General Terms and Conditions Boxma IT B.V.
Article 1. General
1.1. These General Terms and Conditions apply to all offers and agreements (‘Agreement’) in which Boxma IT B.V. also acting under the name RIGI Localization and/or the companies in the same group (‘BOXMA’) offers goods and/or services to a co-contracting party (‘Client’).
1.2. Amendments to, deviations from and additions to these General Terms and Conditions (these ‘General Terms and Conditions’) are only valid, if BOXMA and the Client have both expressly agreed to them in writing. In the event of contrariety between the contents of the Agreement and these General Terms and Conditions, the Agreement will prevail.
1.3. By entering into an Agreement with BOXMA, the Client expressly agrees that the general terms and conditions used by the Client will not apply to the cooperation with BOXMA.
1.4. If any provision of these General Terms and Conditions is null and void or is voided, the other provisions of these General Terms and Conditions will remain fully in effect and the null and void or voided provision will be deemed to have been replaced by a valid provision which is as close as possible to the purport of the null and void or voided provision.
1.5. If the Client is part of a group or partnership of which several legal entities or natural persons purchase services or goods from BOXMA under an Agreement, each of them will be jointly and severally liable for performance of the Agreement concluded with BOXMA.
Article 2. Offers
2.1. All offers and other statements of BOXMA are without obligation, unless BOXMA expressly indicates otherwise in writing. The Client guarantees the correctness and completeness of the information provided to BOXMA by it or on its behalf on which BOXMA bases its offers, services and deliveries.
Article 3. Prices and payment
3.1. All prices are exclusive of turnover tax (VAT) and other taxes and levies imposed by the government. Taxes and levies specifically related to the services and deliveries of BOXMA to the Client will be charged on to the Client, unless specifically otherwise agreed upon in writing in advance.
3.2. All fees to be charged for BOXMA’s services and deliveries will be in euros, unless otherwise agreed in writing.
3.3. Unless expressly otherwise agreed upon, the (standard) rates set by BOXMA from time to time will apply to the services and goods delivered by BOXMA under an Agreement. An overview of the rates is included in the Agreement. In the event of Agreements that run until a subsequent calendar year, BOXMA will be entitled to adjust the rates chargeable to the Client each time on 1 January in accordance with its current pricing policy.
3.4. Invoices will be paid by the Client in accordance with the payment conditions stated on the invoice. Only payments into the bank account number indicated by BOXMA on the invoice will constitute a valid payment on the part of the Client.
3.5. The payment term for invoices of BOXMA is thirty days after the invoice date, unless otherwise expressly agreed upon in writing. The Client is not entitled to set off a payment against its own claim or to suspend a payment on any ground.
3.6. If the Client fails to pay the amounts due in time, the Client will owe statutory (commercial) interest on the outstanding amount without any demand or notice of default being required. If the Client still fails to make the payment in full, BOXMA may instruct a third party to collect the payment, in which case, in addition to the total amount owed at that time, the Client will also be obliged to pay all judicial and extrajudicial costs, including costs calculated by external (legal and other) advisors and experts, in addition to the costs established by the court. The Client will also owe the costs incurred by BOXMA, if the Client is ordered by judgment to pay the outstanding amount in full or in part. This also applies with regard to the costs of mediation, arbitration and/or other alternative forms of dispute resolution.
Article 4. Confidential information
4.1. BOXMA and the Client will treat all information obtained from each other within the scope of the preparation or execution of an Agreement or cooperation as strictly confidential and will do everything in their power to maintain this confidential nature, even after the end of the cooperation. Information will in any case be regarded as confidential if it has been designated as such by one of the parties; in the event of doubt, information will be regarded as confidential until the disclosing party has stated otherwise in writing. The duty of confidentiality does not apply to (i) information which is already in the possession of a party at the beginning of the cooperation and which may be lawfully disseminated, (ii) generally known information which may be lawfully disseminated, (iii) information obtained from third parties, which has been lawfully acquired by those third parties and which may be lawfully disseminated, and (iv) information which must be disclosed by order of a competent authority.
4.2. BOXMA will not be bound by any obligation of confidentiality in respect of information evidencing a criminal offence or constituting a serious danger to persons, the environment, public health, safety or public order. BOXMA will also not be bound by any obligation of confidentiality if it is ordered to disclose information pursuant to a court judgment or a request of a supervisory authority.
Article 5. Data
5.1. The Client is responsible for the data processed using a service of BOXMA. The Client indemnifies BOXMA against any claim by a third party relating to alleged unlawfulness of the processing of those data by the Client (and/or BOXMA), and indemnifies BOXMA against all damages and costs ensuing therefrom for BOXMA, including internal costs, all costs pertaining to legal assistance and damages to be paid to third parties.
Article 6. Processing of personal data
6.1. In the course of performance of an Agreement, the Parties will comply with all applicable laws and regulations relating to the protection of personal data, in particular all the provisions of the General Data Protection Regulation (Regulation EU 2016/679, hereinafter referred to as the ‘GDPR’).
6.2. Within the scope of the Agreement with the Client, BOXMA will process personal data for the purpose of the registration and execution of the Agreement, including personal data of contact persons. The Client guarantees that there is a valid basis for such processing. Even without obtaining Client’s prior consent, BOXMA will honour the rights of the person concerned in accordance with the provisions of the GDPR.
6.3. In the provision of its services whereby the Client provides personal data to BOXMA, it may occur – depending on the exact contents of the Agreement – that BOXMA is to be regarded as the processor on behalf of the Client. Each time BOXMA must be regarded under the GDPR as processor on behalf of the Client, a processing agreement must be concluded between the parties or must be declared applicable to the specific processing activities.
6.4. BOXMA will not process the personal data received as processor within the aforesaid context for its own purposes, unless expressly agreed otherwise and unless there is a valid basis for doing so. In principle, BOXMA has no control over the use of personal data by the Client by means of storage and network capacity made available by BOXMA. By entering into an Agreement with BOXMA, the Client acknowledges this division of responsibilities.
Article 7. Security
7.1. When providing information technology services, BOXMA will take appropriate technical and organisational measures to maintain a level of security appropriate to the risks involved in connection with the Software and other digital resources that have been made available.
7.2. The Client guarantees that user names, access codes, assigned means of authentication, licences and certificates are only used by the (group of) persons to whom they have been assigned and that appropriate technical and organisational measures have been taken in the Client’s organisation to guarantee the security thereof.
7.3. When using BOXMA’s information technology services, the Client is obliged to secure its own infrastructure, equipment, software and means of communication in accordance with current social and business standards, including, but not limited to the use of antivirus software, intrusion detection, firewall etc. from reputable software suppliers.
7.4. The risk for the retention and the integrity of Client’s data processed with the aid of BOXMA’s information technology services is at all times borne by the Client.
Article 8. Reservation and retention of rights
8.1. Where relevant, rights are always granted or transferred to the Client under the suspensive condition of full payment of the agreed fees by the Client – and, if applicable, the interest and collection charges due.
8.2. Notwithstanding an existing obligation to deliver, BOXMA may retain the items, products, property rights, data, documents, data files and (interim) results of BOXMA’s services received, to be delivered or generated within the scope of the Agreement as well as all items and data belonging to the Client until the Client has paid all amounts owed to BOXMA.
Article 9. Intellectual or industrial property rights
9.1. All intellectual and/or industrial property rights to the equipment, software, websites, data files or other materials developed or made available under the Agreement such as analyses, designs, documentation, reports, quotations, as well as materials used to prepare the aforesaid, are exclusively owned by BOXMA, its licensors or its suppliers. The Client only acquires the rights of use expressly granted under these terms and conditions and pursuant to the law (unless expressly stipulated otherwise in an agreement concluded with the Client). Any other or further right of the Client to reproduce software, websites, data files or other materials is excluded. A right of use accruing to the Client is non-exclusive and cannot be transferred to third parties.
9.2. Intellectual property rights of BOXMA can only be transferred to the Client if this has been expressly and specifically agreed on in writing. If the parties thus agree that intellectual property rights with respect to the software, websites, data files, equipment or other materials (whether or not specifically developed for the Client) are transferred, this will never affect BOXMA’s authority to apply and use the components, general principles, ideas, designs, documentation, works, programming languages, proprietary processes, confidential business information and know-how and the like underlying that development without any restriction and for other purposes. Nor does a transfer of intellectual property rights affect BOXMA’s right to develop products or services for itself or third parties that are similar to those delivered or to be delivered for use by the Client.
9.3. The Client is not allowed to remove or change any designation from BOXMA or one of its suppliers to the equipment, websites, data files or other materials concerning the confidential nature or regarding copyrights, trademarks, trade names or other intellectual or industrial property rights.
9.4. BOXMA indemnifies the Client against all claims of third parties based on the assertion that equipment, software, websites, data files or materials made available or delivered by BOXMA infringe an intellectual property right, provided that the Client immediately informs BOXMA of the existence and contents of the legal action and allows BOXMA to handle the matter in its entirety from the outset, including the acts of effecting a settlement or composition. The Client will cooperate fully with BOXMA in order to defend itself, if deemed necessary by BOXMA also on behalf of the Client, against these legal actions. Aforesaid indemnification does not apply if the claim relates (i) to software or materials made available to BOXMA by the Client, or (ii) to changes made to software or materials by the Client itself or by order of the Client. If it is established as an indisputable fact in court or if it is determined by BOXMA that software or materials developed by BOXMA infringe any intellectual property right accruing to a third party, BOXMA will, if possible, ensure that the Client can continue to use the software or materials without interruption, for instance by replacing or adapting the infringing parts or by acquiring a right of use for the benefit of the Client. If BOXMA, in its sole opinion, cannot ensure or cannot ensure in any way other than in a way that is unreasonably burdensome (financially or otherwise) for BOXMA that the Client can continue to use the delivered items, BOXMA will take back the delivered items and will refund the price paid by the Client minus a reasonable user fee as determined by BOXMA. However, the amount to be refunded may never exceed the total of the amounts already invoiced by BOXMA to the Client in the relevant calendar year. BOXMA will first consult with the Client before making its choice in the matter. Any other or further liability or obligation to indemnify on the part of BOXMA on account of violation of intellectual property rights of thirds is excluded. This Article 8.4 applies equally to the Client if it makes software, data or materials available to BOXMA.
Article 10. Delivery terms
10.1. BOXMA will make a demonstratable effort to meet the agreed delivery terms as much as possible. BOXMA will not be in default by merely exceeding an agreed term. In all cases where terms are exceeded, BOXMA will only be in default after the Client has given BOXMA written notice of default and has set a reasonable term for compliance.
Article 11. License
11.2. The License explicitly does not include the source code of the Software. The source code of the Software and the technical documentation produced during the development of the Software will not be made available to the Client, not even if the Client is prepared to pay financial compensation for making them available. The Client acknowledges that the source code is confidential in nature and that it contains trade secrets of BOXMA or third parties and may under no circumstances be shared in its entirety or in parts with third parties.
11.3. The Client will not modify the Software without prior written consent from BOXMA. The Client is not allowed to give a third party remote access or other access to the Software or to place the Software with a third party for hosting, not even if the third party in question uses the Software exclusively for the Client’s benefit.
11.4. BOXMA is allowed to take technical measures to protect and/or secure the Software and the License. The Client is not allowed to remove or bypass such technical measures. If the Client is unable to make a back-up copy of the Software because of the security measures, BOXMA will make a back-up copy available to the Client upon request.
11.5. A License may only be used by the Client in its own company or organisation. A License is linked to a device, a user or a group of devices or users. In the absence of specific agreements in this respect, the Licence only applies to the device and account to which the Licence is linked upon first use. In the event of temporary use of an alternative device (e.g. due to a malfunction or defect of the standard device), the License will be temporarily valid on that alternative device and for the required duration of that alternative use – BOXMA remains ultimately authorised to decide on this. In case of normal usage, a Licence may only cover several devices or users insofar as this is expressly stated in the Agreement, or expressly follows from the nature and specifications of the Software.
11.6. In the event of doubt about the right to use a License, the opinion of BOXMA is decisive.
Article 12. Fair Use Policy
12.1. In the event that , in BOXMA’s opinion, the use must be considered as unreasonable use, excessive use or (whether or not intentional) abuse, or as endangering the stability or performance of the infrastructure after objective circumstances, BOXMA reserves the right to restrict or limit the Client’s use. In such a case, BOXMA will inform the Client in good time.
12.2. If it appears that the normal use is exceeded and is therefore contrary to the provisions of paragraph 12.1, BOXMA reserves the right to charge the Client an additional fee with retroactive effect. In addition, BOXMA reserves the right to take any other measures permitted by law.
Article 13. Duration & termination of the Agreement
13.1. In so far as an Agreement is a framework agreement or a continuing performance agreement, the following provisions will apply, unless the Agreement expressly provides otherwise.
13.2. Each Agreement has an initial term of 12 months. At the end of each 12-month contract period, the Agreement will each time be extended by operation of law by another 12 months. The Agreement can only be terminated at the end of the calendar year subject to three months’ notice and provided that the Agreement has already been running for a minimum of 12 months.
13.3. If an Agreement has been concluded for an indefinite period of time, it may be terminated by either party with due observance of a three months’ notice before the end of each calendar year.
13.4. Notice of termination must always be given in writing.
13.5. The Parties will never be obliged to pay any compensation solely on the grounds of a regular termination of an Agreement.
13.6. The Client may only terminate an Agreement in connection with an attributable breach, if BOXMA has been given notice of default in writing, stating reasons, and has been given a reasonable period of time to remedy the breach, and BOXMA remains in breach of its essential obligations under the Agreement even after expiry of the set period of time.
13.7. Each Party may terminate an Agreement in its entirety or partially without notice of default with immediate effect in writing if the other Party, whether temporary or not, is granted a suspension of payment of debts, if a petition for bankruptcy is filed with regard to the other Party, or if the other Party’s company is liquidated or dissolved for other purposes than a reorganisation or merger of companies. BOXMA will never be obliged to refund monies already received or to pay damages as a result of this termination. In the event that the Client is bankrupt, the right to use software made available to the Client will lapse by operation of law.
13.8. If, at the time of termination, the Client has already received performance pursuant to the Agreement, this performance and the related payment obligation cannot be undone. Amounts invoiced by BOXMA before the termination in connection with BOXMA’s performance pursuant to the Agreement will nevertheless remain due and will be immediately due and payable at the time of termination.
Article 14. Liability of BOXMA, indemnification
14.1. Except in the event of intent or deliberate recklessness, BOXMA’s total liability on account of an attributable failure to fulfil the Agreement on any legal basis whatsoever, expressly including any failure to comply with a guarantee obligation agreed with the Client, will be limited to compensation of direct damage up to the total amount (excl. VAT) invoiced for that Agreement.
14.2. Under no circumstances will BOXMA’s total liability towards the Client for compensation (including the costs to be reimbursed) exceed € 25,000 (twenty-five thousand euros) on any legal basis whatsoever.
14.3. BOXMA’s liability for indirect and consequential damage, including but not limited to loss of turnover, loss of capacity, internal costs, loss of profit, lost savings, reduced goodwill, damage due to business interruption, damage as a result of claims by the Client’s clients, is expressly excluded at all times.
14.4. BOXMA will never be liable for the total or partial loss of data and will not be responsible for costs related to data recovery.
14.5. The Client indemnifies BOXMA against all claims of third parties in connection with a defective product or service delivered by the Client to its clients and involving software or services of BOXMA, unless and in so far as the Client proves that the damage was caused by the software or services of BOXMA, in which case the terms and conditions of this Article apply to any possible liability of BOXMA in this regard.
14.6. Unless performance by BOXMA is and will remain impossible, BOXMA will only be liable on account of an attributable failure to perform the Agreement after the Client has given BOXMA written notice of default and has set a reasonable term for compliance, and BOXMA remains in breach of its obligations even after expiry of the set period of time. A notice of default or notice of liability due to an error and/or breach must contain a specified and sufficiently detailed description of the alleged attributable error or breach, in order to allow BOXMA to respond in an adequate manner.
14.7. Any claim for damages against BOXMA will lapse by the mere expiry of twelve months after inception of the claim or the discovery of the event causing the damage – depending on which date is later – unless the Client has instituted legal proceedings for compensation of the damage before the expiry of that term.
Article 15. Force majeure
15.1. Neither Party is obliged to fulfil any obligation if it is prevented from doing so as a result of force majeure. Force majeure is also be understood to mean force majeure of BOXMA’s suppliers and the non-fulfilment of obligations by BOXMA’s suppliers.
15.2. If a situation of force majeure has lasted longer than ninety days, the Parties will be entitled to terminate the Agreement concerned by giving written notice. Any performance already delivered pursuant to the Agreement will in that case be settled in accordance with the fees set for the work already performed or, where applicable, in proportion to the payment agreed on for the entire Agreement, without the parties owing each other anything else as a result of the force majeure situation.
Article 16. Miscellaneous
16.1. BOXMA’s administration will provide conclusive evidence with regard to the performances delivered by BOXMA and the fees charged, subject to evidence to the contrary by the Client.
16.2. The Client is not allowed to transfer rights and obligations ensuing from an Agreement to third parties or to establish security rights thereon, unless with BOXMA’s prior written consent. BOXMA will not withhold such permission on unreasonable grounds. BOXMA is allowed to transfer claims for payment of fees under an Agreement or to establish security rights on it.
16.3. If reference is made in an Agreement to communication to be done ‘in writing’, this will be understood to mean communication by letter and communication by email sent to the email addresses of the authorised representatives appointed for this purpose by the Parties from time to time. If a Party has not designated email addresses for this purpose, the email addresses listed in the Commercial Register will apply or, in the absence thereof, written communication will be sent by registered letter.
Article 17. Applicable law and disputes
17.1. Each Agreement between BOXMA and the Client is governed exclusively by Dutch law.
17.2. The applicability of the Vienna Sales Convention 1980 is excluded.
17.3. All disputes arising from an agreement concluded between BOXMA and the Client will be settled by the Dutch court, District Court of Gelderland, location Arnhem.