General conditions

General conditions

 

Terms and Conditions............................................................................................................................................1
1. Definitions.................................................................................................................................................................2
2. Offer and acceptance.................................................................................................................................3
3. Implementation of the Service.................................................................................................................................4
4. Completion .............................................................................................................................................................5
5. Additional work................................................................................................................................................................5
6. Duration and termination ............................................................................................................................................6
7. Prices ......................................................................................................................................................................6
8. Payment terms ....................................................................................................................................7
9. Intellectual property rights.........................................................................................................8
10. Liability..........................................................................................................................................9
11. Force Majeure ....................................................................................................................................................10
12. Software development.....................................................................................................10
13. Software maintenance........................................................................................................11
14. Analyst management agreement .............................................................................................................12
15. Domain names and IP addresses............................................................................................................12
16. Hosting and related services.....................................................................................................13
17. SaaS services...............................................................................................................................15
18. Service Availability...........................................................................................................17
19. Faults and maintenance.........................................................................................................................17
20. Confidentiality...........................................................................................................................................18
21. Staff.......................................................................................................................................................18
22. Changes to Terms and Conditions ...............................................................................................18
23. Final Provisions ............................................................................................................................................19

1. Definitions

Analyst:

Analyst B.V., located in Eindhoven and registered with the Chamber of Commerce under
file number 71343652.

Client:

The natural or legal person who has entered into an agreement with Analyst.
Terms and Conditions:
This present document.

Service:

The activity(ies) that Analyst will perform for Client, as specified in the Agreement.

Duration Agreement:

An Agreement for the periodic performance/delivery of Services for a certain period of time (for example, hosting and SaaS).

Agreement:

The (Duration) Agreement between Analyst and Client, pursuant to which Analyst will perform/deliver the Service, as described in the quotation.

User:

The user of the Service, which is specified by the Client (for example, an employee).

Framework:

A collection of components (software/code) already developed and owned by Analyst on which Analyst may build a new environment/application/webshop on behalf of Client. This can also be software from third parties (think of licensed software by parties such as Magento and Intershop).

Issue:

A detected disruption or threat of disruption to the agreed service level of service.

Written:

Always on paper or email.

Website:

Our website www.anlystict.nl

2. Offer and acceptance

 

1. Analyst shall prepare a quotation indicating what is included in the Service and the amount due upon acceptance. Only the description of the Service indicated in the quotation is binding. If the quotation is accepted by the Client, the Agreement is concluded. No rights or expectations can be derived by the Client from a preliminary calculation or budget issued by Analyst.

2. The Client guarantees the accuracy and completeness of the data provided by or on behalf of him to Analyst on which Analyst has based its quotation. If it appears that data provided by the Client are incorrect, Analyst is entitled to adjust the prices accordingly.

3. The Agreement, offers and quotations are at all times subject to these General Terms and Conditions, unless expressly agreed otherwise in Writing.

4. Provisions or conditions set by Client that differ from, or do not appear in, these General Terms and Conditions shall be binding on Analyst only if and insofar as they have been expressly accepted in Writing by Analyst.

5. After acceptance, the Agreement may only be amended by mutual consent. For modification of these General Conditions, see 22.

6. The Agreement runs from the moment this Agreement is approved by the Client (either electronically or in writing).

7. In case of conflict of provisions in the following documents, the following order of precedence shall apply:
1. the agreement;
2. the Processors' Agreement;
3. the Service Level Agreement;
4. the attachments, if any;
5. these Terms and Conditions;
6. any additional conditions.

3. Implementation of the service

 

1. Insofar as not agreed otherwise in writing, Analyst guarantees that the Service shall be performed to the best of its ability under application of sufficient care and skill. With regard to the Service(s) to be provided, Analyst has only an obligation of effort and no obligation of result.

2. If and insofar as the proper performance of the Service requires it, Analyst has the right to have certain work performed by third parties. Any related additional costs will only be charged with the consent of Client.

3. Client is obliged to do and refrain from doing everything that is reasonably necessary and desirable to enable the timely and correct performance of the Service. In particular, the Client shall ensure that all data and facilities, which Analyst indicates are necessary or which the Client should reasonably understand are necessary for the performance of the Service, are made available to Analyst in a timely manner.

4. If necessary for the execution of the Agreement, Client shall, upon request, inform Analyst in writing of the manner in which Client performs its obligations under the General Data Protection Regulation. If personal data are processed for the execution of the Agreement, Client and Analyst shall agree on a processor's agreement.

5. Client shall indemnify Analyst against claims of persons whose personal data have been registered or are being processed in the context of a register of personal data kept by Client or for which Client is otherwise processing responsible under the law, unless Client proves that the facts underlying the claim are attributable to Analyst.

6. The responsibility for the data processed by Client using a Service of Analyst lies entirely with Client. Client warrants to Analyst that the content, use and/or processing of the data is not unlawful and does not infringe any right of a third party. Client shall indemnify Analyst against any legal action by a third party, on any basis whatsoever, in connection with such data or the performance of the Agreement.

7. If Analyst is required to provide some form of information security, the security of personal data shall conform to the written agreement between the parties.
agreed upon specifications regarding security.

4. Completion

 

1. If the Agreement relates to a standard Service, Analyst shall make every effort to provide the Service as soon as possible after the conclusion of the Agreement.

2. If at least one of the following situations occurs, it may be referred to as “(delivered)”:

- by use of the Service by the Customer (the Customer accepts the Service in the condition it is in at the time of delivery (‘as is, where is’);
- by a communication from Analyst to Client that the Service is available;
- by a Written or electronic confirmation of delivery of the Service by Analyst.

3. Delivery terms stated by Analyst shall, unless it is expressly stated In Writing that it concerns a deadline, always have an indicative meaning. Analyst shall be in default, even in the case of an agreed final deadline, only after Client has given him Written notice of default.

4. Exceeding of agreed delivery times due to any cause whatsoever shall not entitle to compensation, including damages for delay.

5. Client must evaluate and approve or disapprove the results or a phase of a customized Service within 7 days after delivery. If the Client does not reject the results (in whole or in part) within this period on the basis of agreed functional or technical specifications in the quotation, they are deemed to have been approved. Rejection must be motivated.

6. If Client rejects a result, as described in the previous paragraph, in whole or in part, Analyst shall make every effort to remove the reason for rejection as soon as possible. It may do so by revising the result or by giving reasons why the reason is not valid. If the aforementioned is completed by Analyst, the result or the (customized) Service is considered accepted between the parties.

5. Additional work

1. If at the request or with the prior consent of Client Analyst has performed work or other performance that falls outside the content or scope of the agreed work and/or performance, this work or performance shall be compensated by Client on the basis of subsequent calculation. This work shall be compensated by Client according to the agreed rates and in the absence thereof according to Analyst's usual rates. Analyst is never obliged to comply with such a request and Analyst may require that a separate written agreement be concluded for this purpose.

2. Client accepts that work or performance as referred to in this article may affect the agreed or expected time of completion of the services and the mutual responsibilities of Client and Analyst. The fact that (the demand for) additional work arises during the execution of the agreement shall never be a ground for the Client to terminate or dissolve the agreement. Insofar as a fixed price has been agreed for the provision of services, Analyst shall, upon request, inform Client in writing about the financial consequences of the additional work or performance as referred to in this article.

6. Duration and termination

1. If the Service is a Continuous Agreement, the Agreement shall be deemed to have been entered into for a minimum period of twelve months, unless otherwise agreed In Writing. Without notice In Writing, with due observance of a notice period of three months towards the end of the aforementioned period, the Agreement will always be tacitly renewed by the same period, unless agreed otherwise In Writing. Interim termination by the Client is not permitted.

2. If the Service involves the development of software, advice or other works, the Agreement shall be deemed to have been entered into for the duration specified in the Agreement. Unless otherwise agreed, the Agreement cannot be terminated prematurely.

3. If Client fails to comply with any of its obligations under the Agreement, Analyst shall have the right to suspend or terminate (at Analyst's option) all Agreements concluded with the Client in question without requiring notice of default or judicial intervention and without prejudice to Analyst's right to compensation for damages, lost profits and interest.

7. Prices

 

1. All prices are in euros and exclusive of sales tax (VAT) and other levies imposed by the government.

2. All prices on the Website, brochures, price list(s) and/or other means of communication of Analyst are subject to programming and typing errors. No liability is accepted for the consequences of such errors.

3. If the Agreement is a Duration Agreement, Analyst is entitled to change the rates charged at any time. Client has the right to terminate the Agreement in case of a price increase, subject to a notice period of 3 (three) months.

4. Without prejudice to the provisions of the previous paragraph, Analyst is entitled to increase the prices charged, if it concerns a Continuous Agreement, annually, without the possibility for Client to cancel the Agreement.

5. If according to the Agreement Client consists of several natural persons and/or legal persons, each of these (legal) persons is jointly and severally liable to Analyst for compliance with the Agreement.

6. All costs arising for Analyst from the Agreement shall be borne by Client, unless otherwise agreed.

8. Payment Terms

 

1. Analyst shall invoice Client for all amounts owed by Client.

2. If the Agreement is a Continuous Agreement, Client shall pay Analyst monthly in advance the amount due for that term.

3. After the expiry of fourteen days from the invoice date, a client who fails to pay on time is legally in default without notice of default being required. If an amount due is not paid within the payment term, statutory interest shall be due on the outstanding amount without further notice of default by Analyst.

4. Client agrees to electronic billing by Analyst.

5. Analyst may require that the Services must be paid by direct debit. Client shall authorize Analyst for this by means of a legally valid SEPA mandate.

6. If the direct debit is not successful, this will be communicated to Client and Analyst has the right to charge Client an administrative fee.

7. Amounts due shall be paid by the Client in accordance with the payment conditions agreed upon or stated on the invoice. Client is not entitled to suspend any payment nor to set off amounts due.

8. In case of late payment, Client shall, in addition to the amount due and the interest accrued thereon, be liable for full compensation of both extrajudicial and judicial collection costs (with a minimum of 250 euros), including the costs of lawyers, bailiffs and collection agencies. Moreover, the entire amount for the remaining contract term shall be immediately due and payable by Analyst and Analyst shall be entitled to suspend other services contracted with Analyst.

9. The claim for payment shall be immediately due and payable in the event that Client is declared bankrupt, applies for a moratorium, or has a general attachment levied on it.
assets of Client, Client dies, and further, if Client goes into liquidation or is dissolved.

10. In the above cases, Analyst furthermore has the right to terminate or suspend performance of the Agreement or any part thereof not yet performed without notice of default or judicial intervention, without the right to compensation of damages for Client that may arise as a result.

9. Intellectual property rights.

 

1. All intellectual property rights to all works developed or made available as part of the Service, including the Framework, customizations thereon, Analyst's opinions, as well as preparatory material thereof, shall be held exclusively by Analyst or its licensors. Any deviation from the foregoing shall be valid only if expressly agreed in a Written and signed deed, and shall then apply only to the works and rights mentioned in the deed. The parties agree that configurations of the Framework do not enjoy protection within the meaning of the Copyright Act. A right of use granted to Customer is non-exclusive, non-transferable, non-pledgeable and non-sublicensable, unless otherwise agreed in writing. A transfer of an intellectual property right does not affect Analyst's right to make developments for itself or a third party that are similar or derived from those made or to be made for the benefit of Client.

2. Client only acquires the rights of use and powers arising from the purport of the Agreement or granted in Writing and otherwise Client shall not reproduce or disclose the works.

3. The Client is not entitled to otherwise exploit and/or (re)use the created (web) applications, as indicated in the previous paragraph, after termination of the Agreement, unless otherwise agreed in writing.

4. The Client is not permitted to remove or alter any indications concerning copyrights, brands, trade names or other intellectual property rights from the works, including any indications concerning the confidential nature and secrecy of the works.

5. Analyst is permitted to take technical measures to protect the works. If Analyst has secured the works by means of technical protection, the Client is not permitted to remove or evade this security.

6. Any use, reproduction or publication of the works that falls outside the scope of the Agreement or granted rights of use shall be considered a violation of copyright. Client shall pay to Analyst an immediately payable penalty, not subject to judicial mitigation, of 10,000 euros for each infringing act and for each day that it continues, without prejudice to Analyst's right to be compensated for its damage caused by the infringement.
obtain or be allowed to take other legal action to stop the infringement.

10. Liability

 

1. The liability of Analyst for direct damage suffered by Client as a result of an attributable failure in the performance by Analyst of its obligations under the Agreement, expressly including any failure in the performance of a warranty obligation agreed with Client, or by an unlawful act of Analyst, its employees or third parties engaged by it, shall be limited per event or a series of related events to an amount equal to the fees payable by Client under this Agreement per year (excluding VAT).
In no case, however, shall the total compensation for direct damages exceed 5,000 euros (excluding VAT).

2. Analyst's total liability for damages for death or bodily injury or for material damage to property shall in no event exceed 50,000 euros per damaging event, whereby a series of related events shall be considered as one event.

3. Liability of Analyst for indirect damages, including consequential damages, damages due to business interruption and loss of profits is excluded.

4. Outside the cases mentioned in article 10 paragraph 1 and 10 paragraph 2, Analyst shall have no liability for compensation, regardless of the ground on which an action for
damages would be based on. The exclusions and limitations referred to in Articles 10.1 to 10.3 shall lapse if and insofar as the damage is the result of intentional or deliberate recklessness on the part of Analyst's management.

5. The liability of Analyst due to attributable failure in the fulfillment of the Agreement shall arise only if the Client gives Analyst immediate and proper notice of default in writing, setting a reasonable term to remedy the failure, and Analyst continues to fail imputably in the fulfillment of its obligations even after that term. The notice of default must contain as detailed a description as possible of the failure, so that Analyst is able to respond adequately.

6. Analyst shall never be liable for damage caused by force majeure. See article 11 for a definition of force majeure.

7. The condition for the creation of any right to compensation shall always be that the Client reports the damage In Writing to Analyst within 60 days after its occurrence.

8. Client shall indemnify Analyst against all claims of third parties due to liability as a result of a defect in the Service provided by Client to a third party that consisted partly of items, materials or results supplied by Analyst. Client shall also indemnify Analyst for non-compliance with licenses by Client and/or third parties (its Users) as well as for all claims of third parties (including fines from authorities) due to liability as a result of violation of applicable laws and regulations in the field of personal data protection, including but not limited to the General Data Protection Regulation.

11. Force Majeure

 

1. Analyst is not obliged to fulfill any obligation to Client if she is hindered to do so as a result of a circumstance that is not due to fault, and which is not for her account by virtue of the law, a legal act or generally accepted practice.

2. In these General Terms and Conditions, force majeure means, in addition to what is understood about it in the law and jurisprudence, all external causes, foreseen or unforeseen, on which Analyst cannot exert influence, but as a result of which Analyst is unable to fulfill its obligations. In particular, force majeure is understood to mean: domestic disturbances, synflood, network attack, Denial-of-Service or Distributed Denial of Service attacks, mobilization, war, traffic jams, strike, lockout, business disturbances, supply stagnation, fire, flood, import and export obstructions and in the event that Analyst is not able to deliver by its own suppliers, regardless of the reason, as a result of which fulfillment of the Agreement cannot reasonably be required of Analyst.

3. Analyst may suspend the obligations under the Agreement during the period of force majeure. If this period lasts longer than two months, each of the parties shall be entitled to dissolve the Agreement, without any obligation to pay damages to the other party.

4. Insofar as Analyst has already partially fulfilled its obligations under the Agreement at the time of the beginning of force majeure or will be able to fulfill them, and independent value can be attributed to the part already fulfilled or to the part to be fulfilled respectively, Analyst is entitled to invoice separately the part already fulfilled or to be fulfilled respectively. Client is obliged to pay this invoice.

12. Development of software

 

1. If the Agreement (partly) involves the development of software, the Parties shall specify in writing (in the Agreement) which software will be developed and in what manner this will be done. Analyst shall perform the development with care on the basis of the data to be provided by the Client. The Client guarantees the accuracy, completeness and consistency of this data.

2. Analyst is entitled, but not obliged, to examine the correctness, completeness or consistency of the data or specifications made available to it and, if any imperfections are found, to suspend the agreed work until Client has removed the imperfections in question.

3. Analyst has the right to use software, software and components of third parties, including open source software, in the development of software. The responsibility for correct compliance with the relevant third-party licenses when using the software lies with Client.

4. The source code of the Framework will never be provided (it is compiled at all times). If and only to the extent expressly agreed in writing, the source code of other software and the technical documentation produced during the development of that software may be made available to the Customer and the Customer shall be entitled to make changes to this software.

5. If an acceptance test has been agreed, the software shall be deemed to have been accepted after successful completion of the acceptance test by the Client. During the acceptance test, there is only a question of errors if the software does not substantially meet the functional or technical specifications of the software as expressly stated in writing by Analyst. There is only an error if the Client can demonstrate it and it is also reproducible. Acceptance of the software means that Analyst is discharged from its obligations concerning the delivery of the software.

6. Without prejudice to the provisions of article 9, Analyst grants Client the non-exclusive right to use the software developed for Client. Client shall always strictly comply with the restrictions on use agreed between the parties. The right of use granted is not transferable. See the following paragraph for any rights of use on the Framework.

7. The Client is expressly prohibited from taking any action with the purpose or intent of discovering or obtaining the source code of the Framework, as well as assisting third parties in such actions.

13. Maintenance of software

 

1. If the Service (also) includes maintenance of software (the web application) of the Customer, the provisions of this article also apply.

2. During the term of the Agreement, Analyst shall, for the duration, as included in article 6 paragraph 1, by means of Analyst Management Agreement (see article 14), perform the following maintenance activities for the benefit of Client (limitative):
- correcting minor defects (bugs) found by the Client in the software, which are reproducible;
- Installing new or existing versions of the Framework.

3. With respect to the following maintenance activities, but not limited thereto, it shall be determined by Analyst whether or not they are covered under Analyst hours bundle:
- adapting the software if this becomes necessary as a result of legislative changes;
- modifying the interfaces and protocols in order to enable Customer to use the software in conjunction with other software, equipment and operating software;
- incorporating new functionality into the software other than as part of the normal new versions and/or releases at the request of the Customer;
- repairing damage to the software or data not attributable to Analyst at Client's request.

14. Analyst management agreement

 

1. Analyst management agreement is a service of Analyst for which the hours must be purchased in advance and the amount of hours is determined at the start of the Agreement. All additional hours will be charged to Client on an after-the-fact basis at Analyst's standard hourly rate.

2. Analyst shall keep records of hours spent on the Services (maintenance or additional work) to the best of its knowledge and belief. Time spent will be rounded to the nearest quarter of an hour.

3. Analyst has the option to bundle Issues. The bundled hours will be submitted to Client for approval (by email).

4. By taking Analyst Service hours bundle, Analyst will make every effort to take it into account in the planning.

5. Analyst will send an invoice for the amount due prior to taking the bundle of hours.

6. In case of termination of the Agreement or only the bundle of hours, the hours not yet spent by the Client cannot be credited.

7. The hours bundle expires after a duration of 12 months.

15. Domain names and IP addresses.

 

1. If the Service (partly) involves Analyst mediating for Client in obtaining a domain name and/or IP address, the provisions of this article also apply.

2. Client shall owe all costs associated with the application and/or registration according to the agreed rates, or in the absence of agreed rates, Analyst's usual rates.

3. Application, assignment and possible use of a domain name and/or IP address depend on and are subject to the applicable rules and procedures of the relevant registering authorities, including Stichting Internet Domeinregistratie Nederland and RIPE. The relevant authority decides on the allocation of a domain name and/or IP address. Analyst only plays a mediating role in the application and gives no guarantee that an application will be honored.

4. Client can learn the fact of registration only from Analyst's e-mail confirmation, which states that the requested domain name has been registered. An invoice for registration fees is not a confirmation of registration.

5. Client shall indemnify and hold Analyst harmless for all damages related to (the use of) a domain name on behalf of or by Client.

6. Analyst is not liable for the loss by Client of its right(s) to a domain name or for the fact that the domain name is applied for and/or acquired by a third party in the interim, except in the case of intent or gross negligence of Analyst.

7. If Analyst registers a domain name in its name on behalf of Client, Analyst shall cooperate with Client's requests to move, transfer or terminate this domain name.

8. Client must conform to the rules set by registering authorities for application, assignment or use of a domain name and/or IP address.

9. Analyst has the right to make the domain name and/or IP address inaccessible or unusable, or to place it (or have it placed) in its own name if the Client is demonstrably in default in the fulfillment of the Agreement, but only for the duration that the Client is in default and only after the expiry of a reasonable term for fulfillment set in a written notice of default.

10. In case of dissolution of the Agreement due to default of Client, Analyst is entitled to cancel the domain name and/or IP address.

16. Hosting and related services.

 

1. If the Service (also) includes the provision of services regarding storage and/or forwarding or making available of material to third parties, such as in the case of hosting of the software and e-mail services developed by Analyst for the benefit of Client, the provisions of this article also apply.

2. Client shall refrain from storing and/or distributing (or having distributed) material in violation of provisions of Dutch law, including in any case but not limited to material that:
- is libelous, defamatory, offensive, racist, discriminatory or hateful,
- is erotic or pornographic,
- infringes third-party rights, including in any case but not limited to copyrights, trademark rights and portrait rights,
- constitutes a violation of the privacy of third parties, including in any case but not limited to the dissemination of personal data of third parties without permission or necessity, acting in violation of the General Data Protection Regulation and/or repeatedly harassing third parties with personal data provided by the latter
unwanted communication,
- contains hyperlinks, torrents or similar information that Client knows or should know refers to material that infringes third-party rights,
- contains unsolicited commercial, charitable or idealistic communications, or
- contains malicious content such as viruses or spyware.
3. If Analyst is notified by a third party of unlawful information on the
servers of Analyst, then Analyst is entitled to remove the material or make it inaccessible
make. In that case, Analyst is also entitled to make personal data of Client or
User to a claimant or to the competent authorities. Analyst will inform Client of the course of these proceedings.

4. In case of potentially criminal information, Analyst is entitled to report it. In doing so, Analyst may hand over all relevant information about Client and the information to the competent authorities and perform all other actions that these authorities request Analyst to perform as part of the investigation.

5. Client indemnifies Analyst against all legal claims relating to the data, information, website(s) and the like stored by Client or its Users. Thereby Analyst is not liable for any damage whatsoever that Client suffers as a result of an intervention of Analyst in the context of the notification by a third party, even if the notification turns out to be unjustified and the information is not contrary to Dutch law.

6. Client shall refrain from hindering other Clients or Internet users or causing damage to the servers. Client is prohibited from starting processes or programs, whether or not through the server, of which Client knows or can reasonably suspect that this will hinder or damage Analyst, other Clients or Internet users. Analyst shall inform Client of any measures taken.

7. Without Analyst's consent, Client is prohibited from transferring the username or usernames and password or passwords provided by Analyst to third parties. Analyst is not liable for the consequences of loss of usernames and passwords of Users or Client.

8. Use of the application by the Client or its authorized Users is entirely at the responsibility and risk of the Client. Client shall take appropriate measures to detect and, if possible, prevent abuse. At the request of Client, Analyst shall assist in this regard.

9. Analyst may set a maximum amount of storage space or data traffic per month that Client may use under the Service. If this maximum is exceeded, Analyst is authorized to charge an additional amount in accordance with the amounts for additional storage space or data traffic stated in the Agreement. Blocking the Service is also permitted if, in the opinion of Analyst, the Client uses disproportionate capacity of the server(s). No liability exists for consequences of inability to send, receive, store or modify data if the limit for storage space, capacity or
data traffic has been reached.

10. Client hereby grants Analyst an unrestricted license to distribute, store, transmit or copy any materials distributed by Client through Analyst's systems in any manner deemed appropriate by Analyst, but only to the extent reasonably necessary for purposes of Analyst's performance of the Agreement.

11. The Client is responsible for its Users. Any damage caused by a User will be recovered from the Client.

12. Client is itself responsible for hardware and software, which runs at its own location or at a location outside Analyst's sphere of influence. Analyst gives no guarantee about this.

13. In addition to the obligations under the law, damage resulting from incompetence or failure to act in accordance with the above points shall be borne by the Client.

17. SaaS services

 

1. If the Service (also) includes the provision of services regarding SaaS, the provisions of this article also apply.

2. The Client is not permitted to use the Service in a way that violates the rights of third parties. Also, the Client is not free to allow third parties to use the SaaS services provided by Analyst.

3. Client fully determines the content of the (web) applications created using the Service. Analyst has no knowledge of the content of these (web) applications. Should (web) applications be informatively incorrect and/or unlawful, the Client bears all responsibility for this fully independently. Analyst does not accept any liability for the (web) applications or information stored and/or made accessible with the help of the Service.

Client indemnifies Analyst against third party claims based on the assertion that the (web) applications developed by Client using the Service are
are unlawful, or that unlawful information is displayed through the (web) application.

4. Should Analyst have a reasonable suspicion of or come to the realization that the (web) applications developed by Client using the Service are unlawful, Analyst may act immediately to block access to them. In no case shall Analyst be liable for damages resulting from such action.

5. The Client shall act and behave with a degree of care with respect to the Service that can be expected of the Client.

6. Client is not permitted, in any use of the Service, to create the impression that Client is an Analyst partner, unless Analyst has express, written permission to do so.

7. The Client is not permitted to use the Service for more than one company or to have multiple Clients working on one environment.

8. The Customer is permitted to create Users. For this, the Customer owes a fee to the Service. The Customer may assign certain rights to these Users. The Customer is responsible for the actions of these Users.

9. Analyst may set a maximum amount of storage space, Users or data traffic per month that Client may use under the Service. If this maximum is exceeded, Analyst is entitled to charge the Client an extra amount, in accordance with the amounts for extra storage space or data traffic stated in the Agreement, or to block the Service, as a result of which the (web) applications created by the Client are no longer accessible. Blocking the Service is also permitted if, in the opinion of Analyst, the Client uses disproportionate capacity of the server(s). No liability exists for consequences of not being able to send, receive, store or change data if the limit for storage space, capacity or data traffic has been reached.

10. If, in the opinion of Analyst, Client creates a danger for the functioning of the server(s) or network of Analyst or third parties, in particular by excessive data retrieval or transmission, Analyst is entitled to take all measures it reasonably considers necessary to avert or prevent this danger.

11. If Client violates these terms, Analyst has the right to block access to accounts or hosting and to deny Client access to the Service.

12. The Client is permitted to add new Users for the purpose of providing access to the Service. If a User is added, the Client will owe a fee for the new User as of the first day of the following month. This fee owed by the Client, for User, applies during the remaining contract period (see Article 6 paragraph 1).

18. Availability of Service.

 

1. Analyst shall make every effort to realize uninterrupted availability of its systems and networks, and to realize access to data stored by Analyst, but offers no guarantees in this respect, unless otherwise agreed in the Agreement by means of a Service Level Agreement designated as such. Unless otherwise provided in such a Service Level Agreement, the provisions of this article apply to the availability.

2. Only if agreed in the Agreement or Service Level Agreement, Analyst shall regularly make backup copies (backups) of data stored by Client on Analyst's systems, and make them available to Client upon request, for a fee. These backup copies may be destroyed at any time after termination or dissolution of the Agreement. It is the responsibility of Client to request backup copies upon termination or dissolution.

3. Analyst shall make every effort to keep the (web server) software it uses up-to-date. However, Analyst is dependent on its supplier(s) in this respect. Analyst is entitled not to install certain updates or patches if in its opinion this will not benefit a correct delivery of the Service.

4. If, in the opinion of Analyst, a danger arises for the functioning of the computer systems or the network of Analyst or third parties and/or of the provision of services over a network, in particular by excessive sending of e-mail or other data, poorly secured systems or activities of viruses, Trojans and similar software, Analyst is entitled to take all measures it reasonably considers necessary to avert or prevent this danger.

19. Malfunctions and maintenance

 

1. Analyst shall use its best efforts to inform Client of the nature and expected duration of the interruption in case of unavailability of the Service, due to outages, maintenance or other causes.

2. Analyst has the right to temporarily put its systems, networks or parts thereof out of operation for the purpose of maintenance, modification or improvement thereof. Analyst shall try as much as possible to arrange for such taking out of service to take place at a suitable time, at Analyst's discretion, and shall make every effort to inform Client in good time of the planned taking out of service. However, Analyst shall never be liable for compensation of damages in connection with such decommissioning.

3. Analyst shall have the right to modify the Framework from time to time to improve functionality and to correct errors. If a modification results in a significant change in functionality, Analyst will notify Client prior to the modification via the Website or by email. At Analyst's discretion, a particular modification to the Framework may be waived with respect to Client. Analyst shall not be liable for any compensation for damages when modifying the Framework.

4. Analyst has the right to discontinue providing or maintaining components of the Framework with updates.

5. At Analyst's discretion, TLS certificates shall be used for the secure transmission of data and communications.

20. Secrecy

 

1. Parties will keep confidential any information they provide to each other before, during or after the execution of the Agreement if this information is marked as confidential or if the receiving party knows or should reasonably suspect that the information was intended to be confidential. The parties shall also impose this obligation on their employees as well as third parties engaged by them for the performance of the Agreement.

2. Analyst shall not take cognizance of data that Client stores and/or distributes through Analyst's systems, unless this is necessary for the proper performance of the Agreement or Analyst is obliged to do so pursuant to a statutory provision or court order. In that case, Analyst will make every effort to limit the knowledge of the data as much as possible, in so far as this is within its power.

21. Staff

 

1. Client shall not be permitted, as long as the relationship between Client and Analyst continues, as well as for one year after its termination, to employ employees of Analyst or otherwise have them work for it, directly or indirectly, without Analyst's prior Written consent. Employees of Analyst in this context shall mean persons who are employed by Analyst or one of Analyst's affiliates or who were employed by Analyst or one of Analyst's affiliates no longer than six months ago.

22. Changes to Terms and Conditions

 

1. Analyst reserves the right to amend or supplement these terms and conditions.

2. Amendments shall also apply in respect of agreements already concluded subject to a period of 30 days after the announcement of the amendment on the Website, by electronic message or In Writing. Amendments of minor importance may be made at any time.

3. If Client does not wish to accept a change in these terms and conditions, until the date on which the new terms and conditions become effective, Client may terminate the agreement by this date, unless Analyst has indicated that the old terms and conditions will remain in effect for Client.

23. Final Provisions

 

1. Dutch law applies to this agreement.

2. Unless otherwise prescribed by the rules of mandatory law, all disputes that may arise as a result of this agreement will be submitted to the District Court Oost-Brabant, location Eindhoven.

3. If any provision of this Agreement is found to be invalid, this shall not affect the validity of the Agreement as a whole. The parties will in that case adopt (a) new provision(s) to replace it, which as far as is legally possible gives shape to the intention of the original Agreement and General Terms and Conditions.

4. The version of any communication received or stored by Analyst shall be deemed authentic, subject to proof to the contrary to be provided by Client.

5. Client agrees that Analyst may assign its rights and obligations under the Agreement to a third party without Client's consent. If Client wishes to transfer its rights and obligations under the Agreement to a third party, the Written consent of Analyst shall be required.

6. The parties shall always promptly notify each other of any changes in name, mailing address, email address, telephone number and, if requested, bank account number.