General Terms and Conditions Aiden Netherlands B.V. October 2022.
Aiden Netherlands B.V. – General Terms and conditions
Introduction
Aiden is an IT company providing services in the field of implementation, support, advice, hosting and maintenance of its own software systems and software systems of third-party suppliers. These General Terms and Conditions apply to the Agreement pursuant to which Aiden provides its Products and/or Services to the Customer, as well as the offers, proposals and quotations to that effect.
By ordering and/or using the Products and/or Services, the Customer expressly confirms that he has received these General Terms and Conditions, that he has taken knowledge of them and that he has accepted them unreservedly before requesting the Products and/or Services. As a result, the Customer waives his own general and/or special terms and conditions, even if they state that they take precedence or are attached to the order form.
The General Terms and Conditions will be available for consultation on Aiden's website (www.aiden.eu) and all parts of the Agreement will refer to these General Terms and Conditions. In the event of any conflict between the provisions of these General Terms and Conditions and the Special Terms and Conditions, the relevant provisions of the Special Terms and Conditions shall prevail. The General Terms and Conditions and the Special Terms and Conditions shall prevail over the quotation and/or the order form (if any).
DEFINITIONS
a) Agreement: The binding commitments between the Parties concerning the supply of Products and/or Services by Aiden to the Customer, consisting of: (i) the quotation (if any) prepared by Aiden; (ii) the order form (if any); (iii) these General Terms and Conditions; and (iv) the Special Terms and Conditions (if any).
b) Aiden: Aiden Netherlands B.V., a limited liability company (besloten vennootschap) incorporated and existing under the laws of the Netherlands, registered at Rijnzathe 36, 3545 PV De Meern (Netherlands), registered with the Chamber of Commerce (Kamer van Koophandel) under number 69505160 with VAT number NL8578.97.949.B01, including his affiliated companies.
c) Business day(s): A day other than a Saturday, Sunday or legal holiday in Belgium or the Netherlands.
d) Customer: The natural person or legal entity holding a company number who enters into the Agreement with Aiden for professional purposes.
e) General Terms and Conditions: The present general terms and conditions of Aiden.
f) Intellectual Property Rights: any patents, patent applications, trade and other marks, trade and other names, copyrights, registered or unregistered designs and models, licences, inventions, approvals, procedures, documentation, know how (including but not limited to trade secrets and other non-patented or non-patentable registered or confidential information, systems or procedures), other similar rights and registered knowledge or other intellectual or industrial property rights.
g) Parties: The Customer and Aiden together.
h) Party: The Customer or Aiden individually.
i) Privacy Legislation: The General Data Protection Regulation (2016/679) of 25 May 2018 and national privacy and data protection laws (such as the Dutch General Data Protection Regulation Implementation Act of 16 May 2018).
j) Products: All products provided by Aiden to the Customer such as, but not limited to, software (proprietary and third party) and infrastructure.
k) Services: All services provided by Aiden to the Customer such as, but not limited to, consultancy, secondment, implementation, support, advice, licensing, hosting and maintenance of proprietary and third-party software.
l) Special Terms and Conditions: The special agreements and specific terms and conditions relating to the provision of the Products and/or Services by Aiden to the Customer, including ancillary agreements such as a service level agreement and/or data processing agreement.
1. Conditions for the conclusion of the Agreement
1.1. All offers and other expressions from Aiden to the Customer are non-binding, unless otherwise indicated in writing by Aiden.
1.2. All prices and/or rates included in a binding quotation prior to the Agreement shall have a validity period of thirty (30) days counting from the date of signature of the quotation, unless otherwise indicated by Aiden on the quotation.
1.3. The Agreement binds the Parties only after it has been and signed in writing by both Parties or confirmed by both Parties in a designated digital customer environment. This provision does not affect the automatic renewal of the term of the Agreement when ordering and/or maintaining a Product and/or Service.
1.4. The Customer shall provide Aiden with all information that Aiden deems necessary or is legally required to request in order to conclude the Agreement with the Customer as stated on the order form or as otherwise communicated, including any documents that Aiden deems necessary to verify the identity of (the representative of) the Customer (and/or the Customer's representative authority). The Customer is solely responsible for providing true, complete and accurate information.
1.5. If the Customer enters into the Agreement for the benefit of his affiliated companies, such affiliated companies shall be bound by the Agreement and the Customer shall be jointly and severally liable for the performance of all obligations, including the payment obligation, incumbent on the affiliated company under the Agreement.
1.6. Aiden reserves the right, without any compensation being due, not to enter into an agreement, inter alia, in the following situations: (i) if the order form was not completely filled in or if not all required information was provided by the Customer; (ii) in case of inaccurate data of the Customer or misuse of such data; (iii) in case of serious indications of fraud, lack of credit, or serious doubts about the solvency of the Customer. Such indications may be derived from previous non-payments. Aiden is entitled to request additional documents from the Customer to confirm his solvency; (iv) when the Customer fails to comply with other agreements entered into with Aiden or its affiliated companies; and/or (v) for technical reasons.
2. Delivery
2.1. Aiden shall provide the Products and/or Services in the manner and/or format specified in the Agreement.
2.2. Only if agreed in writing between the Parties will Aiden install the Products at the Customer's premises. In the absence of agreements, the Customer shall install, set up and, if necessary, adjust the equipment and operating environment used for the Products himself.
2.3. Aiden will take reasonable efforts to meet the delivery periods which have been stated by it or agreed between the Parties as much as possible. These are of an indicative nature, can never be marked as definitive, and do not bind Aiden, unless expressly agreed otherwise in writing in the Agreement. Delivery periods are always formulated in Business Days and commence upon receipt by Aiden of all data necessary for the full execution of the order and after payment of the full price, unless expressly agreed otherwise in writing in the Agreement.
2.4. Aiden shall not be bound by the delivery period agreed in writing: (i) in case of force majeure as stipulated in Article 21; (ii) due to the actions of third parties on which Aiden depends for the delivery of the Products and/or Services; (iii) in case of modifications and/or additional works to the Products and/or Services at the request of the Customer during the performance of the Agreement; and/or (iv) in case of non-compliance with the Agreement by the Customer.
2.5. Under no circumstances can a delay in the intended delivery period give rise to any damages or the dissolution of the Agreement at Aiden's expense. If any delivery period is exceeded, the Parties shall engage in dialogue to discuss in good faith the consequences of the delay for further planning.
2.6. If it has been agreed that the delivery of the Products and/or Services will take place in phases, Aiden is entitled to delay the commencement of the delivery belonging to a subsequent phase until the Customer has accepted the results of the previous phase in accordance with Article 4.
2.7. Aiden will take reasonable efforts to perform the Agreement with due care, and where appropriate, in accordance with the arrangements and procedures laid down in writing with the Customer. All obligations of Aiden are obligations of best efforts, unless and to the extent that Aiden has expressly promised a result in the Agreement and the result in question is also described with sufficient certainty in the Agreement.
2.8. Aiden shall attempt to follow the Customer's instructions in the performance of the Agreement, unless these would be manifestly unreasonable. If these instructions involve additional work for Aiden, the provisions set forth in Article 3 shall apply.
2.9. To facilitate the performance of the Agreement, the Customer shall immediately notify Aiden if at any time he observes any (possible) non-conformity of the Products and/or Services prior to delivery.
2.10. The risk of loss, theft, misappropriation or damage to items, data (including, but not limited to, usernames, codes and passwords), documents, software or data files produced for, delivered to or used by the Customer in the context of the performance of the Agreement shall pass to the Customer at the time they are placed under his actual control or that of his representative.
3. Changes and additional work
3.1. Additional work is that work resulting from wishes of the Customer that lead to a change, of whatever extent, of the work to be performed.
3.2. If, at the request or with the prior consent of the Customer, Aiden has performed any work or other performance that falls outside the content or scope of the agreed work and/or performance of the Agreement, such work or performance shall be compensated by the Customer in accordance with the rates agreed between the Parties and, in the absence thereof, in accordance with Aiden's usual rates.
3.3. Aiden shall not be obliged to comply with such a request, and it may require a separate written agreement to that effect.
3.4. The Customer acknowledges and accepts that changes and additional work may result in a shift of delivery dates. New delivery periods indicated by Aiden shall replace previous ones, with Article 2 applying accordingly.
4. Acceptance
4.1. The Products and/or Services are accepted by the Customer in the manner provided for in the Agreement.
4.2. In case no explicit agreements regarding their acceptance are included in the Agreement, the following procedure shall apply: if the Customer does not send a written objection to Aiden within ten (10) business days following the delivery date of the Products and/or Services, the delivered Products and/or Services shall be deemed definitively and irrevocably accepted with the inclusion of all visible defects. Thereafter, the Customer cannot assert any rights to performance, repair or compensation for damages.
4.3. Aiden shall, in the event of such written objection, endeavour to remedy any non-conformity as soon as possible, after which the Products and/or Services shall be deemed accepted.
4.4. Minor defects, which include defects that by their nature and/or number do not reasonably prevent the professional commissioning of the Products and/or Services (e.g., non-essential for the use of Products and/or Services), shall not be a reason for withholding acceptance. This is without prejudice to Aiden's obligation to use all reasonable efforts to remedy such defects.
5. Service level
5.1. Agreements concerning a certain service level of a Service to be provided by Aiden can only be agreed in writing in the Agreement. The Customer shall always promptly inform Aiden of any circumstances that affect or may affect the service level and its availability.
5.2. The availability of software, systems and related services shall be measured in such a way as to exclude any downtime announced in advance by Aiden due to preventive, corrective, adaptive or other maintenance, as well as circumstances beyond Aiden's control. Unless the contrary is proven by the Customer, the availability measured by Aiden shall constitute full proof.
6. Staff
6.1. Aiden will determine to which employees the performance of the Agreement will be assigned. If the Agreement was entered into with a view to performance by one particular person, Aiden shall always be entitled to replace this person by one or more persons with the same and/or similar qualifications.
6.2. Aiden's employees can never be considered as employees of the Customer and work under the authority and supervision of Aiden. The Customer undertakes not to exercise any part of the employer's authority belonging exclusively to Aiden on Aiden's employees performing the Agreement.
6.3. The Customer may only give the following instructions: (a) general instructions and (technical) guidelines to the extent necessary in the context of the performance of the Agreement such as instructions: (i) concerning the performance of the Agreement, but excluding instructions on how the said result is to be achieved; (ii) instructions relating to the Customer's normal working hours, but excluding instructions relating to the rules on working hours, which remain the sole responsibility of Aiden; (iii) instructions concerning the correct use of the Customer's machines, equipment, materials and documents; (iv) instructions regarding access to the Customer's premises and facilities, including instructions to carry a valid pass (badge) and to wear it visibly at all times; (v) instructions regarding the Customer's specific context and procedures to be taken into account in the performance of the Agreement (e.g. existing health and safety requirements, other ongoing work determining the schedule of services, etc.); (vi) instructions regarding the delivery time; and (b) instructions to Aiden's employees regarding compliance with the Customer's obligations and responsibilities regarding the welfare of Aiden's employees at work when present at the Customer's office.
6.4. Aiden shall ensure that its employees working at the Customer's premises will comply with the laws and regulations in force at the Customer's premises regarding working conditions, safety and the environment. The Customer shall provide these rules to Aiden no later than upon entering into the Agreement and communicate them to Aiden's employee at the first opportunity.
6.5. The Customer shall provide Aiden's employee carrying out work on his premises with the tools necessary for the performance of the Agreement on the Customer's premises. The aforementioned tools shall remain the property of the Customer.
7. Suppliers and subcontracting
7.1. If and to the extent that Aiden provides Products and/or Services of third-party suppliers to the Customer, the terms and conditions of such suppliers shall apply to the relationship between Aiden and the Customer, to the exclusion of any deviating provisions in these General Terms and Conditions, provided that the applicability of the terms and conditions of such third-party suppliers has been communicated by Aiden to the Customer and, furthermore, such terms and conditions have been provided to the Customer prior to the conclusion of the Agreement. Aiden is entitled to amend these General Terms and Conditions if the third-party supplier has amended its terms and conditions. The amendments shall take effect on the date as stated in Aiden's announcement.
7.2. At most, Aiden shall be bound by the same warranty upon delivery of Products and/or Services on the same terms and conditions to which its third-party supplier is bound vis-à-vis Aiden, as communicated to the Customer.
7.3. If and to the extent that the third-party supplier's terms and conditions are deemed inapplicable or declared inapplicable in the relationship between the Parties for whatever reason, the provisions of these General Terms and Conditions shall apply in full.
7.4. If the Product and/or Service to be provided by Aiden is composed by Aiden of several independently operating products or services, Aiden shall ensure the proper functioning of the Products and/or Services for the part that governs the interconnection of the individual products and services. Aiden bears no liability for the operation of Products and Services in combinations or in environments to which it does not advise or has not advised.
7.5. Aiden is entitled to use third-party suppliers other than already included in the offer or Agreement(s) in the performance of the Agreement. The applicability of any other terms and conditions of this other third-party supplier shall be communicated by Aiden to the Customer in accordance with Article 7.1.
7.6. If Aiden depends on the intervention of an external party to supply a Product and/or Service ordered by the Customer, Aiden's obligation to supply shall come into existence under the condition precedent of availability, at the time when Aiden consults the external party, of the Product and/or Service at the price proposed by Aiden and paid by the Customer. The price paid by the Customer before realisation of the condition precedent shall be considered as a guarantee. Aiden undertakes to check the availability at this price with the external party within five (5) Business Days of receiving payment of the guarantee. If, at the time Aiden consults the external party, the ordered Product and/or Service is not available, the Agreement shall expire and Aiden shall refund the guarantee paid by the Customer, without further obligations between the Parties. If, at the time Aiden consults the external party, the ordered Product or Service is available at a different price, the Agreement shall expire, and Aiden shall leave to the Customer the choice of accepting this different price and thereby creating a new Agreement between Aiden and the Customer, or terminating the Agreement.
8. Information and cooperation obligations
8.1. The Parties undertake to cooperate in good faith within the framework of the Agreement in order to facilitate the implementation of the Agreement. The Parties shall consult regularly on all aspects that may affect the change of environment of the Agreement.
8.2. The Customer undertakes to notify Aiden of any relevant files, documents or other information that may affect the terms of performance of the Agreement. The Customer guarantees the accuracy and completeness of this information.
8.3. The choice of the Products and/or Services, the analysis of their technical characteristics, their compatibility with the Customer's environment, and their configuration in all circumstances are the exclusive responsibility of the Customer, without prejudice to Aiden's duty of information.
8.4. The Customer is responsible for obtaining and maintaining, at its own expense, all licences, registrations, permits or authorisations necessary for the performance of its obligations under the Agreement.
8.5. The Customer must ensure that all users who have access to the Product and/or Service fulfil the obligations arising from the Agreement and accepts liability for this.
9. Project and steering groups
9.1. If both Parties participate in a project or steering group with one or more employees deployed by them, the provision of information will take place in the manner agreed for the project or steering group in the Agreement.
9.2. Decisions taken in a project or steering group in which both Parties participate will only bind Aiden if the decision-making is in accordance with what has been agreed in writing between the Parties in the Agreement and if the minutes have been signed for approval by both Parties and, in the absence of written agreements to that effect, if Aiden has accepted the decisions in writing by its authorised representatives. Aiden is never obliged to accept or implement a decision if, in its opinion, it is incompatible with the content and/or proper performance of the Agreement.
9.3. The Customer warrants that the persons appointed by him to form part of a project or steering group are entitled to make decisions binding on the Customer.
10. Prices and tariffs
10.1. The prices of the Products and/or Services are expressed in euros in the Agreement and are exclusive of VAT, delivery and transport costs and other taxes and charges owed by the Customer. Potential other costs will only be charged to the Customer by Aiden upon prior approval of the Customer.
10.2. In case of a periodic payment obligation of the Customer, Aiden may, on the annual anniversary of the Agreement, index the applicable prices and rates based on the Dutch CBS CPI Index (where 2022 = 100). If the Agreement does not expressly provide for the possibility of adjusting the prices or rates, Aiden shall be entitled to adjust the applicable prices and rates in writing subject to at least three (3) months' notice. If, in the latter case, the Customer does not wish to agree to the adjustment, the Customer shall be entitled, within thirty (30) days after notification of the adjustment, to terminate the Agreement in writing with effect from the date on which the new prices and/or rates would take effect.
11. Invoicing and payment
11.1. The Products and/or Services shall be invoiced in the manner provided for in the Agreement.
11.2. The invoicing of fees and licences for Products shall take place immediately after delivery.
11.3. The data from Aiden's records shall be leading for the invoicing of the Products and/or Services provided which it has delivered, with the Customer having the right to provide evidence to the contrary.
11.4. The Customer shall pay invoices within fourteen (14) days from the invoice date in the manner and account specified by or on behalf of Aiden. The Customer shall bear all costs related to the payment of the invoice.
11.5. The Customer shall notify Aiden of any complaint about an invoice from Aiden within a period of eight (8) days from its receipt. After this period, the invoice shall be deemed irrevocably accepted by the Customer. The uncontested part shall be deemed accepted and must be paid within the regular payment period. If the Customer's complaint proves unfounded, the disputed amount shall become payable immediately.
11.6. Aiden reserves the right to examine the Customer's financial condition both before and during the term of the Agreement. If serious doubts arise about the Customer's solvency, Aiden shall be entitled to change the payment terms, charge additional interim amounts or request advance payments, bank guarantees or any other financial guarantees.
11.7. The Customer shall not be entitled to offset any amounts payable to Aiden under the Agreement against any amounts payable by Aiden to the Customer under this or any other Agreement.
11.8. In the event of late payment of the amounts due, the Customer shall be liable, by operation of law and without notice of default, to pay the legal interest, as well as damages of ten (10) per cent of the total amount of the unpaid invoice with a minimum of fifty (50) euros, and without prejudice to Aiden's right to claim judicial collection costs incurred due to the non-payment of the invoice or other damages that were not caused solely by the non-payment of the invoice.
11.9. The late, incomplete or non-payment of one past due invoice or the Customer's failure to fulfil his essential obligations contained in the Agreement shall make all non-due invoices immediately due and payable.
12. Retention of title
12.1. All Products delivered to the Customer shall remain the property of Aiden until all amounts due by the Customer to Aiden under the Agreement for the respective Product have been paid in full. Any rights are granted or transferred to the Customer, where appropriate, subject to the condition that the Customer has paid all amounts due from the Agreement.
13. Intellectual property
13.1. All Intellectual Property Rights with respect to Products and Services existing at the time the Agreement was entered into or those arising under the Agreement (including all documents prepared by Aiden in connection herewith) are and shall remain the exclusive property of Aiden, its affiliated companies, its licensors and/or third-party suppliers. The Customer may only obtain limited rights of use thereon, which shall be non-exclusive, non-transferable, non-pledgeable and non-sublicensable, unless otherwise agreed by the Parties.
13.2. If Aiden is willing to undertake to transfer an Intellectual Property Right, such undertaking can only be made in writing and expressly in the Agreement. Such transfer shall not affect Aiden's right or ability to use and/or exploit the components, general principles, ideas, designs, algorithms, documentation, works, programming languages, protocols, standards and the like underlying such development for other purposes, either for itself or for third parties, without any limitation. Nor does such transfer affect Aiden's right to make developments for itself or a third party similar to or derived from those made or to be made for the benefit of the Customer.
13.3. The Customer shall not remove or alter, or cause to be removed, any indication(s) concerning the confidential nature or any Intellectual Property Right from the Products. Aiden may apply technical provisions to protect Products and/or Services in connection with an agreed restriction on the content or duration of or access to the right to use these Products and/or Services. The Customer shall not remove or (cause to be) circumvented such provision(s).
13.4. Aiden shall indemnify the Customer against any claim by a third party based on an alleged infringement of the Intellectual Property Rights of a third party in the Products and/or Services developed by Aiden itself provided that the Customer: (i) promptly informs Aiden in writing of the existence and substance of the claim; (ii) leaves to Aiden exclusively the handling of the claim, including reaching any settlements; (iii) provides Aiden with all necessary cooperation and powers of attorney in connection therewith; and (iv) does not take any action that may harm Aiden's position in any way. This indemnification obligation shall cease to apply if the alleged infringement relates (i) to materials (including software) made available by the Customer for use, adaptation, processing or maintenance, or (ii) to any modifications installed or ordered to be installed by the Customer to the Products and/or Services without Aiden's written consent. If it is irrevocably established in court that there has been an infringement as referred to above, or if in Aiden's reasonable opinion there is a substantial chance that such an infringement occurs, Aiden will, if possible, ensure that the Customer can continue to use the delivered or functionally equivalent Products and/or Services. Any other or further indemnification obligation due to infringement of an Intellectual Property Right of a third party is expressly excluded.
13.5. The Customer warrants that no third parties oppose the making available to Aiden of equipment, software, material, data files, designs, and the like for the purpose of use, maintenance, processing, installation or integration in the performance of the Agreement. The Customer shall indemnify Aiden against any claim based on the allegation that such making available constitutes any infringement of any right of that third party.
13.6. The Customer agrees that Aiden may use the existence of the Agreement, as well as the Customer's logotype, logo or name in its external commercial communications.
14. Software
14.1. Where Aiden provides proprietary or third-party software as part of its Products and/or Services, such software (together with its user documentation) is licensed directly to the Customer by Aiden or its third-party supplier (hereinafter the 'Licensor'). The Customer hereby expressly acknowledges that such software contains technical and confidential information owned by the Licensor. By executing the Agreement, installing the software or using the Products and/or Services, the Customer (and his end user) accepts the relevant End User License Agreement (EULA) applicable to the software, if any. The acceptance of this End User License Agreement creates a binding agreement between the Customer and his end users on the one hand and the Licensor on the other hand. Notwithstanding, the Customer shall at all times comply with the agreed restrictions, of whatever nature or content, on the right to use the software.
14.2. Failure to comply with the End User License Agreement will be considered a serious breach of obligation and therefore a breach of contract by the Customer, for which Aiden reserves the right to terminate the Agreement. The Customer shall be liable for any breaches of this End User License Agreement by his end users and/or third parties appointed by him.
14.3. If and to the extent that the said terms and conditions of third parties in the relationship between the Customer and Aiden are deemed inapplicable or declared inapplicable for whatever reason, the provisions of these General Terms and Conditions shall apply in full.
14.4. In any case, the licence on such software is limited exclusively to the so-called object code of the software and does not include the source code of the software, which together with the technical documentation of the software is not made available to the Customer.
14.5. If the software is licensed from a third-party supplier of Aiden, the Customer acknowledges and accepts that Aiden provides no warranty, indemnity and/or compensation for the software and expressly disclaims all liability for the quality and performance of the software provided under the End User License Agreement.
14.6. If the Parties have agreed that the software may only be used in combination with certain equipment, the Customer shall be entitled to use the software on other equipment with the same qualifications for the duration of the malfunction, should the equipment fail.
14.7. Aiden may require that the Customer does not use the software until after the Customer has obtained from Aiden, its third-party supplier or the manufacturer of the software one or more codes required for use.
14.8. Aiden is always entitled to take technical measures to protect the software against unauthorised use and/or against use in a different way or for different purposes than agreed between the Parties. The Customer shall never remove or (allow to be) circumvented technical provisions intended to protect the software.
14.9. The Customer may only use the software in and for the benefit of his own company or organisation and only to the extent necessary for the intended use. The Customer shall not use the software for the benefit of third parties, e.g., in the context of SaaS or outsourcing.
14.10. The Customer is not allowed to sell, rent out, alienate or grant limited rights to the software and its carriers or make them available to a third party in any way, for any purpose or under any title whatsoever. Nor shall the Customer give a third party - whether or not remotely (online) - access to the software or place it with a third party for hosting, not even if the third party in question uses the software exclusively for the benefit of the Customer.
14.11. If requested, the Customer shall promptly cooperate with any investigation to be carried out by or on behalf of Aiden regarding compliance with the agreed use restrictions. The Customer shall grant access to his premises and systems, where necessary by means of user licences, upon Aiden's first request.
14.12. Aiden shall have no obligation to maintain the software and/or provide support to users and/or administrators of the software, unless specifically agreed in writing.
14.13. Aiden shall not be liable for misuse or installation by the Customer, modifications to the software by the Customer, or infections with viruses, malware, ransomware and similar. Unless agreed in writing, Aiden does not warrant that the software provided will be compatible with the equipment used by the Customer.
14.14. Immediately after the Agreement is terminated for any reason, the Customer shall return all copies of the software in his possession to Aiden, unless Aiden has specified that they are to be destroyed by the Customer. The Customer shall give prompt written notice of such destruction. Aiden shall not be obliged at or after the end of the Agreement to aid with any data conversion or migration to another system desired by the Customer, unless expressly agreed otherwise.
15. Confidentiality
15.1. All information and data exchanged between the Parties under the Agreement or of which the Parties become aware, shall always be treated as confidential for the term of the Agreement and a period of five (5) years after its termination. The Customer acknowledges that software originating from Aiden is always confidential in nature and contains trade secrets of Aiden, its third-party suppliers or its producer. Each Party undertakes not to disclose such information and data to any third party without the written consent of the other Party, unless and to the extent that it is required to do so under any statutory provision, court order or for the proper performance of the Agreement, in which case it shall promptly inform the other Party if possible thereof in writing and shall give it the opportunity, as well as its cooperation, to still keep the information confidential. The Parties shall take all reasonable and sufficient measures as may be expected in their industry to keep trade secrets confidential, for example by requiring employees and third parties to comply with this duty of confidentiality.
15.2. Confidential information remains the property of the Party communicating it. Its communication does not imply any transfer or assignment of any (ownership) rights.
15.3. The Parties cannot be held liable for the other Party's use of the confidential information.
16. Non-solicitation of personnel
16.1. The Customer shall not, during the entire term of the Agreement as well as for a period of eighteen (18) month following the end thereof, be able to employ Aiden's personnel (including consultants or others) or otherwise, directly or indirectly, have them work for him or perform services for him, except with Aiden's prior written consent. Such consent may be subject to conditions, such as paying the costs of the employee borne by Aiden (e.g., training costs). Should the Customer fail to fulfil this obligation, he shall pay Aiden compensation equal to twelve (12) times the monthly remuneration that such employee received in his last full month of employment with Aiden, without prejudice to Aiden's right to claim additional damages.
17. Privacy and data protection
17.1. The Parties undertake to comply with their obligations under the Privacy Legislation. The Parties are obliged to provide each other with all cooperation and information in order to enable the other Party to comply with its obligations under the Privacy Legislation.
17.2. If Aiden performs services for the Customer as a processor of personal data, the provisions of the agreed data processing agreement shall apply.
18. Security
18.1. If Aiden is obliged under the Agreement to provide a form of information security, such security shall comply with the specifications on security agreed between the Parties in writing. Aiden does not guarantee that the information security will be effective under all circumstances. In the absence of an expressly defined method of security in the Agreement, the security will comply with a level that, taking into account the state of the art, the costs of implementation, the nature, scope and context of the information to be secured known to Aiden, the purposes and normal use of the Products and/or Services, the likelihood and severity of foreseeable risks, the sensitivity of the data and the costs associated with providing security, is not unreasonable.
18.2. The access or identification codes, certificates or other security devices provided by or on behalf of Aiden to the Customer are confidential and shall be treated as such by the Customer and shall only be disclosed to authorised personnel from the Customer's own organisation. Aiden is entitled to change assigned access or identification codes and certificates. The Customer is responsible for managing authorisations and providing and timely revoking access or identification codes.
18.3. If the security or testing thereof relates to software, equipment or infrastructure not supplied to the Customer by Aiden itself, the Customer warrants that all necessary licences or approvals have been obtained to perform said service. The Customer shall indemnify Aiden against any claim on any account in connection with the performance of such service.
18.4. Aiden is entitled, but not obliged, to adjust the security measures from time to time if this is necessary due to changing circumstances.
18.5. The Customer shall adequately secure his systems and infrastructure and always have effective anti-virus software in operation.
18.6. Aiden may, but is not obliged to, issue instructions to the Customer regarding security that are intended to prevent or minimise incidents or the consequences of incidents that may affect security. If the Customer fails to follow such instructions from Aiden or any relevant government body, or fails to do so in a timely manner, Aiden shall not be held liable, and the Customer shall indemnify Aiden for any damage resulting therefrom.
18.7. Aiden is always permitted to take technical and organisational measures to protect equipment, data files, websites, software made available, software or other works to which access is provided (directly or indirectly) to the Customer, also in connection with an agreed limitation in the content or duration of the right to use these objects. The Customer shall not remove such technical features or have them removed or circumvented.
19. Backup
19.1. If the service to the Customer under the Agreement includes the making of backups of Customer data, Aiden shall, subject to the periods agreed in writing, and in the absence thereof once a week, make a full backup of the Customer data in its possession. Aiden shall keep the backup for the agreed period, and in the absence of agreements to this effect, for the term of the Agreement.
19.2. The Customer himself remains responsible for complying with all legal administration and storage obligations applicable to him.
20. Liability
20.1. In all circumstances, except for fraud, intent or reckleness of Aiden or one of its employees, Aiden's liability shall be limited to repairing the foreseeable, direct, personal and certain damage suffered by the Customer up to a maximum amount of the price stipulated for that Agreement (excluding VAT). If the Agreement is of unlimited duration, the price stipulated for that Agreement shall be calculated on the total of the fees (excluding VAT) stipulated for one (1) year. In no event, however, shall Aiden's total liability for direct damages, on any legal basis whatsoever, exceed €100,000.00 (one hundred thousand Euros).
20.2. Aiden's total liability for damages for death or personal injury shall be limited to an amount of €1,250,000.00 (one million two hundred and fifty thousand Euros).
20.3. Under no circumstances will Aiden be liable for indirect damage, such as, but not limited to, consequential damage, loss of profit, missed savings, reduced goodwill, damage due to business stagnation, damage as a result of claims from customers of the Customer, damage related to the use of goods, materials or software of third parties prescribed by the Customer to Aiden and damage related to the engagement of third-party suppliers prescribed by the Customer to Aiden, damage, destruction or loss of data and documents, etc.
20.4. Aiden shall not be liable for damages or costs resulting from any use or misuse made of access or identification codes or certificates, unless the misuse is the direct result of an intentional or knowingly reckless act or omission by Aiden.
20.5. Aiden's liability for damages caused by or related to Products or Services originating from third-party suppliers shall be limited in accordance with the third-party suppliers' terms and conditions and up to the amount for which the third-party supplier has acknowledged liability. If the Agreement does not refer to the terms and conditions of the third-party supplier, Aiden's liability for damage caused by or related to Products or Services originating from third-party suppliers, regardless of the cause and regardless of the legal basis, shall be limited to direct damage and up to a maximum of €10,000.00 (ten thousand Euros).
20.6. The provisions of this article as well as all other limitations and exclusions of liability mentioned in the Agreement shall also apply in favour of all natural persons and legal entities whose services are used by Aiden and its third-party suppliers use in the execution of the Agreement.
20.7. The Customer shall indemnify Aiden against any claims from third parties regardless of the cause that may arise in connection with the performance of the Agreement, unless and to the extent that the Customer proves that the damage was caused by Aiden's acts or omissions.
20.8. If the Customer fails to fulfil any of his legal or contractual obligations to Aiden or fails to do so on time or in full, the Customer shall always be liable to Aiden for all damages suffered by Aiden as a result. This provision is without prejudice to Aiden's right to enforce other rights against the Customer.
20.9. The Customer shall be liable to Aiden for any direct and/or indirect damage caused to Aiden and its employees or those of third parties, property of Aiden and its employees or those of third parties, where such damage is caused by the Customer or his employees, or third parties engaged by the Customer.
21. Force majeure
21.1. The Parties are not liable against each other for the consequences of force majeure, which reasonably makes the full or partial performance of their obligations (temporarily) impossible, including, inter alia: any event beyond the reasonable control of the Parties, including but not limited to strikes, lock-outs, electricity failures, interruptions in transport and distribution, acts of war or terrorism, fire, (inter)national governmental measures or legislative changes, breakdown of systems, illness of employees, strikes or labour disputes, disruption of internet, data network or telecommunication facilities, (cyber)crime, (cyber)vandalism, hacking, business disruption or failure of production, epidemics, pandemics, etc.
21.2. The Parties are released from all their obligations to each other in the event of force majeure for as long as this force majeure situation lasts. However, the Customer's payment obligations relating to Products and/or Services that are not affected by this force majeure situation and all obligations to cooperate and/or provide information by the Customer cannot be subject to force majeure.
21.3. If a force majeure situation lasts longer than sixty (60) days, each Party has the right to terminate the Agreement in writing. Any Products that have already been delivered or Services that have already been performed under the Agreement shall in that case be settled proportionally, without the Parties owing each other anything else.
22. Term, suspension and termination of the Agreement
22.1. Unless otherwise provided in the Agreement, the Agreement is entered into for a renewable term of one (1) year from its signing. This term shall be tacitly renewed for successive periods of one (1) year, unless a Party notifies the other Party in writing not later than six (6) months before the end of the respective term that it does not wish to renew the Agreement.
22.2. Aiden may by operation of law and immediately suspend the performance of its obligations if the Customer fails to fulfil his contractual obligations and does not remedy this situation within a period of ten (10) Business Days following the sending of a notice of default by Aiden. This suspension ends as soon as the Customer again fulfils his obligations.
22.3. The Customer shall not be entitled to suspend his payment obligations to Aiden in connection with, or set off against, any counterclaims against Aiden, except if and to the extent expressly acknowledged by Aiden in writing.
22.4. Aiden shall be entitled to terminate the Agreement immediately and unilaterally, without prior notice of default and without prior judicial intervention, by written notice to the Customer, and this without any obligation to indemnify the Customer, if the latter fails seriously in any of his obligations under the Agreement and their fulfillment is permanently impossible or no longer should be expected, or, if rectification is possible, fails to rectify such failure within fourteen (14) days following the sending by Aiden of a notice of default. In such case, Aiden reserves the right to recover from the Customer the damages which it has suffered by him.
22.5. Aiden may terminate the Agreement if the licence(s) based on which Aiden provides its Products and/or Services are revoked or terminated by its Licensor, without having to pay any compensation to the Customer for this.
22.6. Aiden shall be entitled to terminate the Agreement immediately and unilaterally, without prior notice of default and without prior judicial intervention, by written notice to the Customer, and this without any obligation to indemnify the Customer, if the legal situation of the Customer changes pursuant to a merger, demerger, transfer or acquisition, or change of control, or if the Customer ceases his activities, becomes insolvent, is subject to judicial reorganisation, goes bankrupt, is dissolved, a special administrator or special trustee is appointed or the Customer undergoes similar proceedings.
22.7. If Aiden should decide to discontinue the provision of a particular Product(s) and/or Service, it shall give the Customer at least six (6) months' notice in writing. Aiden shall not pay any compensation to the Customer for such termination.
23. Applicable law and disputes
23.1. The Agreement and its interpretation are governed exclusively by Dutch law. Foreign laws and treaties, such as the Vienna Sales Convention, are excluded, as well as any existing or future international regulation on the sale of movable property.
23.2. In the event of a dispute between the Parties on the establishment, execution, interpretation and termination of the Agreement, the Parties undertake to first reach a solution by amicable means.
23.3. Disputes that cannot be resolved amicably in advance shall be exclusively settled by the competent judge in Amsterdam.
24. Miscellaneous
24.1. In the event of full or partial nullity of one or more provisions of the Agreement or the General Terms and Conditions, the remaining provisions shall remain in force. The Parties then undertake to consult with each other in order to draw up new provisions to replace the null and void provisions, maintaining as much as possible the intention of the Parties.
24.2. Under no circumstances shall the failure by either Party to exercise any of its rights be construed as a waiver of such rights.
24.3. In this regard, the Agreement contains the entire contractual relationship between the Parties and supersedes all previous oral or written agreements and understandings entered into between the Parties.
24.4. The Agreement can only be amended in writing with the agreement of both Parties.
24.5. The Customer is not entitled to transfer the rights and obligations under the Agreement to a third party without Aiden's written consent. Aiden is entitled to transfer the Agreement to affiliated companies without the consent of the Customer.
24.6. To the extent that the Agreement contains rights or obligations for the benefit of third parties, such third parties shall not become parties to the Agreement upon acceptance thereof. Article 6:254 of the Civil Code is excluded.
25. Amendment of the General Terms and Conditions
25.1. Aiden may amend and/or supplement the General Terms and Conditions at any time (e.g., due to technical reasons or legal requirements) upon written notice to the Customer sent to the Customer at least one (1) month prior to the implementation of such amendments. Any use of the Products and/or Services after such amendment and/or addition shall be interpreted as an approval by the Customer of the amended or supplemented General Terms and Conditions. If the Customer does not accept the amended or supplemented General Terms and Conditions, he may terminate the Agreement within seven (7) days without owing any compensation from the moment the Agreement is terminated.