Standard Terms and Conditions
Dyflexis

Standard Terms and Conditions – Dyflexis

Module A – General

ARTICLE A.1. DEFINITIONS
The capitalised terms in the Standard Terms and Conditions are defined as follows:

1.1. Standard Terms and Conditions: the provisions contained in this document.

1.2. Data: the personal data that is stored by the Client and made accessible via the Service.

1.3. Service(s): the service(s) that Dyflexis will provide for the Client and as described in Dyflexis’ quotation or offer, including but not limited to the supply of hardware and software as a service.

1.4. Hardware: the equipment supplied to the Client by Dyflexis under the terms and conditions of the Agreement.

1.5. Start date: the date on which the Agreement enters effect and on which the supply of the Service commences.

1.6. Intellectual Property Rights: all intellectual property and related rights, including but not limited to copyrights, database rights, domain names, trade name rights, trademark rights, design rights, neighbouring rights, patent rights and also rights to know-how.

1.7. Dyflexis: the limited company Wodan Brothers, established in The Hague and registered at the Chamber of Commerce under record number 59584327. This is also understood to include all trade name rights of Dyflexis registered at the Chamber of Commerce, including the trade name Dyflexis.

1.8. Client: the natural person or legal entity with which Dyflexis has entered into an Agreement. It also refers to anyone who is in negotiations about this as well as its representative(s), authorised person(s), successor(s) in title or heirs.

1.9. Agreement: each agreement between Dyflexis and the Client that arises from an offer or quotation made by Dyflexis and the valid acceptance of this by the Client.

1.10. SLA: the service level agreement entered into between Dyflexis and the Client which includes agreements about the level, quality and manner of problem solving with regard to the Service.

1.11. Updates: changes and updates to the Service for the purpose of bug fixing, improving functionality and/or repairing faults.

1.12. Upgrades: structural changes and upgrades to the Service for the purpose of adding major functionalities.

1.13. Working Days: Monday to Friday, excluding public holidays in the Netherlands.

1.14. Work: the websites, applications, lay-out, database files, software, documentation, advice, reports, analyses, designs or other creations developed or designed by Dyflexis whether or not these are for the purpose and/or on the instructions of the Client.

1.15. Working hours: hours on working days between 9 am and 5 pm.

ARTICLE A.2. APPLICABILITY AND ORDER OF PRIORITY

A.2.1. These Standard Terms and Conditions apply to each quotation or offer by Dyflexis concerning the Services and form an integral part of each Agreement.

A.2.2. The specific modules apply if the requested or offered Services fall within the area of application described in the module. If a specific module is applicable, this will prevail over Module A.

A.2.3. The definitions described in article A.1 apply to all of the modules in these Standard Terms and Conditions, unless another meaning is attributed to these elsewhere in the Agreement and/or the Standard Terms and Conditions.

A.2.4. Provisions or terms stated by the Client which depart from or do not occur in these Standard Terms and Conditions are only binding for Dyflexis insofar as they have been expressly accepted in writing by Dyflexis.

A.2.5. In the event of a conflict between the provisions in the Agreement, the Standard Terms and Conditions or the annexes to thereof, the following order of priority shall apply:

(i) the Agreement;

(ii) the Service Level Agreement entered into;

(iii) any annexes to the Agreement;

(iv) these Standard Terms and Conditions.

ARTICLE A.3. OFFERS AND THE FORMATION OF AN AGREEMENT

A.3.1. The Agreement is formed through the express acceptance of the quotation or the offer by the Client.

A.3.2. If the client does not expressly agree to the quotation or the offer, but nevertheless agrees or gives the impression of agreeing that Dyflexis perform work which falls within the description of the Services, then the offer will be deemed to have been accepted. This also applies if the Client requests Dyflexis to perform specific work without waiting for a formal offer.

A.3.3. Offers by Dyflexis are valid for the period stated in the offer. If a period is not stated, the offer is valid for thirty (30) days from the date on which the offer was sent by Dyflexis.

A.3.4. If it emerges that the information provided by the Client when it requested the Agreement was incorrect, Dyflexis has the right to amend the prices accordingly.

A.3.5. The Agreement runs from the moment on which the technical Service is supplied to the Client (“the Start Date”) unless another start date has been agreed in writing.

ARTICLE A.4. PERFORMANCE OF THE AGREEMENT

A.4.1. After the Agreement enters effect, Dyflexis will make every effort to perform the Service within a reasonable period.

A.4.2. Where not agreed in writing otherwise, Dyflexis guarantees that it will perform the Service to the best of its ability and will employ sufficient care and professionalism.

A.4.3. The aforementioned periods and delivery periods are merely indicative and are not firm deadlines unless agreed otherwise in writing.

A.4.4. If and insofar as required for a good implementation of the Service, Dyflexis has the right to have certain work performed by third parties without notifying the Client. Dyflexis will not charge the expenses incurred by the third party to the Client, unless agreed otherwise in writing.

A.4.5. The Client is under the obligation to do everything and allow everything that is reasonably necessary and desirable to enable the timely and correct performance of the Service. In particular, the Client will ensure that all data which Dyflexis states are necessary or which the Client reasonable ought to understand as being necessary for the performance of the Service are provided on time to Dyflexis.

A.4.6. In addition to the data referred to in article A.4.5, the Client is under the obligation to provide up-to-date contact details to Dyflexis for communication between Dyflexis and the Client. The Client will immediately inform Dyflexis of any change to these contact details.

A.4.7. If the details referred to in articles A.4.5 and A.4.6 are not provided to Dyflexis in time or if the Client does not meet these obligations in another manner, Dyflexis will be entitled to suspend compliance with its obligations without being under the obligation to pay any form of compensation.

ARTICLE A.5. PRIVACY

A.5.1.  In the context of the Service, Dyflexis is deemed among the parties to be a processor and the Client is deemed to be a controller within the meaning of the Personal Data Protection Act (Wet bescherming persoonsgegevens).

A.5.2. The Parties undertake to act towards each other in accordance with the Personal Data Protection Act and other privacy-related laws and regulations.

A.5.3. Dyflexis will only use the personal data it receives from the Client for the performance of the Service.

A.5.4. Dyflexis will make every effort to take adequate technical and organisational measures against loss or any form of unlawful processing (such as unauthorised inspection, violation, alteration or provision of personal data) with regard to the personal data to be processed.

A.5.5. Dyflexis cannot fully guarantee that the protection will be effective under all circumstances. If an expressly agreed protection should unexpectedly be lacking, Dyflexis will make every effort to ensure that the protection meets a level that is not unreasonable given the state of the technology, the sensitivity of the personal data and the costs attached to implementing the protection.

A.5.6. Dyflexis has the right to engage third parties to process personal data in accordance with article A.4.4. It will make the same agreements concerning the purpose of the processing and impose the protection measures on this third party.

ARTICLE A.6. INTELLECTUAL PROPERTY

A.6.1. For Work and/or Services developed by Dyflexis, the Intellectual Property Rights lie with Dyflexis unless it has been agreed in writing with the Client that the rights will be transferred.

A.6.2. The Intellectual Property Rights concerning the open source software belonging to third parties that is used by Dyflexis are vested in the software developer or another rights holder. Such rights may not be transferred to a Client under any circumstances. The Client is responsible for compliance with open source software licences and indemnifies Dyflexis against claims by third parties concerning compliance with these licences.

A.6.3. The Client will obtain a non-exclusive and non-transferrable user right from Dyflexis for the duration of the Agreement for the Work that was specifically developed for and under the Instructions of the Client. Under this user right the Client has the right to use the Work for its own purposes. Furthermore, Dyflexis also places restrictions and/or conditions on the use of this Work.

A.6.4. Dyflexis is permitted to fully or partially use the developed Work and the associated source files and source code for other clients and purposes.

A.6.5. Dyflexis is not under the obligation to make the source files and source code of the developed Work available to the Client, unless agreed otherwise in writing.

A.6.6. Dyflexis is permitted to take technical measures to prevent changes to the developed Work and the associated source files and source code. This also includes protecting the Work using encryption.

ARTICLE A.7. LIABILITY

A.7.1. Dyflexis is only liable vis-à-vis the Client for direct damage resulting from a breach in the performance of this Agreement. Direct damage is solely understood to mean all loss arising from:
(a) direct damage inflicted on physical objects (“damage to property”);
(b) reasonable and demonstrable expenses that the Client has been forced to incur in order to urge Dyflexis to properly comply again with the Agreement;
(c) reasonable expenses for determining the cause and scope of the damage where this concerns the direct damage described here;
(d) reasonable and demonstrable expenses that the Client has incurred to avoid or limit the direct damage referred to in this article.

A.7.2. Dyflexis is not liable under any circumstances for the compensation of indirect damage, consequential damage or damage due to lost sales or profit, damage due to delay, damage due to data loss, damage due to exceeding deadlines as a result of changed circumstances, damage as a result of providing inadequate assistance, information or materials by the Client and damage as a result of information of advice provided by Dyflexis where the content does not expressly form part of the Agreement.

A.7.3. The maximum amount payable in the event of liability under paragraph 1 of this article per event or per series of connected events will be limited to the Client’s annual outstanding payments under this Agreement (excluding VAT). However, the total compensation per year for direct damage will under no circumstances exceed 15,000 euros (excluding VAT).

A.7.4. The limitation of liability as referred to in the previous paragraphs of this article will expire if and insofar as the damage results from intentional acts or gross negligence by the management of Dyflexis.

A.7.5. The liability of Dyflexis owing to a breach in the performance of the Agreement will arise solely if the Client immediately and properly issues a notice of default to Dyflexis, which stipulates a reasonable period for rectification of the breach and if Dyflexis also continues to breach its obligations even after this period. The notice of default should contain the most detailed possible description of the breach, so that Dyflexis is able to respond appropriately.

A.7.6. The application of articles 6:271 et seq of the Dutch Civil Code is excluded.

A.7.7. The Client indemnifies Dyflexis for all claims by third parties (including clients of the Client) concerning the compensation of damage, costs or interest which are connected to this Agreement and/or the Service.

ARTICLE A.8. FORCE MAJEURE

A.8.1. Dyflexis is not required to meet any obligation vis-à-vis the Client if it is obstructed in doing so as a result of any external cause, whether foreseen or otherwise, which Dyflexis is unable to control and for which reason Dyflexis is unable to meet its obligations.

A.8.2. This includes circumstances which are not attributable to negligence and which do not constitute a legal action in law or in generally accepted practice are at the expense of Dyflexis. In particular, force majeure is understood to be: national riots, mobilisation, wars, obstructions to traffic, strikes, network outages such as SYN floods or distributed denial of service attacks, network faults in the internet which Dyflexis has not contracted, business interruptions, supply stagnation, fire, flood, import and export restrictions and in the event that Dyflexis is held in a position in which it is unable to deliver which means that Dyflexis cannot be reasonably required to comply with the Agreement.

A.8.3. Dyflexis may suspend the Agreement for the duration of the force majeure, which will also suspend the payment obligations of the Client. If this period is longer than ninety (90) days, each party is entitled to terminate the Agreement without the obligation to compensate for the losses of the other party.

A.8.4. Where Dyflexis has already partly met an obligation under the Agreement at the time of occurrence of the force majeure or will be able to meet it during this period, and the part that has been met or will be met has an independent value, Dyflexis is entitled to separately charge for the part that has been met or will be met respectively. The Client is under the obligation to settle this invoice.

ARTICLE A.9. NON-DISCLOSURE

A.9.1. The parties undertake to not disclose any confidential information that they receive about the business of the other party, including the content of the Agreement. The parties will also impose this obligation on their employees and the third parties they engage for the performance of the Agreement.

A.9.2. Information that is considered as confidential under all circumstances: all information that is obtained by the other party in the context of the Agreement, information that should be deemed confidential due to its nature which includes but is not limited to personal data provided by the Client or information that is deemed confidential by one of the parties.

ARTICLE A.10. PRICES

A.10.1. Payments for the provision of the Services are stated in the quotation provided by Dyflexis. All prices are stated in euros and exclude VAT.

A.10.2. If the Agreement is a continuing performance contract, the outstanding amounts shown in the quotation will be invoiced to the Client prior to each new period, unless agreed otherwise in writing. Any additional charges will be settled at a later date.

A.10.3. Dyflexis is entitled to adjust its prices each time the Contract is extended in accordance with the applicable percentage for the previous year based on the Statistics Netherlands index for commercial services (DPI index) without the Client having the right to terminate the Contract.

ARTICLE A.11. PAYMENT TERMS

A.11.1. Dyflexis will send an invoice to the Client for the amount payable by the Client. The payment term of this invoice is fourteen (14) days from the invoice date, unless stated otherwise on the invoice or agreed otherwise in the Contract. If advance payment has been agreed upon, the Service will only be supplied once the invoice has been settled.

A.11.2. The Client agrees to electronic invoicing by Dyflexis. Invoices will be sent in PDF format or in another acceptable format to the Client’s email address held by Dyflexis.

A.11.3. If the Client has not paid or has not fully paid after the payment term, Dyflexis will give the Client a further option to pay the sum of the invoice within a reasonable period. If the Client does not settle the invoice within thirty (30) days of the due date, the Client will be in default by operation of law, without requiring a notice of default being. From that moment onward, Dyflexis is entitled to limit the provision of all its services, for instance by limiting access to the Service or temporarily suspending the Service, without the Client having a right to demand compensation for any damage that this may cause it. In the event of suspension by Dyflexis, the obligations of the Client continue to apply in full, which also include but are not limited to the payment obligation. This right to suspend also applies to Services where the Client has met its obligations.

A.11.4. In the event of non-timely payment, the Client is under the obligation to fully compensate the extra-judicial and legal costs, including lawyers fees, in addition to the amount owed..

A.11.5. The action for payment can be claimed immediately if the Client or a third party institutes winding-up proceedings against the Client, there is an application for a moratorium of the Client or garnishee proceedings or a seizure of assets are instituted against the Client, or if the Client is wound-up or dissolved.

A.11.6. The Client is not permitted to suspend or off-set the payment of amounts owed.

ARTICLE A.12. DURATION OF THE AGREEMENT

A.12.1. The Agreement is entered into for the term stated in the offer. If a term is not stated, the Agreement will be entered into for a term of twelve (12) months or for the time necessary to provide the Service. The Agreement can only be terminated in the intervening period in the manner stated in the Agreement, or with the agreement of both parties. However, if the Agreement concerns an agreement for services, this cannot be terminated early by the Client.

A.12.2. If the Agreement concerns a continuing performance agreement (for instance in the case of an SaaS agreement), in the absence of a written notice of termination within the specified time before the end of the aforementioned period and with consideration of the termination period, this will be always automatically extended by an equal period, unless agreed otherwise in writing.

A.12.3. Both parties will observe a notice period of three (3) months.

A.12.4. Dyflexis has the right to suspend the Agreement with immediate effect and without any obligation to pay compensation where reasonable, if
(a) the Client is in breach of its obligations and a similar breach is not rectified by the Client within five (5) days of a written notice of default;
(b) the Client is put into liquidation, there is an application for a moratorium or garnishee proceedings or a seizure of assets are instituted by the other Client.

A.12.5. In the event of a full or partial cancellation of the Agreement by the Client, under whatever grounds, the Client is required to reimburse 50% of the start-up costs stated in the offer or the hours already spent, depending on which sum is higher.

A.12.6. Dyflexis will store the Data for at least 7 years after the termination of the Agreement. After 7 years, Dyflexis is entitled to delete the Data, unless agreed otherwise in writing.

ARTICLE A.13. AMENDMENT OF THE AGREEMENT

A.13.1. Dyflexis is entitled to amend these Standard Terms and Conditions, provided that it communicates the intended changes to the Client within thirty (30) days. These amendments also apply to existing Agreements.

A.13.2. Minor amendments may be implemented at any time without giving the Client the right to terminate the Agreement.

A.13.3. If the Client does not wish to accept an amendment to these terms, it can terminate the Agreement before the date on which the new terms enter effect.

ARTICLE A.14. OTHER PROVISIONS

A.14.1. The laws of the Netherlands apply to the Agreement.

A.14.2. Insofar as mandatory rules of law do not prescribe otherwise, any dispute which may arise by reason of this Agreement will be submitted to the competent court in the district of The Hague, at the location in The Hague.

A.14.3. The version of any communication or administration received or stored by Dyflexis is valid as authentic and conclusive evidence, unless evidence to the contrary is provided by the Client.

A.14.4. “Written” in these Standard Terms and Conditions also includes communication sent by email, provided that the identity of the sender and the integrity of the content is sufficiently established.

A.14.5. If the Client is acquired by a third party or if the Client acquires a third party, it will always notify Dyflexis immediately once the Client is aware of the acquisition.

A.14.6. Dyflexis is entitled to transfer its rights and obligations from the Agreement to a third party that takes over the Service or the respective business activity for it, without requiring the consent of the Client.

A.14.7. If a provision in the Agreement proves to be void, this will not affect the validity of the Agreement as a whole. The parties to the Agreement will furthermore determine a new provision or provisions to replace this, which will be given the essence of the meaning of the original Agreement insofar as is legally possible.

Module B – Consultancy and Project Supervision

If the Service also extends to providing consultancy on ICT or ICT infrastructure, implementation and/or the use of software or the provision of training, the provisions of this module will additionally apply.

ARTICLE B.1. CONSULTANCY AND PROJECT SUPERVISION

B.1.1. Dyflexis will perform consultancy and project supervision to the best of its ability and will employ sufficient care and professionalism.

B.1.2. The parties will determine in advance the elements that constitute the consultancy and/or project supervision. If necessary, these will be adjusted through joint consultation during the supervision. Dyflexis has the right to charge account any additional costs.

B.1.3. Consultancy and project supervision within the context of the Agreement is always an obligation to use best endeavours, unless agreed otherwise in writing.

B.1.4. The Client is aware that it follows up the recommendations from Dyflexis entirely at its own risk. Dyflexis is only liable for any damage suffered where this arises from the Agreement.

B.1.5. Dyflexis will at all times communicate to the Client in advance the time and costs of work to be performed. The time required for the respective work will therefore depend on various factors, including the cooperation of the Client.

ARTICLE B.2. TRAINING SESSIONS AND COURSES

B.2.1. Dyflexis determines the content of the training sessions or courses to be provided. The Client may inform Dyflexis of its preferences for the content, but Dyflexis is not able to guarantee at all times that these preferences will be included in the training sessions or courses.

B.2.2. Training sessions and courses will be held at Dyflexis’ training facilities in The Hague, unless agreed otherwise in writing.

B.2.3. If Dyflexis provides a training session or course at the premises of the Client, the Client is responsible for providing the facilities that Dyflexis requires (including in all cases an adequate training room, computers, projectors, internet connection, food and drink) for the training session or course, as well as handling registrations.

B.2.4. The Client can only cancel and/or reschedule a training session or course at no charge up to five (5) days before the date of the scheduled training session or course. If cancelled and/or scheduled within five (5) days of that date, the Client must pay 50% of the agreed charges. If the training courses are obligatory, Dyflexis is not under any obligation to reimburse any payments made.

B.2.5. Dyflexis can only cancel and/or reschedule a training session or course at no charge up to five (5) days before the date of the scheduled training session or course. Any payments already made for training sessions or courses which have not been taken will be repaid within ten (10) Working Days. If the training courses are obligatory, Dyflexis is not under any obligation to reimburse any payments made. In this case, the parties will consult to determine another date.

B.2.6. We use security cameras at our offices to protect our property.

Module C – Supply of Hardware

If the Service also extends to providing ICT hardware, this module will additionally apply.

ARTICLE C.1. DELIVERY

C.1.1. Dyflexis will make every effort to deliver the Hardware on the agreed date. However, Wodan Brothers is dependent on its suppliers and does not have any influence over the transporter firms. For this reason, Dyflexis is unable to guarantee that the Hardware will be delivered within the agreed period.

C.1.2. The Hardware will be delivered in principle to the Client’s address that Dyflexis holds on file. The Client is personally responsible for providing the correct address details should there be any changes or if the Client wishes to use an alternative delivery address.

C.1.3. If the Hardware ordered by the Client is unable to be delivered or can no longer be delivered, Dyflexis is entitled to deliver equivalent Hardware which meets the specifications. Dyflexis will notify the Client of this in advance wherever possible.

C.1.4. The Client is under the obligation to immediately inspect the hardware after accepting delivery. If the Client discovers visible defects, these should be reported to Dyflexis within ten (10) Working Days.

C.1.5. Any other defects should be notified to Dyflexis within twenty (20) Working Days of receipt of the hardware or completion of the services

C.1.6. If the aforementioned complaint is not submitted to Dyflexis within the aforementioned periods, the Hardware will be considered to have been received in good condition or the work will be considered to have been performed well.

C.1.7. Minor variations to the stated sizes, weights, colours and suchlike do not count as breaches on the part of Dyflexis.

C.1.8. Complaints do not suspend the Client’s payment obligation.

C.1.9. Any right to submit a complaint expires if the nature and/or composition of the Hardware been fully altered or has been partly reworked, processed or damaged.

ARTICLE C.2. PAYMENT AND RETENTION OF TITLE

C.2.1. Before the Hardware is delivered, the Client must pay half of the agreed amount in advance to Dyflexis. Dyflexis will only send the Hardware and/or make it available to the Client once this first payment has been made. Dyflexis is not liable for damage as a result of a late delivery due to payment that is not forthcoming.

C.2.2. Until the Client makes full payment for the entire agreed amount, all goods delivered will remain the property of Dyflexis.

ARTICLE C.3. GUARANTEES

C.3.1. Dyflexis provides a twenty-four (24) month guarantee on the Hardware supplied.

C.3.2. If the Hardware displays defects within the first year of purchase, the Client may return the Hardware to Dyflexis. The costs for sending the Hardware to Dyflexis will be borne by the Client.

C.3.3. Following inspection, Dyflexis will repair the Hardware at no cost, unless the inspection shows that the defects were incurred through the actions of the Client. In the latter case, Dyflexis is entitled to charge the costs for repair to the Client. Dyflexis will always notify the Client in advance of the costs. Dyflexis is also entitled to return refurbished hardware if repair is not possible.

C.3.4. After the second year as referred in the first paragraph, the Client can request Dyflexis to repair the Hardware. Dyflexis will inform the Client of the costs incurred for repairs after it has received the Hardware. Following approval, Dyflexis will accept the Hardware for repair.

C.3.5. Dyflexis is not under any obligation to provide replacement or temporary replacement Hardware to the Client, unless agreed otherwise in writing.

Module D – SaaS service provision

If the Service also extends to providing services for the supply of software (as a service) or the installation, administration and maintenance of software (as a service), the provisions of this module also apply.

ARTICLE D.1. SUPPLY OF SOFTWARE (AS A SERVICE)

D.1.1. Dyflexis grants the non-exclusive, non-transferrable and restricted right to the Client to use the Service for the duration and under the terms of this Contract.

D.1.2. User right as stated in the previous paragraph also includes all future Updates. Dyflexis has the right to charge additional costs for the installation of Upgrades.

D.1.3. The Client is entitled to use the Service under the user right for the Client’s company or organisation. The restrictions, which are also understood to include the number of employees and/or administrators and available functions are stated in the Contract.

D.1.4. Unless agreed otherwise in writing, the Client is not permitted to sub-lease the Service or to make it available to a third party in any other manner. This is not understood to mean the employees of the Client’s company or organisation.

D.1.5. When purchasing the Service, the Client will ensure that it strictly complies with all applicable legal requirements.

D.1.6. Dyflexis will send or issue the log-in details to the Service to the Client at around the start date. The Client is aware that losing the log-in details can lead to unauthorized access to the Service. Therefore, the Client will protect the log-in details from unauthorized persons.

D.1.7. The Client is personally responsible for loading all data into the Service with the help of the upload function or one of the synchronisation functions which Dyflexis has made available in the Service. Dyflexis is not liable for any inaccuracies following the loading or during the synchronization of the data, unless intentional acts or gross negligence are involved.

D.1.8. The Client will impose on end users at least the same terms as recorded in article D.5 for the use of the Service.

D.1.9. Dyflexis is entitled to use the Data in anonymised form and to use the Data for statistical analyses and/or benchmarking. Furthermore, Dyflexis is entitled to monitor usage of the Service and on this basis it will be able to provide recommendations to the Client.

ARTICLE D.2. AVAILABILITY AND MAINTENANCE

D.2.1. If an SLA has not been agreed between the parties, the following provisions shall apply.

D.2.2. Dyflexis will make every effort to keep the Service available, but does not guarantee uninterrupted availability.

D.2.3. Dyflexis actively maintains the Service. Maintenance can occur at any time, even if this may lead to a restriction in availability. However, Dyflexis will make every effort to perform the maintenance when the Service is being used the least. Maintenance will be announced in advance, wherever possible.

ARTICLE D.3. GUARANTEES AND CHANGES

D.3.1. The Client accepts that the Service only contains the functionality and other characteristics that the Client encounters in the Service at the moment of delivery (“as is”), therefore with all visible and invisible faults and shortcomings.

D.3.2. Dyflexis will every effort to rectify problems/defects in the Service. However, Dyflexis does not offer any guarantees in this respect.

D.3.3. The Client should check the calculations performed or processing of the Data by the Service. Dyflexis does not guarantee that all calculations and/or processing will be free from errors at all times.

D.3.4. Dyflexis may alter the functionality of the Service from time to time. Feedback and suggestions from the Client are welcome in this regard, however Dyflexis has the right to not make the alterations if it has reasonable grounds for this. Dyflexis will aim, but is not under any obligation, to communicate the alterations that it intends to make at least two (2) Working Days in advance. The Client may not continue to use the old version of the Service under any circumstances.

ARTICLE D.4. SUPPORT BY DYFLEXIS

D.4.1. Dyflexis offers support when supplying the Service in the form of work which in Dyflexis’ opinion are supportive, and can be performed rapidly, properly and simply.

D.4.2. Dyflexis has the right to charge additional costs for Upgrades. Dyflexis will always inform the Client of the costs in advance.

ARTICLE D.5. RULES OF CONDUCT

D.5.1. The Client is prohibited from violating Dutch or other laws or regulations that apply to the Client or Dyflexis or to breach the rights of others when using the Service.

D.5.2. Dyflexis prohibits offering, storing or distributing materials (whether legally or otherwise) through the use of the Service which:

(a) are unmistakably and primarily intended to help others to violate the rights of third parties, such as websites exclusively or primarily with hacking tools or explanations on computer crime that are manifestly intended to enable the reader to carry out or have others carry out the criminal acts described and not to be able to defend themselves against these;
(b) are unmistakably defamatory, libellous, threatening, racist, discriminatory or incite hatred;
(c) contain child pornography or bestiality pornography or are clearly aimed at helping others to find such materials;
(d) violate the privacy of third parties, including in any case but not limited to disseminating the personal data of third parties without consent or need or the repeated harassment of third parties with this unwanted communication;
(e) contain hyperlinks, torrents or references to places where these materials can be found or that unmistakably breach copyrights, neighbouring rights or portrait rights;
(f) contain undesired commercial, charitable or non-commercial communication; or
(g) contain harmful content such as viruses or spyware.

D.5.3. The Client will refrain from hindering other clients or internet users or causing damage to systems or networks belonging to Dyflexis or to other clients. The Client is forbidden from starting processes or programmes, whether on Dyflexis’ systems or not, which the Client knows or reasonably may suspect could cause nuisance or damage to Dyflexis, its clients or internet users.

D.5.4. If Dyflexis believes that nuisance, damage or any other risk is posed to the functioning of the computer systems or network belonging to Dyflexis or third parties and/or the service provision via the internet, in particular through sending excessive emails or other data, distributed denial of service attacks, poorly protected systems or activities of viruses, Trojans and similar software, Dyflexis is entitled to take all measures that it considers reasonably necessary to avert or prevent this risk. Dyflexis may retrieve the costs from the Client that are reasonably necessary and associated with these measures.

ARTICLE D.6. NOTICE & TAKEDOWN (COMPLAINTS PROCEDURE)

D.6.1. If Dyflexis receives a complaint about a breach of the previous article by the Client, or identifies that this may be the case, Dyflexis will notify the Client as soon as possible about the complaint or breach. The Client will respond as soon as possible, after which Dyflexis will decide on a course of action.

D.6.2. If Dyflexis believes that there has been a breach, it will block access to the respective data and/or files, however it will not permanently delete these (unless this is technically impossible, in which case Dyflexis will create a back-up). Dyflexis will make every effort to not affect any other data and/or files when doing this. Dyflexis will notify the Client as soon as possible about the measures taken.

D.6.3. If Dyflexis believes that there has been a breach of the previous article (Code of Conduct), Dyflexis is entitled to limit the provision of all its services after 24 hours of sending notification, for instance by limiting access to the Service or temporarily suspending the Service, without the Client having a right to demand compensation for any damage that this may cause it. Dyflexis is also entitled at all times to report any criminal acts observed. Dyflexis is only under the obligation to surrender the Client’s data to a third party following a court order.

D.6.4. Although Dyflexis aims to act as reasonably, carefully and appropriately as possible after complaints about the Client, Dyflexis is not under any obligation to compensate damage that results from the measures referred to in this article.

D.6.5. In the event of repeated complaints about the Client or the information stored by the Client, Dyflexis is entitled to terminate the Agreement.

ANNEX 1 – SERVICE LEVEL AGREEMENT

ARTICLE 1. DEFINITIONS

In addition to the definitions used in the Standard Terms and Conditions, the following definitions are used in this SLA.

1.1. Actual availability: the actually achieved level of availability of the Service.

1.2. Error: the substantial failure to comply with the written functional specifications expressly agreed between the parties. There is only an Error if the Client can demonstrate this and this Error can be reproduced by Dyflexis.

1.3. Desired Availability: the degree of availability of the Service that Dyflexis strives for.

1.4. Repair time: the time between (i) the moment at which Dyflexis detects an Error or the Client has reported an Error and this has been confirmed by Dyflexis and (ii) the moment at which the Error is resolved, the Error in the Service has been replaced or a Workaround has been created, as determined by Dyflexis.

1.5. Maintenance: performance of repairs, taking precautionary measures and regular checks of the Service as well as planned maintenance.

1.6. Support: providing verbal advice by telephone and written advice and/or other support work concerning the use and operation of the Service.

1.7. Response time: the time between (i) the moment on which the Client has reported an Error and (ii) the moment on which Dyflexis sends a response to the Client that it has received the error report, as determined by Dyflexis.

1.8. Working day: from 9 am to 5 pm, Mondays to Fridays, excluding official public holidays observed in the Netherlands.

1.9. Changes: a structural change in the Service that was requested by the Client and recorded by Dyflexis.

1.10. Workaround: an action in which an Error can be circumvented, which may or may not be temporary.

ARTICLE 2. NATURE OF THE AGREEMENT

2.1. This document comprises the SLA for the Services as provided by Dyflexis. The purpose of the SLA is to record the level of service. This is achieved by describing important features, recording performance standards and determining the consequences of any unexpected failure to meet these standards.

2.2. The SLA enters effect at the point of first delivery of the Service and is entered into for the same period as the Agreement under which the Service is supplied. The SLA terminates automatically on the date on which the Agreement ends. A termination of the Agreement will also count as a termination of this SLA.

2.3. This SLA refers exclusively to the following standard support activities from Dyflexis:
(a) providing periodic Maintenance;
(b) repairing Errors;
(c) implementing Changes;
(d) monitoring the Desired Availability; and
(e) providing Support.

2.4. In addition to these standard support activities, Dyflexis may also perform other work for the Client. This work will most likely be charged separately. Dyflexis will at all times consult with the Client in advance and state the costs.

2.5. The Standard Terms and Conditions apply to this SLA. In the event of any conflict between the provisions, the Standard Terms and Conditions shall prevail.

ARTICLE 3. CONTACT DETAILS

3.1. The Client will use the following contact details to report Errors:

3.2. The aforementioned email address can be used for contact purposes outside of Working Days if the Client believes that there is a Fault described under priority level 1. Should this not be the case in the view of Dyflexis and Dyflexis feels that the emergency number is being misused, then Dyflexis has the right to charge for the hours incurred.

3.3. Both the Client and certified employees of the Client may contact Dyflexis under this SLA.

ARTICLE 4. PRIORITY LEVELS AND ERROR HANDLING

4.1. The Client reports Errors to Dyflexis in accordance with the table in article 3 (Contact details). If Errors are reported to Dyflexis in another manner, for instance by using other telephone numbers or email addresses, correct handling cannot be guaranteed.

When reporting an Error, the following details should be communicated to Dyflexis:
(a) name of the Client’s organisation;
(b) the name of the Client’s contact person for this Error;
(c) current contact details (mobile telephone number, email address) of this contact person;
(d) a description of the Error, which is as precise as possible;
(e) a description of the measures which the Client has already taken.

4.2. Provided that the Errors are subject to handling by Dyflexis, they will be classified according to the following levels of priority:

The priority level will be determined reasonably by the support technician at Dyflexis who handles the Error following reporting by the Client.

4.3. The column below shows the efforts required by Dyflexis when dealing with Errors, for each priority level:

Contrary to the chart shown above, Dyflexis is entitled to defer the Errors with priority level 3 to subsequent releases of the Service. Dyflexis will take account as far as possible with the consequences for the Client, but is not under any obligation to do so.

4.4. The support technician from Dyflexis will notify by email the Client’s contact person about the specific Error within the Response Time regarding:
(a) the Priority Level of the Error; and, if this is already known
(b) the cause and solution for the Error.

4.5. In order to provide feedback to the Client, Dyflexis needs to hold valid contact details for the Client. The Client is therefore responsible for providing correct and up-to-date contact details. If the contact details held by Dyflexis are not correct due to an action or omission by the Client, or if the non-timely feedback by Dyflexis about the Error is the result of circumstances which cannot be attributed to Dyflexis, then the attempt made by Dyflexis counts as the time of feedback.

4.6. The Client agrees to assist with the rectification of the Error to the best of its ability.

4.7. If the assistance referred to in the previous paragraph is not provided, through no action of Dyflexis, the Repair Time will only enter effect at the moment that the Client provides the required assistance.

4.8. Dyflexis uses an escalation procedure that is deployed when an Error cannot be resolved within a certain time (Repair Time). During this procedure, Dyflexis will deploy all reasonably available resources (including external technical engineers if these are deemed necessary), to expedite the resolution of the Error. In addition, specific arrangements may be made with the Client about the solution of the Error during the escalation procedure. During the escalation procedure, Dyflexis will inform the Client every working day of the progress of the solution for the Error.

ARTICLE 5. AVAILABILITY

5.1. Dyflexis makes every effort twenty-four (24) hours a day, seven (7) days a week, throughout the entire year to keep the Service available 99.8% of the time, designated as the Desired Availability.

5.2. Availability means that the Service can be accessed and used by the Client. Faults in the connection and/or equipment that are beyond the control of Dyflexis, such as the Client’s connection and/or equipment, are not included.

5.3. Dyflexis calculates the Actual Availability each month as follows:

“AA”            = Percentage of Actual Availability;
“DA”            = Desired Availability in minutes;
“G”               = The number of minutes during which an Error occurs.

5.4. Non-availability due to force majeure, Maintenance or the Hardware and/or equipment supplied by Dyflexis over which Dyflexis has no influence, are not considered as an Error and do not have any influence on the calculation of the Actual Availability.

ARTICLE 6. MONITORING OF AVAILABILITY

6.1. For the purpose of determining whether the promised guarantees in article 5 (Availability) are being adhered to, Dyflexis will take a sample every five minutes of the relevant data. An average will be calculated on the basis of these samples. This average determines whether the stated standards are being exceeded, unless the Client provides proof to the contrary.

6.2. On request by the Client about suspected non-availability and following receipt of a notification of non-availability of the Service, Dyflexis will respond in accordance with the Response Times stated in article 4.3.

ARTICLE 7. MAINTENANCE

7.1. Dyflexis may carry out maintenance on the Service from time to time when it deems this necessary. Dyflexis will try to perform any shutdowns outside of Working Days, wherever possible. Dyflexis will make every effort to notify the Client at least two (2) Working Days in advance of any such Maintenance, however it is not under any obligation to do so. Maintenance will not affect the guarantees in articles 4 (Priority Levels and Error Handling) and 5 (Availability).

ARTICLE 8. CHANGES

8.1. The Client may submit a Change request by contacting Dyflexis using the contact details shown in article 3 (Contact details) Dyflexis will make every effort to handle the request as quickly as possible, but does not provide any guarantees in this regard.

8.2. Dyflexis will also make a proposal on its own initiative to the Client for a Change if this Change will resolve a structural Error. However, Dyflexis is not under any obligation to make any such proposal and may perform this Change without the consent of the Client if it deems this necessary. The Client also has no influence on the respective Change.

8.3. For every Change request, Dyflexis will make a proposal to the Client concerning the content, planning and costs of the Change.

8.4. Dyflexis will make every effort to carry out change requests, but until the content, planning and costs of the Change have been agreed, Dyflexis may decide to fully/partially cancel the Change if it deems the efforts required for this to be disproportionate.

8.5. If a requested Change will not be performed, Dyflexis will immediately notify the Client about this.

ARTICLE 9. BACK-UP

9.1. Dyflexis backs up the Service every day. This back-up can only be accessed by Dyflexis. The Client may request Dyflexis to make the back-up available, but Dyflexis may decline such requests at any time.

9.2. Dyflexis has the right to charge reasonable costs to the Client for making the back-up available or restoring it. Dyflexis will always inform the Client of the costs in advance.

9.3. Dyflexis is not liable under any circumstances for the loss of Data as a result of the failure of the Service and/or the back-up or back-up software. The Client will remain responsible at all times for saving the Data stored through the Service.

9.4. The Client is personally responsible for securing the data stored through the Service. Dyflexis is not liable under any circumstances for the loss of data in any way, unless agreed otherwise in writing.

ARTICLE 10. SUPPORT BY DYFLEXIS

10.1. Dyflexis offer support when supplying the Service in the form of telephone support, creating a connection to third-party software and other work activities which in the view of Dyflexis are supportive and can be performed rapidly and simply. Dyflexis has the right to charge additional costs for the respective work. Dyflexis will at all times send a quotation to the Client before commencing the work.

10.2. Dyflexis is entitled to decline to provide support to non-certified users.

10.3. Dyflexis will at all times notify the Client in writing of the costs of the Support prior to commencing the work.

ARTICLE 11. PENALTY CLAUSE

11.1. If Dyflexis does not meet the response obligations, referred to as the Response and Repair Time, in accordance with article 4 (Priority Levels and Error Handling), Dyflexis will pay a penalty for each hour in which the response or repair is delayed, that is equal to one thirtieth of the monthly amount due for the respective Service.

11.2. If Dyflexis does not comply with one or more of the guarantee stipulations in article 5 (Availability), Dyflexis will pay a penalty for each hour in which the response or repair is delayed, that is equal to one thirtieth of the monthly amount due for the respective Service.

11.3. This penalty clause replaces any damage compensation that the Client may be able to claim for non compliance.

11.4. If the Client observes that a refund is due, it will notify Dyflexis of this in writing and this will be credited on the next invoice.

11.5. If the Client believes that a refund is due whereas this is not forthcoming from Dyflexis, the Client should send a written request to this effect and provide proof if requested.

11.6. Refunds to be paid will never exceed the total of the monthly amount in any month.

ARTICLE 12. CHANGE TO TERMS AND CONDITIONS

12.1. Dyflexis has the right to alter this SLA at any moment.

12.2. Dyflexis will announce the changes or additions in writing or via the Service at least thirty (30) days before they enter into effect so that the Client is aware of these.

12.3. If the Client does not wish to accept a change or addition to the SLA, it may cancel prior to the date that the respective changes or additions enter effect. Use of the Service after the date that the amendment or addition enters into effect counts as acceptance of the amendment or addition to the SLA.

ANNEX 2 – PROCESSOR’S AGREEMENT

This annex forms an integral part of the Agreement. The Client is responsible (“the Party Responsible”) for Personal Data in the Agreement. Dyflexis is the processor (“the Processor”) of the Personal Data in the Agreement. The parties will now be referred to as the Party Responsible or the Processor.

 

whereas

– the Party Responsible has control of the personal data of various persons concerned (hereinafter: the “Personal Data”);
– The Party Responsible wishes various types of processing to be performed by the Processor, for the purpose of performing the Agreement in order to use the various applications offered by the Processor;
– The Party Responsible refers to the purposes and resources and the terms and conditions described in this document apply;
– The Processor is prepared to perform changes and is also prepared to comply with the obligations concerning security and other aspects from the Dutch Personal Data Protection Act (Wet bescherming persoonsgegevens – Wbp), where this is within its power;
– The Party Responsible can be considered as the party responsible in the sense of article 1, section d of the Wdp;
– The Processor can be considered as the processor in the sense of article 1, section e of the Wbp;
– where reference in this agreement is made to Personal Data, it refers to personal data in the sense of article 1, section a of the Wbp;
– The Parties, wish to record their rights and duties, also in view of article 14(5) Wbp, by means of this processor’s agreement (hereinafter: the “Processor’s Agreement”).

Have agreed as follows

ARTICLE 1. PROCESSING OBJECTIVES

1.1. The Processor undertakes to process the Personal Data under the instructions of the Party Responsible under the terms and conditions of this Processor’s Agreement. Processing will solely occur for the purpose of using the various applications offered by the Processor for the performance of the Agreement and the purposes which will be determined subject to later agreement.

1.2. The Processor will not use the Personal Data for purposes other than those determined by the Party Responsible. The Party Responsible will inform the Processor of the processing objective where these have not been already mentioned in the Processor’s Agreement. However, the Processor may use the Personal Data for statistical and/or quality purposes and also for performing statistical research into the quality of its service. The Processor may also use the data in an aggregated and anonymised form for its own purposes.

1.3. The Personal Data to be processed under the instructions of the Party Responsible will remain the property of the Party Responsible and/or the respective persons responsible.

1.4. The Party Responsible warrants that the processing of personal data falls under one of the exemptions of the Wbp, or where this is not the case, a report has been made to the Dutch Data Protection Authority. The Party Responsible indemnifies the Processor against any claims connected to the non-compliance or failure to correctly comply with the notification requirement.

ARTICLE 2. OBLIGATIONS OF THE PROCESSOR

2.1. With regard to the processing referred to in article 1 (Processing Objectives), the Processor will ensure compliance with the applicable laws and regulations, including in all cases the laws and regulation in the area of data protection such as the Dutch Personal Data Protection Act.

2.2. The Processor will inform the Party Responsible when first requested, on the measures it has taken concerning its obligations under this Processor’s Agreement.

2.3. The obligations of the Processor that arise from this Processor’s Agreement also apply for persons who come under the authority of the Processor, including but not limited to employees in the broadest sense of the word.

ARTICLE 3. TRANSFER OF PERSONAL DATA

3.1. The Processor may process the Personal Data in countries within the European Union. Transfers to countries beyond the European Union are permitted, provided that an appropriate level of protection applies in the respective country concerning personal data (as determined by the European Commission).

3.2. The Processor will notify the Party Responsible of the country concerned, on request.

ARTICLE 4. DIVISION OF RESPONSIBILITY

4.1. The permitted processing is performed by fully automated means under the control of the Processor.

4.2. The Processor is only responsible for the processing of personal data under this Processor’s Agreement, in accordance with the instructions from the Party Responsible and under the express end responsibility of the Party Responsible. The Processor is expressly not responsible for any other processing of Personal Data, including in all cases but not limited to the collection of Personal Data by the Party Responsible, processing for which purposes that the Party Responsible does not notify the Processor, processing by third parties and/or for any other purposes.

4.3. The Party Responsible guarantees that the content, use and instructions for processing the Personal Data as referred to in this Processor’s Agreement is not unlawful and does not breach any third-party right and indemnifies the Processor against any claims or demands that are connected to this.

ARTICLE 5. ENGAGEMENT OF THIRD PARTIES OR SUBCONTRACTORS

5.1. The Processor may use a third party within the context of this Processor’s Agreement, without the prior consent of the Party Responsible.

5.2. The Processor ensures unconditionally that these third parties assume in writing the same duties as those agreed between the Party Responsible and the Processor. The Processor warrants the correct compliance of these duties by these third parties. The Party Responsible does not have the right to inspect any possible agreements with the parties concerned.

5.3. If specifically requested by the Party Responsible, the Processor will always declare any third parties that it engages for the performance of this Processor’s Agreement However, the Party Responsible does not have any influence on choosing the third parties engaged,

ARTICLE 6. SECURITY

6.1. The Processor will make every effort to take adequate technical and organisational measures with regard to the processing of Personal Data to be performed against loss or any form of unlawful processing (such as unauthorised inspection, violation, alteration or provision of Personal Data).

6.2. The Processor cannot fully guarantee that the protection is effective under all circumstances. The Processor will make every effort to ensure that the protection meets a level that is not unreasonable given the state of the technology, the sensitivity of the personal data and the costs attached to implementing the protection.

6.3. The Party Responsible will provide Personal Data to the Processor for processing if it has received a guarantee that the required security measures have been taken. The Party Responsible is responsible for the compliance with the measures agreed between the Parties.

ARTICLE 7. NOTIFICATION REQUIREMENT

7.1. In the event of a security leak and/or a data leak, the Processor will inform the Party Responsible about this, following which the Party Responsible will assess whether or not to inform the persons concerned. The Party Responsible is and will remain responsible for any legal obligations in this regard.

7.2. Notification should only occur for events with a large impact, and only if the event has actually arisen.

ARTICLE 8. HANDLING OF REQUESTS FROM PERSONS INVOLVED

8.1. If a person concerned submits a request to the Processor for inspection, as provided by article 35 Wbp, or to improve, supplement, amend or block as provided in article 36 Wbp, the Processor will forward the request to the Party Responsible and will request that the Party Responsible proceeds further with this. The Processor may inform the party concerned of this.

ARTICLE 9. NON-DISCLOSURE AND CONFIDENTIALITY

9.1. A non-disclosure duty vis-à-vis third parties is vested in all Personal Data that the Processor receives from the Party Responsible and/or gathers as part of this Processor’s Agreement. The Processor will not use this information for purposes other than those for which it was obtained. However, the Processor has the right to process the Personal Data obtained in an anonymous manner for statistical purposes in accordance with article 1.2.

9.2. This non-disclosure duty does not apply where the Party Responsible has explicitly given permission to provide the information to third parties, if the provision of the information to third parties is logically required given the nature of the engagement provided and the performance of this Processor’s Agreement, or if there is a legal obligation to provide the information to a third party.

ARTICLE 10. AUDIT

10.1. The Party Responsible does not have the right to perform audits.

ARTICLE 11. DURATION AND TERMINATION

11.1. This Processor’s Agreement is entered into for the duration stated in the Agreement and if not specified, the duration in all cases of the collaboration between the parties.

11.2. The Processor’s Agreement cannot be terminated by the parties in the interim, unless stated otherwise in the Agreement.

11.3. The parties may only alter this Processor’s Agreement with mutual agreement.

11.4. If it becomes necessary to amend this Processor’s Agreement, for instance following a change in legislation, the Processor will send a new proposal to the Person Responsible. The Person Responsible will provide their full cooperation with effecting these changes.