ZEN SOFTWARE

dated June 2022

1. Definitions

1.1 Supplier: ZEN SOFTWARE, to the extent that it declares these General Terms and Conditions applicable to an offer and/or agreement.

1.2. Client: any party who, by signing a document or otherwise, accepts the applicability of these General Terms and Conditions.

1.3. Party: the Supplier or the Client.

1.4. Parties: the Supplier and Client.

1.5. General Terms and Conditions: these terms and conditions.

1.6. Agreement: any agreement whereby the Supplier provides the Client with any goods and/or services whatsoever and however described.

1.7. Single Sign On environment (SSO): the portal that gives access to all the different tools.

1.8. The Tools: a variety of tools to realize business solutions.

1.9. Right holders: the right holders to the respective tools.

1.10. End User License Agreement (EULA): the license establishing the end user’s right to use the software.

1.11. Consultant: a professional who provides expert advice in a particular area, who may or may not be an employee of the Supplier.

2. Applicability of the ZEN SOFTWARE Terms and Conditions

2.1. This General module of the ZEN SOFTWARE Terms and Conditions shall apply to all offers and agreements whereby the Supplier provides the Client with any goods and/or services whatsoever and however described. If any part of the ZEN SOFTWARE Terms and Conditions conflicts or is incompatible with any of the provisions of the agreement agreed between the Supplier and the Client, the provisions of the agreement in question shall prevail.

2.2. Additions to or deviations from these general terms and conditions shall only apply where agreed in writing between the parties.

2.3. The applicability of any of the Client’s purchasing or other conditions is expressly rejected.

2.4. 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 will remain fully in effect. In this case, the Supplier and the Client will consult with one another to agree new provisions to replace the void or voided ones. In doing so, the purpose and meaning of the void or voided provision will be taken into account as far as possible.

3. Offers

3.1. All offers and other statements issued by the Supplier shall be subjected to contract, except where specified otherwise in writing by the Supplier.

3.2. The Client shall guarantee the accuracy and completeness of the information that it submits to the Supplier and on which the Supplier bases its offer. The Client shall at all-time exercise the greatest possible care to ensure that the requirements that the Supplier’s services must meet are accurate and comprehensive. Measurements and information stated in drawings, pictures, catalogues, websites, quotations, advertising material, standard sheets etc. shall not have a binding effect on the Supplier, except where explicitly specified otherwise by the Supplier.

4. Price and payment

4.1. All prices are exclusive of turnover tax (VAT) and other government levies that have been or are later imposed. Except where agreed otherwise, all prices are in euros in all cases and the Client must effect all payments in euros.

4.2. All cost estimates and budgets issued by the Supplier shall be merely indicative, except where specified otherwise in writing by the Supplier. The Client may under no circumstances derive any rights or expectations from any cost estimates or budgets issued by the Supplier. An available budget made known by the Client to the Supplier shall under no circumstances apply as a fixed price agreed between the parties for the service to be provided by the Supplier. The Supplier shall only be obliged to notify the Client that there is a risk that a cost estimate or budget issued by the Supplier will be exceeded if this has been agreed between the parties in writing.

4.3. If the Client consists of more than one natural and/or legal persons, each of these persons shall be joint and severally liable in respect of payment of the amounts due on the basis of the agreement.

4.4. The relevant documents and information from the Supplier’s administration or systems shall be conclusive evidence of the service provided by the Supplier and the amounts payable by the Client in return for this service, without prejudice to the Client’s right to submit evidence to the contrary.

4.5. If the Client is subject to a periodic payment obligation, the Supplier shall be entitled to adjust the applicable prices and rates in writing subject to advance notice of at least one month. If the Client does not wish to agree to this change, the Client shall be entitled to terminate the agreement in writing with effect from the date on which the change is due to enter into force within fourteen days following the date of notification. The Client shall not enjoy this right of termination, however, if the parties have agreed that the applicable prices and rates shall be adjusted subject to due observance of an index or other standard agreed between the parties.

4.6. The parties shall set out the date or dates on which the Supplier shall invoice the fee for the agreed services to the Client in the agreement. Amounts due shall be paid by the Client in accordance with the payment terms that have been agreed or that are stated on the invoice. If no specific arrangements have been made, the Client shall effect payment within a period after the date of invoice to be determined by the Supplier. The Client shall not be entitled to suspend any payments or to offset any amounts due.

4.7. If the Client fails to pay the amounts due or to pay the amounts due in a timely manner, statutory commercial interest shall be payable by the Client on the outstanding amount without a demand or notice of default being required. If the Client still fails to pay the amount owed after receiving a demand or notice of default, the Supplier may refer the debt for collection, in which case the Client shall be obliged to pay all in-court and out-of-court expenses in addition to the total amount due, including all costs charged by external experts.

5. Confidentiality

5.1. The Client and the Supplier shall ensure that all information received from the other party that is known or should reasonably be known to be of a confidential nature is kept secret. The party that receives such confidential information shall only use this information for the purpose for which it has been provided. Information shall in any event be regarded as confidential if it is designated as such by one of the parties.

6. Privacy, data processing and protection

6.1. If the Supplier deems this to be necessary for the purpose of executing the agreement, the Client shall, upon request, notify the Supplier immediately in writing with regard to the manner in which the Client executes its obligations pursuant to legislation in respect of the protection of personal data.

6.2. The Client shall indemnify the Supplier against any claims by individuals whose personal data is recorded or processed within the context of a register of personal data maintained by the Client or for which the Client is responsible pursuant to the law or otherwise, unless the Client is able to demonstrate that the acts that form the basis of the claim are exclusively attributable to the Supplier.

6.3. Responsibility for the data processed using the service provided by the Supplier shall rest solely with the Client. The Client shall guarantee the Supplier that the content, the use and/or the processing of the data is not unlawful and does not infringe the rights of third parties. The Client shall indemnify the Supplier against legal claims by third parties, of whatever nature, in relation to this data or the execution of the agreement.

7. Intellectual property rights

7.1. If the Supplier is willing to undertake to transfer an intellectual property right, such an undertaking may only be entered into explicitly and in writing. If the parties agree in writing that an intellectual property right in respect of software, websites, data files, hardware or other material specifically developed for the Client shall be transferred to the Client, this shall not affect the Supplier’s right or option to use and/or to exploit the components, general principles, ideas, designs, algorithms, documentation, work, programming languages, protocols, standards and suchlike that form the basis of the development work for other purposes without any restrictions, on its own behalf or on behalf of a third party. The transfer of an intellectual property right shall also not affect the Supplier’s right to carry out development work, on its own behalf or on behalf of a third party, that is similar or derived from the development work that is being carried out on behalf of the Client.

7.2. All intellectual property rights to the software, websites, data files, hardware or other materials such as analyses, designs, documentation, reports, quotations and related preliminary material developed or made available to the Client on the basis of the agreement shall remain exclusively vested in the Supplier, its licensors or its own suppliers. The Client shall only acquire those rights of use that are explicitly granted in these general terms and conditions and by law. Any rights of use granted to the Client shall be non-exclusive, non-transferable to third parties and non-sublicensable.

7.3. The Client shall not be permitted to remove or amend any details in relation to the confidential nature or in relation to copyrights, brand names, trade names, or any other intellectual property right from the software, websites, data files, hardware or materials.

7.3. The Client warrants that no rights of third parties preclude the provision to the Supplier of software, hardware, material intended for websites (visual material, text, music, domain names, logos, hyperlinks etc.), data files or other materials, including draft materials, for the purpose of use, adaptation, installation or incorporation (e.g. in a website). The Client shall indemnify the Supplier against all claims by third parties based on the assertion that such provision, use, adaptation, installation or incorporation constitutes an infringement of any rights of the third party in question.

8. Termination and cancellation of the agreement

8.1. Each party shall be entitled to terminate the agreement on account of an attributable shortcoming in the implementation of the agreement if the other party fails attributably in the fulfilment of essential obligations under the agreement. Termination shall only be possible following an as detailed notice of default as possible, containing a reasonable term within which the shortcoming can be corrected. Payment obligations of the Client and all other obligations to cooperate on the part of the Client or a third party engaged by the Client shall always be considered essential obligations under the agreement.

8.2. If the Client has already been rendered performance in the implementation of the agreement at the moment of the termination referred to in article 8.1, that performance and the corresponding payment obligations can never be subject of undoing, unless the Client is able to prove that the Supplier is in default in respect of an essential part of that performance. Amounts already invoiced by the Supplier prior to termination in connection with what it has already performed or delivered in the implementation of the Agreement, shall, with due regard for the provisions of the previous sentence, remain payable and fall due immediately as at the moment of termination.

8.3. If an agreement, which due its nature and substance does not end by completion, is effected for an unspecified period of time, then each of the parties may cancel that agreement subject to mutual consultation and a statement of reasons. If no notice period has been agreed between the parties, then a reasonable period for termination of the agreement shall be allowed. The parties shall never be liable for any form of compensation on account of termination.

8.4. The Client shall not be entitled to early termination of an agreement which has been effected for a specified period of time, such as but not restricted to a service contract or an agreement for services.

8.5. Each of the parties shall be entitled to immediately fully or partially terminate the agreement without prior notice if the other party, whether or not provisionally, is granted a moratorium, if a petition is filed for the bankruptcy of the other party, if the other party is declared bankrupt, or if the business of the other party is liquidated or discontinued other than for the purpose of reconstructing or merging companies. The Supplier shall never be bound to the reimbursement of already received payments, nor to any compensation for damages as a result of termination. The right of the Client to use software and the like made available to him by Supplier shall expire by operation of law in the event of bankruptcy of the Client.

9. Liability

9.1. The Supplier will not be liable for any costs, damage and interest that may arise as a direct or indirect result of:
a) force majeure, as described in further detail below;
b) any acts or omissions on the part of the Client, its subordinates, or any other persons deployed by or on behalf of it;
c) any errors and/or defects in a design that were not discovered by the Client at the time of approval of the relevant design.

9.2. In no event will the Supplier be liable to compensate any trading loss and/or consequential damage suffered by the Client. Trading loss and/or consequential loss will include, but not limited to, all and any damage or loss that is the result of the not, or not fully, being available of the ZEN Team Delivery Services, Single Sign On environment (SSO) or ZEN Agile Analytics-software, damage due to the loss or temporary non-availability of data, damage as a result of third-party claims against the contractor on any basis whatsoever.

9.3. The Client will indemnify the Supplier against any third-party claims in respect of infringement of such parties’ patent, trademark or copyright (or any other intellectual property rights), wrongful act or default, as a result of or in connection with the agreement.

9.4. In no event will the Supplier be liable for damage of any nature whatsoever caused by third-party hacking.

9.5. The Supplier will not be liable for any viruses etc. causing damage to hardware or software of the Supplier and/or the Client.

9.6. In the event that, despite the provisions of this article 8, the Supplier is still liable vis-á-vis the Client, such liability will at all times be limited to the amount owed by the Client under the agreement in respect of license costs for one year.

10. Force majeure

10.1. The Supplier will not be deemed to be in default if the Client is already in default in the performance of its obligation or in the event of force majeure on the part of the Supplier.

11. End User License Agreement Zen Team Delivery Services

11.1. To the extent that there is no deviation from the aforementioned General Conditions, these General Conditions apply in full to the following provision.

11.2. The Supplier shall make the business solution tools specified in the agreement and the corresponding user documentation, hereinafter referred to as ‘the Tools’, available to the Client for use via the Single Sign On environment (SSO).

11.3. The End User License Conditions of the Rights holders of each respective Tool are binding for the Client and are submitted to him when entering into the agreement. In case of a breach of the End User License Conditions, the Client shall indemnify the Supplier against all claims by third parties based on the assertion that such provision, use, adaptation, installation or incorporation constitutes an infringement of any rights of the third party in question.

11.4. The Supplier shall under no circumstances be liable for any damages or costs arising from a breach of the End User License Conditions of any Tool, or any other wrongful act, caused by the Client or any third-party.

11.5. The Supplier shall under no circumstances be liable for any damages or costs arising from a not, or not fully functioning Tool, a not, or not fully available Tool or other damage on any basis whatsoever caused by any of the Rights holders of each respective Tool.

12. Software license Agile Analytics

12.1. To the extent that there is no deviation from the aforementioned General Conditions, these General Conditions apply in full to the following provision.

12.2. The Supplier shall make the computer programs specified in the agreement and the corresponding user documentation, hereinafter referred to as ‘the platform, available to the Client for use.

12.3. Except where agreed otherwise in writing, the Supplier’s obligation to provide and the Client’s right of use shall solely extend to the so-called platform object code. The Client’s right of use shall not extend to the platform source code. The platform source code and the technical documentation produced during the development of the platform shall not be made available to the Client under any circumstances, even if the Client is prepared to pay financial compensation for this information.

12.4. Except where agreed otherwise in writing, the Supplier shall not be obliged to provide any platform or program or data libraries other than those agreed, even if these are required for the use and/or maintenance of the platform. If contrary to the forgoing, the Supplier is required to provide the platform and/or program or data libraries other than those agreed, the Supplier may require the Client to enter into a separate written agreement for this purpose.

12.5. Except where otherwise agreed in writing, the Supplier’s performance obligations shall not include the maintenance of the platform and/or the provision of support to the users of the platform. If, contrary to the forgoing, the Supplier is also required to provide such maintenance and/or support, the Supplier may require the Client to enter into a separate written agreement for this purpose.

12.6. Without prejudice to the provisions of the General module, the right of use of the platform shall in all cases be non-exclusive, non-transferable and non-sublicensable.

12.7. The Client shall strictly observe the restrictions on the right of use of the platform agreed between the parties at all times. The Client is aware that the violation of an agreed restriction on use shall constitute both breach of the contract with the Supplier and an infringement of the intellectual property rights in respect of the platform.

12.8. The Supplier shall be entitled to arrange for technical measures to be taken at any time in order to protect the platform against unlawful use and/or against use in a manner or for purposes other than those agreed between the parties.

12.9. Under no circumstances shall the Client remove or circumvent technical provisions intended to protect the platform, or arrange for this to be carried out.

12.10. Except where agreed otherwise in writing, the Client shall only be permitted to use the platform within and on behalf of its own company or organization and only for the intended use. Except where agreed otherwise in writing, the Client shall not use the platform to process data on behalf of third parties, e.g. for services such as ‘time-sharing’, ‘application service provision’, ‘software as a service’ and ‘outsourcing’.

12.11. The Client shall not be permitted to sell, rent out, transfer or grant restrictive rights to the platform, the media on which the platform is stored and the certificates of authenticity issued by the Supplier on provision of the platform, or to make these available to third parties in any way or for any purpose. The Client shall also refrain from granting third parties access – remote or otherwise – to the platform or providing the platform to a third party for the purpose of hosting, even if the third party in question only uses the platform on behalf of the Client.

13. Software license ZEN Agile Analytics

13.1. To the extent that there is no deviation from the aforementioned General Conditions, these General Conditions apply in full to the following provision.

13.2. The Supplier shall make the computer programs specified in the agreement and the corresponding user documentation, hereinafter referred to as ‘the software’, available to the Client for use.

13.3. Except where agreed otherwise in writing, the Supplier’s obligation to provide and the Client’s right of use shall solely extend to the so-called software object code. The Client’s right of use shall not extend to the software source code. The software source code and the technical documentation produced during the development of the software shall not be made available to the Client under any circumstances, even if the Client is prepared to pay financial compensation for this information.

13.4. Except where agreed otherwise in writing, the Supplier shall not be obliged to provide any software or program or data libraries other than those agreed, even if these are required for the use and/or maintenance of the software. If contrary to the forgoing, the Supplier is required to provide software and/or program or data libraries other than those agreed, the Supplier may require the Client to enter into a separate written agreement for this purpose.

13.5. Except where otherwise agreed in writing, the Supplier’s performance obligations shall not include the maintenance of the software and/or the provision of support to the users of the software. If, contrary to the forgoing, the Supplier is also required to provide such maintenance and/or support, the Supplier may require the Client to enter into a separate written agreement for this purpose.

13.6. Without prejudice to the provisions of the General module, the right of use of the software shall in all cases be non-exclusive, non-transferable and non-sublicensable.

13.7. The Client shall strictly observe the restrictions on the right of use of the software agreed between the parties at all times. The Client is aware that the violation of an agreed restriction on use shall constitute both breach of the contract with the Supplier and an infringement of the intellectual property rights in respect of the software.

13.8. The Supplier shall be entitled to arrange for technical measures to be taken at any time in order to protect the software against unlawful use and/or against use in a manner or for purposes other than those agreed between the parties.

13.9. Under no circumstances shall the Client remove or circumvent technical provisions intended to protect the software, or arrange for this to be carried out.

13.10. Except where agreed otherwise in writing, the Client shall only be permitted to use the software within and on behalf of its own company or organization and only for the intended use. Except where agreed otherwise in writing, the Client shall not use the software to process data on behalf of third parties, e.g. for services such as ‘time-sharing’, ‘application service provision’, ‘software as a service’ and ‘outsourcing’.

13.11. The Client shall not be permitted to sell, rent out, transfer or grant restrictive rights to the software, the media on which the software is stored and the certificates of authenticity issued by the Supplier on provision of the software, or to make these available to third parties in any way or for any purpose. The Client shall also refrain from granting third parties access – remote or otherwise – to the software or providing the software to a third party for the purpose of hosting, even if the third party in question only uses the software on behalf of the Client.

14. Consultant placement ZEN Consultancy Service

14.1. To the extent that there is no deviation from the aforementioned General Conditions, these General Conditions apply in full to the following provision.

14.5. The Supplier shall make the Consultant(s) referred to in the agreement between the parties available to the Client for the purpose of carrying out work under the Client’s management and supervision in accordance with the agreements reached between the parties.

14.3. The work will, in principle, be carried out at the Client’s office. The Consultants will perform their work elsewhere at the Client’s request. The Consultants may be asked to travel occasionally or frequently to perform the work.

14.4. The Supplier and the Consultants shall in no case be liable towards the Client, for damages arising from acts or omissions from an Consultant in relation to the work, save to the extent the damages are a direct consequence of intent or willful recklessness (within the meaning of article 7:661 Dutch Civil Code) of such Consultant.

14.5. The Client will ensure that it provides a safe and healthy working environment for the Consultants. The Client must comply with all legislation and regulations concerning employment conditions in the required manner and ensure that the location where and the equipment and materials with which the Consultants carry out their work under this agreement meet all the applicable safety regulations, as well as do and refrain from doing anything that may reasonably be expected of the Client to prevent the Consultants from suffering harm while carrying out the work. The Client shall at all times indemnify and hold harmless the Supplier, for all losses (including reasonable attorney and expert fees and expenses), resulting from any and all claims of an Consultant or Consultants on Supplier, based on employers liability (7:611 and/or 7:658 Dutch Civil Code). To the extent such claims are related to the work.

15. Consultancy ZEN Consultancy Service

15.1. To the extent that there is no deviation from the aforementioned General Conditions, these General Conditions apply in full to the following provision.

15.2. The Supplier shall make every effort to ensure that the services are provided with due care and in accordance with the arrangements and procedures agreed in writing with the Client where applicable. The Supplier shall provide all services on the basis of a best efforts obligation, unless and in so far as the Supplier has explicitly undertaken in the written agreement to achieve a specific result and the result in question is sufficiently determined.

15.3. If the Supplier is providing services on the basis of information to be provided by the Client, this information shall be prepared by the Client in accordance with the conditions to be imposed by the Supplier and provided at the risk and expense of the Client. The Client shall at all times guarantee that all materials, information, software, procedures and instructions that it makes available to the Supplier for the purpose of providing the services is accurate and complete and that all data media issued to the Supplier meet the Supplier’s specifications.

15.4. Except where agreed otherwise in writing, the use made by the Client of advice issued by the Supplier shall in all cases be at the Client’s risk and expense.

15.5. Where applicable, the burden of proving that the service and the results of the service provided by the Supplier do not conform to the agreements made in writing or to what may be expected from a reasonably acting and competent Supplier shall lie solely with the Client, without prejudice to the Supplier’s right to furnish evidence to the contrary by any means.

16. Default and dissolution

16.1. In the event of failure on the part of the Client to perform any obligation whatsoever, it will be in default in that respect without any notice of default being required. Without prejudice to the provisions of the Dutch Civil Code [Burgerlijk Wetboek], the Supplier will also be entitled to suspend the agreement entered into, or to consider all or part of such agreement dissolved, without any judicial intervention being required, all at the Supplier’s option, and to render the services offline without any further notice being required.

16.2. The Supplier will also have the rights referred to in paragraph 1 of this article if the Client is declared bankrupt, or its bankruptcy is filed for, if the Client has applied for, or been granted, a moratorium on payment of its debts, if the Client’s immovable property has been attached, its business is wound up or is, or has been, taken over by one or more third parties. In all such events all the claims that the Supplier has against the Client will be immediately due and payable.

17. Miscellaneous

17.1. All negotiations, offers, quotations, agreements and other (legal) acts between the Supplier and the Client will be governed by the laws of the Netherlands, irrespective of the place where the agreement is performed.

17.2. Any disputes between the Supplier and the Client as a result of, or in relation to, negotiations, offers, quotations, agreements and other (legal) acts will be submitted to the exclusive jurisdiction of the competent judge with the District Court for North Holland, the Netherlands, including its preliminary relief judge.