any obligation of or on behalf of the Company arising from an Agreement, if such failure to comply cannot be imputed to (nor is a consequence of) their fault, nor is accountable to them pursuant to law, juristic act or generally accepted practice (anticipated or not) and which therefore cannot be imputed to the Company. Such a situation may be understood to include a non-attributable shortcoming of a Supplier.
In such situations, the Company shall have the right to suspend the present and related obligations without requiring any judicial intervention or - if such a situation has lasted for more than two calendar months - to terminate the Agreement concerned in writing in whole or in part, without the Company being held to any compensation or guarantee. In the case of termination in whole or in part, all that has already been performed pursuant to the Agreement shall be settled proportionately, without any further mutual debt between Parties.
Clause 6: Fee & Payment
6.1 All invoices of the Company shall be paid in full and not later than thirty calendar days after the date of the invoice. Payment shall take place without any set-off, deduction or suspension. Any objections to any invoice or Fee invoiced shall be made known to the Company in a timely manner in writing, which is before the due date of the related invoice.
6.2 The Company is authorised to adjust the applicable fee(s) per contract year within reasonable limits based upon the Consumer Price Index (CPI), as published by the Central Bureau for Statistics (www.cbs.nl). the Company shall notify the increase to the Customer not later than two months prior to the expiry of the initial duration (or any extension thereof).
6.3 If the Customer does not pay the amounts due within the period as referred to in Clause 6.1, then the Customer shall be in default. In the event of default:
(i) the Customer shall pay to the Company the amount due accumulated with statutory interest, as well as debt collection costs of 15% to be calculated over the outstanding principal amount, and;
(ii) the Company (in addition to the other rights to which it is entitled under the Agreement) shall be authorized to suspend the Services in whole or in part after prior notification by the Company.
Clause 7: Confidentiality
7.1 Both the Company and the Customer shall treat all data and information that each obtains from the other Party with respect to the Services as well as commercial, strategic, technical data, knowledge or other information connected with that other Party as strictly confidential. For the avoidance of doubt, any data or information uploaded by the Customer is considered confidential information of the Customer. Also, each Party shall not make announcements about this to third parties, except for announcements set forth in Clause 7.3.
7.2 It is only allowed to deviate from the provisions in Clause 7.1 if
(i) the relevant deviation has been explicitly provided for in the Agreement,
(ii) the related information was already generally known without any breach of confidence by a Party or any third party before the Agreement was realized,
(iii) the prior written permission of the Party concerned was obtained, or
(iv) the related information must be made public to satisfy a mandatory decision to that extent of a legal authority, in which case the Party concerned shall inform the other Party in advance.
7.3 Each Party may divulge that the Customer has entered into the Agreement and the Company may describe its activities on account of the Agreement in its marketing materials in general, non-confidential terms. Furthermore, the Customer agrees that after the Agreement has been signed, the Company may issue a press release.
Clause 8: Intellectual Property Rights
8.1 All rights of intellectual property of the Customer or data of the Customer are and shall remain the property of the Customer. The Company and its Suppliers are the exclusive owner of all rights and titles to and of all segments of the Services, including the intellectual property rights, the functionality thereof, and data therein if and insofar as these are not Customer data. The Customer shall acquire no rights whatsoever than explicitly described in these Terms, the Customer Order Form, the Statement of Work and in the Agreement.
8.2 The Company shall indemnify the Customer against any claims based on a substantiated allegation of a third party that the Services infringe intellectual property rights valid in the Netherlands and other member states of the European Union. In such case, the Customer shall inform the Company thereof immediately in writing, in detail, and further offer its cooperation to the Company in, but not limited to, legal proceedings and/or negotiations. In the case of aforementioned claims by third parties the Company may, at its discretion, replace, or amend the Services in whole or in part or dissolve the Agreement in whole or in part, in which latter case the Company shall return any fees paid by the Customer for Services not yet provided on a pro rata basis. The Company is not responsible for any settlement out of court without a written permission of the Company.
Clause 9: Liability
9.1 Except in cases of willful misconduct or gross recklessness on the part of the Company, the Company is not liable for:
(i) indirect damage;
(ii)damage caused by intent or willful recklessness of:
- servants or agents;
- non-managerial staff of the Company
(iii) any other damage if and insofar as the total amount of such damage exceeds the amount of the Fees - exclusive of VAT - invoiced by the Company to the Customer pursuant to the Agreement concerned (or the relevant part thereof) and paid by the Customer to the Company, payable for the Services and Applications during the twelve-month period before of the obligation to pay damages, with a maximum of EUR 250,000.
Indirect damage includes in any event - but is not limited to: consequential damage, loss of profit, loss of production, lost savings, loss of and damage to data (files), transport costs, travel and hotel expenses, and damage caused by business interruption
Under other / direct damage (under iii) is understood: all damage that does not fall under the term "indirect damage"
Should the competent court regard the exoneration clause concerning indirect damage as unreasonably onerous, the Company shall under no circumstances accept any liability for indirect damage if and insofar as the total amount of such damage exceeds the amount of the Fees - exclusive of VAT - invoiced by the Company to the Customer pursuant to the Agreement concerned - or the relevant part thereof -and paid by the Customer to the Company, payable for the Services and Applications during the twelve-month period before the obligation to pay damages arose with a maximum of EUR 250,000.
So, for example, if the indemnity obligation arises on March 1, 2022, the Company's total indemnity obligation will not exceed the sum of the Fees paid by the Client in the period March 1, 2021 to February 28, 2022, with a maximum of EUR 250,000.
9.2 In addition to Clause 9.1 - the liability of the Company and all those who, whether employed or otherwise, work or perform work for the Company, shall be limited to the amount covered under the insurance taken out by or on behalf of the Company, increased by the Company's excess under that insurance.
Clause 10: Termination
10.1 Neither Party is entitled to terminate the Agreement during the then current Term of provisioning of Services, stated in a Customer Order Form of Statement of Work, except if explicitly stated in Clauses 10.2 or 10.3.
10.2 Each Party shall be entitled to terminate the Agreement in whole or in part with immediate effect, without requiring any further notice of default and without requiring any prior judicial intervention, by registered letter, if the other Party applies for bankruptcy or for administrative receivership or is declared bankrupt.
10.3 The Agreement may be terminated in whole or in part by the Company for any breach of contract including, without limitation, the Customer’s non-payment of fees, infringement of confidentiality or data protection obligations, the Company’s intellectual property rights, or (anticipated) breach of mandatory law. Termination will only become active after fourteen days have passed after the date of the letter in which the Customer is notified of default or breach, this without prejudice to other rights the Company may be entitled to.
10.4 Any term or condition of these Terms, which by their nature extend beyond its termination shall survive termination of any kind and remain in effect.
Clause 11: Miscellaneous
11.1 Each Party declares towards the other Party that for the duration of the Agreement and for one year after termination, or for one year after the Service End Date of the most recent Statement of Work of Customer Order Form, that it shall not directly or indirectly (either for itself or on the behalf of others) employ or offer to employ or contract staff members of the other Party who were involved in carrying out the Agreement or have them work otherwise for it, unless the prior explicit written permission of that other Party has first been obtained. In the event of violation of the provisions herein, the infringing Party shall owe to the other Party amongst others a penalty immediately due and payable of one years’ gross annual salary per staff member in question, without prejudice to the right of that other Party to recover its full damage from the infringing Party.
11.2 Each Party may transfer the rights and obligations under the Agreement with prior written consent of the other Party.
11.3 These Terms, the Agreement and related matters hereto shall be governed by the laws of the Netherlands. The Vienna Sales Convention 1980 (CISG) shall not apply to this Agreement.
11.4 All disputes arising in connection with the Agreement, these Terms and related matters shall be exclusively and finally settled by the competent court in the Netherlands.
Terms & Conditions v2.2 - July 2022
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