General Terms and Conditions of Realtime Solutions B.V.
GENERAL TERMS AND CONDITIONS OF BUSINESS
Article 1 Definitions
- Application Services:
The term “Application Services” is understood to mean facilitating and maintaining the availability of the Implementation, on a subscription basis, from our Datacenter on behalf of the Other Party.
- Application Services:
The term “Application Services” is understood to mean facilitating and maintaining the availability of the Implementation, on a subscription basis, from our Datacenter on behalf of the Other Party.
The term “Datacenter” is understood to mean all computer equipment managed by Us, or on Our behalf, connected to the Internet, from which the Implementation is made available to the Other Party.
The term “Services” is understood to mean all work undertaken by Us (or a third party commissioned by us) on behalf of the Other Party, as established in the Agreement, including but not limited to, issuing organisational and automation advice, undertaking feasibility studies, consultancy, study programmes, courses, training sessions, support, secondment, and all Hardware and Software-related work, such as installation and implementation.
The term “Error” is understood to mean any failure of the Implementation to meet the functional specifications agreed with the Other Party. There shall be no question of any Error unless it can be proved and reproduced.
The term “Hardware” is understood to mean all equipment, peripheral equipment and documentation, supplied by Us on behalf of the Other Party for the purposes of the Implementation.
The term “Implementation” is understood to mean all Hardware and Software supplied by Us, or made available by Us, configured and connected to the hardware and software of the Other Party, in accordance with the specifications agreed with the Other Party as set out in the Agreement.
- Office hours:
The term “Office Hours” is understood to mean the hours between 09.00 and 17.00. /li>
The term “Agreement” is understood to mean the agreement concluded between Us and the Other Party, comprising the delivery of the Implementation, Hardware, Software, Services and/or Application Services. The Agreement comprises the quotation issued by Us, and the corresponding documentation, such as the agreed specifications, the SLA and these General Terms and Conditions.
The term “SLA” is understood to mean the Service Level Agreement, which may be incorporated as an Appendix to the Agreement.
The term “Software” is understood to mean all computer programs and corresponding documents supplied by or made available by Us for the purposes of the Implementation, as specified in the Agreement.
- The Other Party:
The term “Other Party” is understood to mean any (legal) person with whom We have concluded an Agreement.
- Work Days:
The term “Work Days” is understood to mean all calendar days, with the exclusion of weekends and established national holidays in the Netherlands.
Realtime Solutions B.V., having its registered office and having its principal place of business at (5612 AJ) Eindhoven, De Zaale 11, being the user of these General Terms and Conditions and hereinafter referred to as: “We”, “Us” or “Our”.
Article 2 Applicability
- These General Terms and Conditions apply to all Agreements concluded between Us and the Other Party, and to any legal acts, deliveries and work undertaken by Us in connection with or arising from our Agreements.
- Derogation from and additions to the provisions of these General Terms and Conditions shall only be binding upon Us in so far as they have been expressly confirmed by Us in writing.
- In the event that one or more of the provisions of these General Terms and Conditions should be void or should be nullified, the remaining provisions of these General Terms and Conditions or the Agreements concluded between the Other Party and Us to which these Terms and Conditions apply, shall remain in full force.
Article 3 Offers
- Unless expressly indicated otherwise in writing, all Our offers shall be without obligation and engagement, and are based on performance of the Agreement under normal circumstances, based on the facts known to Us and during Office Hours on Work Days.
Article 4 Additional work
- In the event that We, at the request or with the approval of the Other Party, have carried out work or delivered a performance that in our opinion does not fall within the scope of the Agreement, We shall charge the Other Party for such work at our standard rates. We shall notify the Other Party in writing of the consequences of the additional work on the agreed price. The Other Party hereby accepts that the additional work as referred to in the preceding paragraph can influence the agreed time of delivery and the mutual responsibilities of Us and the Other Party.
- We shall not commence with the additional work until we have received the written instructions of the
Other Party, issued on the basis of the aforementioned written notification as referred to in the preceding paragraph.
Article 5 Third parties
- Unless otherwise explicitly agreed in writing with the Other Party, We shall be entitled to engage the services of third parties in relation to the performance of the Agreement. Without prejudice to the provisions of Article 12 (Force Majeure) of these General Terms and Conditions, We shall remain responsible for and liable vis-à-vis the Other Party for the proper execution of the Agreement.
- Unless otherwise explicitly agreed in writing, any rights to which the Other Party is entitled pursuant to the Agreement shall be non- transferable to third parties.
- Unless otherwise explicitly agreed in writing, the Other Party hereby grants Us permission to transfer the legal relationship arising from the Agreement to third parties, who are affiliated to Us in whatever manner, or have taken over our operations.
Article 6 Price
- The prices quoted by Us are exclusive of turnover tax and other government levies, if any.
- All prices and fees are in Euros or in another currency, agreed by Us in writing; any exchange rate fluctuations are for the risk of the Other Party, unless otherwise expressly agreed in writing.
- The prices stated by Us are also based on the exchange rates, purchase prices, wages, wage costs, social security contributions, governmental levies, insurance premiums and other costs, as well as on the Agreement being executed under normal circumstances. If during the continuation of the Agreement one or more of the aforementioned cost price factors undergo a change, We reserve the right to adjust the agreed prices accordingly.
- With regard to Agreements spanning several years, Our prices will be adjusted every year in line with inflation.
Article 7 Delivery times
- The stated or agreed (delivery) times shall never be firm deadlines, unless otherwise agreed in writing.
- The stated or agreed delivery times are based on the circumstances applicable at the time of concluding the Agreement and the facts known to Us at the time, and with due observance of the obligations of the Other Party pursuant to Article 18 (cooperation of the Other Party) of these General Terms and Conditions.
Article 8 Payment
- A charge will be made for All Hardware, Software and Services in accordance with the agreements made pursuant to the Agreement. If not explicitly stated in the Agreement, all Hardware, Software and Services costs in concluding the Agreement shall be charged and invoiced in advance on a monthly basis.
- Unless otherwise agreed in writing, payment by the Other Party must be made to Us within the agreed term. All payments must be transferred to a giro or bank account nominated by Us. For Application Services, payments must be effected by direct debit.
- Unless otherwise agreed in writing, payment by the Other Party must be made within fourteen (14) days following invoice date. This term shall count as a firm deadline, on the expiry of which the Other Party shall be in default of payment. Offsetting the amounts due against amounts which the Other Party claims We owe it, is excluded.
- In the event of failure to pay within the term referred to in Article 8.3, the Other Party shall owe contractual interest at a rate of one and a half percent (1.5%) a month, or at the statutory rate of interest should the latter be the higher, with a part of a month being counted as a full month.
- In the event of failure to pay within the term referred to in Article 8.3, the Other Party shall owe collection charges. The extrajudicial collection charges in such a case shall be fifteen percent (15%) of the amount owing, with a minimum of EUR 250.00.
- Payments made by the Other Party shall always count as payment toward all interest and costs owing and subsequently as payment of those claims pursuant to the Agreement that have been due and payable longest, even though the Other Party may indicate that the payment is in respect of another debt.
- The Other Party shall not be entitled to refuse to make payment or to suspend its obligation to do so, on the ground of alleged deficiencies in the Implementation delivered by Us or for any other reason whatsoever.
- In the event of the winding up or insolvency of the Other Party or of its being granted a suspension of payment, Our claims, of whatever nature, against the Other Party shall become immediately payable.
- We shall at all times be entitled to require the Other Party to furnish security, in whatever form, for the fulfilment of all its obligations pursuant to the Agreement. In the event that the Other Party fails to comply with Our request to furnish security, We shall be entitled to dissolve the Agreement or to suspend our obligations.
Article 9 Suspension
- If the Other Party does not meet one or more of its obligations, or if corresponding provisions give good reason for Us to fear that the Other Party will not fulfil its obligations of the Agreement, We reserve the right to suspend the fulfilment of Our obligations, except in case of mandatory provisions to the contrary.
Article 10 Retention of title
- All Hardware delivered by Us shall remain Our property until all claims under the Agreement, as well as claims relating to any compensation on account of shortcomings on the part of the Other Party in the fulfilment of its obligations, have been fulfilled. In the event of the Other Party's failure to fulfil its payment obligations, or if we have good grounds to fear that the Other Party will be unable to fulfil its obligations, We shall be entitled to take back the goods that are subject to retention of title. The Other Party shall afford all co-operation necessary in the correct and timely performance of the Agreement. Failing this, the Other Party shall owe Us an immediately payable penalty of ten percent (10%) of the outstanding amount.
- No rights shall ever be granted or, as the case arises, transferred to the Other Party, except on condition that the agreed considerations are paid in time and in full by the same.
Article 11 Liability
- We accept statutory liability to pay damages to the extent as shown in Article 11.
- Our liability (owing to an attributable shortcoming in the fulfilment of the Agreement and/or arising from acting unlawfully) is limited to compensating the loss suffered by the Other Party, which directly and exclusively arose from any shortcoming, act or omission on our part in relation to Our statutory obligations. Our total liability owing to an attributable shortcoming in the fulfilment of the Agreement and/or arising from acting unlawfully is limited to compensating the direct loss up to a maximum of fifty percent (50%) of the price that the Other Party owed pursuant to the work or performance. If the work to be performed by Us exceeds a term of one (1) year, the price stipulated for that work shall be set at fifty percent (50%) of the total of the fees (exclusive of VAT) stipulated for one year. Under no circumstances shall the total compensation to the Other Party exceed EUR 50,000.00, irrespective of the number of events for which We are liable.
- In the context of these General Terms and Conditions, the term “loss, which arose directly and exclusively from any shortcoming, act or omission on Our part in relation to Our statutory obligations” has the following, exclusive, meaning:
- all reasonable expenses which the Other Party would have to incur to have Our performance fulfil the Agreement. However, such loss shall not be made good if the Other Party has rescinded the Agreement;
- all expenses which the Other Party has incurred for necessarily keeping operational its old system or systems and associated facilities, owing to the fact that We have not fulfilled an obligation on a delivery date to which We were bound, minus any savings that resulted from the delayed fulfilments;
- all reasonable expenses incurred in determining the cause and extent of the loss insofar as such determination relates to any loss, which arose directly and exclusively from any shortcoming, act or omission on Our part in relation to Our statutory obligations;
- all reasonable expenses incurred in preventing or mitigating a loss, insofar as the Other Party demonstrates that such expenses have resulted in a reduction of any loss, which arose directly and exclusively from any shortcoming, act or omission on Our part in relation to Our statutory obligations; and
- all reasonable expenses incurred in remedying the loss or damage caused by Us to items and/or persons.
- We are not liable for all other financial losses, such as, but not limited to, consequential loss or damaged data (files), penalty payments and/or compensation owed to third parties and/or compensation, loss profit, missed savings or loss due to business stagnation.
- Our liability in respect of an imputable failure to perform an Agreement shall not arise unless the Other Party immediately and properly provides a written notice of default to Us, stating a reasonable period in which to remedy the failure, and We continue, and can be blamed for continuing, to fail in the fulfilment of Our obligations even after such period. The notice of default must specify the failure in as much detail as possible, so that We will be able to react adequately.
- No right to damages shall ever arise unless the Other Party reports the loss to Us
in writing as soon as possible, though no later than six (6) weeks after it has arisen.
Article 12 Non-attributable failure ('Force Majeure')
- Neither party shall be bound to meet any obligation if prevented from doing so as a consequence of Force Majeure. The term “Force Majeure” is understood to mean any circumstance beyond either party's control, (un)foreseen at the time of concluding the Agreement, as a result of which performance of either party's obligations under this Agreement cannot reasonably be expected. Force Majeure is in any case understood to mean a non-attributable shortcoming on the part of Our suppliers or third parties to whom We have outsourced performance of the Agreement.
- Neither party may invoke Force Majeure, unless it notifies the other party accordingly, by means of a written letter sent by registered mail as soon as possible.
- Either party has the right, if the Force Majeure situation on the side of the other party lasts longer than ten (10) Work Days, to dissolve the Agreement immediately by means of a written letter sent by registered mail. In that case, any performance which has already taken place pursuant to the Agreement shall be settled proportionately, without either party being thereafter indebted to the other in any other amount.
Article 13 Dissolution
- We shall be entitled to rescind the Agreement (in part or in full) in writing with immediate effect, without a notice of default or judicial intervention being required, if the Other Party imputably fails to comply, or fails to comply fully and promptly with its (payment) obligations under the Agreement - in all cases, after having received a proper written notice which is as detailed as possible and in which it has been given a reasonable time period to remedy the breach - or on any other basis, as well as if the Other Party has been granted suspension of payment, the Other Party has made a declaration of bankruptcy, has requested to be declared bankrupt or has been declared bankrupt; the company of the Other Party is liquidated, or placed under legal restraint.
- If the Agreement is dissolved, Our claims on the Other Party become immediately due and payable If at the time of such rescission as is referred to in Article 13.1, the Other Party has already received any performance in the execution of the Agreement, such performance and the obligation to pay connected therewith shall be incapable of being undone unless and insofar as We are in default with respect to such performance. Amounts which We have invoiced before the rescission, in connection with that which We have already properly performed or delivered to execute the Agreement shall, subject to the provisions in the preceding sentence, continue to be owed in full and shall be immediately payable at the time of rescission.
Article 14 Confidentiality and anti-takeover provision
- Each of the parties guarantees that all information of a confidential nature received from the other party before and after the conclusion of the Agreement shall remain confidential. Information shall in any event be considered confidential if so designated by either of the parties.
- The parties further agree not to use the confidential information except for the purpose of the transaction stated by the other party, nor to use the information in any other manner than that indicated by the other party.
- During the term of the Agreement and for one year after it is terminated, each of the Parties shall not, unless it receives prior written permission from the other party, take on employees of the other party who are or were involved in executing the Agreement or otherwise have these employees work for it, directly or indirectly.
- If the other party fails to fulfil one or more obligations under the Agreement, said party shall owe an immediately payable penalty of € 5,000.00 (five thousand Euros) per day. Said termination does not prejudice any statutory right to recover the actual loss from the other party.
Article 15 Disputes and applicable law
- In the event of a dispute, or an impending dispute, We reserve the right, at Our expense, to enlist the services of an appropriate expert to undertake the work on behalf of the Other Party. The Other Party shall afford all co-operation necessary in the correct and timely performance thereof.
- In the event of a dispute between Us and the Other Party with regard to the Agreement, the dispute resolution procedure set out in this Article will be observed.
- Any dispute relating to the Agreement shall in the first instance be referred in writing to the project organisation stated in Article 19. If the project organisation is unable to resolve the dispute within five (5) work days after submission of the dispute, or if no project organisation has been established, the dispute will be presented to the board of directors of both parties.
- If the parties are unable to resolve the dispute in accordance with the procedure set out in Article 15.3, the parties may agree to binding or non- binding arbitration by the Foundation for the Settlement of Disputes in the Automation Sector [Dutch: Stichting Geschillenoplossing Automatisering]. If the parties are unable to reach agreement on arbitration, the dispute will be referred to the competent court at 's-Hertogenbosch. If the parties have agreed to non-binding arbitration, the remaining disputes will also be referred to the competent court at 's-Hertogenbosch.
- All Agreements to which these General Terms and Conditions are partly or wholly applicable, shall be governed exclusively by the laws of the Netherlands.
SPECIAL PROVISIONS WITH REGARD TO THE DELIVERY OF HARDWARE, SOFTWARE AND SERVICES
Article 16 Applicability
- In addition to the General Provisions in these General Terms and Conditions, the provisions set forth in this Chapter shall apply if We and the Other Party have concluded an agreement governing the delivery of Hardware, Software and Services.
- If and insofar as any conflicts arise between the General Terms and Conditions and these Special Provisions, the latter, specially agreed conditions, shall take precedence.
Article 17 Hardware;
- The Hardware is delivered to Us by our suppliers, and is subject to the warranty provisions of the relevant supplier. If requested to do so, We can inform the Other Party of the applicable warranty provisions. During the applicable warranty period, Our supplier may issue warranty or - at our discretion - We can fulfil the warranty obligations imposed by Our suppliers.
Article 18 Cooperation by the Other Party
- The Other Party undertakes at all times to inform us in a timely, full and proper manner of its envisaged objective(s) in the scope of the Agreement, the business units involved in the performance of the Agreement, the organisation of its business, the business processes and data flows involved in the performance of the Agreement, as well as all other facts and circumstances of which the Other Party is aware, or ought to be aware, that such facts and circumstances are important to the proper execution of the Agreement.
- The Other Party undertakes at all times to lend its assistance as is deemed reasonably necessary to ensure proper performance of the Agreement. In the event that Our employees perform work on-site at the Other Party, the Other Party shall provide the facilities reasonably desired by those employees free of charge, such as a working space with computer and telecommunications facilities. The Other Party shall indemnify Us against claims by third parties, including Our employees, who, in executing the Agreement, suffer injury which is the result of acts or omissions by the Other Party or of unsafe situations in its organisation.
- The Other Party vouches that the employees engaged by the Other Party for the implementation of the Agreement shall meet the necessary requirements of professional competence and expertise in the performance of the Agreement. Should it transpire that this is not the case, We reserve the right to demand that the Other Party replaces the employees concerned with employees who do have the expertise relevant to this process. If none of the persons employed by the Other Party have the relevant expertise, We reserve the right to demand that the Other Party hires the appropriate expertise at its own expense.
- The Other Party is responsible for facilitating communication between the employees it has deployed for the purpose of executing this Agreement, unless otherwise agreed.
- We reserve the right to suspend performance of the Agreement concluded with the Other Party, and to charge the Other Party the costs incurred in the suspension of this Agreement, if the Other Party fails to comply, or fails to comply fully and promptly with the requirement to lend cooperation.
Article 19 Cooperation
- Both parties acknowledge that proper cooperation is vital to the successful implementation of the Agreement, and that good communication is an essential precondition for establishing proper cooperation. In that respect, the parties may agree to the establishment of a project organisation, representing both parties, Us and the Other Party.
- Neither party is entitled to replace employees appointed for the purposes of executing the Agreement without the prior written permission of the other party, unless the employee in question (i) resigns, (ii) is dismissed by his or her employer, or (iii) is unable to undertake the work. The other party shall not withhold its permission on unreasonable grounds. The expertise and experience of this employee shall as a minimum be equal to that of the employee he or she is replacing.
Article 20 Delivery of the Implementation
- We shall notify the Other Party in time of the dates on which the Implementation is to take place; the Other Party undertakes to lend its full cooperation in this respect. In particular, the Other Party undertakes to make available the equipment and infrastructure necessary for the Implementation. The provisions of Article 18, paragraph 4 shall apply mutatis mutandis.
- The Implementation shall be delivered in accordance with a schedule drawn up by Us, in consultation with the Other Party. The Implementation will be regarded as delivered as soon as it has been accepted by the Other Party, with due observance of the provisions of the preceding paragraph.
- As soon as, in our judgment, the Implementation can be accepted, We shall notify the Other Party accordingly by email. Within five (5) Work Days of the Implementation, the Other Party must notify Us by email of any Errors and/or inaccuracies. Failing this, the Implementation will be considered to have been approved by the Other Party.
Article 21 Intellectual property rights
- All intellectual property rights to any Software or other materials developed or provided under the Agreement, such as analyses, designs, documentation, reports, offers, and any preparatory material belonging thereto, shall solely be held by Us or Our licenser(s). The Other Party shall exclusively acquire such rights of use and powers as are explicitly granted hereunder.
- The Other Party will not be permitted to remove from or change in the Software or other materials any designation concerning copyrights, trademarks, tradenames or other intellectual property rights, including any indications concerning the confidential nature and secrecy of the Software or other materials.
Article 22 End User Licence, Software
- In compliance with the term specified in the Agreement, We hereby grant the Other Party a non-exclusive licence to use the Software in accordance with the objectives set out this Agreement. The licence granted to the Other Party shall apply to the locations of the Other Party, and the number of users specified in the Agreement.
- We reserve the right to implement security (copy protection) technology in the Software. The Other Party is not permitted to remove or circumvent this (copy protection) technology.
- The Other Party shall afford Us access to its sites, buildings and/or systems to verify or have verified that the Software is being used in accordance with the applicable terms and conditions.
- Within the financial parameters stated in Article 11.2, We shall indemnify the Other Party against the claims of third parties based on the assertion that the Software and/or accompanying documentation infringes the intellectual property rights of these third parties. The indemnification shall only apply on the condition that the Other Party notifies us immediately in writing of any claims instituted by third parties, and agrees to leave the matter, including any settlements, fully to Our discretion and at Our expense. The Other Party shall be obliged to give all necessary information and cooperation as is reasonably necessary in relation to the aforementioned claims instituted by third parties, if necessary in the name of the Other Party. If a claim is made against Us, we are entitled, at Our expense and at our discretion, without obligation to do so, either (i) to procure for the Other Party the right to continue to run the allegedly infringing Software, or (ii) to modify the Software or replace it with a functional equivalent. Our obligations will not apply to the extent that the claim is based on (i) designs, specifications or instructions issued by or on behalf of the Other Party or (ii) any modifications made to the Software without Our prior permission. Any other or further liability or obligation to indemnify Us in respect of infringement of any intellectual property rights of third parties is excluded, including any liability to pay compensation.
- The Other Party is not authorised to allow third parties to use or examine the Software delivered by Us, unless We have provided express, written permission.
- The Other Party declares that neither it nor via its headquarters, subsidiary, affiliate, intermediary or similar third party shall:
- sell, lease, licence, sub-licence, encumber or otherwise transfer the Software or a portion thereof;
- decompile, disassemble or reverse engineer the Software or any portion thereof except and to the extent this cannot be excluded on the grounds of compelling legal decisions.
- Every form of infringement to the licence rights for Software established in these General Conditions by the Other Party gives Us the right, with immediate effect, to dissolve the agreement by means of a written letter sent by registered mail, without prejudice to Our right to compensation for damages.
- Unless otherwise expressly agreed, We will not make the source code of the Software available to the Other Party.
Article 23 No guarantees
- The Software is issued by Us “as is”, without any guarantee. In particular, We cannot guarantee the Software's correct performance, nor that it is suitable for the Other Party's envisaged objective(s) and/or infringes the intellectual property rights of third parties. Any Errors in the Implementation will be remedied in accordance with the agreements set out in the SLA.
SPECIAL PROVISIONS WITH REGARD TO APPLICATION SERVICES
Article 24 Applicability
- In addition to the General Provisions and the Special Provisions regarding the delivery of Hardware, Software and Services in these General Terms and Conditions, the provisions set forth in this Chapter shall apply to the delivery of Application Services.
- If and insofar as any conflicts arise between the General Terms and Conditions and/or the Special Provisions regarding the delivery of Hardware, Software and Services and these Special Provisions, the latter, specially agreed conditions, shall take precedence.
Article 25 Description of the Application Services
- We will connect the technical infrastructure of the Other Party to Our Datacenter. We will grant the Other Party access to the Application Services during the term established in the Agreement. If no term has been established, the Agreement will be entered into for an indefinite period of time, the minimum being one (1) year.
- We will provide the Application Services pursuant to the service levels set out in the SLA. If We fail to achieve a certain service level, the consequences will be determined in the SLA. In so far as the SLA quotes availability percentages, they are measured over a calendar month and at the closest measuring point, not taking into consideration pre-scheduled maintenance hours set out in the SLA for the purpose of determining availability percentages. “Availability” is understood to mean availability of the Implementation in the Datacenter via the Internet. “Availability” is not understood to mean the existence of a working point-to-point connection between the infrastructure of the Other Party and the Internet, unless otherwise agreed upon.
- We shall take the necessary measures, as established in the SLA, to protect the information stored in Our Datacenter.
- We reserve the right to modify the Implementation from time to time to improve or change the functionality, and to correct Errors. If a modification results in a change in the functionality, We will inform the Other Party accordingly, before the modification is carried out. The Application Services are offered in an identical fashion to many customers. For this reason, it is not possible to omit a certain change or modification exclusively for the Other Party.
Article 26 Conditions of use of the Application Services
- The Other Party determines which information is saved and/or exchanged using Application Services. We have no knowledge of this information, and assume no liability for this information. The Other Party is responsible for ensuring that this information is lawful, and that it does not breach the rights of third parties. We do not assume any liability whatsoever for the information saved and/or exchanged using Application Services. The Other Party shall indemnify us against claims by third parties based on the assumption that the information saved and/or exchanged using Application Services is unlawful.
- If it becomes apparent to Us that the information that was saved and/or exchanged by the Other Party using Application Services is unlawful, We will act promptly to delete the information or block access to it. In no case shall We be held liable for any damages arising from this intervention.
- 26.3. The Other Party is obliged to keep the certificates, user names and passwords provided by Us secret. We assume no liability for misuse of certificates, user names and passwords. We may assume that any End User who logs in using the certificate, the username and password of the Other Party is actually the End User who has been authorised to do so by the Other Party. The moment the Other Party knows, or has reason to suspect, that the certificates, user names and passwords have fallen into the hands of unauthorised persons, We must be immediately informed, without prejudice to the obligations of the Other Party to take appropriate measures immediately.
Article 27 Maintenance
- We reserve the right to temporarily deactivate the Application Services in order to maintain, modify or improve Our computer systems, or those of Our suppliers. We shall notify the Other Party in a timely fashion of any such deactivation, with due consideration for the desired availability of the Implementation. We shall never be liable for damages vis-à-vis the Other Party on account of taking the Application Services out of service.
Article 28 Privacy
- The use of the Application Services may involve processing personal data. In this regard, We act as processor. Moreover, in this capacity, We undertake to observe all Our legal obligations. By entering into this Agreement, the Other Party instructs Us to process this personal data within the scope of the Application Services. We will only process other data on the instructions of the Other Party, or if there is a statutory obligation to do so.
- All employees who act under Our authority, and who have access to the personal data, undertake to observe confidentiality with respect to the personal data of which they become cognisant, unless a law prescribes otherwise.
- We will, according to our best abilities, take technical and organisational measures to protect the personal data against loss or any other form of unlawful processing. These measures will be appropriate, taking into account the state of the technology and the costs that are incurred herewith, and are aimed in part at preventing any unnecessary data gathering and further processing.
General Terms and Conditions 20-05-2008