1.1 Agreement: The agreement (of which this document forms a part) formed between the Supplier and the Customer for professional Services.
1.2 Budget: The pre-approved price for Services to be performed by Supplier.
1.3 Conditions: The terms set out in this document.
1.4 Contributors: Freelancer and/or other third party suppliers.
1.5 Customer: The Party requesting Services and/or work. 1.6 Offers: Offers and proposals to invite to enter into an agreement
1.7 Parties/Party: Supplier and/or Customer.
1.8 Services: see article 3.1.
1.9 Supplier: StarterSquad B.V. (registered at the Netherlands Chamber of Commerce, number 64985636).
1.10 Writing/Written: The term “in writing” or “written” includes email.
2. Applicability of Terms and Conditions
2.1 These General Terms and Conditions apply to all present and future offers/proposals and/or agreements for any Services between Supplier and Customer.
2.2 All Offers/Proposals are without obligation, unless in the Offer/Proposal has been stipulated otherwise.
2.3 Customer accepts these General Terms and Conditions to the exclusion of all other terms and conditions, including any purchasing or other terms and conditions of the Customer. These General Terms and Conditions apply to all legal relationships between Supplier and Customer. If at any time one or more provisions of these General Terms and Conditions becomes void or is voidable, whether in part or in full, the remaining provisions shall remain in full effect. In this event, the Supplier and Customer will agree to new provisions to replace the void or voided provisions, while retaining the purpose and scope of the original provisions as much as possible.
2.4 If there is anything unclear or contentious about the interpretation of any of the provisions or if a situation arises that has not been provided for in these General Terms and Conditions, the parties agree to enter into consultation to reach an agreement in accordance with the spirit of these provisions.
2.5 Deviating clauses in the Agreement are only binding after written acceptance by Supplier and are only applicable to the specific Agreement to which the approval relates.
3.1 Supplier mainly provides Services in relation to the development of computer programs and software and/or maintenance and support (“Services”) according to specific weekly schedules and on the basis of a pre-determined budget (“Budget”) as agreed to between Parties.
3.2 The Supplier will demonstrate progress on a weekly basis and the Customer is responsible for testing demonstrated software. The Customer accepts the Services by starting to use the developed software or product, or accepts the current progress of developments by setting a new Budget for further development. If the Customer does not set a new Budget it is regarded to be zero for the next week and the provided Services are deemed to be accepted by the Customer.
3.3 All Services, including the development of software, shall be performed on the basis of an obligation to use best endeavours, unless and insofar as the Supplier has expressly promised a sufficiently determinable result in written contract.
3.4 The Customer shall provide the Supplier with complete, accurate and non-infringing information required to perform agreed upon Services. The Customer indemnifies the Supplier in full against any third Party claims of damage or allegations that such availability use, maintenance, processing, installation or integration of information provided by Customer infringes a right of said third Party.
3.5 The Customer is responsible for the protection and backup of its data. The Supplier is in no event liable for the costs of (reproducing) mutilated or lost data, nor for the consequential damage or loss of profit on the part of the Customer.
3.6 The Customer is responsible for the operation of its hardware, software, configuration, peripheral equipment, required licenses and internet connections necessary to use the Supplier’s Services and/or software. The Customer bears the risk of selecting the items, goods and/or Services to be provided by the Supplier and the Customer must always exercise the utmost care to guarantee that the Supplier’s performance and service requirements are accurately and completely achieved.
3.7 The Customer shall not in any manner whatsoever cause inconvenience or damage to the Supplier (or its customers) in using the Services and/or the Software of the Supplier. The Customer is not allowed to perform actions which can be assumed to cause possible damage to the Supplier’s (or its customers’) systems. The Supplier is at all times entitled to limit or block the Customer’s access to the Services and/or the Software for an indefinite period, without giving reasons, if the Supplier suspects misuse or other improper use.
3.8 The Supplier may temporarily put all or part of its Services and/or the Software out of operation for preventive, corrective or adaptive maintenance or other forms of service. The Supplier shall not allow the period during which the service is out of operation to last longer than necessary and shall ensure if possible that this period occurs outside office hours.
4. Prices and payment
4.1 All prices are exclusive of value-added tax (VAT) and other levies imposed by the government, unless expressly indicated in writing. In the absence of a specified currency all prices are in Euros. All estimates regarding the Services of Supplier are free of obligations.
4.2 the Supplier shall be entitled to adjust the applicable prices and rates if the Customer has a maintenance or service agreement, the Customer shall be entitled to terminate the agreement in writing within thirty days following notice of the adjustment, which termination shall take effect on the date on which the new prices and/or rates would take effect.
4.3 Amounts owed must be paid by the Customer in advance or in accordance with the payment terms stated on the invoice. The Customer may not suspend any payment and may also not set off any amounts owed. The amounts are due, irrespective of whether the Customer uses the Services and/or software.
4.4 If the Customer fails to pay amounts due or fails to do so on time, the Customer shall owe statutory interest for commercial contracts (in accordance with article 6:119a Dutch Civil Code) on the outstanding amount without a demand for payment or a notice of default being required and the Supplier shall directly be entitled to suspend its Services.
4.5 All reasonable judicial and extrajudicial costs incurred by the Supplier as a result of a non-compliance by the Customer of its payment obligations, shall be borne by the Customer.
4.6 Information from the Supplier’s records shall count as conclusive evidence with respect to the Services performed by the Supplier and the amounts owed by the Customer, without prejudice to the Customer’s right to produce evidence to the contrary.
4.7 The Supplier is entitled to sell, transfer or pledge its claims to payment of amounts owed to a third Party. The Customer may not sell, transfer or pledge its rights and obligations under a contract to a third Party
5. Term and termination
5.1 If and insofar as the agreement between Parties is a continuing performance agreement, a term of one year shall apply unless otherwise agreed to in writing. Such continuing agreements are deemed to be tacitly extended for the same period of time originally agreed, unless either Party terminates the agreement with written notice at least one month prior to the end of the current term or rescind or terminate the agreement in accordance with law.
5.2 Premature termination of a fixed-term agreement by the Customer is only possible if and insofar as this is agreed in writing and the Supplier is entitled to payment for all Services prior to the date of termination. Agreements for an indefinite period of time may be terminated by either Party with written notice of at least three months.
5.3 Either Party may terminate the agreement in writing, in whole or in part, without notice of default being required and with immediate effect, if the other Party is granted a moratorium, whether or not provisional, a petition for bankruptcy is filed for the other Party or the company of the other Party is liquidated or dissolved other than for restructuring or a merger of companies. If the Customer goes irrevocably bankrupt, its right to use the Software, applications, websites and the like made available to it shall end, as shall its right to access and/or use the Supplier’s Services, without termination by the Supplier being required.
5.4 The Supplier is in no event obliged to pay any damages claimed as a result of a cancellation or as a result of a rescission or termination.
6. (The use of) Intellectual Property and transfer of rights
6.1 All intellectual property rights to the Services (a.o. software, websites, data files, equipment, documentation, reports, (cost)estimates, analysis, designs), as well as other preparatory materials made available to the Customer are held exclusively by the Supplier, its licensors or its suppliers, including software parts originating from open source. The Customer shall have the rights of use expressly granted under these General Terms and Conditions, the agreement concluded between parties and the law. A right accorded to the Customer is non-exclusive and may not be transferred, pledged or sublicensed and is valid only during the term of the agreement between parties and if the use is in accordance with the agreement, these General Terms and Conditions and the law.
6.2 The Customer may not remove or change any indication concerning the confidential nature of or concerning the copyrights, trademarks, trade names or any other intellectual property right pertaining to the Services, the software, websites, data files, equipment or materials, or have any such indication removed or changed.
6.3 Notwithstanding the paragraphs of this article above, the Supplier will transfer all intellectual property rights of a) the elements of the Software that are made exclusively for the Customer and are not meant to be reused (i.e. therefore excluding open source elements and standard software applications), and b) the Software as a whole collection (consisting of non-transferrable parts) to the Customer.
6.4 If necessary the Supplier will cooperate in taking the necessary legal actions to facilitate such transfer. For the reusable parts of the Software of which the intellectual property rights are not transferred, the Supplier grants to the Customer a non-exclusive, worldwide, perpetual, irrevocable, assignable, sub-licensable license to use the contributions for using the Services and/or the Software for its intended use.
7. Maintenance and support
7.1 If agreed, the Supplier shall perform maintenance work with respect to the Software specified in the agreement. The maintenance obligation includes fixing errors in the Software (fixing substantial failure of the Software to meet the functional or technical specifications of the Software expressly agreed in writing) after a detailed report of the errors discovered in the Software by the Customer.
7.2 The Supplier is entitled to install temporary solutions, program bypasses or problem-avoiding limitations in the Software. The Customer shall itself install, organise, parameterise and tune the corrected Software or the new version of the Software made available and support software required, and, if necessary, modify the equipment and operating environment used.
7.3 The fixing of errors shall take place at a location and in a manner determined by the Supplier. The Supplier is never obliged to recover data that has been corrupted or lost.
7.4 The Customer shall extend the cooperation required by the Supplier in the context of maintenance, including temporarily ceasing use of the Software and making a backup of all data. The maintenance work performed by the Supplier does not affect the Customer’s own responsibility for managing the Software, including checking the settings and the way in which the results arising from operating the Software are used.
7.5 If the Services provided by the Supplier under the agreement include the provision of support to users and/or administrators of the Services and/or the Software, the Supplier shall provide by telephone or through its website or by email, advice on the use and functioning of the Services and/or the Software specified in the agreement. The Supplier shall handle properly substantiated requests for support within a reasonable term in accordance with its usual procedures. The supplier does not guarantee the accuracy, completeness or timeliness of replies or the support offered.
8. Liability of the Supplier
8.1 The Supplier’s total liability due to an attributable failure in the performance of the agreement or on any legal basis whatsoever, expressly including each and every failure to fulfil a warranty obligation agreed with the Customer, shall be limited to compensation for direct loss up to a maximum of the price stipulated for the agreement concerned (excluding turnover tax (VAT) and other levies imposed by the government). If the agreement is mainly a continuing performance agreement with a term of more than one year, the price stipulated for the agreement shall be set at the total amount of the payments (excluding VAT) stipulated for one year. The Supplier’s total liability for direct loss, on any legal basis whatsoever, shall never amount to more than EUR 500.000 (five hundred thousand euros).
8.2 The Supplier’s liability for indirect loss, consequential loss, loss of profits, lost savings, reduced goodwill, loss due to business interruption, loss as a result of claims of the Customer’s customers, loss arising from the use of items, materials or software of third parties prescribed by the Customer to the Supplier and loss arising from the engagement of suppliers prescribed by the Customer to the Supplier is excluded. The Supplier’s liability for corruption, destruction or loss of data or documents is likewise excluded.
8.3 The exclusions and limitations of the Supplier’s liability described above in this article are entirely without prejudice to the other exclusions and limitations of the Supplier’s liability described in these General Terms and Conditions.
8.4 All the exclusions and limitations contained in these General Terms and Conditions shall also apply for the benefit of all natural persons and legal entities that the supplier engages in the performance of the agreement and shall cease to apply if and insofar as the loss is the result of deliberate intent or recklessness on the part of the Supplier’s management.
8.5 Unless performance by the Supplier is permanently impossible, the Supplier shall only be liable due to an attributable failure in the performance of an agreement if the Customer declares the Supplier to be in default in writing without delay and grants the Supplier a reasonable term to remedy the breach, and the supplier culpably fails to fulfil its obligations also after this term has passed. The notice of default must describe the breach as comprehensively and in as much detail as possible in order to give the Supplier the opportunity to respond adequately.
8.6 For there to be any right to compensation, the Customer must always report the loss to the Supplier in writing as soon as possible after the loss has occurred. Each claim for compensation against the supplier shall be barred by the mere expiry of a period of 24 months following the inception of the claim unless the customer has instituted a legal action for damages prior to the expiry of this period.
9. Force Majeure
9.1 None of the parties shall be obliged to fulfil any obligation, including any statutory and/or agreed warranty obligation, if it is prevented from doing so by force majeure. Force majeure on the part of the Supplier means, among other things: (i) force majeure on the part of the suppliers of the Supplier, (ii) the failure to properly fulfil obligations on the part of suppliers that were prescribed to the Supplier by the Customer, (iii) disability or incapacity for work, (iv)defects in items, equipment, software or materials of third parties the use of which was prescribed to the Supplier by the Customer or of which are connected to the Software provided by the Supplier, (v) government measures, (vi) power failures, (vii) Internet, data network or telecommunication facilities failures, (viii) war and (ix) general transport problems.
9.2 Either Party shall have the right to rescind the agreement in writing if an event of Force Majeure persists for more than 60 days.
10.1 Supplier may use freelance or third party contributors (“Contributors”) to provide its services and/or the Software. This article defines the relationship between the Supplier and the Contributor.
10.2 Contributors are in no way an employee, a representative or an agent of the Supplier. The Contributor works on a freelance basis and is obliged to provide the necessary documents as proof of the freelance basis (i.e. Dutch VAR) on first request to the Supplier.
10.3 The Contributor affirms, represents, and warrants that the Contributor has the necessary licenses, rights, consents, and permissions to use and authorize the Supplier to use all intellectual property rights or other proprietary rights in and to any and all contributions to enable inclusion and use of the contributions in the manner contemplated by the Supplier. If contributions consist of open source elements, the Contributor is obliged to point those elements out in writing along with the open source licenses that apply to those specific elements.
10.4 The Contributor will transfer all intellectual property rights of a) his contributions to the Software that are made exclusively for the specific Customer and are not meant to be reused (i.e. therefore excluding open source elements), and b) contributions to the Software as a whole collection (consisting of non-transferrable parts) to the Supplier who will transfer those rights through these terms immediately to the Customer. If necessary the Contributor will cooperate in taking the necessary legal actions to facilitate such transfer to the Supplier. For the reusable parts of the contribution of which the intellectual property rights are not transferred, the Contributor grants to the Supplier a non-exclusive, royalty-free, worldwide, perpetual, irrevocable, assignable, sub-licensable license to use the contributions for providing the Services and/or the Software to the Customer for its intended use.
11. Applicable law and disputes
11.1 Agreements between Supplier and Customer are governed by the laws of the Netherlands.
11.2 In case of any dispute arising between Supplier and Customer related to an agreement or any agreement deriving from it, the Parties will firstly do their utmost to resolve the matter amicably. When this will not be possible Parties will resolve the matter according to the 2015 Arbitration Regulations of SGOA (‘foundation for the resolution of ICT disputes’) by submitting the related Arbitration Agreement.