GENERAL TERMS AND CONDITIONS

OF KOEK&PEER B.V. FOR THE EFFECTCONNECT SERVICE

 

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ARTICLE 1  SCOPE OF APPLICATION AND DEFINITIONS

  1. These General Terms and Conditions apply to all quotes issued by and all agreements entered into with Koek&Peer B.V. (referred to below as 'Koek&Peer') as part of which (software) services of any nature and under any name are made available and/or provided to the customer by Koek&Peer.

  2. In these General Terms and Conditions, the following terms shall have the following meaning:
    • the customer: the natural person or legal entity who receives offers or supplies pursuant to clause 1 from Koek&Peer or who enters into agreements with Koek&Peer. If according to the agreement entered into between the parties, the customer comprises several natural persons and/or legal entities, each of these (legal) persons will be jointly and severally bound by the agreement with Koek&Peer;
    • Koek&Peer: the private limited company with limited liability Koek&Peer B.V. with registered office in Swalmen and place of business at 6071 RG Swalmen at Tolhuisweg 5a, registered in the Trade Register under number 63676818;
    • EffectConnect and the EffectConnect service (delivery): the  'remote' and sustained provision by Koek&Peer of software to the customer via the Internet or another data network, without providing the (source code of the) software in any (physical) way to the customer. EffectConnect is offered and delivered by Koek&Peer as Software-as-a-Service (SaaS);
    • term of payment: the term of payment is one month and commences on the date an agreement is entered into and is each time extended by a subsequent period of one month, except in the event the agreement is duly terminated;
    • direct loss: damage to goods and people as a result of services provided by Koek&Peer;
    • indirect loss: any damage that is not covered by the definition of direct loss, such as consequential loss, lost sales, lost profit, immaterial damage, missed savings, loss of goodwill, loss through business interruption, loss as a result of claims from the customer's other parties, interest and expenses relating to the customer's use of third party goods, or materials or software specified by the customer to Koek&Peer, loss relating to the involvement of suppliers the customer instructed Koek&Peer to use and loss consisting of the corruption, deletion or loss of the customer's data or documents.

  3. Koek&Peer is entitled to use the address given by the customer before or at the time the agreement is entered into, to send statements and/or new notifications to the customer, until the customer has informed Koek&Peer in writing of its new address.

 

ARTICLE 2 THE CUSTOMER'S GENERAL TERMS AND CONDITIONS AND ANY DEROGATING ARRANGEMENTS

  1. The customer's terms and conditions of delivery, payment and purchase do not apply to quotes issued by and agreements entered into with Koek&Peer.
  2. Agreements between Koek&Peer and the customer that derogate from the General Terms and Conditions only apply if Koek&Peer have confirmed these agreements in writing.

 

ARTICLE 3 QUOTES, AGREEMENTS AND PRICES

  1. Quotes are always non-binding, unless Koek&Peer indicate otherwise in writing. Details and annexes provided by Koek&Peer are for information purposes and only give a general reflection.
  2. If the customer places an order with Koek&Peer via the Internet, by phone, email or fax, the content of the agreement is entirely evidenced by means of the order confirmation that Koek&Peer issues to the customer, unless the customer communicates its objections against the order confirmation in writing immediately upon receipt.
  3. All prices are always net of turnover tax (VAT) and other levies imposed by the government, unless indicated otherwise in the quote. All prices quoted by Koek&Peer are always given in euros.
  4. In the event of a continuing performance contract for which the customer has a periodic payment obligation, Koek&Peer is entitled to adjust these General Terms and Conditions, as well as the prices and rates, starting from any new term of payment. Koek&Peer will announce any changes or additions in writing at least one month before they become effective. If the customer does not wish to proceed with the amendment, the customer is entitled to cancel the agreement in writing by the time it becomes effective. Use of EffectConnect after the date the agreement takes effect implies acceptance of the amended or supplemented terms and conditions.

 

ARTICLE 4 THE EFFECTCONNECT SERVICE (PROVISION)

  1. Koek&Peer only performs the EffectConnect service at the order of the customer. The customer is not free to allow third parties to use the EffectConnect service provided by Koek&Peer. The customer's right to use EffectConnect is non-exclusive and non-transferable; it cannot be pledged or sub-licensed.
  2. Execution of the EffectConnect service to be provided by Koek&Peer will commence within a reasonable term from the agreement being entered into. Koek&Peer is never obliged to perform a data conversion, unless this has been explicitly agreed with the customer in writing. The customer ensures that it has the necessary facilities to start using the EffectConnect service immediately after entering into the agreement.
  3. Unless agreed otherwise, the agreement entered into by the parties applies as a continuing performance contract for an indefinite period. The agreement for an indefinite duration can be cancelled by the customer at any time by the first day of a new payment period, taking into account a notice period of one month.
  4. If Koek&Peer performs work based on a request or duly issued order from a government agency or pursuant to a statutory obligation, in relation to data belonging to the customer, its employees or users, it will be able to charge any associated costs to the customer.
  5. Koek&Peer can make amendments to the content or volume of the EffectConnect service. If such changes result in a change in the systems and/or procedures in force with the customers, Koek&Peer will inform the customer as soon as possible and the costs of the change concerned will be for the customer's account. In that case, the customer is free to give notice in writing to terminate the agreement by the date when the change takes effect, unless the change concerned relates to changes in relevant legislation or to other guidelines issued by competent authorities or unless Koek&Peer takes the costs of the take for its own account.
  6. Koek&Peer can continue the execution of the EffectConnect service using a new or amended version of the software. Koek&Peer is not obliged to maintain, amend or add any particular features or functions of the service or software specifically for the customer.
  7. Koek&Peer may temporarily take a part or all of the EffectConnect service out of service for preventive, corrective or adaptive maintenance or for other forms of maintenance. Koek&Peer will ensure that the service interruption will not continue for longer than necessary and that it is scheduled outside business hours if at all possible.
  8. Koek&Peer will never be obliged to grant the customer access to the software's source code and/or to provide a physical data carrier containing the (source code of the) software to be made available and to retain available in the context of the EffectConnect service.
  9. The agreement with Koek&Peer and the EffectConnect service does not entail an obligation for Koek&Peer to make back-ups or to store the customer's data on its behalf. The customer therefore remains responsible for complying with all statutory and contractual obligations, in terms of administration and data storage (in relation to third parties).

 

ARTICLE 5 BEST EFFORTS OBLIGATION

  1. Koek&Peer will make every effort to provide and execute its EffectConnect service with great care. All services and activities performed by Koek&Peer will be made under a best efforts obligation, unless and insofar Koek&Peer have explicitly committed to a result in the written agreement and the result concerned is also described with sufficient precision.
  2. Koek&Peer is not responsible for ensuring that the software to be kept available in the context of the EffectConnect service and the services provided are free of error and operating without impediments and interruptions. Koek&Peer will make every effort to repair faults within a reasonable term if and insofar they relate to software developed by Koek&Peer itself and provided a detailed report of the faults concerned is sent in writing to Koek&Peer. If applicable, Koek&Peer can postpone resolving the faults until a new version of the software is taken in use. Koek&Peer is not responsible for correcting faults in software that was not developed by Koek&Peer itself. Koek&Peer is entitled to install temporary solutions, work-arounds or problem-avoiding restrictions in the software.
  3. Based on information provided by Koek&Peer on measures to prevent and restrict the consequences of interruptions, errors in the EffectConnect service (provision), the corruption or loss of data or other incidents, the customer will take stock of the ensuing risks to its organisation and take additional measures if necessary. Koek&Peer declares itself prepared to grant reasonable cooperation at the customer's request with any additional measures to be taken by the customer, at (financial) conditions to be specified by Koek&Peer. Koek&Peer is never obliged to recover data that has become corrupt or lost.
  4. Koek&Peer is not responsible for ensuring that the software to be kept available in the context of the EffectConnect service is amended in time to changes in relevant laws or regulations.

 

ARTICLE 6 PROCESSING OF (PERSONAL) DATA AND DATA PROTECTION

  1. With EffectConnect, Koek&Peer exports all of the customer's information and about the customer’s products in a computerised manner, still to be agreed on, to one or more external platforms of third parties, still to be agreed on. Insofar orders are placed via or on these external platforms by third parties, Koek&Peer will export these orders in a computerised manner with EffectConnect to the customer. Based on the legislation on processing and protecting personal data, such as the Personal Data Protection Act (Wbp), the customer has obligations towards these third parties (the third parties being 'data subjects' within the meaning of the Wbp), such as the obligation to provide information, as well as to grant access to it, to correct it and to delete the personal data of the data subjects. The customer is therefore the 'controller' within the meaning of the Wbp. Insofar processing takes place at Koek&Peer of personal data of the customer's data subjects, the responsibility for complying with the obligations of the controller within the meaning of the Wbp rests completely and exclusively with the customer. The Parties establish that Koek&Peer is the 'processor' of the personal data within the meaning of the Wbp.
  2. To the extent it is technically and organisationally possible, Koek&Peer will provide support with the obligations to be fulfilled by the customer, as referred to in the previous clause of this Article. The costs associated with this support are not included in the agreed prices and fees of Koek&Peer and they are for the customer's account.
  3. The customer indemnifies Koek&Peer for claims from data subjects whose (personal) data are registered or processed in the context of a (personal) registration held by the customer or for which the customer is otherwise responsible based on the Act, unless the customer proves that the facts on which the claim concerned is based are attributable to Koek&Peer.
  4. The responsibility for the data that the customer processes with the help of EffectConnect lies entirely with the customer. The customer vouches to Koek&Peer that the content, use and/or processing of the (personal, product-related and/or price-related) data will not be inaccurate, incomplete, unclear, damaged, corrupt, unlawful or otherwise faulty and that the data does not infringe any (intellectual property) rights of a third party. The customer indemnifies Koek&Peer against any legal claim from a third party, on any basis at all, in relation to the data concerned or to the execution of the agreement.
  5. The security measures that Koek&Peer implements for data protection are of a reasonably sufficient level, given the current state of the technology, the sensitivity of the data and the costs associated with the data protection. However, Koek&Peer does not guarantee that the data protection will be effective in all circumstances.
  6. Any entry or ID codes and certificates that Koek&Peer provides to the customer are confidential and must be treated as such by the customer and only disclosed to authorised members of staff from the customer's own organisation. Koek&Peer is entitled to change assigned access or identification codes and certificates.
  7. The customer will adequately protect its systems and infrastructure and have an anti-virus program in operation at all times.

 

ARTICLE 7 FORCE MAJEURE

  1. A shortcoming in Koek&Peer's compliance with the agreement cannot be attributed to Koek&Peer if, among other things, Koek&Peer is not culpable for the causes of the shortcoming or if these causes fall outside control of Koek&Peer. Causes are referred to in the previous sentence include: (i) force majeure experienced by the suppliers of Koek&Peer, (ii) a failure of suppliers to meet their obligations, regardless of whether Koek&Peer was asked by the customer to use the suppliers concerned, (iii) faults in third party goods, equipment, software, materials and/or services, regardless of whether Koek&Peer was asked by the customer to use the third party concerned, (iv) government measures, (v) interruptions in the supply of gas, water and electricity, (vi) interruptions in the Internet, data network and telecommunication facilities, (vii) war, the risk of war, civil war, terrorism, riots, acts of war, theft, (cyber) crime, (cyber) vandalism, (viii) damage by fire, water or floods, (ix) strikes, industrial occupation, lockout, (x) weather conditions and weather effects, acts of God, and (xi) general transport problems.
  2. In the event the customer defaults on the agreement in an attributable or non-attributable manner, Koek&Peer is authorised to dissolve the agreement in full or in part.

 

ARTICLE 8 TERMS OF PAYMENT

  1. The payment of services supplied by Koek&Peer will occur within fourteen (14) calendar days from the invoice date, unless agreed otherwise in writing.
  2. In the event of a periodic payment obligation, all instalments relating to the EffectConnect service provided by Koek&Peer are always payable in advance, before each first day of the payment period concerned.
  3. All payments must be made in euro and in the Netherlands - unless indicated otherwise on the invoice, to the bank or giro account held by Koek&Peer at a (branch of a) Dutch bank. The customer can never invoke a right of suspension or offset against Koek&Peer.
  4. After the agreed term of payment has expired, any amount that remains unpaid by the customer to Koek&Peer immediately becomes due and payable. From then on, the customer will be in default by operation of law, without the need for a notice of default.
  5. From the moment of default onwards, Koek&Peer is entitled to charge contractual interest on the unpaid amount at the rate of one per cent (1%) per month until the date of full payment.
  6. From the moment of default onwards, Koek&Peer will also be entitled to immediately suspend its compliance with all its obligations, without the need for any notification or notice of default. Koek&Peer will therefore be entitled to disable the EffectConnect service (temporarily) at its own discretion. The service being out of action does not discharge the customer from its (payment) obligations based on the agreement. In addition, the customer will not be entitled to any form of compensation for loss from the service being disabled. The service being disabled ends when Koek&Peer establishes that the customer has met all its (payment) obligations based on the agreement (at a later date). The costs of taking EffectConnect out of service and of restoring the service are for the customer's account.
  7. Any payments made by the customer will always be regarded as having been made in settlement of the costs due, subsequently in settlement of the interest accrued, and finally to settle the liabilities that have been longest overdue, irrespective of instructions by the customer to the contrary.
  8. If the customer remains in default of meeting its payment obligations in time, the customer will be fully liable for any extrajudicial costs incurred by Koek&Peer, for any legal costs and costs for legal assistance. These costs also include any other and/or higher costs than the extrajudicial costs and legal costs stipulated by law. In the event Koek&Peer applies for the customer's bankruptcy, the customer will also be liable for the costs of the bankruptcy petition, in addition to the aforementioned costs.
  9. Without prejudice to the above, the customer will be in default in the event it is bankrupt or its bankruptcy has been requested, In the event of a (request for a) suspension of payments, (an application for) a permission for a debt restructuring scheme, the discontinuation or liquidation of the customer's business or the customer being placed under administration, by operation of law without the need for a notice of default. The previous sentence applies accordingly if the customer does not meet its obligations arising from the agreement it entered into with Koek&Peer, or not properly, or not in time.
  10. In the events referred to in the previous clause, Koek&Peer is entitled to suspend the execution of the agreement without judicial intervention, or to terminate the agreement in full or in party by means of a written statement, without prejudice to its right to claim full damages.

 

ARTICLE 9 PROVISION OF SECURITY

 

  1. If Koek&Peer has reasonable grounds to fear that the customer will not be able to (continue to) meet its obligations arising from the agreement, Koek&Peer is entitled before or during the fulfilment of the agreement to suspend its fulfilment of its obligations until the customer has provided security upon request for compliance with all its obligations based on the agreement. based on the conditions to be determined by Koek&Peer.
  2. After the deadline set by Koek&Peer for providing security has expired, the customer will be in default by operation of law and Koek&Peer will be entitled to dissolve the agreement by means of a written statement, without judicial intervention, without prejudice to Koek&Peer's right to claim full damages.

 

ARTICLE 10 EXCLUSION AND RESTRICTION OF LIABILITY

  1. For any direct loss incurred by the customer, as described in Article 1 of these General Terms and Conditions, caused by an attributable failure by Koek&Peer in its compliance with the agreement - except in the event of intent or gross negligence by the Board of Directors or supervisory employees, or of liability based on mandatory provisions - the liability of Koek&Peer will be limited to the amount invoiced for the EffectConnect service sold and supplied by Koek&Peer (net of VAT). If the continuing performance contract is for a term exceeding one year, the agreed price or the invoice value of that agreement is determined as the combined total of the payments (net of VAT) for up to one year.
  2. Koek&Peer will not be liable for any indirect loss, as described in Article 1 of these General Terms and Conditions, except in the event of intent or gross negligence by the Board of Directors or supervisory employees, or of liability based on mandatory provisions.
  3. If the Court should judge that Koek&Peer is not entitled to invoke the restriction and exclusion of liability as specified in this Article, Koek&Peer's overall liability for direct and indirect loss is limited to the amount paid out under Koek&Peer's liability insurance for the event in question (increased by the excess amount), and in the absence of a liability insurance or if the event is not covered by the liability insurance, up to an amount of € 50,000.
  4. Koek&Peer's liability for a default in its compliance with an agreement will only arise in any case if the customer has placed Koek&Peer adequately in default in writing, without delay, giving a reasonable period of time to rectify the default, and if Koek&Peer imputably remains in default of its obligations even after that term. The notice of default must contain a description of the default that is as complete and detailed as possible, in order to enable Koek&Peer to react as adequately as possible.
  5. The provision in this article, as well as any other restrictions and exclusions of liability indicated in these General Terms and Conditions, also apply to the benefit of all (legal) persons that Koek&Peer engage for the fulfilment of the agreement.

 

ARTICLE 11 PRESCRIPTION

The customer's rights of action will expire by limitation at the latest one year after they have arisen, unless this would be contrary to mandatory rules and regulations.

 

ARTICLE 12 CONVERSION

Should any provision of these General Terms and Conditions be or become invalid, the provision concerned (insofar as possible by operation of law) will be replaced by a provision which reflects as near as possible the intention of the void or voided provision. The parties are obliged to enter into reasonable negotiations about the wording of the new provision. All remaining provisions of the General Terms and Conditions will remain in full force, unless they are contrary to mandatory laws and regulations.

 

ARTICLE 13  INTELLECTUAL PROPERTY RIGHTS

All intellectual and/or industrial property rights on software, designs, drafts, documentation and recommendations developed or made available by Koek&Peer lie exclusively with Koek&Peer. Unless explicitly agreed otherwise or except for mandatory provisions to the contrary, the customer will only receive a non-transferable, non-exclusive right of use. Any other right of use, multiplication, publication and/or exploitation is explicitly prohibited.

 

ARTICLE 14 APPLICABLE LAW AND DISPUTES

  1. All quotes issued by and agreements with Koek&Peer are exclusively governed by the law of the Netherlands.
  2. The Court of Limburg, which has its hearing location in Roermond, is exclusively competent to hear any disputes that would arise between Koek&Peer and the customer, unless mandatory rules or regulations provide otherwise.