ARTICLE 1 DEFINITIONS AND INTERPRETATION
1.1 In these General Terms and Conditions (GTC), and all documents related to them, the capitalised terms have the following meanings. Singular terms also include the plural and vice versa, as required by the context;
GTC these General Terms and Conditions of Concepteurs.
Administrators employees of the Client or other persons who have been authorised by the Client to access and use the (White Label) Platform.
Concepteurs Concepteurs B.V., located in (3832 RC) Leusden at Leusderend 4, registered in the trade register of the Chamber of Commerce under number 57364699 VAT no. NL852548862B01 and possibly its Affiliated Companies.
Content all data, information, and the like, entered on the (White Label) Platform by Administrators.
Services all services carried out by Concepteurs pursuant to the Agreement, such as, but not limited to, providing the (White Label) Platform and/or the development of Software.
Affiliated Companies any company, partner, or other legal entity which (a) directly or indirectly directs a Party, or (b) is directly or indirectly directed by a Party, or (c) is directly or indirectly directed by a company or entity that directly or indirectly directs a Party. “Direct” here means the ownership of 50% (fifty percent) or more of the par value of the capital stock or holding more than 50% (fifty percent) of the voting rights in the stakeholders’ general meeting, or having the right to appoint the majority of directors, or otherwise directing the activities of such company, partner, or other legal entity. Such legal persons are only deemed to be an Affiliated Company as long as the aforementioned connection exists.
Intellectual Property Rights all copyrights, related rights, database rights, patent rights, trademark rights, tradename rights, rights to domain names, design rights, portrait rights, rights concerning Confidential Information (including knowhow and trade secrets), and any other intellectual property rights, regardless of whether these rights are registered or not and including all claims to, requests for, or subscriptions, or registrations of such rights, all dependent or ancillary rights, and priority rights thereto, and all comparable rights or types of protection anywhere in the world.
Client the legal (public law) entity with whom the Agreement is entered into.
Agreement the written agreement between Concepteurs and Client concerning the delivery of Services of which these GTC form part, including all annexes, alterations, and/or additions thereto.
Force Majeure includes, but is not limited to: government guidelines, legislation, war, civil commotion, fire, drought, energy supply failure, explosion, riot, malfunction, or downtime of essential equipment, flood, earthquake, lockout, transportation problems, strike, or other actions of employees in contemplation of or to promote a trade dispute or the purchase of materials, or force majeure of a different nature, including failure to deliver or late delivery due to non-compliance or late fulfilment of obligations by suppliers of Concepteurs or companies engaged by Concepteurs, and/or solvency, and/or liquidity problems, and/or bankruptcy of third parties engaged by Concepteurs, insofar as each of these circumstances prevent Concepteurs from fulfilling their obligations pursuant to the Agreement.
Party or Parties Concepteurs or Client individually or Concepteurs and Client jointly.
Platform the platform that is accessible through the current or future (mobile) application(s) or website (s) and underlying webpages of Concepteurs, and which offers Administrators access to the online ‘Software as a Service (SaaS)’ solution of Concepteurs.
Privacy Statement the privacy statement of Concepteurs, which can be viewed and saved here.
Software the optional (micro)computer software of any kind to be supplied by and on behalf of Concepteurs pursuant to the Agreement (excluding the (White Label) Platform), as well as the related documentation.
Specifications the specifications and descriptions of the Services agreed between the Parties.
Data Processing Agreement the agreement concluded between the Parties for the processing of personal data.
White Label Platform a version of the Platform developed by Concepteurs whereby the underlying application is displayed in the Client’s corporate identity.
1.2 The headings in these GTC are for reference purposes only and are not intended to indicate the meaning of an article;
1.3 An obligation for a Party to refrain from performing an act, also includes not allowing this act to be performed by a third party;
1.4 Referrals to Parties also include their successors in title, assignees, and legal representatives;
1.5 In these GTC, the term “written” also includes regular mail, email, and any other electronic means of communication customary in the sector.
ARTICLE 2 APPLICABILITY OF THE GTC
2.1 These GTC are applicable to all offers, purchase orders, and Agreements, as well as on all related legal acts of the Parties;
2.2 The applicability of the Client’s general purchasing conditions or other terms and conditions is hereby expressly rejected;
2.3 Postponing or neglecting to demand strict compliance from the Client by Concepteurs, or to exercise another right to which the Client is entitled, will not constitute a waiver of rights. Neither single nor partial exercise of a right or legal remedy as defined in these GTC shall prevent further exercise of that right or legal remedy or the execution of another right or legal remedy;
2.4 Should one or more provisions of these GTC be declared illegal, invalid, or unenforceable by a court of competent jurisdiction, this shall not affect the legality, validity, or enforceability of the other remaining provisions in these GTC;
2.5 Parties will consult about the provisions which are not legally valid to arrive at a replacement provision which is legal, valid, and enforceable and which resembles the scope of the provision to be replaced as much as possible;
2.6 These GTC do not deviate from the legal rights of Concepteurs, but are supplementary to them;
2.7 Should any conflict between these GTC and the Agreement arise, the provisions in the Agreement shall prevail;
2.8 Concepteurs reserves the right to amend or supplement these GTC at any given time. Amendments also apply to Agreements already concluded, subject to a transition period of 30 (thirty) days, starting from the day of the written notification of the change. Should the Client not wish to accept the proposed change, the Client may terminate the Agreement during the transition period with immediate effect and by means of a written notice to Concepteurs.
ARTICLE 3 QUOTATIONS, AGREEMENTS, AND NOTIFICATIONS
3.1 All quotations provided by Concepteurs are non-binding and, unless otherwise indicated by Concepteurs in writing, valid for a period of 30 (thirty) days. Concepteurs reserves the right to retract or change their quotations without compensation, as long as the Client has not accepted the quotation in writing;
3.2 The Agreement is concluded after written acceptance of the quotation;
3.3 The Client cannot derive any rights from verbal confirmations made by Concepteurs, unless and insofar as these have been confirmed in writing by Concepteurs.
ARTICLE 4 CLIENT’S OBLIGATIONS
4.1 The Client will provide all cooperation necessary for the Agreement;
4.2 The Client is responsible for the administration, including the control of the settings, the use of the Services provided by Concepteurs, and the way in which the results of these Services are applied;
4.3 The Client guarantees the accuracy and completeness of the data, information, and specifications provided to Concepteurs;
4.4 Should the Client use a White Label Platform, then Apple and Android demand that the terms and conditions and the privacy policy of the offering party (the Client as the owner of the application underlying the White Label Platform) are available. In that case, the Client is responsible for keeping their terms and conditions and the privacy policy in the Appstore(s) up to date, as well as for compliance with all relevant laws and regulations. Concepteurs is not liable for any consequences or damage caused by the Client’s failure to comply with these obligations.
ARTICLE 5 DEADLINES
5.1 Concepteurs makes every effort, insofar as is reasonable, to observe (delivery) deadlines and/or (delivery) dates as much as possible when providing the Services. Unless otherwise agreed, dates and deadlines always serve as an indication and do not bind Concepteurs;
5.2 Should a deadline be in jeopardy, Concepteurs will consult with the Client to discuss the consequences of the delay on further planning.
ARTICLE 6 SPECIFIC PROVISIONS REGARDING THE WHITE LABEL PLATFORM
6.1 If Concepteurs has specified a date or deadline for the delivery of the White Label Platform, then this is only indicative and never constitutes a term that must be observed under penalty of forfeiture of rights. The deadline for delivery only commences at the moment Concepteurs is in possession of all information (including but not limited to data relating to corporate identity, images, and text) required for the delivery of the White Label Platform and the Client has met all other necessary conditions for the execution of the Agreement;
6.2 It may happen that the underlying application of the White Label Platform is not permitted or, if permitted, is rejected later by Apple or Android, due to a reprimand of the Appstore-account of the Client, for example, by Apple or Android, or failure to comply with the underlying application of the White Label Platform to the requirements of Apple or Android. In such a case, Concepteurs will convert the content (CMS) placed in the underlying application by the Administrators using the White Label Platform (SitePodium) and the Agreement will be converted from an agreement for use of the White Label Platform to an agreement for use of the standard Platform and the license fee will be reduced accordingly. All remaining provisions of the Agreement remain in force unchanged. The Client acknowledges and agrees that this conversion is not ground for terminating the Agreement and/or for claiming damages from Concepteurs. With the exception of the aforementioned obligation to convert the Agreement, Concepteurs hereby disclaims all liability in the event of non-admission or subsequent refusal of the underlying application of the White Label Platform by Apple or Android.
ARTICLE 7 RIGHT OF USE OF THE (WHITE LABEL) PLATFORM
7.1 Concepteurs grants the Client the non-transferable, non-exclusive right to grant Administrators access and to use the (White Label) Platform to enable them to display Content and other related functionalities of the (White Label) Platform during the term defined in the Agreement;
7.2 The Client is not permitted to, directly or indirectly and in any way whatsoever, reverse engineer, decompile, modify, disassemble, or otherwise discover the source code, underlying ideas, underlying techniques of the user interface, or algorithms of the Software or the (White Label) Platform, or create derivative works of the source code, underlying ideas, underlying techniques of the user interface, or algorithms of the Software or the (White Label) Platform, or disclose any of the foregoing. All information provided by the Organisation or obtained by the Client, may not be disclosed to third parties or used to create software which is largely similar to the (White Label) Platform;
7.3 Transmission or storage of Content that is misleading and/or in violation with Dutch or local legislation or the instructions/guidelines of Concepteurs is strictly forbidden. Concepteurs reserves the right, but not the obligation, to monitor and edit Content and/or (partially) terminate or (partially) dissolve the Agreement if the Client sends or stores Content which is misleading and/or in violation with Dutch or local legislation or the instructions/guidelines of Concepteurs.
ARTICLE 8 MAINTENANCE, UPDATES AND UPGRADES
8.1 The provisions in this Article 8 apply in case the Parties have not agreed on a separate Service Level Agreement (SLA) regarding the (White Label) Platform;
8.2 Concepteurs will make reasonable efforts in accordance with the applicable industry standards to maintain the (White Label) Platform in a way that minimises errors and interruptions on the (White Label) Platform;
8.3 Concepteurs can wholly or partly disable the (White Label) Platform temporarily for (maintenance) work. Concepteurs will not allow the closedown to last longer than necessary;
8.4 Concepteurs will only make the updates and/or upgrades of the (White Label) Platform which Concepteurs also generally makes available to its other customers of the (White Label) Platform available free of charge to the Client, including patches and/or fixes;
8.5 Concepteurs provides the Services as described in this Article 8 in accordance with the standards of competence and care that can reasonably be expected of a service provided in the industry. However, Concepteurs cannot guarantee that these Services will be uninterrupted or error-free, nor does Concepteurs give any guarantees with regards to the results that may be obtained from their use.
ARTICLE 9 SOFTWARE DEVELOPMENT METHOD
Should the Services include the development of Software by Concepteurs specifically for the Client, and the Parties use a development method characterised by the principle that the design and/or the development of (parts of) that Software takes place in an interactive manner, the Parties will accept that the work will be carried out based on incomplete Specifications and that the Specifications, which may or may not have been agreed upon at the start of the work, may be altered during the execution of the Agreement, in consultation and with due observance of the project approach that is part of the development method. During the execution of the Agreement, the Parties make joint decisions regarding the Specifications applicable to the next phase of the project and/or in subsequent sub-developments. The Client accepts the risk that the Software may not necessarily meet all Specifications during this process.
ARTICLE 10 GENERAL SERVICES GUARANTEE
10.1 Concepteurs will execute the Services to the best of their ability and, if applicable, in accordance to the Specifications. All Services are executed based on a best effort obligation, unless Concepteurs has expressly confirmed a set result in the Agreement;
10.2 Concepteurs is not obliged to follow the instructions of the Client when executing the Services, especially if these instructions change or expand the scope of the agreed Services.
ARTICLE 11 (WHITE LABEL) PLATFORM GUARANTEE
11.1 Concepteurs does not guarantee that the (White Label) Platform is error-free and functions without disruption. Concepteurs will make every effort to repair errors in the (White Label) Platform within a reasonable period. Concepteurs is entitled to install temporary solutions, bypasses, or other restrictions to the (White Label) Platform that may or may not temporarily circumvent the problem;
11.2 Based on the information provided by Concepteurs about measures to prevent and limit the consequences of disruptions and/or defects in the (White Label) Platform, corruption, or loss of data or other incidents, the Client will take stock of the risks for their organisation and take additional measures if needed. At the request of the Client, Concepteurs declares themselves prepared to reasonably cooperate with additional measures to be taken by the Client, subject to (financial) conditions to be set by Concepteurs. Concepteurs is never obliged to repair corrupted or lost data and/or Content;
11.3 Concepteurs does not guarantee that the (White Label) Platform will be adapted in a timely manner to changes in relevant laws and regulations.
ARTICLE 12 BACKUPS
Should the Services include backing up Content hosted by Concepteurs, Concepteurs will make a full backup of the Content hosted by Concepteurs pursuant to the Agreement.
ARTICLE 13 DURATION, SUSPENSION, TERMINATION AND DISSOLUTION
13.1 Unless explicitly agreed otherwise between the Parties, the Agreement shall come into force at the effective date as defined in the Agreement and will remain in force for a period of 12 (twelve) months, unless terminated earlier as defined in these GTC. At the end of this term, the Agreement will be automatically renewed for successive renewal periods of 12 (twelve) months, unless terminated earlier as defined in these GTC;
13.2 The parties have the right to terminate the Agreement at any time, subject to a notice period of 2 (two) months. The termination will take effect at the end of the then current term;
13.3 Concepteurs is at all times entitled to suspend the fulfilment of its obligations pursuant to the Agreement or to (partially) terminate or dissolve the Agreement, if:
13.3.1 The Client does not fully and/or timely fulfil their obligations as defined in the Agreement;
13.3.2 Concepteurs becomes aware of circumstances which give them reasonable grounds to fear that the Client will only partly or improperly fulfil their obligations pursuant to the Agreement, in which case suspension of the Agreement is only permitted to the extent that the shortcoming justifies such an action;
13.4 Concepteurs is further entitled to terminate or dissolve the Agreement if circumstances arise which are of such a nature that fulfilment of the Agreement becomes impossible, or that maintaining the Agreement can no longer be reasonably expected of Concepteurs;
13.5 Should the agreement be terminated or dissolved on the basis of Article 13.3.1 or Article 13.3.2, the claims of Concepteurs on the Client become due and payable immediately. Should Concepteurs suspend the fulfilment of their obligations, they retain their rights pursuant to applicable law and the Agreement;
13.6 In the event of termination of the Agreement for any reason, access to and the (White Label) Platform will be terminated immediately for the Client and their Administrators. Subject to payment of all rates owed and any additional costs, the Parties will make further agreements about the collection/transfer/downloading of the Client’s Content;
13.7 All parts of the Agreement that by their nature should continue to apply after termination of the Agreement, including, but not limited to, the accrued rights to payment, confidentiality obligations, warranty claims, and limitations of liability, remain in full force and effect after termination of the Agreement;
13.8 Despite the previous clauses in this Article 13, Concepteurs always reserves the right to claim compensation in the event of suspension, (partial) termination, or dissolution.
ARTICLE 14 RATES AND PAYMENT
14.1 As compensation for the sale and delivery of the Services pursuant to the Agreement, the Client will pay the fees/rates to Concepteurs, as defined in the Agreement;
14.2 Unless otherwise specified, the rates are always excluding VAT;
14.3 If there is a periodic payment obligation, Concepteurs is entitled to index its prices annually as of April 1 on the basis of the Dutch ‘Diensten Prijs Index’ (DPI) from the CBSt.
14.4 The Client will pay Concepteurs’ invoices fully and without discount, deduction, settlement, or counterclaim, in euros within 30 (thirty) days after the invoice date;
14.5 Should the Client dispute an invoice, then that does not suspend the fulfilment of their payment obligations;
14.6 Information from Concepteurs’ administration serves as conclusive proof of the performance delivered by Concepteurs and the amounts owed by the Client for the delivery of this performance, without prejudice to the right of the Client to provide evidence in the contrary;
14.7 The Client is only entitled to settlement or retention of rights if the Client’s counterclaims have been legally established, are undisputed or have been recognised by Concepteurs. Furthermore, the Client is only entitled to retention rights with regards to the original Agreement;
14.8 Should the Client not meet their payment obligations on time, then the Client is legally in default and owes interest equal to the statutory interest. The interest due will in no case be lower than an interest of 1.5% (one point five percent) on the due amount per month. The interest on the due amount is calculated from the moment that the Client is in default until the moment that Concepteurs has received the due amount in full. The foregoing supplements – and does not replace – the other rights that Concepteurs has on grounds of the law or of reasonableness and fairness;
14.9 All judicial and extrajudicial costs incurred by Concepteurs to enforce payment of the due amount by the Client will be borne by the Client;
14.10 In the event that: a) the Client’s company is liquidated; b) the Debt Restructuring of Natural Persons Act (Dutch WSNP) is declared applicable (in the case of a sole proprietorship); c) the owner of the Client passes away (in the case of a sole proprietorship); d) the owner of the Client is placed under guardianship (in the case of a sole proprietorship); e) the Client’s company is seized; f) the Client’s company is declared bankrupt; and/or g) the Client’s company is granted a suspension of payments, the claims of Concepteurs on the Client become due and payable immediately.
ARTICLE 15 CHANGES AND ADDITIONAL WORK
15.1 Should a change be made or additional Services be carried out at the request of the Client or in agreement with the Client, which are not included in the Agreement, the resulting additional costs will be charged by Concepteurs to the Client as additional work at the then applicable rates. Concepteurs is not obliged to accept a request for change and may require that a separate Agreement be concluded for this purpose;
15.2 If a fixed rate has been agreed, Concepteurs will inform the Client in writing about the financial consequences of this additional work.
ARTICLE 16 INTELLECTUAL PROPERTY RIGHTS
16.1 Concepteurs reserves all rights, title and interest (including all Intellectual Property Rights) in and to the Services (including application development, business and technical methodologies, implementation and business processes, the source code, underlying ideas, underlying user interface techniques, or algorithms of the Software or the (White Label) Platform used by Concepteurs in order to provide the Services), and all updates, upgrades, improvements, adjustments, revisions, modifications, changes, future releases, and all other alterations relating to one of the foregoing. With the exception of the limited access and rights of use granted pursuant to the Agreement, the Client does not acquire any interest in the (White Label) Platform and/or the Software developed by Concepteurs. The Client agrees that all suggestions, requests for improvement, feedback, recommendations or other information provided by the Client or by Administrators regarding the Services, may be used by Concepteurs without restriction or obligation to Client or any Administrators;
16.2 Notwithstanding the general wording of Article 16.1, the Client acknowledges and agrees that the Client has no claim whatsoever on the source code of the Software and of the (White Label) Platform. This applies regardless of the circumstances, including but not limited to the bankruptcy of Concepteurs. In the event of bankruptcy of Concepteurs, the source code of the Software and of the (White Label) Platform will not be made available to the Client;
16.3 The Client retains all Intellectual Property Rights on the Content and the Client is responsible for protecting these rights. Concepteurs takes no responsibility whatsoever and does not accept any liability for the Content placed by the Client or their Administrators via the Services. By posting Content, however, the Client grants Concepteurs the right and licence to use such Content in the context of Concepteurs providing the Services.
ARTICLE 17 LIABILITY
17.1 Concepteurs is under no circumstances liable for indirect damage, including, but not limited to, consequential damage, lost profits, lost savings, reduced goodwill, damage due to business stagnation, damage resulting from claims from the Client’s customers, damage relating to the use of items, materials or software from third parties prescribed by the Client to Concepteurs, and damage related to the use of suppliers prescribed by the Client to Concepteurs. The liability of Concepteurs in connection with mutilation, destruction, or loss of Content, data or documents is also excluded;
17.2 Per event and per year, the total, cumulative liability of Concepteurs for direct damage is limited to an amount not exceeding the total of the fees owed and actually paid by the Organisation, pursuant to the Agreement in the 12 (twelve) months prior to the event causing the damage up to a maximum amount of EUR 1000 (one thousand euros). Related events are classified as one event;
17.3 The limitations and exclusions of liability included in these GTC do not apply if the damage is caused by intent, gross misconduct, or gross negligence of Concepteurs.
ARTICLE 18 CLIENT LIABILITY AND INDEMNITY
18.1 The Client is liable to Concepteurs for, and fully indemnifies Concepteurs against, all damage, costs, and claims of third parties in that context, which are a result of and/or related to:
18.1.1 incorrect use of the (White Label) Platform by Administrators;
18.2.2 an attributable shortcoming in the performance of the Agreement by the Client and/or Administrators;
18.3.3 any actions of the Client and/or Administrators when using the (White Label) Platform, including, but not limited to: unlawful storage or exchange of Content or an unlawful act.
ARTICLE 19 FORCE MAJEURE
19.1 Concepteurs is not liable for any failure to comply with the Agreement to the extent that this performance is delayed or prevented by a circumstance that is not within the reasonable control of Concepteurs and amounts to Force Majeure;
19.2 Concepteurs will inform the Client of all circumstances that prevent Concepteurs from fulfilling its obligations pursuant to the Agreement. The Parties will consult with each other to discuss which measures should be taken to minimise the consequences of the Force Majeure situation;
19.3 Should the Force Majeure situation continue for a period of 3 (three) consecutive months or longer, each Party is entitled to terminate the Agreement without liability for damages by giving notice to the other Party in writing.
ARTICLE 20 EXPIRATION OF RIGHTS
Legal actions pursuant to the Agreement or unlawful acts must be initiated by the Client within 1 (one) year after the right to the claim comes into effect, failing which the legal action will lapse.
ARTICLE 21 CONFIDENTIALITY
21.1 The Parties are bound to complete confidentiality of each other’s Confidential Information and will only use it solely for the execution of the Agreement. The Client is expressly prohibited, in any way, to reverse-engineer, decompile, modify, or disassemble Services or underlying ideas, or otherwise attempt to discover or make derivative works of the Services or underlying ideas, or reveal this;
21.2 The Parties shall obligate their officers, directors, employees, agents, and Affiliated Companies to comply with the terms of this Article 21. Each Party is responsible for any violation of this Article 21 by its officers, directors, employees, agents, and Affiliated Companies;
21.3 Information will not be considered confidential if it: i) is already known to the receiving Party on the date of disclosure pursuant to the Agreement; ii) is already in the possession of the public or becomes available to the public other than through violation of this Article 21 by the receiving Party; iii) must be disclosed pursuant to any applicable law, court order, regulation, or governmental or regulatory authority requirement; iv) is lawfully obtained from a third party that is not subject to any obligation of confidentiality to the disclosing Party; v) is independently developed by the receiving Party without use of or reference to the other Party’s Confidential Information;
21.4 Should the receiving Party become aware that Article 21.3 iii) applies or may apply, then they shall promptly notify the providing Party thereof – to the extent lawful – so that the providing Party may seek appropriate legal remedies to prevent such disclosure. Furthermore, the receiving Party shall take the measures that the providing Party reasonably requires to prevent such an obstacle and shall keep the providing Party promptly and fully informed of all developments in connection with a possible disclosure, as long as this is lawful. The burden of proof with regard to the above exceptions always rests with the receiving Party;
21.5 Upon termination or dissolution of the Agreement, the Client will return all Confidential Information to Concepteurs upon first request and as soon as reasonably possible.
ARTICLE 22 PRIVACY AND DATA PROCESSING
22.1 The Parties will at all times comply with the obligations arising from Dutch legislation on the protection of personal data and other relevant (national, European and international) legislation regarding the protection of personal data that apply to the implementation of the Agreement. Processing of personal data by or on behalf of Concepteurs in the context of the Agreement takes place in accordance with the Privacy Statement and the Data Processing Agreement;
22.2 The Client recognises and accepts that the privacy statement of the relevant provider (including but not limited to Google and/or Apple) may apply to downloading and/or installing the (White Label) Platform. Concepteurs has no influence on and disclaims all liability in connection with processing personal data by the aforementioned providers. For more information about the processing of personal data by this provider, Concepteurs refers the Client to the relevant provider.
ARTICLE 23 TRANSFER AND THIRD PARTIES
Concepteurs is entitled at all times to transfer their rights and/or obligations pursuant to the Agreement wholly or partly to their Affiliated Companies or third parties.
ARTICLE 24 APPLICABLE LAW AND DISPUTES
24.1 These GTC are governed by Dutch law;
24.2 In the event of disputes arising from or related to the Agreement, the Parties will first enter into consultations and strive for an amicable solution. Should parties be unable to do so, the dispute will be submitted to the competent judge of the Midden-Nederland District Court, Amersfoort.