General Terms and Conditions

General Terms and Conditions of BeOne Development Holding B.V. its legal successors and affiliated (subsidiary) companies
January 2023

Chapter A: General Provisions

1 Definitions

1.1 In these General Conditions, the following terms, each indicated by a capital letter, both in singular and plural, shall have the following meanings:

1.2
Contractor:
BeOne Development Holding B.V., its legal successors or an affiliated (subsidiary) company or partner that enters into the legal relationship with Customer and has declared these General Terms and Conditions applicable.

1.3
Content:
Any form of animation, audio, video, illustrations, text or other perceptible form of (interactive) information and keys used by the Contractor in its Products and Services, whether or not in the form of software.

1.4
Documentation:
The further (functional) description of Products and Services delivered or provided to the Customer by the Contractor.

1.5
Backup
: Spare copies of digital data and/or files.

1.6
Courses
: All courses, education, training and related activities.

1.7
Third Party Products and Services:
All Products and/or Services provided by Contractor that originate from third parties, the resulting provisions and related work.

1.8
End User
: the ultimate consumer of the Content.

1.9
Identifiers:
log-in name, passwords, tokens, addressing data and/or other codes.

1.10
Intellectual Property Rights:
All Intellectual Property rights, including, but not limited to, trademark, copyright and database rights.

1.11
Customer:
Any person who requests and orders the Contractor to supply or deliver Products and Services.

1.12
Customization:
The result of Products and/or Services to be developed or developed on behalf of Customer.

1.13
Quotation:
The written offer by the Contractor on a request from Customer, to provide a particular Service and/or Product at a particular price. All Quotes from Contractor are without obligation unless the offer expressly states otherwise in writing. Quotes from Contractor are based on the data, information and/or requirements provided by Customer.

1.14
Agreement:
The set of agreements between the Contractor and Customer, whereby the Contractor undertakes to provide one or more Product(s) and/or Service(s), in return for payment by the Customer of the applicable fee in accordance with the agreed terms and conditions.

1.15
Parties
: Contractor and Customer jointly.

1.16
Platform:
A system provided by the Contractor for distributing Products and/or Services such as online training materials and tracking usage thereof (learning management functionality).

1.17
Products and Services:
All products and services to be provided by the Contractor, including but not limited to Content, Customization, Web Service (SaaS), Documentation and the resulting facilities and related work.

1.18
Reseller
: party that, at its own risk and expense, supplies the Products and/or Services of the Contractor with the consent of the Contractor to its own customers.

1.19
Web Service:
SaaS (Software as a Service), this web service includes the provision by Contractor directly and/or indirectly (through third parties) via hosting of application software, such as a platform or Learning Management System (LMS), Content Management System (CMS), portal (website). This includes a mobile app.

1.20
Working days:
Dutch working hours (08:30: 17:30 CET) and days (Monday through Friday), excluding national holidays.

2 Applicability

2.1 All offers, Quotations and Agreements or other legal relations between Contractor, directly or indirectly through third parties engaged by Contractor, and Client, are – and exclusively – subject to these General Terms and Conditions. Other purchase or other terms and conditions (deviating from these General Terms and Conditions) of the Customer shall not apply and shall be rejected by the Contractor, unless expressly agreed otherwise in writing and the Contractor has also confirmed in writing full or partial overruling of these General Terms and Conditions.

2.2 These General Terms and Conditions shall also apply to amended or additional or subsequent Agreements.

2.3 The Contractor may amend these General Terms and Conditions. The amended Terms and Conditions will apply unless any amendments are objected to in writing within 30 (thirty) days from the date of the amendment.

2.4 If any provision of these Terms and Conditions is found to be void or nullified, the remaining provisions of these Terms and Conditions shall remain in full force and effect.

2.5 Deviations and/or additions to these General Terms and Conditions are considered valid if they have been agreed in writing between the parties.

2.6 If several (legal) persons or companies are designated with the trade name used by the Client, they will be jointly and severally liable to fulfill all obligations under the agreement concluded with the Contractor.

2.7 In case of contradiction between the provisions in the chapters of these General Terms and Conditions, what is stipulated in a previous chapter shall apply, unless it is expressly deviated from.

3 Execution of the agreement

3.1 All assignments shall be performed by Contractor on the basis of the data, information, wishes and/or requirements made known to Contractor by Client.

3.2 The Client shall ensure the timely provision of all data – documents, information and contacts, etc. – which the Contractor indicates or which the Client should reasonably understand are necessary for the proper performance of the Agreement. Customer will vouch for the accuracy of this data and/or other information.

3.3 If interim changes or new facts occur in data, information, wishes and / or requirements previously provided, the Contractor will at all times be entitled, in consultation with the Customer, to adjust the agreement to these new circumstances or to rescind or terminate it.

3.4 If the information referred to in Article 3.1 is incorrect or incomplete or has not been provided to the Contractor in a timely manner, the Contractor shall not be liable for any damage resulting therefrom. The Contractor shall have the right to suspend performance of the Agreement and/or charge damages or additional costs resulting from the delay at the then customary rate.

3.5 If, for the performance of the Agreement, work is performed by the Contractor at the Client’s location or at a location designated by the Client, the Client undertakes to ensure that all assistance, materials, information, (electronic) systems and facilities required for the performance of the Agreement are made available to the Contractor free of charge and that the performance of the Agreement can take place in a safe and healthy working environment, just as this obligation of the Client also applies to its own employees.

3.6 If an execution period has been agreed in the Agreement, it does not apply as a deadline, within which delivery must be made, but as periods within which the Contractor will strive to the best of its ability to deliver what has been agreed.

3.7 If it has been agreed that the Agreement will be performed in stages, the Contractor may suspend the performance of those parts belonging to a subsequent stage until the Customer has approved the acceptance of the previous stage in writing (or any other manner agreed between the Parties).

3.8 To the extent necessary for the proper performance of the Agreement, the Contractor has the right to have (parts of) the work performed by third parties.

3.9 If the Agreement has been entered into with a view to performance by a specific person, the Contractor will always be entitled to replace this person with one or more other persons with the same qualifications.

3.10 Customer accepts that the (time) schedule of the Agreement may be affected if Parties decide to change the approach, working method or scope of the Agreement in the interim.

4 Prices and rates

4.1 All prices and rates charged by the Contractor are in Euros and exclusive of sales tax and other government levies, unless otherwise expressly agreed in writing between the Parties.

4.2 The Contractor is entitled – without prior written notice – to increase the agreed rates as of January 1 of each year by up to the percentage of inflation for the month of August in the previous year, as provided by the CBS relevant. CBS published index figure of collective bargaining wages per month incl. byz. rewards for industry J Information and communication (SBI2008), CLA sector private companies is taken as a starting point here.

4.3 If the changes referred to in Article 3.10 result in additional work, the Contractor will additionally charge the Customer, unless the change or addition to the Agreement can be attributed to the Contractor. If Contractor is of the opinion, that a project change indicated by Customer is an additional work order, Contractor shall notify Customer thereof before proceeding with execution. The notification will be followed by a statement of the price and other conditions upon Customer’s request. Customer will decide on the proposed additional work as soon as possible in each case.

4.4 Customer shall be deemed to have consented to the performance of additional work appointed according to 4.3 and the associated costs if Customer has allowed the performance of the additional work to take place without first indicating in writing that he does not wish additional work.

5 Payment

5.1 Payment of the invoice by Customer shall be made within 30 (thirty) days of the invoice date to a bank account designated by Contractor, unless otherwise agreed in writing.

5.2 Customer has the duty to immediately report inaccuracies in payment information provided or stated to Contractor.

5.3 If Customer fails to fulfill any payment obligation, Customer shall be in default without any further summons or notice of default being required. The Client shall owe the Contractor the costs (including costs owed on account of legal assistance provided by a lawyer or agent), both in and out of court, relating to the collection of all that the Client owes the Contractor. Extrajudicial collection costs are 15% of the amount due with a minimum of € 175 (one hundred and seventy-five euros). In any event, interest, at a rate equal to the legal commercial interest rate plus 3%, will be charged monthly on the amount owed by Customer from the date Customer is in default.

5.4 The Contractor is entitled to suspend its work and other obligations until full payment has been made, without prejudice to the Customer’s obligation to fulfill its obligations.

5.5 If a discount has been agreed with Customer related to entering into an Agreement of a definite duration, this discount shall expire if the Agreement ends earlier than the initially agreed duration and the Contractor shall be entitled to charge this recoverable discount to Customer in such a situation.

5.6 If the Customer purchases a number of hours of services against prepayment (strippenkaart), these hours must be used by the Customer within a period of one (1) year. After this period, the right to use these purchased hours expires. Under no circumstances shall the Customer be entitled to a refund of any amount.

5.7 The Customer shall never be entitled to set off any amount owed by him to the Contractor.

5.8 The above provisions are without prejudice to other rights accruing to Contractor on the grounds of failure to perform by Customer.

6 Force majeure

6.1 Force majeure shall mean any failure in the performance of the Agreement which cannot be attributed to the Contractor or Customer, because it is not due to the fault of the Contractor or Customer respectively, nor is it for the account of the Contractor or Customer by virtue of the law, legal act or generally accepted practice.

6.2 Neither party is obliged to fulfill any obligation if it is prevented from doing so as a result of a circumstance that is not due to its fault, nor for its account under the law, legal act or generally accepted practice. The aforementioned circumstances also include circumstances beyond Contractor’s control and business risks of Contractor, such as – but not limited to: (i) failures of Contractor’s suppliers; (ii) defectiveness of third-party items, equipment, software or materials whose use has been prescribed by Customer; (iii) the non-timely availability or incompleteness of necessary data, information and/or specifications; (iv) government actions; (v) power outage, failure of Internet, computer network or telecommunications facilities; (vi) strike; (vii) general transportation problems; (viii) (cyber) crime, (cyber) vandalism, or any downtime or unavailability due to wrongful acts of third parties, (D)Dos attacks, hacking, cracking; (ix) fire, explosion, war or terrorism; (x) the unavailability of one or more staff members.

6.3 In case of temporary force majeure on the part of the Contractor, the Contractor is entitled to extend the intended delivery period by the time, during which the temporary force majeure continues.

6.4 If the non-attributable failure of either party continues for more than three months, both parties shall have the right to dissolve the agreement separately, without being liable for any compensation regarding the dissolution.

6.5 To the extent that a part already fulfilled by Contractor has independent value, for example if one or more participants has already used / accessed a Web service, Contractor may invoice that part separately. The Contractor’s records are leading in this regard. Customer is obliged to pay this invoice as if it were a separate Agreement. Regardless of the time of cancellation, termination or modification, Contractor shall be entitled to charge Client for the actual external costs incurred (including, but not limited to, rental location, actor and resources).

7 Intellectual property rights

7.1 Except in the case of Third Party Products and Custom Work delivered for the Client, for every order executed by the Contractor wherever and whenever, regardless of whether there is the (completion/completion) delivery of an existing Product or Service or a Product or Service yet to be developed, all resulting intellectual property and other rights shall remain vested in the Contractor. The Contractor shall always have the exclusive right to further develop the Products and Services and to make their use available to third parties through licenses.

7.2 Customer only acquires the rights of use granted by Contractor in these General Terms and Conditions and in the Agreement. Customer’s right of use is non-exclusive, non-transferable, non-pledgeable and non-sublicensable.

7.3 An undertaking to transfer a right of intellectual property by Contractor to Customer can only be made in writing and expressly. If the parties agree in writing that a right of intellectual property with respect to Content developed specifically for Customer shall pass to Customer, this shall not mean that Contractor shall also transfer the components, designs, works, standards, algorithms and the like underlying such development. The Contractor always retains the intellectual property rights vested in the Contractor to the general principles, programming languages, ideas, knowledge and know-how used in the creation or development of the Content. Customer acknowledges that all present and future intellectual property rights, industrial property rights, other rights and the registration and/or application of the aforementioned rights and/or similar rights for the entire term and any renewals or extensions thereto now or in the future worldwide shall forever belong or be transferred to Contractor.

7.4 Customer is not allowed to remove or change any indication regarding intellectual property and other rights, trademarks and trade names from the Products and Services, or to have such actions performed by a third party.

7.5 If the Contractor, Customer or third parties make functional improvements or other changes to the Products or Services, the intellectual property rights and other rights vested in the improved or changed Products or Services will remain unchanged with the Contractor or the third-party rights holder. If the aforementioned rights are not vested in Contractor or a third party rights holder, Customer shall arrange for the transfer of the aforementioned rights to Contractor or the third party rights holder free of charge.

7.6 The Contractor reserves all intellectual property and other rights regarding training materials provided and/or documentation provided. The Customer is expressly not permitted to reproduce it in any way, transfer it to third parties or lend it on loan. Customer must ensure that its employees and/or third parties will comply with the aforementioned obligations.

8 Liability

8.1 The total liability of Contractor on account of an attributable failure in the performance of the Agreement or for any other reason, expressly including a warranty obligation agreed with Client, shall be limited to compensation for direct damage and then to a maximum of the amount of the price stipulated for that Agreement (excluding VAT) with a maximum of € 15,000 (fifteen thousand euros), whereby a series of related events shall be considered as one event The limitation of liability shall apply mutatis mutandis to indemnities issued by Contractor.

8.2 If the agreement consists of one or more continuing agreement(s), the amount of the agreement shall be set at the total of the fees received in one year (excluding VAT), being the year in which the damage occurred. In no event shall the Contractor’s total liability for direct damages on any account exceed €15,000 (fifteen thousand euros).

8.3 The Contractor has taken out insurance to cover damages. The Contractor shall in any event not be liable for and shall not compensate any such further loss or damage which the Client may suffer under the agreement concluded with the Contractor, however and for whatever reason arising, such including possible claims against the Client from third parties, than is covered by this insurance and actually reimbursed plus the Contractor’s deductible, unless there is intent or deliberate recklessness.

8.4 Contractor’s liability for damage due to death, bodily injury or because of material damage to property shall never exceed a total of € 1,000,000 (one million euros), whereby a series of related events shall be regarded as one event.

8.5 Direct damages shall mean only:

The reasonable costs incurred in determining the cause and extent of the damage.
The reasonable costs incurred to prevent or limit damage, insofar as Customer demonstrates that these costs have resulted in damage limitation.
The reasonable costs incurred to repair damage, insofar as Customer demonstrates that these costs have led to the repair of damage and Contractor, after
written request to do so, cannot himself offer a timely solution to repair damage.

8.6 Contractor’s liability for indirect damage, consequential damage, loss of profit, lost savings, reduced goodwill, damage due to business interruption, damage resulting from claims of customers of Customer, damage related to the use of goods, materials or software of third parties prescribed by Customer to Contractor and damage related to the engagement of suppliers prescribed by Customer to Contractor is excluded. Also excluded is Contractor’s liability for mutilation, destruction or loss of data or documents.

8.7 Contractor shall not be liable for any lack of quality or infringement of any third party intellectual property right caused by e-learning materials or other materials created or provided by Customer in use through Contractor’s Products and Services. Customer indemnifies Contractor against all costs, damages or other liabilities Customer may incur as a result of any claim based on the Products or Services not created by Contractor such as eLearning materials in use through Contractor’s Products and Services.

8.8 The Contractor is not responsible for the operation of the infrastructure, namely the collection of information and communication technology facilities such as software and hardware including cabling and internet, used for data processing and/or telephony.

8.9 Customer indemnifies Contractor for all claims, in the broadest sense of the word, that might arise from the application of Contractor’s phishing simulation tool.

8.10 The limitations of Contractor’s liability referred to in this Article 8 shall cease to apply in the event of intentional or deliberate recklessness on the part of Contractor.

8.11 Outside the case mentioned in Article 8, the Contractor shall have no liability for damages, regardless of the ground on which an action for damages would be based.

8.12 A condition for the creation of any right to compensation is always that the Client reports the damage to the Contractor in writing within 60 (sixty) days of its occurrence, taking those measures that limit the damage as much as possible. Any claim for damages against the Contractor shall expire by the mere lapse of twenty-four months from the occurrence of the claim.

8.13 Client indemnifies Contractor against all claims of third parties for liability as a result of a defect in a product, system or service delivered (or supplied) by Client and which product, system or service consisted partly of that delivered by Contractor.

9 Backups

9.1 Customer is solely responsible for making timely Backups. Upon Customer’s request, Contractor shall make known the procedures that may be required for data security and Backups.

9.2 Only if and to the extent that it has been expressly agreed in writing that the Contractor will provide for Backups in whole or in part, will the Contractor make Backups. The Contractor shall in no event be liable for these Backups as to but not limited to the total or partial loss of Backups and/or errors in the Backups or any other loss or disuse of data. Customer is at all times entirely responsible for regularly checking and testing the integrity, readability and usability of the Backups. This also applies if Contractor restores a Backup for the benefit of Customer, regardless of the reason for such restoration.

9.3 Customer remains entirely responsible for making Backups in advance if Customer performs or has a third party perform actions that could lead to data loss with respect to the Products and Services and/or the environments and/or equipment on which the Products and Services operate. Contractor is not liable for damages if Customer has not complied with this article.

10 Duration and termination

10.1 The agreement is valid for the duration agreed between the Contractor and the Customer. Interim termination by the Customer is excluded, unless otherwise stipulated in the Agreement or in these General Terms and Conditions. An Agreement between the Contractor and Customer for which no further duration has been agreed has a duration of 1 (one) year if (ex/on) delivery relates to a Service, for which an amount is charged periodically. If this agreement is not terminated or not terminated in time, namely with observance of a notice period of 3 (three) months, continuation of this agreement will take place each time for the duration of 1 (one) year.

10.2 The parties have the right to rescind or terminate the Agreement with immediate effect by written notice after proper written notice of default, if:

the other Party imputably fails to fulfill any obligation incumbent upon it – the other Party violates any applicable usage rights or usage restrictions and/or has violated any intellectual property right pursuant to the Agreement;
(to) the other Party is granted suspension of payments (provisional or otherwise) or is declared bankrupt, submits a request for the application of debt restructuring, or is placed under guardianship or administration;

10.3 After the end of the Agreement, for whatever reason, the Customer can no longer derive any rights from the Agreement, without prejudice to the continuation of the obligations of the parties which by their nature are intended to continue after the end of the Agreement, such as but not limited to the obligations regarding property rights and confidentiality.

10.4 By the end of the Agreement, the right of use ends and all Products and where possible the Services, must be returned to the Contractor and/or demonstrably destroyed at the first request of the Contractor.

11 Personal Data

11.1 If Customer is to be regarded as a data processor within the meaning of the General Data Protection Regulation (AVG) and Contractor is to be regarded as a processor within the meaning of the AVG on behalf of Customer, the provisions of this article and the processor agreement shall apply.

11.2 Customer acknowledges that the data processing as assigned to Contractor is lawful. Customer also acknowledges that it has ascertained that Contractor has taken appropriate technical and organizational measures, as referred to in Article 28-1 AVG, including security measures as referred to in Article 32 AVG. Customer shall indemnify Contractor for claims due to breach of privacy, within the meaning of the AVG, for which Customer is responsible under the law, unless Customer proves that the facts underlying the claim are attributable to Contractor.

12 Confidentiality and non-acquisition

12.1 The Contractor and Customer shall ensure that all information, data or documents received from the other party that they know or should reasonably have known to be of a confidential nature shall remain secret. The receiving party will use the data only for the purpose for which it is provided. In any case, data is considered confidential if it is designated as such by the providing party.

12.2 Without Contractor’s prior written consent, Client shall not be entitled to make any communication to third parties about Contractor’s methods, methods and techniques and/or the content of Contractor’s advice or reports. Client shall not provide or otherwise disclose the opinions or reports to any third party. The Customer is not permitted to disclose, exploit or reproduce data or parts of the Content, documentation and/or training, education, testing or examination materials provided and/or extracts from the training, education, training, testing or examination materials provided except for use within its own organization, insofar as appropriate within the purpose of the assignment and provided that the parties have not agreed otherwise in writing.

12.3 Customer acknowledges that the Products and Services made available by or through Contractor may always contain software of a confidential nature and are trade secrets of Contractor, its suppliers or the producer of the software.

12.4 Customer and its clients shall not enter into any direct or indirect business, employment or other similar relationships with any employee of Contractor during and for 12 (twelve) months after the termination or dissolution of the Agreement, except with the written consent of Contractor. The foregoing applies mutatis mutandis to clients of Customer. Customer must ensure that its clients will comply with the aforementioned obligation.

12.5 In the event of violation of the provisions of this article, the Client shall owe an immediately due and payable penalty of €50,000 (fifty thousand euros) per violation without further notice of default, without prejudice to the Contractor’s right to claim compensation for the full loss suffered.

13 Transfer

13.1 The agreement concluded between Contractor and Customer and the rights and obligations arising therefrom cannot be transferred to third parties without the prior written consent of Contractor.

13.2 Customer gives Contractor the right in advance, without needing Customer’s express consent, to transfer all or parts of the Agreement to: (i) parent, sister and/or subsidiary companies and (ii) a third party in the event of a merger or acquisition of Contractor. If this occurs, Contractor shall inform Customer accordingly.

14 Nullity

14.1 If one or more provisions (or part of a provision) of the General Terms and Conditions or the agreement are null and void, declared to be null and void, voidable or, have otherwise lost their legal validity, the remaining provisions (or the remaining part of relevant provision) of the General Terms and Conditions or the agreement shall remain in full force and effect.

14.2 With respect to provisions (or the part of a provision) that are null and void, have been declared void, are voidable, or have lost their validity in any other way, the parties will consult with each other in order to reach a substitute arrangement, in such a way that the parties will strive to ensure that the purport of the agreement (or the remainder of the relevant provision) remains intact in its entirety.

15 Applicable law and disputes

15.1 The agreements between Contractor and Customer shall be governed by Dutch law. Applicability of the Vienna Sales Convention 1980 is excluded.

15.2 If Customer has a complaint about Contractor, Customer should submit it to the management of Contractor as soon as possible. The management of the Contractor will respond as soon as possible, but no later than 4 weeks. The Contractor strives to resolve each complaint within 3 months, and will only deviate from this in a reasoned manner.

15.3 Irrespective of the provisions in article 15.2 of these General Terms and Conditions, any disputes arising between the Contractor and the Customer in connection with an Agreement will be submitted to the competent court of the District Court of Midden-Nederland, location Utrecht.

15.4 If the Contractor and/or the Customer have not yet commenced proceedings for the settlement of disputes arising from the Agreement concluded between the parties before the District Court of Midden-Nederland, location Utrecht, the parties shall be authorized to commence arbitration proceedings in accordance with the Arbitration Regulations of the Stichting Geschillenoplossing Automatisering (SGOA), all this without prejudice to the right of either party to request a provision in (arbitral) summary proceedings and without prejudice to the right of either party to take precautionary legal measures (see www.sgoa.eu).

16 Final Provisions

16.1 Oral promises, assignments or other statements of any kind made by employees of Contractor shall be legally valid and binding only if confirmed in writing by authorized representatives of Contractor.

Chapter B: Content

17 Right of use

17.1 If agreed between the parties, Contractor may make Content available to Customer.

17.2 Content may be made available to Customer via the Platform, Customer’s platform or third-party platform.

17.3 In accordance with Article 7 and during the term of the Agreement, the Contractor grants the Customer, upon payment to user, the non-exclusive right to use the Content, with – if available – the associated documentation, unless otherwise agreed in writing between the parties.

17.4 The right of use is limited to use of the Content solely for your own use and other limitations as mentioned in the Agreement. The Client is prohibited from disclosing, copying, duplicating or modifying Content or parts thereof in any way itself and/or through third parties, without prior written permission from the Contractor.

17.5 Resellers obtain from the Contractor the right to resell this right to use the Content to its customers in accordance with the terms of the Agreement. Resellers must impose on their customers the limited right of use as included in Article 17.4, as well as the code of conduct from Article 24.

17.6 The right of use commences at the time of making it available to Customer via the Platform, Customer’s platform or third-party platform.

17.7 The Contractor is entitled to withdraw the right of use in the event of arrears in the payment of invoices sent by the Contractor to the Customer or if the Customer acts in breach of any provision of the General Terms and Conditions or Agreement.

18 Checks

18.1 The Contractor is entitled to incorporate technical limitations and control mechanism in Products and Services to prevent and/or control that the actual number of users of the Content does not exceed the agreed number of users of the Content.

18.2 Furthermore, as long as Customer uses the Products and Services, Contractor is entitled to conduct unannounced inspections at the locations where the Products and Services are used, either itself or through a third party. Customer will provide all cooperation and access for this purpose. If Customer refuses cooperation or access to Contractor, Contractor is entitled to terminate the agreement with immediate effect. Customer shall in such case no longer be entitled to use the Products and Services and shall be obligated to return all Products and destroy any copies made within 30 (thirty) days upon Contractor’s first request to do so.

18.3 If the aforementioned checks or otherwise show that the actual number of users exceeds the number of users agreed upon, Customer must immediately and retroactively pay compensation for the number of missing users, which compensation consists of the agreed pricing per additional user, increased by a percentage of 25%.

19 Technical operation

19.1 The Contractor cannot guarantee that Content will function smoothly on thin-client technology, such as Citrix. The Contractor will provide support on a best-effort basis when appropriate.

19.2 The Contractor shall ensure correct operation of the Content on the most recent version of Chrome, Edge, Safari and Firefox on the most recent version of Windows and MacOS, no later than 6 months after release of the respective version. In the case of Customization, this applies to the relevant current versions at the time of delivery.

19.3 In the event that Content is explicitly suitable for mobile devices, the Contractor shall ensure that the Content operates correctly on the most recent version of iOS, iPadOS and Android, at the latest within 6 months of the release of the relevant version.

19.4 Contractor guarantees that Content in SCORM format will function smoothly on the SCORM Cloud web service. Contractor cannot guarantee that Content in SCORM format will function smoothly on other LMS platforms, and can support Customer on an hourly basis at applicable rates where required.

19.5 The Contractor guarantees that Content offered via an LTI link will function smoothly with the open source Moodle LMS and the Contractor’s Web service. The Contractor cannot guarantee that Content via LTI will function smoothly on other LMS platforms, and can support Customer on an hourly basis at applicable rates where required.

19.6 In order for the Content to function properly, the End User must have access to a minimum Internet bandwidth of 1 Mbps and a minimum screen resolution of 1024 x 660.

20 Customization

20.1 The Parties will agree in writing which Custom Work will be developed in the context of Content and in what manner this will be done. The Contractor will perform the development of Customization with care based on the data provided by the Client. Customer warrants the accuracy, completeness and consistency of this information.

20.2 The development of Customization may take place according to phases to be determined by the Contractor. If Customer does not wish to follow the aforementioned phases this shall take place entirely at the risk (and expense) of Customer.

20.3 Contractor reserves the right to terminate a Custom Project early if the turnaround time is significantly delayed beyond Contractor’s control due to actions or inactions of Client. In that case, a settlement will take place based on the project result achieved up to that point, the project capacity reserved by Contractor for this project, as well as loss of income by Contractor.

20.4 Every Custom assignment ends with a review by the Client. After processing the review points within the scope of the order and delivery of the final product by the Contractor to the Client, the Custom Work is deemed to be accepted by the Client.

20.5 To support the full life cycle of the Customization, the Contractor shall provide the following maintenance and support activities under warranty for a period of 3 months after delivery & acceptance:

Corrective maintenance: fixing problems that were not previously known and/or occurred. In scope: Correction of technical – or functional deficiencies (fixing bugs) and of language errors. Corrective maintenance is performed only within the scope of the original target platforms (LMS, browsers, devices). Adding support for new target platforms is outside the agreement. Adaptations to media files (animations, audio and video) are beyond the scope.
Minor changes: a minor change is a change that needs to be made and takes no more than 15 minutes of work. In scope: Making minor textual changes (for example, changing a term, or modifying a URL); Making minor graphical changes (for example, replacing a media file such as an image or a video file); Replacing or adding a linked external document (for example, a PDF); Minor textual changes to a translated module (text/translation to be supplied by the client).
The following activities do not fall under maintenance and support for Customization: Adjustments to media files (animations, audio and/or video), 1st line support (end-user support), Localization/translation work, Larger changes such as: functional changes, extensive textual changes, design changes.

20.6 Intellectual property rights, or any other rights relating to Customization in the context of Content shall be transferred by the Contractor to the Client, unless expressly agreed otherwise in writing.

Chapter C: web service

21 Web service General

21.1 If agreed between the parties, Contractor may grant Customer the non-exclusive right to access and use a Web Service.

21.2 The Customer will hereby access software provided by the Contractor via a web browser (Software-as-a-Service). Contractor shall never be obliged to make available to Customer the source code of the software made available and/or documentation developed and/or auxiliary software required for development or maintenance. Contractor is never obliged to provide Customer with a physical carrier or download of the software underlying the Web Service.

21.3 Among other things, the Contractor does not guarantee that telephone lines, the Internet and/or other networks will provide optimal use and access.

21.4 Contractor has the right to revoke or suspend the right of use in the event of arrears in the payment of invoices sent by Contractor to Customer, if Customer fails to timely provide relevant information required for invoicing, or if Customer acts in violation of any provision of the General Conditions or Agreement.

21.5 The Contractor is entitled to view log files and the like for the purpose of analyzing the use of the Web service. The results of such analysis will not be made available to third parties (third parties do not include parent and/or subsidiary companies affiliated with Contractor). This does not apply to figures and data regarding the use of the Web service that are not directly traceable to the use of Customer.

21.6 Customized Web Service cannot be provided by the Contractor, as it is a product which is offered generically to all customers of the Contractor. It is, however, possible to add functionalities to the Web Service after written approval by Parties, following payment thereof by Customer. Intellectual property rights, or any other rights related to these additional features will remain with Provider at all times.

22 Checks

22.1 The Contractor is entitled to incorporate technical limitations and control mechanisms into the Web Service to prevent and/or control that the actual number of users does not exceed the contractually agreed number of users.

23 Obligations of Customer

23.1 Customer is obliged to follow instructions from the Contractor regarding the use of the Web Service.

23.2 The Customer is solely responsible for the purchase and/or proper functioning of the software and/or infrastructure required to use the Web service of the Contractor, the control of the settings of the Web service, the use of the Web service, the manner in which the results of the Web service will be handled, the instructions regarding the use of the services, the software and/or infrastructure required to use the Web service. The Contractor is under no obligation to perform any data conversion.

23.3 The Customer is only permitted to give persons who are not employees of the Customer access to the Web service if this has been explicitly agreed in writing with the Contractor, without prejudice to the other provisions of these General Terms and Conditions. If Customer and Provider have explicitly agreed in writing that Customer may also grant third parties access to the Web service, Customer will have to comply with the conditions attached to this by Provider.

23.4 If the Client is able to create, create, modify or add users, whether or not via self-registration by users, who can then gain access to the Contractor’s Web Service, the Contractor is entitled at all times to send an additional invoice for these created, created, modified and/or added users in accordance with the Contractor’s applicable rates.

23.5 If Customer detects a malfunction in the Web Service, it should be reported immediately to Contractor. After notification of a malfunction by Customer, Contractor will take those measures that lead or could potentially lead to recovery.

23.6 The costs of eliminating the malfunction shall be borne by Customer if it appears that the cause of the malfunction is the result of its injudicious use or is due to its acts or omissions in violation of the Agreement.

24 Code of Conduct

24.1 Customer must use the Web service and/or other facilities offered responsibly. It is forbidden to use the Web service and/or the other facilities offered in such a way that makes itself:

damages may occur in the systems of the Contractor and/or third parties;
disruptions in use may occur.

24.2 Customer shall ensure that such damages and/or disruptions are not the result of misconfiguration on its side.

24.3 It is prohibited to use the Web service and/or other facilities offered for illegal practices and/or in violation of the agreement. These include the following acts and behaviors:

infringing or enabling the infringement of the rights of third parties, such as but not limited to intellectual property rights and privacy rights;
Failure to comply with applicable laws and/or other relevant regulations;
spamming (the unsolicited distribution (or now enabling third parties) of advertising messages and other communications);
retention/distribution of pornography;
causing danger to the functioning of computer systems or networks of the Contractor or third parties and/or to the services over the network, in particular caused by sending excessive emails or other data, poorly secured systems or activities of viruses, Trojan horses or similar software;
sexual harassment, discrimination and/or otherwise harassing individuals;
distribution or otherwise make available to third parties obscene, offensive and harassing material and/or other material of such nature;
threats;
storage and spread of viruses, worms and/or other destructive activities;
the unauthorized intrusion (hacking) of accounts, systems and/or networks of third parties and/or the Contractor and/or the performance and/or omission of any other act that enables hacking.

24.4 The Contractor reserves the right, at its own discretion, if it is required to do so by law or court order and/or if a third party points out to the Contractor and/or there is a suspicion that the rights of a third party are being infringed by means of the Web Service, acts contrary to what is stipulated in the General Terms and Conditions of the Contractor and/or the agreement, and the resulting obligations in this respect are not, not properly or not fully complied with, to disable the use of the Web service and/or the other facilities offered, to remove the information in question and/or to suspend its obligations, this until the obligations have been met.

24.5 The Contractor and/or third parties shall never be liable for damage of any kind suffered by the Customer and/or third parties as a result of the measures taken on the basis of this article by and/or for the benefit of the Contractor. The obligations to pay the agreed amounts shall remain in full force and effect during the measures taken under this article by and/or for the benefit of the Contractor.

24.6 If the severity of the acts and/or omissions of Customer justifies this and/or these are continued despite the measures taken by and/or for the benefit of Contractor, as set out in this article, Contractor shall have the right to terminate the agreement, without Contractor being liable for any compensation in this regard or for the refund of monies already paid.

25 Changes to the Web Service.

25.1 Contractor is entitled after written notice with reasonable notice and without owing any compensation to Customer, to make additions and/or changes to the Web Service regarding but not limited to:

Access procedures, such as: (i) procedures related to operational rules; (ii) security requirements.
Changing a third party provider/supplier, location, hardware, software and other facilities relevant to making the Web Service available.

25.2 If the changes result in a demonstrable and such a large negative change on the working method of the Customer and/or the functionality of the Web service for the Customer, the Customer may, after first demonstrating the deterioration in writing, request the Contractor in writing to offer an alternative. If Contractor does not then offer a reasonable alternative, Customer has the right to terminate the use of the Web service, without Contractor being liable for any compensation in this regard or refund of any monies already paid.

26 Service level

26.1 A standard service level applies to the Web service. Upon Customer’s request, Contractor shall make these available to Customer. Additional service levels are only applicable if the Parties have mutually agreed.

26.2 The Web Service does not include providing support to End Users, unless the Parties have agreed otherwise in writing.

26.3 The Contractor may continue the performance of Web service using a new version of the software. The Contractor is not obligated to retain, modify or add any particular features or functionalities of the Web service or software, unless the Parties have agreed otherwise in writing.

26.4 The Contractor may take all or part of the Web Service out of service for (preventive, corrective or adaptive) maintenance. The Contractor will not allow the decommissioning to last longer than necessary and will, if possible, ensure that the maintenance in question will take place outside office hours and, when possible, notify the Customer in advance.

27 Id.

27.1 The Identification Data provided by the Contractor to the Customer is strictly personal per user (user). The aforementioned data are provided for the benefit of a specific person within the Customer’s organization, or if explicitly agreed, to a third party. It is not permitted to share and/or jointly use the aforementioned information within the Customer’s organization/or with a third party, unless expressly agreed otherwise.

27.2 Contractor shall make Identification Data available to Customer solely for use of the Web Service. Customer will handle this Identification Data with care. Customer shall notify Contractor immediately in the event of loss, theft and/or other forms of unauthorized use so that the parties may take appropriate action.

27.3 Under no circumstances shall the Contractor be liable for the misuse and/or unlawful use of the Identification Data.

27.4 If it can be reasonably suspected that misuse or unlawful use has been made of Customer’s Identification Data, the Contractor may give Customer instructions to prevent the misuse or unlawful use. Customer will be required to follow these instructions.

27.5 If it is established that misuse of the Identification Data has been made or that Customer has not complied with the instructions referred to in Article 27.4, Customer is immediately in default.

28 Guarantee

28.1 The Contractor does not warrant that the software to be made and kept available to the Customer as part of the Web service is error-free and functions without interruption.

28.2 Based on the information provided by the Contractor regarding measures to prevent and limit the consequences of malfunctions, service defects, mutilation or loss of data or other incidents, the Customer shall identify the risks to its organization and, if necessary, take additional measures. The Contractor shall never be responsible for restoration of mutilated and/or lost data.

28.3 The Contractor does not guarantee that the software to be made and kept available to the Customer as part of the Web service will be adapted in a timely manner to changes in relevant laws and regulations.

29 Third-party access

29.1 Contractor may grant Customer the right to grant third parties independent access to the Web Service under certain preconditions specified in the Agreement.

29.2 Customer acknowledges that no contractual relationship arises between Contractor and the third party and that Customer is the contractual counterparty of the third party or parties. Customer also acknowledges that Contractor can never be sued by the relevant third party for an attributable shortcoming or wrongful act resulting from the use of the Web service. Customer therefore indemnifies Contractor if, as a result of a judgment, it is required to pay compensation (damages) to a third party.

30 Third Party Products and Services

30.1 Contractor is entitled to provide Third Party Products and Services or to involve Third Party Products and Services in fulfilling its obligations under the Agreement. Contractor is not responsible for Third Party Products and Services unless otherwise agreed in writing.

30.2 If Contractor provides Third Party Products and Services to Customer, the Third Party General Terms and Conditions shall apply to the Agreement in addition to these General Terms and Conditions of Contractor.

30.3 Contractor provides rights to Third Party Products and Services under the terms and conditions described in the Third Party General Terms and Conditions.

30.4 Contractor does not perform Maintenance, Support or other services with respect to Third Party Products and Services, unless otherwise agreed in writing.

30.5 With respect to delivered Third Party Products and Services, Contractor shall provide:

Service on Third Party Products and Services, under at most the same terms and conditions reflected in the Third Party Terms and Conditions.
The warranty for the term and under at most the same conditions as shown in the Third Party General Conditions.

30.6 Repairs of Third Party Products and Services:

Under no circumstances will replacement of delivered Third Party Products and Services take place unless Customer expressly requests it and pays the associated costs as an Advance.
All repairs are subject to a handling fee. If repairs are made elsewhere than at Contractor’s premises, call-out charges, hourly wages and other associated costs will also be charged.

31 Third party general terms and conditions

31.1 Third Party General Terms and Conditions declared applicable in these General Terms and Conditions Contractor shall, if available from Contractor, be sent upon request. Third Party Terms and Conditions will be made available in the same format and language as received by Contractor.

31.2 The Contractor’s General Terms and Conditions take precedence over the Third Party General Terms and Conditions unless otherwise indicated. In case of conflict between the Contractor’s General Terms and Conditions and Third Party General Terms and Conditions, the Contractor may declare the relevant conflicting provisions in the Third Party General Terms and Conditions inapplicable or inapplicable.

Chapter D: Advisory Service

32 Advisory Service

32.1 All Products and Services that may be considered advisory or advisory in nature, such as but not limited to offering workshops, conducting feasibility studies and cultural scans will be provided solely to the best of our knowledge and ability.

32.2 The Contractor shall not be responsible and/or liable if the work resulting from the consultancy results in a failure to complete a Client project within the established budget, time and any other predetermined conditions.

32.3 Contractor will provide advice based on preconditions specified by Client and information obtained from Client. If it appears that not all relevant information had already been obtained and/or if other types of problems and/or insights may arise, such as but not limited to incompatibility problems (products that are incompatible with each other), the advice given may be adjusted to this new situation.

32.4 The parties will agree in writing what consulting work will be performed and in what manner this will be done.

32.5 The Contractor is entitled to have the consultancy work performed by a third party.

32.6 Contractor reserves the right to prematurely terminate consulting work if the turnaround time is significantly delayed beyond Contractor’s control by actions or inactions of Client. In that case, a settlement will take place based on the project result achieved up to that point, the project capacity reserved by Contractor for this project, as well as loss of income by Contractor.

32.7 The Contractor reserves the right to charge a fee for cancellation of an agreed project, prior to the start of the project.

32.8 Intellectual property rights, or any other rights relating to consulting activities shall at all times remain vested in Contractor, unless expressly agreed otherwise in writing.