1.1 Additional Terms of Use: the terms relating to the use of Third-Party Software and/or the general terms and conditions of Third Parties.
1.2 General Terms and Conditions: these general terms and conditions and any appendices thereto.
1.3 Authentication Means: the (combination of) data and/or means with which the Client can authenticate itself with Sienn, such as the combination of username/password, unique PIN codes whether or not generated by means of tools, etc.
1.4 Third Parties: parties other than Sienn and the Client.
1.5 Services: the services of Sienn specified in the Agreement.
1.6 Documentation: the user manuals and instructions provided by Sienn with regard to the Software and Services.
1.7 Defect: the substantial failure of the Software or a Service to comply with the Documentation.
1.8 Implementation: the work aimed at setting up and configuring the Software of Sienn and/or Third Parties and any other work required to deliver the Software ready for use to the Client.
1.9 Maintenance: the repair of Defects in the Software and the making available of any new versions of the Software.
1.10 Support: the Service agreed between Sienn and the Client for making a helpdesk available for user questions and malfunction reports and — depending on the type of service contract — resolving malfunctions and/or Defects and performing Maintenance, all as described in these General Terms and Conditions, the Agreement and the Service Level Agreement.
1.11 Client: the contracting party of Sienn making use of the Services, including the Reseller.
1.12 Agreement: the agreement between Sienn and the Client, for example but not limited to the quotation for the provision of Services by Sienn to the Client.
1.13 Reseller: a distributor of the Software authorized by Sienn who, in accordance with the reseller agreement concluded with Sienn, is entitled to exploit the Software for its own account and risk and make it available to its own customers.
1.14 In Writing: by letter or by email.
1.15 Service Level Agreement: the separate agreement in which the maintenance and support services are elaborated further.
1.16 Sienn: Sienn Group B.V. and/or any group company thereof or any entity in which it holds controlling interest.
1.17 Software: the software of Sienn and/or Third Parties specified in the Agreement.
2.1 These General Terms and Conditions apply to all offers of Sienn and Agreements. These General Terms and Conditions also always apply to further or later Agreements, regardless of whether they have also been explicitly declared applicable after the first Agreement. The applicability of any general terms and conditions of the Client is expressly excluded.
2.2 If a Reseller makes the Software available to its own customers, the Reseller shall do so on the basis of a written agreement with the relevant customers. In this written agreement, the Reseller shall include provisions that are substantively identical to the provisions in (i) these General Terms and Conditions and (ii) the reseller agreement concluded between Sienn and the Reseller. This does not affect Sienn’s right to impose any additional conditions on the Reseller, such as for example an addendum to the reseller agreement, or the use of an end user license agreement that the Reseller will impose on its customers (or the end users thereof). Sienn reserves the right to request proof from the Client of the declaration of applicability of the aforementioned provisions and conditions.
2.3 Insofar as the performance of the Agreement also includes the supply or onward supply of products and/or services of Third Parties, the relevant general terms and conditions of the relevant Third Parties shall apply. The use of Third-Party Software is subject to the also applicable Additional Terms of Use.
2.4 Unless otherwise indicated in these General Terms and Conditions or in the Agreement, deviations from and additions to these General Terms and Conditions or Agreements — including oral agreements — shall only be valid when confirmed In Writing by Sienn.
2.5 Sienn reserves the right to amend or supplement the General Terms and Conditions. Sienn shall inform the Client thereof at least one month before the amendment takes effect. Such amendments or supplements shall in principle also apply to Agreements already concluded. If the Client does not accept an amendment to the General Terms and Conditions, it may terminate the concluded Agreement by giving notice by the date on which the new conditions take effect.
2.6 If one or more provisions in these General Terms and Conditions are found to be null and void by a court or are annulled, the other provisions of these General Terms and Conditions shall remain fully in force. In that case, the parties shall consult with each other in order to agree on new provisions to replace the invalid provisions, taking into account as much as possible the purpose and scope of the invalid provisions.
2.7 In the event of mutual inconsistency, the following order of precedence shall apply (more specific prevails over more general): (1) Additional Terms of Use, (2) agreements with the Client confirmed In Writing by Sienn, (3) Agreement, (4) General Terms and Conditions and (5) the Service Level Agreement.
2.8 The rights and obligations arising from the Agreement may not be transferred by the Client to a third party, except with the prior Written consent of Sienn. Conditions may be attached by Sienn to such consent.
3.1 All offers (as well as the prices stated by Sienn), in whatever form, are without obligation and may be revoked by Sienn. The Client guarantees the accuracy and completeness of the data provided to Sienn by or on its behalf, on which Sienn bases its offer.
3.2 Unless otherwise indicated in these General Terms and Conditions, an Agreement is concluded by signature of the Agreement by the Client. For Agreements concluded by electronic means (including by email), it applies that these are only concluded after an order or purchase by the Client has been confirmed In Writing by Sienn. Sections 6:227a and 6:227b of the Dutch Civil Code do not apply. Oral agreements are only valid if and after they have been explicitly confirmed In Writing by Sienn. Sienn reserves the right to refuse orders for reasons of its own, in which case Sienn shall inform the Client thereof as soon as possible.
3.3 Subject to proof to the contrary, Sienn’s administrative records shall be decisive and binding for the content of the Agreement and shall serve as evidence thereof.
4.1 Sienn shall make a reasonable effort to meet its obligations. However, Sienn cannot guarantee that the Software and/or Services shall function at all times without limitations, interruptions, Defects or malfunctions.
4.2 Sienn reserves the right to make changes and/or improvements to the Software, Services as well as the Documentation and/or procedures which Sienn considers useful or necessary, without this giving rise to any obligation for performance, compensation or damages by Sienn towards the Client. The Client undertakes to accept these improvements and changes and to follow Sienn’s instructions regarding their implementation.
4.3 All delivery periods stated by Sienn are approximate and are based on the data and circumstances known to Sienn at the time the Agreement was entered into. Stated delivery periods shall never be regarded as strict deadlines, unless Sienn and the Client have explicitly agreed otherwise in the Agreement with respect to any period. Exceeding a delivery period therefore does not result in Sienn being in default immediately.
4.4 Default on the part of Sienn can only arise after the Client has given Sienn notice of default by letter, setting a reasonable period for remedying the shortcoming concerned, and Sienn also remains culpably in breach after that period. The notice of default must contain as complete and detailed a description as possible of the shortcoming, so that Sienn is able to respond adequately.
4.5 Sienn shall determine the manner in which the Services are performed and the persons who shall cooperate therein, insofar as the parties have not expressly agreed otherwise in the Agreement. If and insofar as proper performance of the Services so requires, Sienn is entitled to have certain work performed by Third Parties.
4.6 If Sienn gives advice, whether or not as part of its activities, this advice shall be deemed to have been given exclusively for the benefit of the Client. Advice is given on the basis of the information provided by the Client. The Client is not free to make the advice or the data derived therefrom available for inspection or otherwise available to Third Parties, unless (a) Sienn has expressly given Written permission for this, (b) the Client has paid Sienn the fee/wages due for the advice, and (c) the Client agrees with the third party or parties that Sienn accepts no responsibility towards those third parties with regard to the contents of the advice.
4.7 The Client guarantees the accuracy and completeness of the information, documentation, designs and specifications provided by it to Sienn.
4.8 Sienn shall at all times have the right to carry out or have carried out audits at the Client’s premises and on the Client’s activities in relation to the Agreement as well as — in the relationship with the Reseller — in relation to the reseller agreement.
5.1 If it has been agreed in the Agreement that Sienn shall make Software of itself and/or of Third Parties available to the Client, this shall take place under the terms of use as described in the Agreement, these General Terms and Conditions and, with regard to Third-Party Software, the Additional Terms of Use.
5.2 Sienn shall — unless otherwise agreed in the Agreement — host the relevant Software as well as the Client’s data on servers in data centres selected by it, or the data centres of its licensors (Third Parties).
5.3 Sienn reserves the right at all times to temporarily take the provision of the Software out of service when Sienn considers this necessary for the sake of the security and integrity of the service concerned, carrying out necessary preventive maintenance, remedying Defects and resolving malfunctions or adapting and improving the Software of Sienn or Third Parties. Sienn shall carry out such out-of-service periods as much as possible outside office hours and shall inform the Client of the planned out-of-service period as soon as possible. Sienn shall never be obliged to pay any compensation to the Client due to the aforesaid out-of-service period.
6.1 The Implementation shall take place by Sienn in cooperation with the Client in accordance with the agreements made for that purpose in the Agreement or another document.
6.2 If it is agreed in the Agreement that the Software of Sienn and/or Third Parties must be installed or implemented at a location or environment specified by the Client, the Client is responsible for that location/environment and all necessary technical facilities. The Client guarantees that that location/environment at least meets the technical and functional requirements as specified in the Agreement, the Documentation, the Additional Terms of Use or other Written instructions of Sienn or its licensors. If the location/environment does not meet the requirements set in advance by Sienn and/or if the Client does not grant Sienn (or Third Parties engaged by it) access to the relevant location/environment, Sienn is entitled to postpone the Implementation and the costs already incurred and possibly still to be incurred by Sienn to complete the Implementation shall be entirely at the expense of the Client.
7.1 If Sienn agrees with the Client that software shall be developed, whether or not for the benefit of the Client, Sienn shall perform these activities with due care in accordance with the project plan approved by both parties and on the basis of the specifications agreed between the parties and any information, documentation and designs provided by the Client.
7.2 Unless the parties agree otherwise, Sienn shall develop software in accordance with a development method characterized by designing parts of the Software in an iterative manner, for example Agile or Scrum. In that regard, the parties accept that the software specifications are not or not fully elaborated in advance and may be adjusted during the performance of the work in mutual consultation, including for the benefit of a following iteration. The software to be delivered shall comply with the last agreed set of specifications. By this, the Client accepts the risk that the software will not necessarily comply with the original specifications.
7.3 Unless the parties agree otherwise, project responsibility, which in any case includes directing the project and monitoring its progress, lies with the Client. The Client shall ensure continuous and active input from its organization and the cooperation of relevant end users. The Client guarantees the speed of the decisions to be taken by it during development. In the absence of timely and clear decisions, the Client accepts the risk that delay will arise in the development.
8.1 Unless the parties have agreed on an acceptance procedure, the Services delivered shall be considered accepted as soon as the Services have been performed. Unless the parties have agreed on an acceptance procedure, the Software made available shall be considered accepted as soon as it has been put into use by the Client or — in the absence of timely putting into use — in any event after 15 days have elapsed from the moment of delivery by Sienn. If an acceptance procedure has been agreed, the Software and/or Services shall be considered accepted after successful completion of that acceptance procedure.
8.2 If it has been agreed that the Service shall be performed in phases, Sienn may suspend the performance of those parts belonging to a following phase until the Client has approved in Writing the results of the preceding phase and has fulfilled the payment obligations associated therewith. If Sienn has not received the intended and required Written approval within 30 calendar days, the performance of that part of the Service shall be deemed approved.
9.1 If and insofar as agreed in the Agreement, Sienn shall train the employees of the Client regarding the use of the Software or regarding other agreed subjects.
9.2 All registrations are confirmed In Writing by Sienn and only become final by this confirmation. Unless otherwise agreed, the fee for training is due by way of advance payment and must be paid no later than five working days before the start of the training. In the event of cancellation by the Client and/or its employees within five working days before the start of the course, the full costs shall be charged. The registered participant may attend the course at the next opportunity that the same course is given by Sienn, insofar as Sienn agrees thereto, for which additional costs may be charged.
9.3 Sienn reserves the right, without stating reasons and/or any obligation to pay damages, to change already confirmed training details, or to change or combine training courses or, in the worst case, to cancel them due to, among other things, insufficient interest or the unavailability of a teacher. The Client shall be informed thereof, if possible, before the start of the training. Any training fees already paid shall be refunded in the event of cancellation by Sienn.
9.4 The course material handed out may be retained by the student. All intellectual property rights thereto are vested in Sienn and/or Third Parties. Reproduction of the course material is not permitted, except with the permission of Sienn.
10.1 If and insofar as agreed in the Agreement, Sienn shall provide Support to the Client. This shall take place in accordance with the Service Level Agreement.
10.2 Sienn shall support a maximum of one version older than the most recently released version of the Software. Three months after making a new version of that Software available to the Client, Sienn is no longer obliged to repair any Defects in that old version, nor to provide Support with regard thereto.
10.3 With regard to Third-Party Software, Sienn is only obliged to provide Support for as long and insofar as the relevant Third Party supports that Software.
3.1 All offers (as well as the prices stated by Sienn), in whatever form, are without obligation and may be revoked by Sienn. The Client guarantees the accuracy and completeness of the data provided by or on its behalf to Sienn, on which Sienn bases its offer.
3.2 Unless otherwise indicated in these General Terms and Conditions, an Agreement is concluded by signing of the Agreement by the Client. For Agreements concluded by electronic means (including email), it applies that these are only concluded after an order or request from the Client has been confirmed In Writing by Sienn. Articles 6:227a and 6:227b of the Dutch Civil Code do not apply. Oral agreements are only valid if and after they have been explicitly confirmed In Writing by Sienn. Sienn reserves the right to refuse assignments for reasons of its own, in which case Sienn shall inform the Client thereof as soon as possible.
3.3 Subject to proof to the contrary, Sienn’s administrative records shall be decisive and binding for the content of the Agreement and shall serve as proof thereof.
4.1 Sienn shall make a reasonable effort to meet its obligations. However, Sienn cannot guarantee that the Software and/or Services will function at all times without limitations, interruptions, Defects or malfunctions.
4.2 Sienn reserves the right to make changes and/or improvements to the Software, Services as well as the Documentation and/or procedures that Sienn considers useful or necessary, without this giving rise to any obligation for performance, compensation or damages by Sienn to the Client. The Client undertakes to accept these improvements and changes and to follow Sienn’s instructions regarding their implementation.
4.3 All delivery periods stated by Sienn are approximate and are based on the data and circumstances known to Sienn at the time the Agreement was entered into. Stated delivery periods shall never be regarded as strict deadlines, unless Sienn and the Client have explicitly agreed otherwise in the Agreement with respect to any period. Exceeding a delivery period therefore does not result in Sienn being in default immediately.
4.4 Default on the part of Sienn can only arise after the Client has given Sienn notice of default by letter, setting a reasonable period for remedying the shortcoming concerned, and Sienn also remains culpably in breach after that period. The notice of default must contain as complete and detailed a description as possible of the shortcoming, so that Sienn is able to respond adequately.
4.5 Sienn shall determine the manner in which the Services are performed and the persons who shall cooperate therein, insofar as the parties have not expressly agreed otherwise in the Agreement. If and insofar as proper execution of the Services so requires, Sienn is entitled to have certain work carried out by Third Parties.
4.6 If Sienn gives advice, whether or not as part of its activities, this advice shall be deemed to have been given exclusively for the benefit of the Client. Advice is given on the basis of the information provided by the Client. The Client is not permitted to make the advice or the data derived from it available for inspection or otherwise available to Third Parties, unless (a) Sienn has expressly given Written permission for this, (b) the Client has paid Sienn the fee/wages due for the advice, and (c) the Client agrees with the third party or parties that Sienn accepts no responsibility towards those third parties with regard to the content of the advice.
4.7 The Client guarantees the accuracy and completeness of the information, documentation, designs and specifications provided by it to Sienn.
4.8 Sienn shall at all times have the right to carry out or have carried out audits at the Client’s location and on the Client’s activities with regard to the Agreement as well as — in the relationship with the Reseller — with regard to the reseller agreement.
5.1 If it has been agreed in the Agreement that Sienn shall make Software of itself and/or of Third Parties available to the Client, this shall take place under the terms of use as described in the Agreement, these General Terms and Conditions and (with regard to Third-Party Software) the Additional Terms of Use.
5.2 Sienn shall — unless otherwise agreed in the Agreement — host the relevant Software, as well as the Client’s data, on servers in data centers selected by it, or data centers of its licensors (Third Parties).
5.3 Sienn reserves the right at all times to temporarily take the Software out of service when Sienn considers this necessary for the sake of the security and integrity of the service concerned, carrying out necessary (preventive) maintenance, remedying Defects and resolving malfunctions or adapting and improving the Software of Sienn or Third Parties. Sienn shall carry out such downtime as much as possible outside office hours and shall inform the Client as soon as possible of the planned downtime. Sienn shall never be obliged to pay any compensation to the Client as a result of the aforementioned downtime.
6.1 The Implementation shall be carried out by Sienn in cooperation with the Client in accordance with the agreements made for that purpose in the Agreement or another document.
6.2 If it is agreed in the Agreement that the Software of Sienn and/or Third Parties must be installed or implemented at a location or environment specified by the Client, the Client is responsible for that location/environment and all necessary technical facilities. The Client guarantees that that location/environment at least meets the technical and functional requirements as specified in the Agreement, the Documentation, the Additional Terms of Use or other Written instructions from Sienn or its licensors. If the location/environment does not meet the requirements set in advance by Sienn and/or if the Client does not grant Sienn (or Third Parties engaged by it) access to the relevant location/environment, Sienn is entitled to postpone the Implementation and the costs already incurred and possibly still to be incurred by Sienn to complete the Implementation shall be entirely at the expense of the Client.
7.1 If Sienn agrees with the Client that software will be developed, whether or not for the benefit of the Client, Sienn shall carry out these activities with due care in accordance with the project plan approved by both parties and on the basis of the specifications agreed between the parties and any information, documentation and designs provided by the Client.
7.2 Unless the parties agree otherwise, Sienn shall develop software in accordance with a development method characterized by designing parts of the Software in an iterative manner (for example Agile or Scrum). In that context, the parties accept that the specifications of the software are not or not fully elaborated in advance and may be adjusted during the performance of the work in mutual consultation, among other things for the benefit of a subsequent iteration. The software to be delivered shall comply with the last agreed set of specifications. By this, the Client accepts the risk that the software will not necessarily comply with the original specifications.
7.3 Unless the parties agree otherwise, project responsibility — including in any case directing the project and monitoring its progress — lies with the Client. The Client shall ensure continuous and active input from its organization and cooperation of relevant end users. The Client guarantees the progress of decisions to be taken by it during development. In the absence of timely and clear decisions, the Client accepts the risk that delay will occur in the development.
8.1 Unless the parties have agreed on an acceptance procedure, the Services delivered shall be considered accepted as soon as the Services have been performed. Unless the parties have agreed on an acceptance procedure, the Software made available shall be considered accepted as soon as it has been put into use by the Client, or — in the absence of (timely) use — in any case after the lapse of 15 days after delivery by Sienn. If an acceptance procedure has been agreed, the Software and/or Services shall be considered accepted after successful completion of that acceptance procedure.
8.2 If it has been agreed that the Service shall be carried out in phases, Sienn may suspend the execution of those parts belonging to a subsequent phase until the Client has approved in Writing the results of the preceding phase and has fulfilled the payment obligations associated with it. If Sienn has not received the intended and required Written approval within 30 calendar days, the execution of that part of the Service shall be deemed approved.
9.1 If and insofar as agreed in the Agreement, Sienn shall train the employees of the Client with regard to the use of the Software or with regard to other agreed subjects.
9.2 All registrations shall be confirmed In Writing by Sienn and only become final through this confirmation. Unless otherwise agreed, the fee for training is payable in advance and must be paid no later than five (5) working days before the start of the training. In case of cancellation by the Client (and/or its employees) within five (5) working days before the start of the course, the full costs shall be charged. The registered participant may attend the course at the next opportunity that the same course is given by Sienn, insofar as Sienn agrees thereto, for which additional costs may be charged.
9.3 Sienn reserves the right, without stating reasons and/or any obligation to pay damages, to change already confirmed training details, or to change or combine training courses or, in the worst case, to cancel them due to, among other things, insufficient interest or the unavailability of an instructor. The Client shall be informed thereof (if possible) before the start of the training. Any training fees already paid shall be refunded in the event of cancellation by Sienn.
9.4 The course material provided may be retained by the participant. All intellectual property rights thereto are vested in Sienn and/or Third Parties. Reproduction of the course material is not permitted without permission from Sienn.
10.1 If and insofar as agreed in the Agreement, Sienn shall provide Support to the Client. This shall take place in accordance with the Service Level Agreement.
10.2 Sienn shall support a maximum of one version older than the most recently released version of the Software. Three months after making a new version of that Software available to the Client, Sienn is no longer obliged to repair any Defects in that old version, nor to provide Support with regard thereto.
10.3 With regard to Third-Party Software, Sienn is only obliged to provide Support for as long and insofar as the relevant Third Party supports that Software.
11.1 If and insofar as agreed in the Agreement, Sienn shall provide secondment services to the Client, whereby the conditions in this article shall also apply.
11.2 Sienn shall make an employee available for the duration and for the secondment activities as described in the Agreement. Unless expressly agreed otherwise in Writing with the Client, Sienn has the right to replace a seconded employee with an employee with the same qualifications, or — when the seconded employee is required for other activities of Sienn — the right to terminate the relevant Agreement with due observance of a notice period of one calendar month.
11.3 At the request of the Client, Sienn shall make efforts to replace the seconded employee if (i) in the substantiated opinion of the Client this employee does not meet the qualifications, or (ii) this employee is absent for a longer period, or (iii) if this employee terminates his/her employment with Sienn. Sienn does not guarantee that it can provide a replacement employee.
11.4 The employee shall perform the activities as described in the Agreement during Sienn’s usual working hours. If, at the request of the Client, the employee performs work outside these working hours or outside the agreed work, Sienn is entitled to charge such work as additional work at the rate applicable at that time.
11.5 The Client shall ensure working conditions in accordance with the standards applicable to its own employees and the applicable laws and regulations. The Client is responsible for the safe execution of the work by the employee.
11.6 The employee shall perform the work exclusively for the benefit of the Client. The employee shall follow the reasonable instructions of the Client, but cannot be required to perform work that conflicts with the assignment of the employee. The Client uses the results of the work at its own risk.
12.1 Without prejudice to the Client’s other obligations arising from the Agreement, these General Terms and Conditions and/or Additional Terms of Use, the Client shall provide all necessary cooperation to Sienn. This includes, among other things, the timely and complete provision of the content and information requested and required by Sienn, as well as all other cooperation deemed necessary by Sienn in the execution of the Services. If the commencement or progress of the work is delayed by factors for which the Client is responsible, the resulting costs for Sienn shall be reimbursed by the Client at Sienn’s usual rates. Sienn is not liable for the consequences of the Client not providing content and information in a timely and complete manner, including exceeding agreed deadlines.
12.2 The Client guarantees that it shall use the Software and Services exclusively in accordance with the Documentation and instructions of Sienn and the Additional Terms of Use of Third Parties.
12.3 The Client is responsible for ensuring that the equipment used by its organization for the Software and Services meets and continues to meet the minimum requirements set by Sienn or Third Parties. The Client is also responsible for adequate maintenance of that equipment.
12.4 The Client must communicate changes in administrative data to Sienn In Writing at least 30 days before the effective date of that change.
12.5 If the Client is granted access to the Software, it must observe the following conditions:
A. The Client is at all times fully responsible and liable for any use of the Authentication Means provided/assigned to it or created by it. The Client shall use the Authentication Means exclusively for the purpose for which they were provided.
B. As soon as the Client knows or has reason to suspect that Authentication Means have fallen into the hands of unauthorized persons or are otherwise being misused, the Client shall immediately notify Sienn thereof, without prejudice to the Client’s own obligation to immediately take effective measures itself.
C. Sienn reserves the right to suspend its services to the Client (in whole or in part) in the event of (suspected) unauthorized use or leakage of the Authentication Means. The Client shall bear all costs arising from such unauthorized use and/or misuse and is liable for any damage suffered by Sienn and/or its suppliers as a result thereof.
12.6 The Client shall, for a period of one year after the end of the Agreement, not employ staff of Sienn or enter into negotiations with such staff, except with the express prior consent of Sienn. The Client shall, for a period of one year after the end of the Agreement, not employ third parties engaged by Sienn in the execution of the Agreement, nor enter into negotiations with such third parties, nor independently hire such third parties for its business, except with the express prior consent of Sienn. All this on penalty of an immediately payable fine of EUR 20,000.00, increased by EUR 2,000.00 per day that the violation continues. Sienn shall, for a period of one year after the end of the Agreement, not employ staff of the Client or enter into negotiations with such staff, except with the express prior consent of the Client, all this on penalty of an immediately payable fine of EUR 20,000.00, increased by EUR 2,000.00 per day that the violation continues.
13.1 The fees owed by the Client to Sienn for the Services to be provided are stated in the Agreement.
13.2 If no fixed price has been agreed, the price shall be determined on the basis of subsequent calculation at Sienn’s applicable hourly rates based on the actual hours spent or parts thereof.
13.3 If Sienn performs its activities at the Client’s location, a minimum of four (4) hours per day shall be charged (regardless of the activities).
13.4 If Sienn performs additional work at the request of the Client, such work shall be eligible for compensation as additional work. Such work shall be carried out by Sienn at the then applicable hourly rates on the basis of subsequent calculation.
13.5 All amounts and rates stated by Sienn are in euros, exclusive of VAT and other government levies, as well as exclusive of travel and accommodation costs.
13.6 Sienn reserves the right to annually adjust its rates and fees in accordance with the CBS Price Index for ICT business services. In addition, Sienn is at all times entitled to pass on demonstrable price increases from Third Parties and other suppliers to the Client.
13.7 Unless otherwise agreed, payment must be made without set-off within 14 days after invoice date. If the Client fails to make timely payment, the Client shall be in default by operation of law. The Client shall then owe statutory commercial interest (pursuant to Article 6:119a Dutch Civil Code) from the due date of the invoice until the day of full payment, without prejudice to Sienn’s other rights. All costs, both judicial and extrajudicial (including collection and enforcement costs), incurred by Sienn to enforce the Client’s payment obligations shall be borne by the Client. Extrajudicial costs are hereby set at 15% of the invoice amount, with a minimum of EUR 350.00.
14.1 The Client acknowledges that the uninterrupted operation of the Software and Services depends on external (physical) factors such as internal and external networks, geographical location and buildings. Given these dependencies, Sienn cannot guarantee that the Software and Services will function at all times without errors, free of Defects and without malfunctions. The Software made available by Sienn is delivered in the condition it is in at that time. In the event of any Defects and/or malfunctions occurring during the use of the Service, Sienn shall always make its best efforts to repair or resolve them in accordance with Article 10. Any further liability of Sienn is excluded.
15.1 The (initial) term of the Agreement is determined in the Agreement. If no term is specified, the Agreement shall have a duration of three (3) years. Unless otherwise agreed, the duration of the Agreement shall automatically be extended after the initial term by successive periods of one (1) year.
15.2 Both parties may terminate the Agreement at the end of the (extended) term with due observance of a notice period of at least one (1) month. Early or interim termination of the Agreement by the Client is not possible.
15.3 Without prejudice to its statutory rights, Sienn is entitled to suspend the performance of its obligations or to dissolve the Agreement in whole or in part extrajudicially without notice of default, without being obliged to make any refund or pay compensation, if:
(a) the Client fails to fulfill its obligations under the Agreement, not in time or not fully;
(b) the Client is granted (provisional) suspension of payments;
(c) bankruptcy is filed for or declared;
(d) the Client’s business is liquidated or terminated other than for reconstruction or merger purposes.
15.4 If the Client terminates the Agreement by dissolution and has already received performance from Sienn, such performance and the related payment obligations shall not be subject to reversal, unless the Client proves that Sienn is in default with regard to that performance. Amounts invoiced by Sienn prior to dissolution in connection with work already properly performed or delivered remain payable and become immediately due at the time of dissolution.
15.5 After becoming aware of the termination of the Agreement, Sienn shall provide all necessary cooperation for a smooth transition to a new system by the Client, including making all files and data of the Client available to the Client or a third party designated by the Client. After termination of the Agreement for any reason, the Client shall — unless explicitly agreed otherwise — immediately cease use of all Software made available and (if applicable) remove all copies thereof from its systems. If files and data are stored in systems of Third Parties, the foregoing shall apply in accordance with the applicable Additional Terms of Use. The reasonable costs associated with activities under this article shall be reimbursed by the Client at Sienn’s applicable hourly rates.
16.1 The total liability of Sienn for damage suffered by the Client as a result of Sienn or a person for whom it is legally liable failing to perform the Agreement or on any other grounds is limited to compensation of direct damage up to a maximum of the amount paid out by Sienn’s insurer, or at most the invoice amount (excluding VAT). If the Agreement has a duration longer than twelve (12) months, compensation is limited to the amount invoiced and received in the last six (6) months prior to the occurrence of the damage. In no event shall total liability for direct damage exceed EUR 25,000.00. Direct damage is exclusively understood to mean:
A. reasonable costs incurred to make Sienn’s performance comply with the Agreement;
B. reasonable costs incurred to keep old systems operational due to late delivery;
C. reasonable costs to determine the cause and extent of damage;
D. reasonable costs to prevent or limit damage.
16.2 Liability for indirect damage is excluded, including:
16.3 These limitations do not apply in cases of intent or gross negligence.
16.4 Liability arises only after formal written notice of default.
16.5 Damage must be reported within 12 months.
16.6 Sienn is not liable for third parties it engages.
17.1 Insofar as this does not already follow from the law, Sienn shall not be liable for any damage, nor obliged to perform any obligation, if the damage is the result of or if the parties are hindered by force majeure. Force majeure shall in this context include, but is not limited to: power failures, failure of internet and/or other telecommunications connections, disruptions in the electricity supply and/or communication networks, computer viruses, unlawful acts against Sienn (such as hacking), whether or not attributable shortcomings of Third Parties engaged by Sienn, as well as all other circumstances beyond the control of Sienn.
17.2 If the period of force majeure lasts longer than two (2) months or is expected with certainty to last at least that long, either party shall be entitled to terminate the Agreement without any obligation to compensate the other party. In the event of a situation of force majeure, the party invoking it shall notify the other party thereof in Writing as soon as possible, providing the necessary supporting evidence.
18.1 All intellectual property rights relating to the Software, Services, Documentation and the (content of the) website(s) of Sienn shall remain exclusively vested in Sienn and/or Third Parties. If Sienn develops software on behalf of the Client, the intellectual property rights thereof shall belong to Sienn. The Client acknowledges these rights and guarantees that it shall refrain from any infringement thereof.
18.2 If Sienn is prepared to commit itself to the transfer of an intellectual property right, such commitment can only be entered into explicitly and in writing. If the parties agree in writing that an intellectual property right with regard to software specifically developed for the Client shall be transferred to the Client, this shall not affect Sienn’s right or ability to use and/or exploit the underlying components, general principles, ideas, designs, algorithms, documentation, works, programming languages, protocols, standards and the like, either for itself or for third parties. Nor shall the transfer affect Sienn’s right to carry out developments for itself or third parties that are similar to or derived from those carried out for the Client. In the event of such a transfer, Sienn shall not make the complete final product of the software specifically developed for the Client available to other customers.
18.3 The Client shall only obtain a non-exclusive and non-transferable right of use for the duration of the Agreement, subject to full compliance by the Client with its obligations under the Agreement, these General Terms and Conditions and any applicable Additional Terms of Use. Unless otherwise agreed, the Client may use the Software and Services exclusively within and for the benefit of its own organization. Any other use, including making the Software available to Third Parties, is not permitted without prior consent of Sienn.
18.4 Any reports, models, designs, plans, programs, source and object code, specifications, advice, calculations and drawings produced by Sienn in the context of the Agreement shall remain the property of Sienn at all times, regardless of whether these have been made available to the Client or to Third Parties. These may not be reproduced, disclosed or made available to third parties without prior consent of Sienn.
18.5 Sienn indemnifies the Client against any legal claim from a third party based on the assertion that Sienn’s Software infringes an intellectual property right valid in the Netherlands, provided that the Client:
(a) immediately informs Sienn in writing of the existence and content of the claim; and
(b) leaves the handling of the matter, including settlements, entirely to Sienn.
The Client shall provide all necessary cooperation. This indemnification lapses if the alleged infringement is related to changes made by the Client or third parties. If it is established that infringement exists, Sienn may:
19.1 The Client is obliged to maintain confidentiality of all confidential information (including program listings, documentation, benchmark tests, specifications, object code, source code and machine-readable copies of the software, including Authentication Means) of Sienn and/or Third Parties that it has obtained in the context of the Agreement or from another source. Information shall be considered confidential if this has been communicated by Sienn or if this follows from the nature of the information.
19.2 The Client shall agree the same confidentiality obligation with its employees and/or third parties engaged by it, who may in fact gain access to the data referred to in the previous paragraph, and guarantees towards Sienn that such employees and/or third parties will comply with this obligation.
19.3 The Client is obliged to take appropriate technical and organizational security measures to protect (confidential) data of Sienn and Third Parties that it receives in the context of the execution of the Agreement against loss or any form of unlawful processing.
20.1 In the execution of the Agreement, personal data of third parties (for example customers of the Client) shall be processed. The parties agree that, in this context, the Client shall be regarded as the data controller and Sienn as the data processor.
20.2 The Client hereby instructs Sienn to process such personal data on its behalf for the execution of the Agreement. Sienn shall process the personal data exclusively within the framework of the assignment arising from the Agreement and shall otherwise process all personal data in accordance with applicable laws and regulations. In this context, Sienn shall, among other things, take appropriate technical and organizational measures to secure the processing of personal data. The Client acknowledges that Sienn uses (storage) services of Third Parties for the execution of the Agreement and agrees to this in advance. Insofar as Sienn has personal data processed by Third Parties, such as for example Microsoft, Sienn shall conclude a data processing agreement with such Third Party.
20.3 The Client guarantees towards Sienn that the content, use and/or processing of the data takes place in accordance with applicable laws and regulations, is not unlawful and does not infringe any rights of Third Parties. The Client indemnifies Sienn against any legal claim of Third Parties, on any grounds whatsoever, in connection with these data processing activities.
20.4 If (unexpectedly) a breach of security measures occurs at Sienn, Sienn shall inform the Client thereof as soon as possible, without prejudice to Sienn’s own obligation to take effective measures in such case to mitigate the negative consequences arising from the incident and to limit further consequences as much as possible. Sienn shall keep a log of such incidents as well as the measures taken in response, and shall provide access to this log upon request of the Client. Insofar as the Client deems it necessary to inform data subjects of one or more such incidents, Sienn shall provide all reasonable cooperation.
20.5 For all other agreements regarding the processing of personal data, reference is made to the Agreement.
21.1 All Agreements and all obligations arising therefrom or related thereto shall be governed exclusively by Dutch law. The applicability of the United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG) is expressly excluded.
21.2 All disputes arising from or related to the Agreement and these General Terms and Conditions that cannot be resolved amicably shall be submitted to the competent Dutch court in the place of establishment of Sienn, unless the parties agree to mediation or arbitration in relation to a specific dispute.
