Definitions
Account: the combination of a user name and password that allows the End User to access the SaaS solution
Availability: the percentage of time that the SaaS solution is accessible to End Users undisturbed as further defined in the SLA
Data Centre: the secure location where the computer system (hardware and software) for the purpose of providing the SaaS solution is located
End user: the natural person authorised to use the SaaS solution
Incident: a total or partial interruption or delay of the SaaS solution
IPR: copyright, design rights, trademark rights, patent rights, database rights and any other intellectual property or similar rights, such as rights to know-how or a domain name, registered or unregistered
Office hours: the hours between 9 a.m. and 5 p.m. on Business Days
Supplier: Baxx B.V. based in Amsterdam, registered in the trade register of the Chamber of Commerce under number 90709705
Delivery date: the date agreed between the Parties on which the SaaS solution can be used for the first time
Maintenance Window: the time period during which the SaaS solution does not have to be available in connection with Maintenance
Necessary Maintenance: incidental or unforeseen work that in the opinion of Supplier must be performed immediately in order to prevent or remedy Incidents
Maintenance: Preventive Maintenance or Necessary Maintenance
Customer: the legal or natural person who can use the Supplier's SaaS solution through an Agreement
Agreement: the agreement between Customer and Supplier regarding the SaaS solution, to which these general terms and conditions apply
Party: Supplier or Customer
Preventive Maintenance: planned work on the network, hardware or Software to maintain or improve the quality and Availability of the SaaS solution
SaaS solution: the complete service relating to the use of the Software via the Internet or an exclusive network (web-based)
SLA: Service Level Agreement, containing the requirements or service levels relating to the Data Centre, a protocol for Incidents and agreements regarding Maintenance and Support
Software: the software and functionalities made available to Customer and/or End Users under the Agreement as a SaaS solution
Support: the remote provision (by telephone, e-mail, website or other electronic means of communication) by Supplier during Business Hours of information and advice on the SaaS Solution, as well as the remote detection and resolution of Incidents
Working day: Monday to Friday, excluding official national holidays
Scope of general terms and conditions
These general terms and conditions apply to all Agreements, offers, quotations and other (legal) acts of the Supplier. Applicability of general terms and conditions of the Customer is expressly rejected.
If the provisions of these general terms and conditions differ from the content of the Agreement, the content of the Agreement shall prevail.
Access to the SaaS solution
Supplier shall, with effect from the Delivery Date, make the agreed Software available to Customer as a SaaS solution via an Account.
Each Account is unique and entitles only one End User to use the SaaS solution. The Client is responsible for and will ensure that the End User complies with the following obligations:
the End User will be the sole user of the Account and will not share it with others;
the End User will carefully keep the user name and password belonging to his Account and will not provide these to third parties;
In the event of loss, theft or (suspected) misuse of the user name and password, the End User will immediately inform Supplier's helpdesk.
The Customer is aware that the Software is designed to be compatible with the software and systems specified as compatible in the description of the SaaS solution and that the Supplier does not warrant that the Software will be compatible with any other software or systems.
Price
The Customer owes the Supplier the amount as agreed in the Agreement for the SaaS solution services.
The agreed prices may be increased annually per 1 January by the Supplier by a percentage equal to the index for business services as published from time to time by the CBS.
Billing and payment
Supplier will invoice the fee for the SaaS solution monthly in advance. The billing period of the invoices is 30 days. Customer is not entitled to set off or offset Supplier's invoices against claims against Supplier.
If the Customer is of the opinion that the Supplier's invoice is wholly or partly incorrect, the Customer must report this to the Supplier within two weeks of receiving the invoice. An appeal to the partial incorrectness of the invoice by Customer does not release Customer from the obligation to pay the undisputed part of the invoice.
The Customer shall owe statutory interest if the term of payment is exceeded, without further notice of default being required. If the Customer fails to pay the Supplier's claim after notice of default, the Supplier shall, in addition to the statutory interest due, also be entitled to claim compensation of the extrajudicial costs, the amount of which shall be determined at least 15% of the total invoice amount.
Availability, Data Centre and backups
The Supplier is responsible for the Availability of the SaaS Solution subject to the terms of the SLA. Availability is measured outside the Maintenance Window. The time that the SaaS solution is not available or accessible due to circumstances that can be considered force majeure does not count for the calculation of Availability.
The Data Centre is suitable for the delivery of the SaaS solution, subject to the technical requirements and service levels set out in the SLA. Supplier is responsible for the infrastructure, data connections and hardware and software within the Data Centre.
The Data Centre will be located at the location as agreed in the SLA. If a Data Centre is used outside the European Union, Parties will comply with the General Data Protection Regulation and applicable national rules and legislation.
The servers in the Data Centre are monitored and the system backs up the servers as specified in the SLA.
Support, Incidents and training
Supplier shall respond to all Customer requests for Support without undue delay in accordance with the agreements made in this regard in the SLA. End Users must submit a request for Support to Customer in the first instance (first line). Supplier will only provide Support directly to an End User if this has been agreed in the SLA.
Supplier shall attempt to remedy Incidents as soon as possible in accordance with the protocol included in the SLA. This protocol contains an overview of different categories of possible Incidents, including the timeframe within which an Incident will be remedied, as well as a communication protocol.
The Customer is aware that complex software is never completely free from defects. Subject to the provisions of the Agreement and the SLA, the Supplier gives no warranty that the SaaS solution will be completely free of defects, errors or bugs.
At Customer's request or if - in Supplier's opinion - Customer or the End Users make a disproportionate use of Support because they have insufficient knowledge of the operation of the SaaS solution, Supplier will provide training for Customer or End Users at Customer's expense.
Maintenance
Preventive Maintenance will take place within the Maintenance Window as stipulated in the SLA. Necessary Maintenance may take place outside the Maintenance Window in accordance with the conditions as stated in the SLA.
Terms of use
Client is responsible for and will ensure that the End User and any other person authorised by Client to use the SaaS solution, with or without an Account, complies with the following obligations:
the data, files or other digital data shared or exchanged by the End User with the systems of the SaaS Solution will be free of viruses, worms, Trojan horses or similar defects;
the End User will not infringe third party rights, such as IPR and will not violate Article 10 of these general terms and conditions;
the End User will not use the SaaS Solution in such a way as to cause a disruption or delay in the Availability or accessibility of the SaaS Solution, such as deploying its own scripts or programmes to up- or download large amounts of data, or trying to access the SaaS Solution excessively often;
the End User shall not engage in hacking or otherwise gain unauthorised access to the SaaS Solution, Supplier's or third parties' computer systems, Software or data, whether by automated means or otherwise (e.g. via a scrape, crawl or spider);
the End User will not be guilty of any criminal offence, including distributing and making accessible information that is contrary to public order or decency;
the End User shall not use any form of automated integration other than the application programming interface (APIs) provided or advised by Supplier;
If Supplier discovers that an End User is violating or is in danger of violating the aforementioned conditions, Supplier will be entitled, without prior consultation with Customer, to intervene itself in order to end the violation or to avert or prevent this impending danger, for example by closing the Account of the relevant End User. With respect to such End User, Supplier will remain entitled to the full payment for the use of the SaaS solution. The Customer is liable for any damage caused by the End User as a result of a breach of these conditions. Supplier will at all times be entitled to report any criminal offences it has ascertained and will never be liable for any damage suffered by the Customer that may result from such a release.
IPR, licence and data
All IPR related to the SaaS Solution Services, including the rights to the Software's software (including future updates or upgrades to the Software), are and will remain the full property of Supplier and can never become the property of the Customer or the End User. The IPR to all modifications or improvements to the Software, whether as a result of requests, suggestions or ideas originating from the Customer or the End User, are also fully owned by Supplier. Insofar as the Customer acquires or may acquire IPR within the framework of the Agreement, the Customer shall already now transfer ownership of all (future) IPR to the Supplier in advance. To the extent necessary, the Customer shall at the Supplier's first request fully cooperate in the transfer of the (future) IPR to the Supplier.
Customer acquires a non-exclusive right of use in respect of the SaaS solution for the duration of the Agreement. With respect to this right of use, Customer is entitled to issue non-exclusive and non-transferable sub-licences to End Users for the duration of the Agreement. Customer will ensure that the content of these sub-licences is in accordance with the Agreement.
The Customer is prohibited from copying, adapting, compiling, merging, assembling, editing, reproducing, dissecting or otherwise attempting to derive the source code of the Software, applications, data or other materials whose IPR are held by the Supplier. Furthermore, the Customer is prohibited from disclosing or using Software, applications, data or other materials whose IPR rests with the Supplier, in modified or unmodified form, outside the scope of the Agreement.
Data or data added to the SaaS solution's databases, directories or file folders by the Customer or the End User in the context of using the SaaS solution are and remain the property of the Customer or the End User. Supplier is not responsible for the accuracy and legality of such data or data.
Secrecy
Without prejudice to the operation of Article 12 (Privacy), Parties will treat all data they have provided or exchanged with each other, including all information relating to the End User, as confidential and keep it secret. Parties are prohibited from making any communication or disclosure to third parties, directly or indirectly, in any form and in any manner whatsoever, about confidential information, unless the provider of such information or the End User has given its express written consent. This provision is valid both during and after the termination of the Agreement.
The parties will require their personnel and third parties engaged by them to observe the confidentiality mentioned in this article with regard to the confidential information.
The receiving Party shall destroy or return all information provided by the other Party upon its first written request.
This Article does not apply to information lawfully received by the receiving Party from third parties or information disclosed by the providing Party itself.
Privacy
Without prejudice to the operation of Article 11 (Confidentiality), Customer and Supplier shall, in performing the Agreement, comply with all applicable national and international laws and regulations relating to privacy and data protection, including the General Data Protection Regulation.
Liability
Supplier's liability is limited to direct damage of the Customer. Supplier is not liable for consequential damage, including loss of turnover or profit of the Customer or the End User.
Supplier is only responsible for loss or damage to data or data of the Customer or the End User, insofar as such loss is the result of intent or gross negligence of Supplier or its management.
Outside requests for Support, Supplier will not be able to handle any complaints or claims from the End User. The Customer will ensure that the End User will only turn to the Customer, who can then submit the complaint or claim to Supplier under the Agreement. The Customer will indemnify Supplier against all claims originating directly from an End User.
Force majeure
The parties shall not be liable insofar as the failure in performance cannot be attributed to them as a result of force majeure.
If a Party fails to comply with an obligation under the Agreement due to force majeure, the other Party has the right to dissolve the Agreement, provided it is established that compliance will be permanently impossible or a period of at least 30 days will have elapsed since the failure, without the Parties being mutually liable for compensation. The Customer shall owe the fee for the SaaS solution to the Supplier until the date of dissolution.
Duration and termination
The Agreement is entered into for a definite period of at least 3 months, unless the Parties have agreed otherwise in writing. After the expiry of this period, the Agreement is tacitly continued for a period of 1 month each time, unless a Party cancels the Agreement at least 30 days before the end of a period.
The Agreement may be terminated by a Party in the interim only if:
the other Party imputably fails to perform an obligation under the Contract and fails to perform after that Party has been given notice of default, whereby a reasonable period for performance has been set.
the other Party has applied for or been granted suspension of payments;
the other Party has been declared bankrupt or a bankruptcy petition has been filed in respect of that Party;
the other Party is liquidated or ceases its operations.
With respect to an individual End User who fails to comply with the obligations referred to in Article 9 of these general terms and conditions, Supplier will at all times be entitled to (temporarily) deny that End User access to the SaaS solution and the Software and to (temporarily) disable the Account, without prejudice to Supplier's other rights under the Agreement.
Portability, outsourcing and changes
The Parties are not entitled to transfer the rights and obligations under the Agreement to a third party without the consent of the other Party.
The Supplier is authorised to use the services of third parties in the performance of the Agreement, either as subcontractor or by hiring staff. In that case, the Supplier remains fully responsible to the Customer for the correct execution of the SaaS solution and all other obligations as laid down in the Agreement or the SLA. The Supplier shall timely and correctly fulfil any obligations it may have as a main contractor or hirer with respect to taxes or social security contributions.
Supplier reserves the right to amend these general terms and conditions. Amendments shall enter into force 14 days after the Customer has been notified of the amendment by the Supplier.
Applicable law and competent court
All disputes relating to the Agreement and the performance of the Agreement shall be governed by Dutch law. These disputes will be settled by the competent court within the district where the Supplier is established.