OpenIndex - Default Terms and Conditions ed 2024

This is the edited version of The Nederland ICT Terms and Conditions as are filed with the Chamber of Commerce under number 30174840.

Chapter 1. General provisions

Art. 1 Applicability of the Nederland ICT Terms and Conditions

1.1 These Nederland ICT Terms and Conditions apply to all offers and contracts pursuant to which the supplier delivers goods and/or provides services of any nature whatsoever and under whatever name to the customer.

1.2 Departures from and additions to these general terms and conditions shall only be valid if they are agreed between the parties in writing.

1.3 The applicability of the customer’s purchasing or other conditions is specifically excluded.

1.4 If any provision of these general terms and conditions is null and void or is voided, the other provisions of these general terms and conditions shall remain fully in effect. The supplier and the customer shall in this case consult each other for the purpose of agreeing new provisions to replace the null and void or voided provisions.

Art. 4 Term of the contract

4.1 If and insofar as the contract concluded between the parties is a continuing performance contract, the contract shall be entered into for the term agreed between the parties. A term of one year shall apply if no term has been agreed.

Art. 5 Confidentiality and transfer of personnel

5.1 The customer and supplier must ensure that all information received from the other party that the receiving party knows or should reasonably know is confidential is kept secret. The party that receives the confidential information may only use it for the purpose for which it was provided. Information shall in any case be deemed to be confidential if it has been qualified as such by one of the parties.

5.2 The customer acknowledges that software originating from the supplier is always confidential in nature and that this software contains trade secrets of the supplier and its suppliers or the producer of the software. Notwithstanding the foregoing, nothing herein shall prevent customer from using the software for customer’s intended purpose.

Art. 6 Privacy and data processing

6.2 The customer indemnifies the supplier against claims of persons whose personal data is recorded or processed in the context of a register of personal data that is maintained by the customer or for which the customer is otherwise responsible by law, unless the customer proves that the facts on which a claim is based are attributable to the supplier.

6.3 The customer is fully responsible for the data that it processes in the context of using a service of the supplier. The customer guarantees vis-à-vis the supplier that the content, use and/or processing of the data are not unlawful and do not infringe any right of a third party.

Art. 8 Retention of title, reservation of rights and suspension

8.1 All items delivered to the customer shall become the property of the customer upon delivery thereof.

Art. 9 Risk transfer

9.1 The risk of loss, theft, misappropriation or damage of

items, information (including user names, codes and passwords), documents, software or data files that are created, supplied or used in the context of performing the contract shall pass to the customer at the time at which the customer comes into actual possession of the items and information referred to.

Art. 10 Intellectual property

10.1 All intellectual property rights to the software, websites, data files, equipment and training, testing and examination materials, as well as other materials like analyses, designs, documentation, reports and offers, including preparatory materials in this regard, developed or made available to the customer under the contract are held exclusively by the customer.

10.2 The customer may not remove or change any indication concerning the confidential nature of or concerning the copyrights, brands, trade names or any other intellectual property right pertaining to the software, websites, data files, equipment or materials, or have any such indication removed or changed

10.3 The supplier is never obliged to perform data conversion unless doing so has been expressly agreed in writing with the customer.

10.4 Supplier will indemnify and defend the customer, customer affiliates, and their respective officers, directors, employees, agents and customers (each, a “Customer Indemnitee”) from and against all claims, damages, losses, liabilities, costs, expenses, and reasonable legal fees (“Damages) arising out of any Claims (defined below) that the software or other products provided by supplier hereunder (collectively “Indemnified Products”) and any resulting use or sale of any Indemnified Products constitutes an infringement, misappropriation or violation of any intellectual property right or obligation. Additionally, if the right for customer to sell or use the Indemnified Products is enjoined or is likely to be enjoined, supplier will at supplier’s expense procure for customer the right to use the Indemnified Products; or with the reasonable consent of customer, replace or modify the Indemnified Products at no additional fee with equivalent non-infringing Indemnified Products; or, if enjoined, remove the Indemnified Products and refund the price paid by customer for the Indemnified Products, including incidental charges such as transportation, installation, and removal.

Art. 11 Obligations to cooperate

11.1 The parties acknowledge that the success of work in the field of information and communications technology depends on proper and timely cooperation between the parties.

The customer shall always extend, in a timely manner, the cooperation reasonably required by the supplier.

11.2 The customer bears the risk of selecting the items, goods and/or services to be provided by the supplier.

Art. 12 Obligations to provide information

12.1 To enable proper performance of the contract by the supplier, the customer shall always provide all information reasonably required by the supplier to the supplier in a timely manner.

12.2 The customer guarantees that the information, designs and specifications that it has provided to the supplier is or are accurate and complete. If the information, designs or specifications provided by the customer contain inaccuracies apparent to the supplier, the supplier shall contact the customer to make enquiries about the matter.

12.3 In connection with continuity, the customer shall designate a contact person or contact persons who shall act in that capacity for the duration of the supplier’s work.

12.4 The supplier is obliged to provide information concerning the performance of the work to the customer through the contact person designated by the customer when requested by such person.

Art. 14 Terms

14.1 The supplier shall comply with the terms and delivery periods and/or dates and delivery dates, whether or not these are firm deadlines and/or dates, that it has specified or that have been agreed between the parties. The interim dates and delivery dates specified by the supplier or agreed between the parties shall always apply as target dates, shall not bind the supplier and shall always be indicative.

14.2 If a term is likely to be exceeded, the supplier and customer shall consult with each other about the consequences of the term being exceeded in relation to further planning.

14.3 In all cases, therefore also if the parties have agreed firm deadlines and delivery periods or dates and delivery dates, the supplier shall only be in default as a result of a period of time being exceeded after the customer has declared the supplier to be in default in writing and fifteen (15) days have passed. The notice of default must describe the breach as comprehensively and in as much detail as possible in order to give the supplier the opportunity to respond adequately.

14.4 If it has been agreed that the work under the contract is to be performed in phases, the supplier shall be entitled to postpone the start of a phase’s work until the customer has approved the results of the preceding phase in writing.

14.5 The supplier shall not be bound by a date or delivery date or term or delivery period, whether or not final, if the parties have agreed an amendment to the content or scope of the contract (additional work, a change of specifications and so on) or a change in approach with respect to performance of the contract, or if the customer fails to fulfil its obligations arising from the contract or fails to do so on time or in full. The need for or occurrence of additional work during performance of the contract shall never constitute a reason for the customer to give notice of termination or to rescind (in Dutch: ‘ontbinden’) the contract.

Art. 15 Termination and cancellation of the contract

15.1 Each party shall only be authorised to rescind the contract due to an attributable failure in the performance of the contract if the other party, in all cases after a written notice of default that is as detailed as possible and that grants a reasonable term to remedy the breach has been issued, is culpably failing to fulfil essential obligations under the contract. 

15.2 If, at the time of rescission, the customer has already received goods or services in the performance of the contract, these goods or services and the associated payment obligations shall not be undone unless the customer proves that the supplier is in default with respect to the essential part of such goods or services. With due regard to the stipulation of the preceding sentence, amounts invoiced by the supplier prior to rescission in connection with what it already properly performed or delivered in the performance of the contract shall remain payable in full and shall become immediately due and payable at the time of termination.

15.5 Either of the parties may terminate the contract in writing, in whole or in part, without notice of default being required and with immediate effect, if the other party is granted a moratorium, whether or not provisional, a petition for bankruptcy is filed for the other party or the company of the other party is liquidated or dissolved other than for restructuring or a merger of companies. The supplier may also terminate the contract, in whole or in part, without notice of default being required and with immediate effect, if a direct or indirect change occurs in the decisive control of the customer’s company. The supplier is never obliged to repay any amount in money already received or pay any amount in compensation due to termination as referred to in this paragraph. If the customer goes irrevocably bankrupt, its right to use the software, websites and the like made available to it shall end, as shall its right to access and/or use the supplier’s services, without termination by the supplier being required.

Art. 16 Liability of the supplier

16.1 Except for (i) supplier’s obligation to indemnity customer hereunder, (ii) supplier’s negligence, willful misconduct, of fraud or (iii) supplier’s breach of any representation or warranty herein, the supplier’s total liability due to an attributable failure in the performance of the contract or on any legal basis whatsoever, expressly including each and every failure to fulfil a warranty obligation agreed with the customer, shall be limited to compensation for direct loss up to a maximum of the price stipulated for the contract concerned (excluding VAT). If the contract is mainly a continuing performance contract with a term of more than one year, the price stipulated for the contract shall be set at the total amount of the payments (excluding VAT) stipulated for one year. The supplier’s total liability for direct loss, on any legal basis whatsoever, shall never amount to more than EUR 500.000 (five hundred thousand euros), however.

16.2 The supplier’s total liability for loss due to death or bodily injury or as a result of material damage to items shall never amount to more than EUR 1.250.000 (one million two hundred fifty thousand euros).

16.3 Except for claims related to supplier’s (i) negligence, (ii) willful misconduct, or (iii) fraud, the supplier’s liability for indirect loss, consequential loss, loss of profits, lost savings, reduced goodwill, loss due to business interruption, loss as a result of claims of the customer’s customers, loss arising from the use of items, materials or software of third parties prescribed by the customer to the supplier and loss arising from the engagement of suppliers prescribed by the customer to the supplier is excluded. The supplier’s liability for corruption, destruction or loss of data or documents is likewise excluded.

16.5 The exclusions and limitations referred to in paragraphs 16.1 up to and including 16.4 shall cease to apply if and insofar as the loss is the result of deliberate intent or recklessness on the part of the supplier’s personnel.

Art. 17 Force majeure

17.1 None of the parties shall be obliged to fulfil any obligation, including any statutory and/or agreed warranty obligation, if it is prevented from doing so by force majeure. Force majeure on the part of the supplier means, among other things: (i) force majeure on the part of the suppliers of the supplier, (ii) the failure to properly fulfil obligations on the part of suppliers that were prescribed to the supplier by the customer, (iii) defects in items, equipment, software or materials of third parties the use of which was prescribed to the supplier by the customer, (iv) government measures, (v) power failures, (vi) Internet, data network or telecommunication facilities failures, (vii) war and (viii) general transport problems.

17.2 Either of the parties shall have the right to rescind the contract in writing if a situation of force majeure persists for more than 60 days.

In such an event, that which has already been performed under the contract shall be paid for on a proportional basis without the parties owing each other anything else.

Art. 18 Changes and additional work

18.1 If, at the request or prior consent of the customer, the supplier has performed work or supplied goods or services that is or are outside the scope of the agreed work and/or provision of goods or services, the customer shall pay for this work or provision of goods or services in accordance with the agreed rates or, if no rates have been agreed between the parties, in accordance with the supplier’s usual rates.

The supplier is not obliged to honour such a request and may require that a separate contract be concluded in writing for the purpose.

18.2 Insofar as a fixed price has been agreed for the provision of services, the supplier shall on request inform the customer in writing about the financial consequences of

the additional work or additional provision of goods or services as referred to in this article.

Art. 19 Transfer of rights and obligations

19.1 The customer may not sell, transfer or pledge its rights and obligations under a contract to a third party.

19.2 The supplier is entitled to sell, transfer or pledge its claims to payment of amounts owed to a third party.

Art. 20 Applicable law and disputes

20.1 Contracts between the supplier and customer are governed by Dutch law.

The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply.

Chapter 2. Provision of services

The provisions of this ‘Provision of services’ chapter shall apply in addition to the general provisions of these general terms and conditions if the supplier provides services of whatever nature, whether or not set out in more detail in one of the other chapters of these general terms and conditions, to the customer.

Art. 21 Performance

21.1 The supplier shall perform its services with care to the best of its ability, if applicable in accordance with the agreements and procedures agreed in writing with the customer. All services by the supplier shall be performed on the basis of an obligation to use best endeavours unless and insofar as the supplier has expressly promised a result in the written contract and the result concerned has also been defined with sufficient determinability in the contract.

21.2 The supplier shall not be liable for loss or costs that are the result of the use or misuse of access or identification codes or certificates unless the misuse is the direct result of deliberate intent or recklessness on the part of the supplier’s management.

21.3 If the contract has been entered into with a view to performance by one specific person, the supplier shall always be entitled to replace this person with one or more persons who have the same and/or similar qualifications.

21.4 The supplier is not obliged to follow the customer’s instructions in the performance of its services, particularly not if these instructions change or add to the content and scope of the agreed services.

If such instructions are followed, however, payment shall be made for the work concerned in accordance with the supplier’s usual rates.

Art. 22 Service Level Agreement

22.1 Any agreements concerning a service level (Service Level Agreements) shall only be expressly agreed in writing. The customer shall always inform the supplier without delay about any circumstances that affect or that could affect the service level and its availability.

22.2 If agreements about a service level have been made, the availability of software, systems and related services shall always be measured such that unavailability due to preventive, corrective or adaptive maintenance or other forms of service announced by the supplier in advance and circumstances beyond the supplier’s control are not taken into account. The availability measured by the supplier shall count as conclusive evidence, subject to evidence to the contrary produced by the customer.

Art. 23 Backups

23.1 If the services provided to the customer under the contract include making backups of the customer’s data, the supplier shall make a complete backup of the customer’s data in its possession in accordance with the periods agreed in writing or once a week if such periods have not been agreed. The supplier shall retain the backup for the duration of the agreed term or for the duration of the supplier’s usual term if agreements have not been made in this regard. The supplier shall retain the backup with due care.

23.2 The customer remains responsible for the fulfilment of all administrative and retention obligations that apply to it by law.

Chapter 3. Software as a Service (SaaS)

The provisions of this ‘Software as a Service’ chapter shall apply in addition to the general provisions of these general terms and conditions and the provisions of the ‘Provision of services’ chapter if the supplier performs services under the name or in the field of Software as a Service (SaaS).

For the application of these general terms and conditions, SaaS means a service by which the supplier makes software available to the customer remotely through the Internet or another data network, and maintains this availability remotely, without providing a physical carrier with the software concerned to the customer.

Art. 24 Provision of SaaS

24.1 The supplier shall only provide SaaS on the instructions of the customer. The customer may not allow third parties to make use of the services provided by the supplier in the field of SaaS.

24.2 If the supplier performs work relating to the data of the customer, its employees or users pursuant to a request or a competently issued order of a government agency or in connection with a legal obligation,  it is to be determined in consultation what part of the costs associated with this work shall be charged to the customer.

24.3 The supplier may change the content or scope of the SaaS delivery model. If such changes result in a change in the customer’s current procedures, the supplier shall inform the customer about the matter as soon as possible and the costs of this change shall be borne by the customer. The customer may in this case give notice of termination of the contract, which termination shall then take effect on the date on which the change takes effect, unless the change is related to changes in relevant legislation or other instructions issued by competent bodies, or the supplier bears the costs of this change.

24.4 The supplier may continue to provide SaaS using a new or modified version of the software. The supplier is not obliged to maintain, modify or add certain features or functionalities of the service or software specifically for the customer.

24.5 The supplier may temporarily put all or part of the SaaS out of operation for preventive, corrective or adaptive maintenance or other forms of service. The supplier shall not allow the period during which the service is out of operation to last longer than necessary and shall ensure if possible that this period occurs outside office hours.

24.6 The supplier is never obliged to provide a physical carrier to the customer that contains the software provided to and held by the customer in the context of the SaaS.

Art. 25 Guarantee

25.1 The supplier does not guarantee that the software made available and held in the context of the SaaS is free of errors and functions without interruption. The supplier shall make efforts to fix the errors in the software referred to in Article 30.3 within a reasonable term if and insofar as the matter concerns software developed by the supplier itself and the customer has provided a detailed, written description of the defects concerned to the supplier. Where there are grounds for doing so, the supplier may postpone the fixing of defects until a new version of the software is put into operation. The supplier does not guarantee that defects in software that it has not developed itself shall be fixed. The supplier is entitled to install temporary solutions, program bypasses or problem-avoiding limitations in the software. If the software was developed on the instructions of the customer, the supplier may charge for the costs of fixing to the customer in accordance with the supplier’s usual rates.

25.2 Based on the information provided by the supplier concerning measures to prevent and limit the effects of malfunctions, defects in the SaaS, corruption or loss of data or other incidents, the customer shall identify and list the risks to its organisation and take additional measures if necessary. The supplier declares that it is prepared to provide assistance, at the customer’s request, to the extent reasonable and according to the financial and other conditions set by the supplier, with respect to further measures to be taken by the customer. The supplier is never obliged to recover data that has been corrupted or lost.

25.3 The supplier does not guarantee that the software made

available and held in the context of the SaaS shall be adapted to changes in relevant legislation and regulations on time.

Art. 26 Protection of personal data

26.1 Under legislation pertaining to the processing of personal data, such as the Personal Data Protection Act, the customer has obligations towards third parties, such as the obligation to provide information and allow the person concerned to inspect his or her personal data, and correct and delete the personal data of the person concerned. The customer is fully and solely responsible for the fulfilment of these obligations. The parties maintain that the supplier is the ‘processor’ within the meaning of the Personal Data Protection Act with respect to the processing of personal data.

26.2 To the extent that doing so is technically possible, the supplier shall provide support in the context of the obligations that the customer must fulfil as referred to in Article 26.1. The costs associated with this support are not included in the agreed prices and payments and  it is to be determined in consultation what part of the costs associated with this work shall be charged to the customer.

Art. 27 Commencement of the service; payment

27.1 The SaaS provided by the supplier shall commence within a reasonable term following the conclusion of the contract. The customer shall promptly ensure that it has the facilities required to use the SaaS following the conclusion of the contract.

27.2 The customer shall owe the payment specified in the contract for the SaaS. In the absence of an agreed payment schedule, all amounts that relate to the SaaS provided by the supplier shall be payable each calendar month in advance.

Chapter 6. Software maintenance and support

The provisions of this ‘Software maintenance and support’ chapter shall apply in addition to the general provisions of these general terms and conditions and the provisions of the ‘Provision of services’ chapter if the supplier performs services in the field of software maintenance and support in the use of software.

Art. 41 Maintenance services

41.1 If agreed, the supplier shall perform maintenance work with respect to the software specified in the contract. The maintenance obligation includes fixing errors in the software within the meaning of Article 30.3 and, exclusively if agreed in writing, making new versions of the software available in accordance with Article 42.

41.2 The customer must report errors discovered in the software in detail. Following receipt of the report, the supplier shall strive to the best of its ability to fix errors and/or implement improvements in later, new versions of the software in accordance with its usual procedures. Depending on the urgency and the supplier’s version and release policy, the results shall be made available to the customer in a manner and within a term determined by the supplier. The supplier is entitled to install temporary

solutions, program bypasses or problem-avoiding limitations in the software. The customer shall itself install, organise, parameterise and tune the corrected software or the new version of the software made available, and, if necessary, modify the equipment and operating environment used.

41.3 The provisions of paragraphs 34.3 and 34.4 apply mutatis mutandis.

41.4 If the supplier performs maintenance work online, the customer shall promptly ensure that a proper infrastructure and network facilities are in place.

41.5 The customer shall extend the cooperation required by the supplier in the context of maintenance, including temporarily ceasing use of the software and making a backup of all data.

41.6 If the maintenance work relates to software that was not supplied to the customer by the supplier, the customer, if the supplier believes this is necessary or desirable for the maintenance work, shall make the source code and the technical (development) documentation of the software, including data models, designs, change logs and the like, available. The customer guarantees that it is entitled to make the aforementioned items available. The customer grants the supplier the right to use and change the software, including the source code and technical (development) documentation, in the context of performing the agreed maintenance work.

41.7 The maintenance work performed by the supplier does not affect the customer’s own responsibility for managing the software, including checking the settings and the way in which the results arising from operating the software are used. The customer shall itself install, organise, parameterise and tune the software and support software required and, if necessary, modify the equipment, other software and support software and operating environment used in this regard, and effect the interoperability that it desires.

Art. 42 New versions of software

42.1 Maintenance shall include making new versions of the software available only if and insofar as this has been agreed in writing.

If maintenance includes making new versions of the software available, they shall be made available at the supplier’s discretion.

42.2 Three months after an improved version has been made available, the supplier shall no longer be obliged to fix errors in the previous version and to provide support and/or perform maintenance work with respect to a previous version.

42.3 The supplier may require that the customer enter into a further written contract with the supplier for a version with new functionality and that a further payment be made for this this version. The supplier may incorporate functionality from a previous version of the software in unaltered form, but does not guarantee that each new version includes the same functionality as the previous version. The supplier is not obliged to maintain, modify or add certain features or functionalities of the software specifically for the customer.

42.4 The supplier may require that the customer modify its system (equipment, software and the like) if doing so is necessary for the proper functioning of a new version of the software.

Art. 43 Support services

43.1 If the services provided by the supplier under the

contract include the provision of support to users and/or administrators of the software, the supplier shall provide, by telephone or email, advice on the use and functioning of the software specified in the contract. The supplier

may set conditions with respect to the qualifications and the number of persons eligible for support. The supplier shall handle properly substantiated requests for support within a reasonable term in accordance with its usual procedures. The supplier does not guarantee the accuracy, completeness or timeliness of replies or the support offered. Support services shall be performed on working days during the supplier’s usual business hours.

43.2 If the services provided by the supplier under the contract include the provision of standby services, the supplier shall ensure that one or more staff members are available on the days and during the times specified in the contract. The customer shall in this case be entitled in the event of urgency to call in the support of staff members on standby if there is a serious malfunction in the operation of the software. The supplier does not guarantee that all malfunctions will be repaired speedily.

43.3 The maintenance and other agreed services as referred to in this chapter shall be performed as from the date on which the contract is concluded, unless the parties have agreed otherwise in writing.

Art. 44 Payment

44.1 In the absence of an expressly agreed payment schedule, all amounts that relate to the maintenance of the software and the other services as referred to in this chapter and laid down in the contract shall be payable each calendar month in advance.

44.2 Amounts relating to the maintenance of the software and the other services as referred to in this chapter and laid down in the contract shall be payable from the moment of commencement of the contract. The payment for maintenance and other services shall be due regardless of whether or not the customer is using the software or exercising the option of maintenance or support.