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General Terms and Conditions E-mergo B.V. and BIS B.V.

Chamber of Commerce Registration Numbers : resp: 27199736 and 53017463

1. Definitions
   1.1 E-mergo: E-mergo B.V. and/or E-mergo BIS B.V.;
   1.2 Client: the natural or legal person who commissions E-mergo for the granting of licenses and/or the provision of IT services;
   1.3 Agreement(s): the agreement concluded between E-mergo and the Client;
   1.4 Parties: E-mergo and the Client jointly.
2. Application
   2.1 The General Terms and Conditions apply to all offers, quotations from E-mergo, agreements, and other obligations between the parties. Under any and all circumstances The General Terms and Conditions are applied without change or modification to all aforementioned circumstances unless expressed in writing.
   2.2 If and insofar as E-mergo makes products or services of third parties available to the Client or grants access thereto, the license or sales conditions of those third parties apply to those products or services in the relationship between E-mergo and the Client and prevail over the deviating provisions in these General Terms and Conditions, provided that the applicability of the license or sales conditions of those third parties has been communicated to the Client by E-mergo and a reasonable opportunity has been given to take the cognizance of those conditions.
   2.3 If and insofar as the aforementioned conditions of third parties in the relations between the Client and E-mergo, for whatever reason, turn out to be inapplicable or are declared inapplicable, the General Terms and Conditions apply in full.
   2.4 Without prejudice to the provisions of Article 2.2, in the event of a contradiction in agreements made between the Parties, the provisions of the General Terms and Conditions shall apply unless the parties have expressly deviated from this in writing and with reference to the General Terms and Conditions. In the event of a contradiction between provisions, the latest written provision shall apply, unless expressly stated.
3. Offers and Quotations
   3.1  All offers, quotations, and estimates are without obligation and are valid until 30 days after the date, unless otherwise indicated in writing.
   3.2 The Client guarantees the correctness and completeness of the information it provides to E-mergo, on which the offer, quotation and/or estimate is based.
4. The Agreement
   4.1 The agreement between the parties only becomes binding for said parties once it has been laid out in writing and signed by both Parties.
   4.2  If the Client consists of several persons, legal and/or natural, each of those (legal) persons is jointly and severally liable towards E-mergo to fulfill the agreement.
   4.3 If the Client has not confirmed an order in writing but tacitly agrees that E-mergo will start executing the order, the content of the offer or quotation, including the General Terms and Conditions, will be deemed to have been agreed upon. Further oral agreements are only binding as soon as they have been confirmed in writing by E-mergo.
   4.4 The duration of a fixed-term agreement is tacitly extended for the duration of the originally agreed upon period, unless otherwise specified in writing.
   4.5 Unless expressly agreed upon in writing, early termination of the agreement by the Client is not possible.
   4.6 E-mergo will perform the work and/or services to the best of its knowledge and ability in accordance with the requirements of good workmanship and has no more than a “best efforts obligation”.
   4.7 Dates for delivery or completion stated by E-mergo are indicative and therefore do not apply as deadlines, unless those dates have been expressly agreed in writing as a deadline.
   4.8 The Client will ensure that E-mergo can perform its work properly by providing E-mergo, among other things, with all necessary information and other matters and, if necessary, by giving it access to the Client’s existing IT systems, in a timely manner.
   4.9 The work will be performed in consultation with the Client, and in principle with the exception of public holidays generally recognized in the Netherlands, on working days from Monday to Friday between 07:30 and 20:00. The following overtime allowances apply to work performed outside these days or working hours: (i) Monday to Friday after 8:00 pm and before 07:30 am: 25%; (ii) Saturday: 50%; (iii) Sundays and public holidays: 100%.
   4.10 Complaints with regard to work, services or invoices must be submitted in writing to E-mergo within 8 days of discovery, in failing to do so, the work, services or invoices will be deemed as having been approved.
5. Prices and Payments
   5.1 All prices are exclusive of travel, accommodation costs, VAT and other levies imposed by the government.
   5.2 The quotation will only act as a fixed price if it has been expressly agreed to in writing, otherwise the quotation is a preliminary estimate or budget. The Client cannot derive any rights from a cost estimate or budget issued by E-mergo.
   5.3 The agreement sets details when the Client owes E-mergo payment and which payment term applies. If no payment term is stated, a payment term of 30 days applies.
   5.4 Except in the event of a legally valid termination of the agreement by the Client, the Client is not entitled to suspend its payment obligation towards E-mergo, nor is it entitled to settle amounts owed, not even in the event of complaints or objections (advertising) about an invoice or work and/or services.
   5.5 Until the Client has paid all amounts owed to E-mergo, E-mergo is entitled to retain the data, documents, software and/or data or data files received or realized in the context of the agreement.
   5.6 If the Client is subject to a periodic payment obligation on the basis of a continuing performance agreement (for example, with continuous licenses, management and maintenance), E-mergo may adjust those prices and rates in writing, with notification period of at least 1 month. If prices and rates are adjusted by more than 5% in one year, the Client is entitled to terminate the agreement within 30 days of becoming aware of the adjustment, with effect from the date on which the new prices and rates would come into effect. Contrary to the provisions of the previous sentence, E-mergo may always pass on price changes of its suppliers one-on-one to the Client as well as make an inflation adjustment, even if this leads to a (total) price increase of more than 5%. The inflation adjustment will be made in accordance with the CBS Service Price Index (DPI).
   5.7 If the Client does not pay the amounts owed by it to E-mergo in time, it will owe the interest owed by law after the first reminder/demand. If E-mergo proceeds to (extra)judicial collection, the Client owes E-mergo all costs of (extra)judicial collection. These collection costs amount to at least 15% of the amount owed with an absolute minimum of € 500.
6. Changing Agreements
   6.1 The Client accepts that the schedule of the agreement may be influenced if the parties agree, in the interim, to expand or change the approach, working method or scope of the agreement and/or the resulting activities or services.
   6.2 If an interim change in the agreement arises due to the fault of the Client, E-mergo will make the necessary adjustments, only if this does not affect the quality to be delivered. If such an adjustment leads to additional work, this will be confirmed to the Client as an additional order.
   6.3 If, at the request or with the prior consent of the Client, E-mergo has performed activities or other performances that fall outside the content or scope of the agreed activities and/or performances, these activities or performances will be reimbursed by the Client in accordance with the agreed rates and in the absence thereof according to the usual rates of E-mergo. E-mergo is not obliged to comply with such a request and it may require that a separate written agreement be signed for this purpose.
7. Confidentiality
   7.1 E-mergo is obliged towards third parties to maintain the confidentiality of all information and data received from the Client, including any personal data as referred to in the GDPR. The Client will be regarded as responsible with regard to personal data. E-mergo will take all reasonable precautions within the framework of the Agreement to protect the interests and data of the Client.
   7.2 The Client will not share with third parties any documents or information that have been prepared or shared with E-mergo by E-mergo without E-mergo’s permission.
   7.3 The secrecy as referred to above does not apply if and insofar as the provision of the relevant data to a third party is necessary pursuant to a court decision, a statutory regulation, on the basis of a statutory order or for the proper execution of the Agreement.
   7.4 The Party that receives confidential information will only use it for the purpose for which it was provided. Information is in any case considered confidential if it has been designated as such by one of the Parties.
   7.5 The Client acknowledges that the software made available by or via E-mergo is always of a confidential nature and that it contains trade secrets of the relevant supplier, its supplier or the producer of the software.
8. Intellectual Property Rights
   8.1 All intellectual property rights are applied to the software, websites, data files, databases, equipment, training, test and exam material or other materials such as analyses, designs, documentation, reports, quotations, developed on the basis of the Agreement or made available to the Client. It also includes preparatory material that rests exclusively with E-mergo, its licensors or its suppliers, unless expressly provided otherwise in the Agreement. The Client only acquires the rights of use that are expressly granted by law in these General Terms and Conditions, the written Agreement concluded between the Parties and by mandatory law. A right of use accruing to the Client is non-exclusive, non-transferable, non-pledgeable and non-sublicensable.
   8.2 If E-mergo is willing to commit itself to transfer an intellectual property right, such an obligation can only be entered into explicitly in writing. If the Parties agree in writing that an intellectual property right with regard to software, websites, data files, equipment, know-how or other works or materials developed specifically for the Client will be transferred to the Client, this affects the right or possibility of E-mergo not to use and/or exploit the components, designs, algorithms, documentation, works, protocols, standards and the like underlying such development for any other purpose, without any limitation, either for itself or for third parties. E-mergo also has the right to use and/or exploit the general principles, ideas and programming languages ​​used for the creation or development of any work, without any limitation, for itself or for any other purpose. Transfer of an intellectual property right gives E-mergo the right to make developments for itself or a third party that are similar or derived from those that have been or will be made for the Client.
   8.3 The Client will not remove or have changed any indications regarding the confidential nature or concerning copyrights, brands, trade names or any other intellectual property right from the software, websites, data files, equipment or materials.
   8.4 The Client guarantees that no rights of third parties preclude the provision to E-mergo of equipment, software, material intended for websites, data files and/or other materials, designs and/or other works for the purpose of use, maintenance, processing , installation or integration, including having the appropriate licenses. The Client indemnifies E-mergo against any claim by a third party that is based on the fact that making it available, use, maintenance, processing, installing or integration in such a way infringes any right of that third party.
   8.5 Unless otherwise agreed or explicitly not permitted by the Client, E-mergo is entitled to use the logo, logo or name of the Client in its external communication and on its website.
9. Security and Backup
   9.1 Unless expressly agreed upon otherwise, E-mergo will use the ISO 27001 standards as the minimum level of security for the data it manages and its software and ICT infrastructure. E-mergo does not guarantee that the security will be effective and sufficient under all circumstances.
   9.2 The access or identification codes, certificates or other security means provided to the Client by or on behalf of E-mergo are confidential and will be treated as such by the Client and only made known to authorized personnel from the Client’s own organization. E-mergo is entitled to change, assign access, or identification codes and certificates. The Client is responsible for the management of authorizations and the provision and timely withdrawal of access and identification codes.
   9.3 Regarding the security or the testing thereof related to software, if the equipment or infrastructure has not been supplied to the Client by E-mergo itself, the Client guarantees that all necessary licenses or approvals have been obtained to be allowed to perform the said services. E-mergo is not liable for damage arising in connection with the execution of this service. The client indemnifies E-mergo against any legal claim for whatever reason, in connection with the performance of this service.
   9.4 E-mergo is entitled to adjust the security measures from time to time, if necessary as a result of changing circumstances.
   9.5 The Client will adequately protect its systems and infrastructure and keep it adequately secured.
   9.6 E-mergo can give instructions to the Client with regard to security with the aim of preventing or minimizing incidents or the consequences of incidents that may affect the security. If the Client does not or not timely follow such adjustments by E-mergo or a relevant government body, then E-mergo is not liable and the Client indemnifies it for any damage that may arise as a result.
   9.7 E-mergo is always permitted to install technical and organizational provisions for the protection of equipment, data files, websites, software made available, software or other works to which the Client is provided (direct or indirect) access, also in connection with an agreed limitation in the content or the duration of the right to use these objects. The Client will not remove or have such technical provisions removed or converted.
   9.8 E-mergo does not back up data stored on the Client’s infrastructure, such as in the case of on-premise installation or installation on third party cloud environments used by the Client.
   9.9 If the services provided to the Client on the basis of the Agreement include making back-ups of the Client’s data which are stored on infrastructure managed by E-mergo, E-mergo will, subject to the periods agreed in writing, and in the absence thereof agree per week, make a full backup of the Clients data in its possession. In the absence of Agreements about the retention period, E-mergo will store the backup for the period customary at E-mergo. E-mergo will store the backup carefully with due care.
   9.10 The Client itself remains responsible for compliance with all legal administration and storage obligations applicable to it.
10. Transition Risk
    The risk of loss, theft, misappropriation or damage to goods, data (including: usernames, codes and passwords), documents, software or data files that are produced by, supplied to or used by the Client in the context of the performance of the Agreement, transfers to the Client at the moment when these are placed in the actual power of disposal of the Client or an auxiliary person of the Client.
11. Liability
    11.1 Barring intent or gross negligence on the part of managers (or equivalent subordinates) on the part of E-mergo, E-mergo is never liable for indirect damage, consequential damage, lost profit, lost savings, reduced goodwill, damage due to business interruption, damage as a result of claims by customers of the Client, damage related to the use of goods and actions, materials or software of third parties advised or prescribed by E-mergo to the Client and damage related to the engagement of prescribed third parties.
    11.2 If certain parts of the Agreement are fulfilled by third parties, E-mergo is not liable for these parts and for the actions of these third parties, if and insofar as this does not take place under its leadership. In the other case, the provisions of this article also apply in favor of that third party.
    11.3 E-mergo’s liability never goes further than insofar as the liability is covered by its insurer.
    11.4 In the unlikely event that E-mergo’s insurer should not pay out the damage or if the damage is not covered, the liability is limited to the amount (excluding VAT) that the Client owes E-mergo under the Agreement. If it concerns a continuing performance contract, the liability is limited to the amount (excluding VAT) that the Client owes E-mergo under the Agreement for a period of 6 months prior to the occurrence of the damage. Under no circumstances will E-mergo’s liability exceed EURO 15,000 per year.
    11.5 The foregoing limitations of liability apply regardless of the number of events and also apply as a limitation for warranty claims.
12. Force Majeur
    12.1 E-mergo is not liable and cannot be obliged to perform, nor can the Agreement be dissolved if it is unable to fulfill its obligations under the Agreement as a result of force majeure.
    12.2 Force majeure on the part of E-mergo is in any case, but not limited to, force majeure of suppliers, failure to properly fulfill obligations of suppliers prescribed by the Client to E-mergo, defective goods, equipment, software or materials of third parties. The use of which has been prescribed by the Client to E-mergo, government measures, electricity failure, failure of the internet, data network or telecommunications facilities, (cyber) crime, (cyber) vandalism, war or terrorism and general transport problems.
    12.3 In the foregoing or similar cases, E-mergo is entitled, at its own discretion, to terminate or suspend or amend the Agreement, respectively, until the extraordinary circumstances have ceased to exist, whereby the Client is obliged to pay up to the effective date of termination and to pay the costs incurred by E-mergo until then.
13. Early Termination and Dissolution
    13.1 If the Client fails to fulfill its obligations under the Agreement, despite notice of default if required, E-mergo is entitled to dissolve the Agreement with immediate effect and to deny the Client access to the service or software, without it being held liable for compensation as a result.
    13.2 Both Parties have the right to terminate the Agreement in writing with immediate effect if the other Party files for bankruptcy or is declared bankrupt or if its suspension is requested or granted.
    13.3 If the Client proceeds to premature termination by means of a legally valid cancellation, E-mergo is entitled to the following compensation: (i) for consultancy assignments an amount equal to 50% of the consultancy hours already commissioned but not taken, and (ii) for licenses and management assignments, an amount equal to 75% of what the Client would owe to E-mergo until the original end date.
    13.4 E-mergo is entitled to terminate the Agreement if it is of the opinion that due to circumstances on the part of the Client, execution of the Agreement cannot take place in accordance with the Agreements made. E-mergo is entitled to compensation in accordance with the provisions of 13.3.
    13.5 In the event of premature termination, E-mergo retains the right to payment of the invoices for work performed and services rendered up to that point.
    13.6 In the event of dissolution, performances already delivered by E-mergo are not subject to cancellation. Any outstanding payment obligations of the Client become immediately due and payable in the event of dissolution or cancellation.
14. Other Stipulations
    14.1 This Agreement is exclusively governed by Dutch law.
    14.2 All disputes that may arise as a result of the execution of the present Agreement or of further Agreements that may result therefrom, will be settled in accordance with the Arbitration Rules of the Foundation for the Resolution of ICT Disputes (Stichting Geschillenoplossing Automatisering), without prejudice to the right to (arbitral) summary proceedings and without prejudice to the right of the Parties to take precautionary measures.
    14.3 E-mergo reserves the right to unilaterally change or supplement these General terms and Conditions. Any changes or additions will be announced to the Client by E-mergo at least 3 months prior to enforceability.
15. Additional Terms and Conditions: Consultancy and Training
    15.1 E-mergo will perform the advice and consultancy services entirely independently, at its own discretion and not under the supervision or direction of the Client.
    15.2 E-mergo’s services are provided exclusively on E-mergo’s usual working days and working hours.
    15.3 If the Client cancels any appointment with E-mergo, the Client will owe E-mergo a fee, in accordance with the fees laid down in the Agreement. In the event that nothing has been laid down in the Agreement about this, the following applies: in the event of cancellation less than 5 working days before the relevant appointment, the Client owes E-mergo 50% of the agreed price. In the event of cancellation within 2 working days before the appointment, the Client owes E-mergo the full price.
    15.4 If E-mergo uses its own equipment or software in the performance of its activities, E-mergo does not guarantee that this equipment or software is error-free or functions without interruptions. If E-mergo carries out its activities at the Client’s location, the Client must ensure that a suitable space is available with working equipment and software. If the facilities at the Client prove to be unsatisfactory and the quality of E-mergo’s activities cannot be guaranteed as a result thereof, E-mergo is entitled, at the expense of the Client, to not undertake, shorten or discontinue its activities.
    15.5 E-mergo is free to determine which employees it deploys for the execution of the Agreement with the Client and can always make a change therein during the execution of the Agreement.
    15.6 During the execution of the Agreement and within one year after termination of the Agreement, the Client may not employ E-mergo employees, other than in prior consultation with E-mergo, such under penalty of an immediately due and payable fine in the amount of the gross annual salary most recently received by the employee concerned at E-mergo.
16. Additional Terms and Conditions: Software use, Management and Maintenance
    16.1 E-mergo makes the agreed software available to the Client for use during the term of the Agreement on the basis of a user license. The right to use the software is non-exclusive, non-transferable, non-pledgeable and non-sublicensable.
    16.2 E-mergo will, at its discretion, deliver the software on the agreed data carrier format or in the absence of Agreements in this regard, on a data carrier format to be determined by E-mergo or make the software available online to the Client for delivery. Any agreed user documentation will be provided by E-mergo’s option in paper or digital form in a language specified by E-mergo.
    16.3 E-mergo will install, set up, parameterize, tune, convert and upload the software at the Client and, if necessary, have the equipment used and user environment adjusted.
    16.4 E-mergo or its suppliers can make changes to the content or scope of its software. If such changes are substantial and result in a change in the procedures applicable at the Client, E-mergo will inform the Client about this as soon as possible. E-mergo is not liable for any costs incurred by the Client arising from these changes.
    16.5 E-mergo may temporarily shut down the software in whole or in part for preventive, corrective or adaptive maintenance or other forms of service. E-mergo will not allow the decommissioning to last longer than necessary and, if possible, will have it take place at times when the software is usually used least intensively.
    16.6 In the absence of further Agreements in this regard, the Client will further set up, configure, parameterize, tune, convert and upload any data and, if necessary, adjust the equipment and user environment used.
    16.7 E-mergo does not guarantee that the software made available is error-free or functions without interruptions.
    16.8 E-mergo will make every effort to resolve malfunctions in the software within a reasonable period of time, on the condition that the relevant malfunction has been reported in writing to E-mergo, described in detail by the Client.
    16.9 E-mergo will also make every effort to repair errors in the underlying software, insofar as the underlying software has been developed by E-mergo itself and the relevant errors have been reported in writing to E-mergo in detail by the Client. E-mergo may, where appropriate, postpone the correction of errors until a new version of the underlying software is put into use.
    16.10 E-mergo does not guarantee that errors in the software that has not been developed by E-mergo itself will be rectified. E-mergo is entitled to implement temporary solutions or program bypasses or problem-avoiding restrictions in the software.
    16.11 Software that E-mergo has developed on the basis of a fixed price on behalf of the Client is covered by a warranty period of 3 months after delivery. Defects that appear during this warranty period will be repaired by E-mergo free of charge. E-mergo is not obliged to repair defects that appear after the warranty period has expired and E-mergo can charge the costs of repair to the Client in accordance with its usual rates. E-mergo gives no guarantee on software that it has developed for or with the Client other than on the basis of a fixed price. If (a part of) that software shows defects, E-mergo is not obliged to repair it and E-mergo can charge the costs of repair to the Client in accordance with its usual rates. E-mergo is never obliged to repair imperfections other than those referred to in this article. In the event that E-mergo is prepared to carry out repair activities with regard to such other imperfections, E-mergo is entitled to charge a separate fee for this.
    16.12 If E-mergo’s services under the Agreement include providing support to users and/or administrators of the software, E-mergo will advise online, by telephone or by e-mail about the use and functioning of the software referred to in the Agreement. The Client will describe notifications in the context of support as completely and in as much detail as possible, so that E-mergo is given the opportunity to respond adequately. E-mergo may impose conditions on the manner of reporting, qualifications and the number of persons eligible for support. E-mergo will handle duly substantiated requests for support within a reasonable period of time according to its usual procedures. E-mergo does not guarantee the correctness, completeness or timeliness of responses or support offered. Unless expressly agreed otherwise in writing, support is provided on working days during E-mergo’s usual opening hours.
17. Additional Terms and Conditions: Hosting and Cloud Services
    17.1 If the Agreement (also) extends to the provision of hosting or cloud services, E-mergo will make every effort to provide those services in accordance with the Agreement as soon as possible.
    17.2 E-mergo will, if necessary for the management or use of the service, make an account available to the Client. The account will be accessible by entering the login details as provided by E-mergo. The Client is responsible for the use of the accounts and sub-accounts granted thereunder, to the extent permitted. If the Client suspects or should reasonably suspect or know that abuse of a (sub) account is taking place, the Client is obliged to report this to E-mergo as soon as possible so that it can take measures.
    17.3 The Client is not permitted to have the service used by third parties, unless expressly permitted in writing by E-mergo.
    17.4 Except if and insofar as management has been expressly commissioned by E-mergo, the Client is responsible for the management. The Client is always responsible for checking the settings, the use of the service and the way in which the results of the service are used. In the absence of explicit agreements in this regard, the Client itself will install, set up, parameterize, tune and, if necessary, have the equipment used, other software and user environments adjusted and achieve the interoperability desired by the Client. Unless expressly agreed upon otherwise in writing, E-mergo is not obliged to perform data conversion.
    17.5 The Agreement also includes the provision or provision of security, backup, fall-back and recovery services only if this has been expressly agreed to in writing.
    17.6 E-mergo will make every effort to keep the service available, but does not guarantee uninterrupted availability.
    17.7 E-mergo will make every effort to keep the service up-to-date as much as possible and to adapt it in order to improve the functionality and to have errors repaired. Insofar as E-mergo is dependent on its suppliers, E-mergo cannot vouch for them.
    17.8 E-mergo may temporarily shut down the service in whole or in part for preventive, corrective or adaptive maintenance. E-mergo will not allow the decommissioning to last longer than necessary, if possible E-mergo will have it take place outside office hours and, depending on the circumstances, start after consultation with the Client.

Questions

If you have any questions about the General Terms and Conditions, please contact us.