General Terms and Conditions EVE Compliancy Solutions B.V. (ECS)
Version June 1, 2021 (
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1. Definitions
1.1.
Agreement: any agreement or contract, in any form, or any quotation in which ECS provides an offer which, upon acceptance by Customer, will result in an agreement between ECS and Customer.
1.2.
Customer: the counterpart of ECS in the Agreement.
1.3.
ECS: the company EVE Compliancy Solutions B.V., organized under the laws of the Netherlands and registered with the Dutch Chamber of Commerce of The Hague under number 27164475.
1.4.
Goods: any product, including smart cards, dongles, reports, documents, memoranda, manuals, materials, photographic slides, artwork, graphics and Software, to be provided to Customer as part of the performance of a Service by ECS under the Agreement.
1.5.
Service: any activity or service to be performed by ECS.
1.6.
Software: any programming instructions, code or any other format, whether in source code or binary form.
1.7.
Defect: any discrepancies between the actual performance of Software and the performance to be expected by Customer.
1.8.
Terms and Conditions: the terms and conditions in the present document.
2. Quotation and agreement
2.1.
At the request of Customer, ECS will provide a quotation specifying the Services or Goods to be provided to Customer, the conditions and the applicable price.
2.2.
Quotations are based on information provided by Customer. In case any such information turns out to be incorrect, ECS is entitled to revoke or adapt a quotation at any time.
2.3.
A quotation is valid for 30 days after the date ECS provides the quotation to Customer. In case Customer provides written acceptance after this period, the Agreement is formed only after ECS indicates in writing that it regards the quotation as valid on the date of acceptance.
2.4.
Upon written acceptance of a valid quotation by Customer, the Agreement is formed between ECS and Customer. Should Customer fail to provide written acceptance, yet permit (or create a reasonable presumption that it permits) ECS to provide Services and/or Goods as specified in a quotation, Customer shall be deemed to have accepted the quotation.
2.5.
A quotation can only be accepted if at the same time Customer also accepts the Terms and Conditions. Acceptance of a quotation therefore also constitutes acceptance of the Terms and Conditions. Terms in the quotation may override terms in the Terms and Conditions, but only if explicitly indicated as such. In case of doubt, the contents of the Terms and Conditions shall prevail.
2.6.
The applicability of any general terms and conditions supplied by Customer is explicitly rejected. Any terms, conditions or exceptions provided by Customer are binding upon ECS only if explicitly confirmed in writing by ECS.
3. Performance of the Services
3.1.
After acceptance by Customer, ECS will provide the Services and/or Goods as specified in the Agreement, taking into account any reasonable requests of Customer during such provision.
3.2.
Unless agreed otherwise in writing, ECS will provide the Services and/or Goods to the best of its knowledge and ability and in accordance with requirements of good workmanship.
3.3.
ECS will use its best efforts to provide the Services and/or Goods according to those specifications or requirements noted in the Agreement, but cannot make any guarantees about specific results.
3.4.
If Customer is not satisfied with the conformance of the Services and/or Goods to the specifications or requirements noted in the Agreement, Customer must notify ECS within two weeks after the provision or delivery of the Services and/or Goods in question. In case ECS agrees with Customer’s assessment, ECS will then, at its discretion, either use its best efforts to adapt the Services and/or Goods involved to so conform or terminate the Agreement. In case of termination under this provision, Customer is entitled to a refund for those Services and/or Goods that do not so conform, subject to the provisions of article 6.6.
3.5.
ECS is entitled to engage third parties to provide certain Services and/or Goods. The third parties will operate under the supervision and responsibility of ECS.
3.6.
Any due dates or delivery dates indicated in the Agreement shall be deemed to be non-fatal. While ECS will make every effort to meet such dates, ECS cannot be held responsible for its failure to do so. No compensation shall be due for any missed due date or delivery date.
4. Customer requirements
4.1.
Customer undertakes to do everything in its power that is reasonably necessary for ECS to provide the Services and/or Goods. Customer shall in particular ensure that ECS has access to all information which ECS indicates is necessary for or in respect of which Customer should reasonably have understood that such was necessary for provision of the Services and/or Goods.
4.2.
If requested by ECS, Customer will provide employees and agents of ECS access to those areas of its workplace where Services or Goods are to be provided.
4.3.
If requested by ECS, customer will make available to ECS, without charge, sufficient office space, including but not limited to telephone and Internet connection(s), at such customer locations as reasonably considered necessary to facilitate the provision of Services.
4.4.
Customer will ensure its employees and agents cooperate with ECS as reasonably necessary for the provision of the Services and/or Goods.
4.5.
Customer will obtain all necessary approvals of the applicable regulatory bodies (government or otherwise) in connection with the provision of the Services and/or Goods. Customer agrees to comply with all applicable export laws and regulations regarding the Goods and/or Services. ECS shall not be liable for any damages as a result of Customer’s failure to obtain any such approvals or to comply with such export laws or regulations, or as a result of an inability to perform due to lack of any such approvals or lack of compliance with such export laws or regulations.
4.6.
In case any or all of the above conditions are not, not properly or not timely complied with, ECS has the right to suspend its obligations under the Agreement until all said conditions are properly and timely complied with.
5. Changes to the Agreement
5.1.
The Agreement may only be modified if both parties agree. Modifications must be made through a written document executed by the parties.
5.2.
If the Agreement has been entered into for an indefinite period or for a definite period of at least twelve months, ECS has the right to adapt or add to these Terms and Conditions at any time. Such adapted or additional terms shall enter into force 60 days after communication thereof to Customer. Minor adaptations shall enter into force immediately after communication.
5.3.
If Customer does not wish to accept an adapted or additional term, Customer must raise its objection to ECS within these 60 days after being notified about these terms. ECS then may, at its discretion, withdraw the adaptation or addition. If ECS does not do so, Customer has the right to terminate the Agreement within these 60 days. Failure to terminate so constitutes acceptance of such terms.
6. Term and termination
6.1.
The Agreement enters into force on the day that notice of acceptance by Customer is received by ECS and will remain in force for a term as specified in the Agreement. If no such term has been specified, the term shall be a one-year term, which is extended each year by another one-year term unless terminated at the end of a one-year term by either party subject to a two months’ written notice.
6.2.
In case a party blamefully fails to comply with the material obligations under the Agreement, the other party may terminate the Agreement, but only after the party that failed to comply has not remedied the failure within a reasonable time period after having received a written notice of default that is adequate and as detailed as possible.
6.3.
Either party may immediately terminate the Agreement by written notice to the other party, without the requirement for notice of default or intervention of the Court, in the event of the following: if the other party has been granted suspension of payments, whether provisionally or not; if a petition for bankruptcy has been filed with respect to the other party and the petition has not been revoked within seven days; if the other party files for bankruptcy itself; or if the other party’s enterprise is dissolved or terminated, except for the purpose of a merger with or absorption by another company.
6.4.
Upon termination ECS will send Customer a final invoice for any amounts due but not yet invoiced. Any invoices sent before the date of termination will remain due and in full effect and will become immediately payable on termination.
6.5.
In case of termination, regardless of cause, any amounts to be refunded by ECS to Customer shall be limited to the amounts actually paid in the twelve months prior to the date of termination. However, no refunds or compensation shall be due for any Services and/or Goods provided by ECS that have not been timely rejected by Customer.
6.6.
Those terms and conditions of these Terms and Conditions and the Agreement, which are, by their nature, meant to survive the term of the Agreement, shall so survive.
7. Prices and payment
7.1.
All prices are exclusive of value-added tax (VAT) and other charges applicable under Dutch law and are based on ex-works deliveries as specified in INCOTERMS 2000.
7.2.
If the Agreement has been entered into for an indefinite period or for a period of at least twelve months, ECS is entitled to adjust any prices by means of written notification at least three months in advance, unless the parties have explicitly agreed otherwise. If Customer does not wish to accept an increase in price, Customer must raise its objection to ECS within these three months. ECS then may, at its discretion, withdraw the price increase. If ECS does not withdraw the price increase, Customer has the right to terminate the Agreement within these three months. Article 6.5 shall not apply to such termination. Failure to do so constitutes acceptance of the adjusted price.
7.3.
Customer will compensate ECS for all reasonable costs arising out of the provision of Services and/or Goods by ECS. These costs include costs for delivery of Goods to Customer, expenses for activities such as traveling, board and lodging as incurred by ECS in connection with provision of Services and/or Goods to Customer, but only after Customer has been informed in advance about such activities.
7.4.
ECS will invoice Customer for any amounts due. Customer will pay all invoices within fourteen days after the invoice date, unless agreed otherwise in writing.
7.5.
If Customer does not pay the amount due within the stipulated term, Customer will be in default automatically and will owe legal interest over the outstanding balance, payable on a monthly basis. Furthermore, Customer will pay any costs, fees and expenses incurred in connection with the collection of the debt.
7.6.
Any invoiced amounts are due immediately if the other party has been granted suspension of payments, whether provisionally or not; if a petition for bankruptcy has been filed with respect to the other party and the petition has not been revoked within seven days; if the other party files for bankruptcy itself; or if the other party’s enterprise is dissolved or terminated, except for the purpose of a merger with or absorption by another company.
7.7.
If Customer disputes all or part of an invoice, Customer must provide a complaint with supporting evidence to ECS in writing within seven days after receiving the invoice. In such an event Customer is entitled to suspend payment of the disputed part of the invoice but not of any other part.
7.8.
If ECS deems the complaint is justified, ECS will issue an adjusted or replacement invoice. If ECS deems the complaint unjustified, Customer will pay the disputed balance immediately. Customer will also pay legal interest calculated on a monthly basis from the moment the original term of payment expired, and any costs, fees and expenses incurred in connection with the collection of the debt.
7.9.
Records kept by ECS shall form the basis for any invoices, unless Customer can prove such records are inaccurate or incomplete.
7.10.
ECS may suspend its obligations under the Agreement if ECS may reasonably make the assumption that Customer will fail or has failed to comply with its payment obligations.
8. Ownership of Goods
8.1.
Ownership of and title to Goods provided to Customer rests with ECS. Customer will take no action inconsistent with such ownership.
8.2.
All intellectual property rights (including patent, copyright, trademark, database rights and trade secrets) regarding any Goods (including Software) rests with ECS.
8.3.
Unless explicitly agreed otherwise in writing, Customer only receives a non-exclusive, non-transferable license to use the Goods in Customer’s business for the purposes of the Agreement. Such license shall be for the duration of the Agreement and shall become perpetual only a) if explicitly noted in the Agreement and b) upon Customer’s payment of all invoices due under the Agreement.
8.4.
Except for the rights expressly provided in the Agreement or these Terms and Condition, ECS does not grant and Customer does not receive, by implication, estoppel, or otherwise any right, title, license or other interest under any patents or other intellectual property rights of ECS or its licensors.
8.5.
Ownership of Goods is transferred only if explicitly stated in the Agreement. In case ownership into any Goods is transferred to Customer, such transfer shall occur only upon payment of the complete amount due for these Goods.
9. Software license
9.1.
In case ECS provides any Software to Customer under the Agreement, whether pre-existing or specially developed for Customer, the provisions of this clause shall apply to such Software unless a specific software license agreement is executed between the parties, either as part of the Agreement or separately.
9.2.
The Software is licensed and not sold. ECS retains all right, title and interest in the Software and only grants Customer a limited, personal, revocable, non-exclusive, non-transferable, non-sublicenseable license to use the Software in Customer’s business for the purposes of the Agreement.
9.3.
Customer agrees not to, and agrees not to permit any third party to:
a) copy, reproduce or distribute the Software;
b) assign, sublicense, sell, lease, rent, loan, transfer, disclose, or otherwise make available the Software to third parties;
c) modify, adapt, alter, translate, or create modifications from any portion of the Software;
d) reverse engineer, disassemble, or decompile the Software, or otherwise attempt to derive the source code of any portion of the Software;
e) remove or obscure any copyright notices or similar markings from the Software; or
f) remove or circumvent any technical protection measures concerning the Software, or publish information that would enable others to do so.
10. Network-based services
10.1.
In case ECS provides to Customer one or more Services through the Internet, a telephony or other network, the provisions of this clause shall apply to such Services (hereinafter: “Networked Service”).
10.2.
ECS strives to ensure the Networked Service is available at all times, but cannot make any guarantees about availability. If specific guarantees are desired, ECS and Customer shall conclude a separate service level agreement to this end. The provisions in such service level agreement supersede anything provided in these Terms and Conditions.
10.3.
ECS may temporarily disable or limit access to the Networked Service therefor for the purposes of maintenance or upgrades to the Networked Service or any component thereof. ECS will strive to schedule such maintenance or upgrades during times when average usage of the Networked Service is low and will announce such maintenance or upgrades in advance if possible. ECS cannot be held liable for any damages that may result from Customer’s inability to use the Networked Service during maintenance or upgrades.
10.4.
ECS may adapt the Networked Service and associated hard- and software at any time to correct errors and to improve the functionality. If any adaptation will result in significant changes in functionality, ECS will strive to inform Customer in advance about such changes. However, if an adaptation would be to the benefit of multiple customers of ECS, ECS is not required to refrain from making any adaptation merely because the resulting change in functionality would inconvenience Customer.
10.5.
The use of Networked Services may require access to third-party networks or communication systems over which ECS has no control. ECS disclaims any and all liability for Customer’s inability to use Networked Services due to disruptions or limitations in such third-party networks or communication systems.
10.6.
Customer may not use the Networked Service for any unlawful or criminal activity, create disproportionate stress or load on the equipment used to provide the Networked Service, or reduce the performance of hosting services for other customers of ECS.
10.7.
ECS may block, adapt or limit the Networked Service if ECS, at its sole discretion, determines that Customer’s use thereof is likely to be unlawful or in violation of clause 11.6. ECS does not need to consult or inform Customer in advance in such a case. ECS is not liable for any damages Customer may suffer as a result of its actions under this clause.
11. Limited warranty
11.1.
ECS warrants the good quality of any Goods supplied for a period of six months as from the date of delivery to Customer against all defects or failures which appear therein under proper use, and arise solely from faulty materials or workmanship.
11.2.
This warranty does not cover damage sustained by normal wear and tear or any damage arising in consequence of negligence or improper handling or use of the Goods or parts thereof by Customer, or of maintenance by unauthorized persons or dealers, or of improper storage in the event of the Goods wholly or partly being stored by Customer previous to installation, use or transfer to third parties.
11.3.
ECS’s sole obligation under the above shall be to repair or replace, at ECS’s sole discretion, such parts of Goods that violate the above warranty. Such repair or replacement shall be made free of charge to Customer. However, the preceding two sentences only apply if Customer informs ECS in writing about the defects within five working days after these defects have revealed themselves and makes the defective Goods or parts thereof available to ECS as soon as possible.
11.4.
The above warranty or obligation to repair or replace Goods does not apply to any Software. All Software provided under the Agreement is provided “AS-IS” without warranty of any kind. ECS does not warrant that Customer’s use of the Software will be uninterrupted or error-free. ECS is not under any obligation to repair or replace any part of the Software. To receive support or warranties regarding the Software, ECS and Customer must enter into a separate agreement. ECS will make an appropriate offer on request.
11.5.
TO THE FULLEST EXTENT PERMITTED BY LAW, AND UNLESS EXPLICITLY INDICATED IN WRITING OTHERWISE, ECS EXPRESSLY DISCLAIMS ALL CONDITIONS, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS REGARDING ANY SERVICE OR GOODS.
12. Limitation of liability
12.1.
ECS shall be liable to Customer only for damages arising out of its intentional misconduct towards Customer or materially negligent performance of any of its obligations under the Agreement.
12.2.
ECS shall never be liable for any consequential, special, punitive and/or incidental damages, including loss of profits, arising out of or in connection with the Agreement, even if advised of the possibility of such damages.
12.3.
Any liability of ECS, regardless of cause, shall be limited to the amount actually paid by Customer to ECS in the six months preceding the date the cause of damage occurred. In no event however shall the total liability of ECS exceed the amount which is paid out in the matter concerned under the professional liability policy entered into by ECS. This limitation clause shall not apply in case of liability as a result of gross negligence or wilfull misconduct of ECS.
12.4.
No liability shall exist for damages that have not been reported to ECS in writing within two weeks of their occurrence, or for damages where Customer failed to take appropriate measures to limit such damages.
12.5.
Customer shall indemnify, defend and hold harmless ECS against any and all losses, claims, damages, liabilities, actions, costs or expenses, including reasonable attorneys’ fees incurred by it in connection with any claim from third parties in connection with the Agreement.
12.6.
Any deviations from the above are possible only if put in writing and signed by the CEO of ECS.
12.7.
In case ECS becomes aware or has reason to believe that any of the Goods provided under the Agreement are or are likely to infringe any third party’s rights, ECS at its sole discretion may:
i) replace or substitute alternative Goods;
ii) procure a license from the third party or parties involved;
iii) terminate the Agreement or the obligations thereunder regarding the affected Goods.
Regardless of the above, article 14.5 applies in full.
13. Confidential Information
13.1.
A party that receives Confidential Information from another party shall protect the confidentiality of such Confidential Information by a reasonable degree of care against unauthorized disclosure.
13.2.
The receiving party shall ensure that Confidential Information shall be disclosed only to those employees, contractors, agents, legal counsel, accountants or professional advisors of Customer having a need to know, and will inform these of the confidential status of Confidential Information. Any breach of confidentiality by such a person shall be regarded as a breach by Customer.
13.3.
Each party agrees to advise any person who receives Confidential Information under the previous clause of their obligations of confidentiality hereunder. Each party warrants that any such person is bound to terms and conditions related to the use and disclosure of Confidential Information which are at least as stringent as provided in these Terms and Conditions.
13.4.
Upon first request of the disclosing party, the receiving party shall destroy or return to the disclosing party all Confidential Information received in written or other tangible form, including all copies thereof.
13.5.
The receiving party may retain for legal archiving and reference purposes only, sealed in an envelope or other suitable container, one copy of the Confidential Information made inaccessible to the operations personnel of the receiving party, so that there is a record of which Confidential Information was disclosed to the receiving party.
13.6.
The parties acknowledge that disclosure or use of Confidential Information in violation of this Agreement could cause irreparable harm to the disclosing party for which monetary damages may be difficult to ascertain or an inadequate remedy. The parties therefore agree that the disclosing party will have the right, in addition to its other rights and remedies, to seek injunctive relief for any actual or threatened violation of this Agreement.
13.7.
The receiving party shall use its best efforts to assist the disclosing party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limitation of the foregoing, the receiving party shall advise the disclosing party immediately in the event the receiving party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement. The receiving party will cooperate with the disclosing party in seeking injunctive or other equitable relief against any such person.
13.8.
For the purpose of this article, the term “Confidential Information” shall mean all information, including business and/or financial records, pricing information, technical specifications, documentation, designs, strategies and forecasts, business plans and proposals, software source code, samples, photographs, drawings or other information, in whatever form (including on paper, in electronic mail, as a digital file, on magnetic media, orally or otherwise) of a party of which the receiving party reasonably can be assumed to have known that such information was intended to remain confidential.
13.9.
Information which would otherwise be Confidential Information shall not be deemed Confidential Information to the extent that the receiving party proves by written records that said information:
a) is or has become publicly available without any wrongdoing by the receiving party;
b) is known and on record at the receiving party prior to disclosure by the disclosing party;
c) is lawfully obtained by the receiving party from a third party who is not bound by similar confidentiality obligations;
d) is developed by the receiving party completely independently of any such disclosure by the disclosing party; or
e) is ascertainable from a commercially available product.
14. Force majeure
14.1.
Neither party will be bound to comply with any obligation if the party is prevented from doing so through force majeure. Force majeure will be deemed to include among other things, communications or power failure, riot, insurrection, labor disputes, accident, action of government, restrictions on import and/or export or any inability to perform which is caused by the party’s suppliers.
14.2.
If the force majeure has lasted for more than sixty days, either party will be entitled to terminate the Agreement by written notification with immediate effect, without any obligation to compensate the other party for any damages the non-terminating party may suffer as a result.
15. Applicable law and disputes
15.1.
The law of the Netherlands governs these Terms and Conditions and the quotations and Agreements to which they apply.
15.2.
Any disputes arising between us and customer in connection with a quotation or Agreement will be settled by the competent courts in the Netherlands for the principal place of business of ECS.
15.3.
The United Nations Convention on Contracts for the International Sale of Goods does not apply.
15.4.
In the event that any part of the Agreement or these Terms and Conditions become or are declared to be invalid by any court of competent jurisdiction, such invalidity shall not affect the rest of this Agreement. The parties shall in such a case determine one or more replacement provisions that most closely approximate the clause concerned and which is legal under applicable law.
15.5.
The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party's right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.
15.6.
Neither party may bring an action, regardless of form, arising out of or related to this Agreement more than one year after the cause of action has arisen or the date of discovery of such cause, whichever is later. However, in no event can an action be brought more than one year after the date of termination of the Agreement.
16. Miscellaneous terms
16.1.
The parties enter into the Agreement as independent contractors. No employment relationship is created by the Agreement between ECS and Customer or any of their respective employees or agents.
16.2.
The Agreement shall not be assigned or otherwise transferred by a party without the prior written consent of the other party, which shall not be unreasonably withheld. Any such assignment without such consent will be null and void. However, no consent is necessary for an assignment or transfer of the Agreement to any affiliate of the transferring party or any company that succeeds to substantially all of that party’s business. This Agreement shall bind and inure to the benefit of the successors and permitted assigns of the parties.
16.3.
ECS is entitled to identify Customer as its customer and to publish the brand name and logo of Customer in promotional messages and on pages on the ECS website, but only when those messages or pages also mention other customers of ECS.
16.4.
Neither party shall issue any press releases regarding the Agreement or any Goods and/or Services provided thereunder without the prior written approval of the other party.
16.5.
Any requirement for a “written” statement can be fulfilled by using fax or e-mail, provided the identity of the sender and the integrity of such fax or e-mail can be determined with sufficient certainty.
16.6.
The section headings in these Terms and Conditions and in the Agreement are for convenience only and shall not be used in construing or interpreting either.