|“Supplier”||eWarehousing Solutions BV|
|“Client”||The contracting party requiring eWarehousing Solutions services as described and identified in the Contract|
|“Party”||Any of the Parties referred to individually|
|“Parties”||Both the Client and eWarehousing Solutions|
|“Contract”||The agreement which is concluded when the offer is signed by the customer and eWarehousing Solutions and to which these general conditions apply|
|“Agreement”||The agreement which is concluded when the offer is signed by the customer and eWarehousing Solutions and to which these general conditions apply|
|Terms and conditions||The terms and conditions listed in this document and are titled “GENERAL TERMS AND CONDITIONS OF EWAREHOUSING SOLUTIONS BV”|
2. APPLICABILITY OF TERMS
2.1 These eWarehousing Solutions Terms and Conditions apply to all offers and contracts pursuant to which the supplier delivers goods and/or provides services of any nature whatsoever and under whatever name to the customer 3.1 The Agreement shall commence on the date of the signature of the Contract (the “Agreement”), and shall remain in effect until the earlier of (i) the completion of all services called for hereunder to be performed by the Supplier, or (ii) the earlier termination of the Agreement as provided hereunder.
2.2 Departures from and additions to these general terms and conditions shall only be valid if they are agreed between the parties in writing.
2.3 The applicability of customer’s purchasing or other conditions is specifically excluded.
2.4 If any provision of these general terms and conditions is null and void or is voided, the other provisions of these general terms and conditions shall remain fully in effect. Supplier and customer shall in this case consult each other for the purpose of agreeing new provisions to replace the null and void or voided provisions.
3. DURATION AND TERMINATION
3.2 Either Party is entitled to terminate the Agreement by means of a registered letter in the event of breach of any term, condition or provision of the Agreement by the other Party and failure to remedy such breach (if capable of remedy) within 30 days of having received written notice of such breach from the other Party.
3.3 Either Party is entitled to terminate the Agreement without notice by means of registered mail in the event of bankruptcy, cessation of payments or composition in bankruptcy of the other Party or any cause seriously prejudicing its rights.
3.4 Termination of the Agreement will not affect any rights of the Parties accrued to them up to the date of termination.
3.5 Upon the effective date of any termination of the Agreement, all legal obligation, rights and duties arising out of the Agreement shall terminate except that: (a) the Client shall remain obligated to pay any balance due to the Supplier for services already provided in execution of the Agreement; (b) After termination of the Agreement, Parties shall remain bound to the articles meant to survive such termination (c) the Supplier shall have the obligation to return to the Client all tangible and intangible property of the Client.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 The Intellectual Property Rights in relation to the Service, including any Intellectual Property Rights on the Software and the Reports are held by EWAREHOUSING SOLUTIONS B.V. or its licensors. To the extent that such a right can only be obtained by means of filing or registration, EWAREHOUSING SOLUTIONS B.V. is exclusively authorized to do so.
4.2 If the Client complies in full with its obligations pursuant to the Agreement with EWAREHOUSING SOLUTIONS B.V.,EWAREHOUSING SOLUTIONS B.V. will grant the Client and the Users a limited, personal, revocable, non-exclusive, non-sub licensable and non-transferable right to distantly access and use the Service
4.3 Save to the extent that it is allowed by mandatory statutory law, the Client or the User may not modify, reproduce or decompile the Software or apply reverse engineering to the Software. Furthermore, removal and/or circumvention of security measures or technical limitations (to use) of the Service and/or the Software is not allowed.
4.4 By using the Service, the Client grants EWAREHOUSING SOLUTIONS B.V. a royalty-free, unencumbered, sublicensable, non-exclusive license to use and reproduce the Content insofar as is necessary in connection with providing the Service, and Client indemnifies EWAREHOUSING SOLUTIONS B.V. against third party claims.
4.5 If supplier is willing to undertake to transfer an intellectual property right, such an engagement may only be entered into expressly and in writing. If supplier is prepared to undertake to transfer an intellectual property right, such a commitment may only be undertaken expressly and in writing.
5.1 The Supplier will hold the Client harmless for direct damage because of death or personal injuries caused during the delivery, installation or implementation of the Agreement deliverables and which is due to Supplier’s wrongful behavior up to a maximum amount as covered by the Suppliers insurance.
5.2 The Supplier’s liability for material damage as a consequence of defects of the software is limited to 25% of the contract value.
5.3 The Supplier will be liable for any material damage caused by its employees or subcontractors. However such liability of the Supplier is limited to the amount of the insurance policy “civil liability” subscribed by the Supplier.
5.4 The Supplier will not be liable for any indirect or consequential loss, damage, cost or expense of any kind whatever and however caused, whether arising under contract, tort or otherwise, including, but not limited to, loss of production, loss of or corruption to data, loss of profits or of contracts, loss of operation time and loss of goodwill or anticipated savings arising out of or in connection with the Agreement deliverables or the performance of the software as supplied by the supplier
5.5 The Supplier is not liable for damages suffered by the Client as a result of modifications to the Agreement deliverables effected by the Client or by an user.
6.1 All prices are exclusive of turnover tax (VAT) and other levies imposed by the government. All prices stated by supplier are in euros (EUR) and customer must make all payments in euros.
6. FEES AND PAYMENT
6.2 Customer may not derive any rights or expectations from a cost estimate or budget issued by supplier, unless the parties agree otherwise in writing. An available budget made known by customer to supplier is only an agreement between the parties of a (fixed) price for the performance of supplier performance if this is expressly agreed in writing. In all other cases the fees are calculated on basis of actual hours worked.
6.3 Payment Policy: a) Fees are charged either on an hourly or a monthly basis or on any other basis agreed with the individual Client and specified in the Client Agreement. b) The contract amount is agreed with the individual Client and specified in the Client Agreement c) Out-of-pocket expenses and the cost of supplies will be agreed with the Client.
6.4 Invoicing: Clients will be invoiced either in accordance with a schedule included in the Client Agreement or within a period of time after completion of work as specified in the Client Agreement.
6.5 Due Date for Payment: Payment will normally fall due 14 days from the date shown on the invoice unless varied by the Client Agreement. These payment arrangements may be varied in response to changing circumstances.
6.6 Overdue Payments: a) Interest is chargeable on all overdue payments commencing one calendar month after the due date for payment up to and including the date of settlement at the rate of 8% above the base rate. b) Failure to settle invoices on or before the due date for payment may result in pausing or termination of the services provided by supplier
6.7 Title to all goods and services remain with The Company until paid in full. Should a refund be made or there is any dispute over payment, title shall revert back to the supplier
6.8 If a periodic payment obligation on the part of customer applies, supplier shall be entitled to adjust, in writing and in accordance with the index or other standard included in the contract, the applicable prices and rates to the term specified in the contract.
7. PROTECTION OF PERSONAL DATA
7.1 The Supplier will use the Client’s personal data only for the purpose of customer administration. Upon request in writing the Client can have access to its personal data.
7.2 Pursuant to legislation in respect of the processing of personal data (such as the Personal Data Protection Act, ‘Wet bescherming persoonsgegevens’), the Client has obligations towards third parties, including its consumer, such as an obligation to provide information, an obligation to allow inspection, correction and removal of personal data of parties involved. The Client is fully and exclusively responsible for ensuring compliance with these obligations.
7.3 The Parties acknowledge that, insofar as EWAREHOUSING SOLUTIONS B.V. processes any personal data, EWAREHOUSING SOLUTIONS B.V. is the ‘processor’ (‘bewerker’) within the meaning of the Personal Data Protection Act and Client will act as the ‘controller’ (‘verantwoordelijke’). EWAREHOUSING SOLUTIONS B.V. will only process personal data of Users for the purpose of providing the Service to the Client as requested by the Client.
7.4 EWAREHOUSING SOLUTIONS B.V. shall implement appropriate technical and organizational measures in order to protect the personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access and against all other unlawful forms of processing. Having regard to the state of the art and the cost of their implementation, such measures shall ensure a level of security appropriate to the risks represented by the processing and the nature of the data to be protected.
7.5 EWAREHOUSING SOLUTIONS B.V. will, as far as technically possible, lend its cooperation in respect of the obligations to be met by the Client pursuant to the Personal Data Protection Act. The costs associated with such cooperation are not included in the agreed fees and shall be borne in full by the Client.
7.6 The Client guarantees that all requirements for lawful processing of the personal details – as defined in the Personal Data Protection Act – furnished by the Client to EWAREHOUSING SOLUTIONS B.V. in the context of the use of the Service have been satisfied. The Client guarantees to EWAREHOUSING SOLUTIONS B.V. that these details are not unlawful and that they do not infringe the rights of third parties. The Client indemnifies EWAREHOUSING SOLUTIONS B.V. against all damage and costs arising from and/or related to claims of third parties, on any basis whatsoever, in connection with the processing of these details.
Both Parties agree that during the execution of the Agreement and for a period of 2 years thereafter, they shall not directly or indirectly solicit, employ, or in any other way engage any person who, during the relevant period, was an employee or consultant of the other Party. In the event a Party shall employ or engage a person in breach of the terms of this provision, it shall pay, as liquidated damages, to the other Party a sum equal to 25% of the annual salary and/or remuneration of the person employed or engaged and which was paid by the other Party to such person in the immediately preceding twelve months.
9. FORCE MAJEURE
Neither Party will be under any liability to the other in any way whatsoever for destruction, damage, delay or any other matters of that nature whatsoever arising out of war, rebellion, civil commotion, strikes, lock-outs and industrial disputes, fire explosion, earthquake, flood, drought, or bad weather or the requisitioning or other act or order by any Government department, council or other constituted body.
No modification, rescission, or waiver of the Agreement, or any provision thereof, shall be binding on either Party unless evidenced by an instrument in writing duly signed by an authorized officer or employee of such Party.
In the event that any dispositions of the Contract or of these General Terms and Conditions, or those of any schedule or attachment thereto should be invalid, unlawful or unenforceable, to any extent, such term, condition or provision will, to that extent, be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
12. INDEPENDENT CONTRACTOR
Each Party in performing the Agreement is acting as an independent contractor and not as an employee or agent of the other Party and each Party shall not assume any obligation of any kind whether expressed or implied on behalf of the other Party or bind or commit the other Party in any way.
13. NON-DISCLOSURE AGREEMENT
The Parties agree that the provisions of any Agreement entered into by the Parties shall remain in full force and effect for the entire duration of the Agreement.
14. GOVERNING LAW AND JURISDICTION
The construction, validity and performance of the Agreement shall be governed in all respects by Dutch law. Any dispute in connection with the Agreement shall be subjected to the exclusive jurisdiction of the courts of Amsterdam.