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General Terms and Conditions

21 August 2020

Article 1: Definitions

Unless otherwise defined herein, capitalized terms and expressions used in this Agreement shall have
the following meaning:

Account
The (strictly personal) Administrator or End-User accounts with which the Administrator or End-User has access to the Service.

Administrator(s)
The person or persons employed by or for the Client and who has been or have been designated by the Client as the point of contact for Zaurus and End-Users.

Agreement
The Quotation signed and/or digitally accepted by both Parties, these General Terms and Conditions and associated Appendices.

Appendices
The appendices attached to these General Terms and Conditions.

Client
The legal or natural person acting as a professional or business with whom Zaurus concludes the Agreement.

End-user(s)
The natural person or natural persons employed by the client who makes or make use of the Service.

General Terms and Conditions
The terms set out in this document.

Intellectual Property Rights
All (intellectual) property rights of which Zaurus or its licensors is/are the rightful owner(s) and which are part of or used for the Service, including, but not limited to: copyrights, patents, design rights, related rights, database rights, trademark rights, copyright, chip rights, brand name rights and know-how.

Office Days / Hours
Monday through Friday from 8:30 AM to 5:00 PM Central European Time (CET) and excluding Dutch national holidays.

Personal data
Data that can be traced directly or indirectly to a natural person, as referred to in art. 4 sub 1 of the General Data Protection Regulation (GDPR).

Quotation
The offer of Services made by Zaurus to the Client as contained in the quotation provided by Zaurus to the Client (digitally).

Service
Services provided by Zaurus that meet the needs of the Client, as included and further explained in the Quotation.

Service Level Agreement
Means the service level agreement of Zaurus applicable to the type of customer, which is provided to the Client from time to time and of which the current version is attached as an Annex.

Third Party
A Person who is not a Party.

Written
Written and signed documents as well as messages and e-mails (as long as the originality and the integrity of these messages can be confirmed), unless stated differently in the Agreement.

Zaurus
Zaurus B.V. established in Alkmaar (the Netherlands) and registered with the Dutch Chamber of Commerce under number 72991941.

Article 2: Formation of the Agreement

2.1 The Agreement is concluded in accordance with the provisions of the Quotation.

2.2 The General Terms and Conditions apply to the Agreement, the use of the Service and all (future) offers from Zaurus.

2.3 Deviations and additions to the General Terms and Conditions and/or Agreement are only valid if they have been agreed in Writing between the Parties. Zaurus reserves the right to unilaterally amend or supplement these General Terms and Conditions.

2.4 In the event of any conflict between different documents, the following ranking applies:
(a) the Agreement;
(b) the Service Level Agreement;
(c) the General Terms and Conditions;
(d) the End-User Terms.

2.5 Transfer of the Agreement by the Client to a Third Party is not permitted without the prior Written consent of the other Party.

2.6 Zaurus is unconditionally entitled to transfer its rights and obligations under the Agreement to a Third Party who takes over the Service or the relevant business activity from it.

2.7 Changes to these General Terms and Conditions also apply to Agreements already concluded, with due consideration of a term of thirty (30) days after notification of the change to the Client.

2.8 If the Client does not want to accept the changes to the General Terms and Conditions and these changes have materially adverse consequences for the Client, the Client may terminate the Agreement in Writing until the date on which the new General Terms and Conditions take effect.

2.9 Changes of minor importance and changes due to a change in law can be made at any time. Zaurus is not obliged to announce these aforementioned changes in advance. These changes also do not give the right to cancel as described in paragraph 3 of this article.

Article 3: Duration, termination and consequences of the Agreement

3.1 The Agreement lasts in accordance with the term agreed in the Quotation and is tacitly renewed each time for a period of 12 months. Notice of termination is given in Writing with due consideration of a notice period of two (2) months towards the end of the term of the Agreement.

3.2 Contrary to the provisions in the previous paragraph, the Agreement can be terminated prematurely if one of the Parties has been declared bankrupt or has been granted a moratorium, or if a comparable situation exists. The other Party is then entitled to immediately terminate the Agreement in Writing without adhering to a notice period.

3.3 In the event of a breach of the Agreement by the Client, Zaurus has the right to, after judicial intervention or notice of default, terminate or end the breach and/or end the access to or delivery of the Service with a term of thirty (30) days. The consequences of this termination do not entitle the Client to any compensation.

3.4 After termination of the Agreement, the Client has the option to download the data (of its End-Users) still present at Zaurus for a period of thirty (30) days. The Client is responsible for the timely downloading of this data. After termination of the Agreement the conditions stated in the exit plan will apply.

3.5 After the end of the Agreement, the following articles will continue to apply:
(a) Article 10 – Intellectual Property Rights and Right of Use; and
(b) Article 11 – Confidentiality.

Article 4: Responsibilities of the Client

4.1 The Client will do and/or omit everything that is reasonably necessary and desirable to enable timely and correct execution of the Services. In particular, but not exclusively, the Client will ensure that:
a) all data, which Zaurus indicates is necessary, is provided to Zaurus in a timely manner;
b) the Client’s personnel are available to the extent necessary for the execution of the Agreement;
c) the Service is not misused and that its use by anyone, including the End-Users, complies with the laws and regulations, the Agreement, the Terms of Use and these General Terms and Conditions.
d) the Service is not used by persons other than the agreed End-Users.

4.2 The Client indemnifies Zaurus against all claims, including claims from Third Parties, for compensation for damage that may arise as a result of termination or cancellation of the Agreement.

Article 5: Provision of Services, implementation and purchase of the Service

5.1 After the conclusion of the Agreement, Zaurus will implement and execute the Service at the Client as soon as possible in accordance with the Agreement.

5.2 Upon delivery of the Service, the Client will perform an acceptance test, which will assess whether the relevant software meets the expectations of the Client. Minor defects will not prevent acceptance of the Service.

5.3 Any guarantees regarding the Service will only apply when the Service is fully implemented by the Client.

5.4 Delivery dates stated by Zaurus are only indicative and non-binding, unless it is explicitly stated in Writing that it concerns a deadline.

5.5 The Client grants Zaurus explicit permission to have certain activities performed by Third Parties in the context of the performance of the Agreement.

5.6 The Terms of Use apply to the use of the Services by End-Users. The provisions of this Agreement take precedence over the Terms of Use. The Client hereby accepts these Terms of Use and will supervise compliance with them by End-Users.

Article 6: Maintenance and Modification of Services

6.1 Zaurus has the right to temporarily decommission its systems, or parts thereof, for the purpose of maintenance, adjustment or improvement, where Zaurus will try to do this outside office hours as much as possible. Zaurus will inform the Client. Zaurus is never liable for compensation for damage in connection with decommissioning for maintenance.

6.2 Zaurus has the right to modify its systems, or parts thereof, from time to time to improve functionality and to fix errors. If an adjustment leads to a significant change in functionality, Zaurus will notify the Client. In the case of adjustments that are relevant for several clients, it is not possible to waive a specific adjustment only for the Client. Zaurus is not obliged to pay any compensation for damage caused by such an adjustment. Should the aforementioned change in the functionality of Zaurus – in the opinion of the Client – have serious adverse consequences for the Client, the Client is entitled to terminate this Agreement in Writing with due consideration of a notice period of one month.

Article 7: Fee and Payment

7.1 As compensation for the Services and all other activities relating to the Agreement, the Client will owe Zaurus a subscription fee as set out in the Agreement. A payment term of fourteen (14) days applies to each invoice of Zaurus, whereby the Client agrees to electronic invoicing. The subscription fee will be charged on a monthly basis in advance, unless and until your subscription is cancelled. In case the terms in the Agreement are exceeded (e.g. more minutes spent consulting in consulting rooms than agreed), additional costs may apply which will be invoiced on monthly based on subsequent calculation.

7.2 Zaurus offers consultancy services on request, consisting of: advice and project support, support on product implementations and support of integrations. The consultancy price per hour is stated in the “Data Processing Agreement” (EU) or “Business Associate Agreement” (USA).

7.3 For all Services used by the Client, the costs are calculated and invoiced on the basis of the description in the Agreement. All amounts are invoiced in the currency stated in the Agreement and exclusive of turnover tax (VAT) and other levies imposed by the government.

7.4 During the Agreement, the agreed number of licenses of the Client (unless otherwise agreed) cannot be reduced in the meantime, with the understanding that this limitation does not apply if and insofar as there is a significant change in the number of employees of the Client or a legal division/split with regard to the Client.

7.5 Zaurus is entitled to index the prices used in this Agreement annually, during the month of January, on the basis of the consumer price index of the Dutch Central Bureau of Statistics, in relation to the prices used in the previous year. In such a case, the Client is not entitled to cancel the Agreement.

7.6 If the Client disputes an invoice in whole or in part, the Client will notify Zaurus of this within seven (7) days. The Client is entitled to suspend payment of the disputed part of the invoice until the Parties, after reasonable consultation, but no later than within two (2) weeks, make a decision on the full or partial adjustment of the disputed part of the invoice.

7.7 If the Client does not pay within the stated payment term, Zaurus will send a reminder with a payment term of fifteen (15) days.

7.8 If the Client does not pay within the payment term referred to in Article 7.6, then: (i) Zaurus is entitled to suspend access to or delivery of the Service until the moment that all outstanding invoices have been paid in full; and/or (ii) Client, in addition to the amount due and the commercial interest appearing thereon, is obliged to pay full compensation for both extrajudicial and judicial collection costs, including the costs for lawyers, bailiffs and collection agencies.

Article 8: Liabilities

8.1 Zaurus has taken out appropriate and customary insurance and is insured against legal liability. To this end, Zaurus has taken out professional and business liability insurance and cyber insurance.

8.2 The liability of Zaurus for direct damage, suffered by the Client as a result of an attributable shortcoming of Zaurus in the fulfillment of its obligations regarding to the Agreement, or due to an unlawful act on the part of Zaurus, its employees or Third Parties engaged by it, is limited per event as well as a series of related events, to four (4) times the annual, fixed, subscription fee(s) that the Client paid Zaurus under this Agreement. Direct damage is exclusively understood to mean:
a) reasonable and demonstrable costs that the Client had to incur in order to remind Zaurus to properly fulfill the Agreement (again);
b) reasonable costs to determine the cause and extent of the damage insofar as these relate to the direct damage as referred to here; and
c) reasonable and demonstrable costs incurred by the Client to prevent or limit the direct damage as referred to in this article.

8.3 Liability of Zaurus for indirect damage is excluded, examples of indirect damage include consequential damage, loss of profit, lost savings, loss of (business) data and damage due to business interruption.

8.4 Apart from the cases referred to in the second paragraph of this Article, Zaurus does not bear any liability for compensation, regardless of the grounds on which an action for compensation would be based. However, the liability limitations referred to in the second paragraph of this Article will lapse if and insofar as the damage is the result of intent or gross negligence on the part of Zaurus.

8.5 Zaurus cannot influence the End-Users when using the Services and the information sent or otherwise processed by them. The Client is therefore itself responsible for the use of the Services and the consequences of this use of the Services by its End-Users. The Client indemnifies and will safeguard Zaurus against any form of claim, charge or action from a Third Party in connection with (the content of) the data traffic or information processed by the Service originating from the Client and/or its End-Users.

8.6 Zaurus will endeavor to perform the Service to the best of its ability, applying due care and craftsmanship and on the basis of a Service Level Agreement that is attached as an Annex to the Agreement. Zaurus supplies the Service “as is”.

8.7 Any compensation clause included in the Service Level Agreement under which the Client can claim compensation if Zaurus does not perform as agreed, must be regarded as a penalty clause as described in Book 6 of the Dutch Civil Code.

Article 9: Privacy

9.1 When using the Services, Zaurus processes Personal Data on behalf of the Client. The Client is responsible for informing End-Users about this processing of Personal Data and guarantees that there is a legal basis for the order for processing Personal Data given to Zaurus.

9.2 Because Zaurus processes Personal Data on behalf of the Client when executing the Agreement, the Parties will conclude a processing agreement in which further agreements are made about the processing and security of these Personal Data.

Article 10: Intellectual Property Rights and Rights of Use

10.1 Based on the Agreement, the Client obtains a non-exclusive, non-transferable, non-pledgeable and non-sublicensable right of use for its End-Users to use the Service for the duration of the Agreement (the “Right of Use”).

10.2 All Services, designs, products, software, materials and documentation made or provided by Zaurus are and will be: (i) developed and/or prepared for general use only; (ii) made available to all of its current and prospective customers; and (iii) developed or made available non-exclusively for the Client.

10.3 The Client’s Right of Use explicitly does not imply that the Client has the right to inspect, obtain, copy and change the source code of the software belonging to the Services. The right of use does not give the right to grant one or more sub-licenses to Third Parties, unless Zaurus has given prior Written permission for this.

10.4 Information that the Client or its End-Users store, send or otherwise process via the Service is and remains the property of the Client and/or its End-Users. Zaurus obtains a right of use to use this information for the provision of the Service.

10.5 If the Client and/or an End-User sends information to Zaurus, for example feedback about an error or a suggestion for improvement, it gives Zaurus an unlimited and perpetual right of use to use this information for the Services.

10.6 Zaurus will not take cognizance of confidential data (such as personal messages) that the Client stores, sends or otherwise processes via the Services, insofar as this is not necessary for the provision of the Service. The foregoing does not apply if this has been explicitly agreed with Zaurus or if Zaurus is obliged to do so by virtue of a statutory provision or court order. In that case, Zaurus will make every effort to limit the cognizance of the data as much as possible, insofar as this is within its power.

10.7 The Client indemnifies Zaurus against any claims from Third Parties based on the infringement of an (Intellectual Property) right due to the use of the Services by the Client or its End-Users.

Article 11: Confidentiality

11.1 Parties will treat information that they provide confidentially to each other before, during or after the execution of the Agreement when this information is marked as confidential or when the receiving Party knows or should reasonably suspect that the information was intended to be confidential. The Parties also impose this obligation on their employees as well as on Third Parties engaged by them to implement the Agreement.

11.2 Zaurus is, after Written permission from the Client, entitled to demonstrate to Third Parties that it provides the Service to the Client in order to promote its Service. Zaurus will take all precautions to protect the interests of the Client.

11.3 Parties commit to maintain confidentiality with regard to the content of the Agreement and also with regard to the content and operation of the Service.

Article 12: Final Provisions

12.1 If any provision of the Agreement proves to be invalid, this will not affect the validity of the entire Agreement. In that case, the parties will determine (a) new provision(s) as a replacement, thus giving shape to the intention of the original provision as much as legally possible.

12.2 If a dispute arises between the Parties within the settings of the Agreement, the Parties will first try to resolve this dispute themselves. The parties can (for example) make use of mediation or submit the dispute to an independent Third Party. When the Parties cannot reach an agreement and they have made at least a reasonable effort to find a solution.
12.3 Insofar as the rules of mandatory law do not prescribe otherwise, all disputes that may arise as a result of the Agreement will be submitted to the competent Dutch court for the district in which Zaurus is located.

12.4 The administration of Zaurus is leading, subject to proof of the Client.

12.5 The Agreement, the Appendices, the General Terms and Conditions, the use of the Service and the provision of the Service are governed by Dutch law.