Terms & Conditions
ConnectingTheDots B.V. general terms and conditions
ConnectingTheDots B.V. (hereinafter: “ConnectingTheDots”) is registered in the Commercial Register of the Chamber of Commerce and Industry of Zwolle under number 08185975.
- These General Conditions apply to all quotations, agreements and consequent obligations regarding the supply of products, user rights and/or services by ConnectingTheDots to or for the benefit of the Customer.
- In the event that special provisions in the Contract or in one of the Annexes to these conditions should conflict with these General Conditions, the special conditions shall take precedence, whereby the provisions of the Contract shall take precedence over those in the Annexes.
- Departures from these General Conditions shall only be valid if and insofar as they have been expressly agreed in writing. They shall only apply to the agreement for which they are made.
- Any general purchasing or other general conditions that may be used by the Customer shall not apply to the legal relationship between the Customer and ConnectingTheDots.
- Should any provision of these general conditions be or become invalid, this shall not affect the validity of the remaining provisions.
Unless it appears otherwise from the context, the following definitions shall apply:
The equipment, whether or not specified in the agreement, with which or in connection with which the Software should be implemented by ConnectingTheDots and should operate, or the services or the products that should be supplied by ConnectingTheDots.
The extent to which ConnectingTheDots itself can make the Software available. This expressly excludes, for example, the availability guaranteed by a host, or the availability of servers either set up or managed by the Customer on which the software runs. Unless otherwise expressly agreed.
Failure to comply with (one or more) functional specifications, explicitly made known in writing by ConnectingTheDots and agreed, that are of substantial importance to what has been agreed. A fault can only be recognised where this can be demonstrated by the contractual party and (in the case of Software) can be reproduced.
The installation of the Software in the agreed manner on the equipment in such a way that the Software operates in accordance with the agreed specifications;
The actual furnishing of products and/or (the results of) services by ConnectingTheDots to the Customer or to a third party indicated by the Customer.
Accessories necessary for the use, implementation and amendment of the Software such as supplies, interfaces, compilers etc.;
The counterparty of ConnectingTheDots in quotations, agreements and consequent obligations;
The agreement between ConnectingTheDots and the Customer wherein are set down the mutual rights and obligations regarding the Software that ConnectingTheDots makes available to the Customer, or the services and/or products to be supplied by ConnectingTheDots;
The Software made available by ConnectingTheDots to the Customer, as set out in the Functional Design (FD).
Digital sales, marketing or customer contact channels which are part of the Software such as web shops, websites, data feeds, print publications, etc. The Channels purchased are explicitly set out in the Contract.
Conclusion of the contract
- All quotations by ConnectingTheDots are valid for thirty (30) days and are entirely without obligation.
- If on acceptance there is any divergence from the offer made by ConnectingTheDots, this acceptance shall be interpreted by ConnectingTheDots as an invitation to make an offer. If it wishes to do so, ConnectingTheDots will make a new offer, to which Articles 3.1 and 3.2 shall apply.
- Unless ConnectingTheDots rescinds its offer, a Contract comes into effect through the acceptance by the Customer of the quotation from ConnectingTheDots. The content of the Contract is set out in a deed to be signed by both parties.
- The ConnectingTheDots agreed delivery times shall first take effect after any deposit due on order has been received by ConnectingTheDots. This deadline may in addition be extended by ConnectingTheDots if the Customer (in the judgment of ConnectingTheDots) has (so far) failed to provide ConnectingTheDots with all the information necessary for the execution of the order.
- ConnectingTheDots shall never be in default due solely to the expiry of the agreed deadlines. For this written notice is always required, granting ConnectingTheDots a reasonable deadline in which to comply of at least thirty (30) days.
Licence and Right of Use
- The licence(s) purchased, as stated in the contract with ConnectingTheDots for the use of the Software, grant the Customer a non-exclusive and non-transferable right to use the Software furnished to the Customer, including supplements and new versions if agreed, in a computer-usable language (object code) in the configuration specified in the Contract, in accordance with the provisions of these General Conditions and the Contract.
- The licence(s) purchased give the purchaser the right to use the Software and the Channels which have explicitly been purchased, as set out in the Contract.
- The licence(s) purchased give the Customer a right of use of the Software, including the Channels mentioned in the Contract.
- In the absence of any specification of the configuration for which the right of use is granted, the configuration in which the Software is first used shall be taken to be the configuration for which the right of use is granted.
- Without prejudice to other provisions, the right of use shall only include the right to load and run the Software.
- The Customer is forbidden to copy, in whatsoever form, the Software and its associated Documentation and confidential information furnished by ConnectingTheDots (including decompiling), or to make them public or permit third parties to copy them, to publish them or to transfer or furnish them to third parties, except in those cases in which the Law otherwise imperatively requires.
- The right of use may not be transferred to third parties without the explicit consent of ConnectingTheDots. The Customer may not sell, grant a (sub)licence, lease, lend, pledge or in any other way make the Software available to third parties.
- The Customer is not to entitled to amend the Software, or to have it amended, except to repair faults (for which application should always be made to ConnectingTheDots in the first instance), insofar as it is necessary for the regular use thereof arising from the nature of the Software (as expressly set out in the quotation). ConnectingTheDots expressly guarantees no fitness for use warranty on the Software (relating to the specific application thereof by the Customer).
- If the Customer develops software or causes software to be developed, or intends to do so, and for the purposes of the interoperability of this future software with the Software needs information in order to achieve this interoperability, the Customer shall apply for this information in writing to ConnectingTheDots, giving details.
- ConnectingTheDots will reply within a reasonable delay, explaining whether and under what conditions the Customer may obtain the requested information (including financial conditions and conditions to be imposed on any third parties instructed by the Customer).
- Back-up. Without prejudice to the preceding clause, the Customer is permitted to make and keep a back-up copy. This back-up copy must carry the same labels and indications as the original copy and/or the original media of the Software in question.
Software maintenance fee
- The Contract includes the maintenance fee. The maintenance fee guarantees the Customer the availability of the Software for the entire duration of the Contract.
- ConnectingTheDots will conduct preventive and corrective maintenance of the Software, always with presumed approval and consent. The same conditions shall apply to this upgraded Software.
- The user will be informed of any upgrades to be conducted.
- ConnectingTheDots’s guarantees and/or maintenance obligations shall expire if the Customer refuses to install (or to cause to be installed) the latest upgrades.
- The costs of an upgrade are covered by the annual maintenance fee.
- Unless otherwise stated, the prices and licence fees offered by ConnectingTheDots and/or agreed between the parties exclude turnover tax, travel expenses, cabling, consumables, transport, implementation and installation costs and operating system, database and other software licences necessary in order to be able to use the Software.
- If in order to perform the Contract ConnectingTheDots, through no fault of its own, has to use other products and/or materials in place of the agreed products and/or materials, any associated additional costs shall be met by the Customer.
- Unless otherwise agreed, payment of sums due to ConnectingTheDots must be made no later than 30 days after the date of the invoice in question. Payment will be made in euro.
- A payment is not complete until the day on which the amount is credited to the ConnectingTheDots bank account.
- In the event of late payment of the monthly fees and/or invoices, ConnectingTheDots shall issue a reminder. If no payment is received after reminder, ConnectingTheDots is entitled to give the user notice of default. After notice, the user shall have a further five (5) working days in which to make payment. If after this period of five (5) days full payment has not been received, the Services will be suspended. This suspension in no way alters the obligations of the user; monthly fees and/or invoiced extra hours remain due in full during the period of suspension.
- In the event of notice of default, the Customer shall be liable, from the latest date on which payment is due to ConnectingTheDots until the day on which the entire outstanding sum is paid, for interest at the rate of 1.5% per month, in respect of which a part of a month will be counted as a full month.
- No off-setting by the Customer is allowed, unless the off-setting concerns a claim against ConnectingTheDots that ConnectingTheDots has unconditionally recognised.
- ConnectingTheDots may never be held liable to make recompense for losses incurred by the Customer or by third parties as a consequence of or during implementation or installation by or on behalf of ConnectingTheDots, or of the Software, products and/or services supplied and/or delivered by ConnectingTheDots.
- ConnectingTheDots may never be held liable for business interruption loss or other consequential loss incurred by the Customer, including loss of data, turnover and profit.
- The liability of ConnectingTheDots shall in any event be limited to such amount as may be paid in each instance by the liability insurer of ConnectingTheDots, but may never be more than the invoices issued under the Contract terms to the Customer for the circumstance at the origin of the loss.
- Nor shall ConnectingTheDots be liable for loss caused by viruses, logic bombs, Trojan horses or other software or files received by the Customer through products or services or otherwise from ConnectingTheDots.
- ConnectingTheDots cannot guarantee the uninterrupted availability of telecommunications connections or, if applicable, the uninterrupted access to its services whether via the Internet or other networks belonging to ConnectingTheDots or to third parties.
- The liability of ConnectingTheDots may not exceed €25,000. ConnectingTheDots shall never be held liable for indirect or consequential loss.
- The limitation of liability and exclusions shall not apply in the event of loss that is the consequence of deliberate act or conscious recklessness on the part the management of ConnectingTheDots.
- The limitations and exclusions shall also apply to all (legal) persons that ConnectingTheDots employs in performance of the Contract.
- Any right to compensation is conditional upon the presence of a fault, and: a) notification of the loss within one month after it could reasonably have come, or did in fact come, to the attention of the Customer; b) such that the contractual obligations with which ConnectingTheDots has failed to comply are indicated with precision by an expert and c) after ConnectingTheDots has had a period of at least 30 days in which to make good the default or fault reported and acknowledged by ConnectingTheDots.
- For a period of four and a half (4.5) months after acceptance of (any part of) the Software, ConnectingTheDots shall repair or rectify any faults in the Software to the best of its ability, if the Software fails to comply with the written specifications.
- Any entitlement under guarantee shall expire if the Customer has repairs, modifications and/or adaptations carried out by parties other than ConnectingTheDots.
- Repairs, adaptations and/or replacements that are not covered by this guarantee shall be carried out under the SLA or other agreement.
- The guarantee period shall not be extended in the event of the repair or rectification of Faults or improvements to the Software.
Acceptance and complaints
- If the Customer is of the opinion that the Software furnished by ConnectingTheDots and/or the Implementation carried out by ConnectingTheDots do not comply with the Contract concluded, it must so notify ConnectingTheDots within seven (7) days after implementation or supply of the Software in question.
- In the absence of notification as set out in the previous paragraph, the Customer shall be deemed to have accepted the Implementation or Software. The Customer shall also be deemed to have accepted the Implementation or Software once the Software has been taken into operation.
- In the event of any claims as set out in the first paragraph, ConnectingTheDots has an opportunity, for a period corresponding with the original agreed delivery period, to replace, repair or modify the Software and/or the Implementation which has been supplied or carried out in a manner not compliant with the agreed specifications.
- (Customer-specific) Software is always offered to the Customer for testing. After testing and acceptance by the Customer, the Software in question is deployed in production on the scheduled date. If the products offered to the Customer for testing: are not tested within the agreed test period (without notification that the test period was insufficient), or are taken into operation, or if no notification of non-acceptance is issued within five (5) working days, then the Software as a whole shall be deemed to have been accepted from five (5) days after it is made available.
- In the event of a non-attributable failure ("force majeure") caused by circumstances beyond the control of the parties (such as war, mobilisation, trade blockade, the absence of means of transport, or the (temporary) unavailability of telecommunications connections) which obstruct the performance of the Contract or render it unreasonably costly, and which lie outside the sphere of influence of ConnectingTheDots, performance of the obligation shall be suspended for a period equal to the duration of these circumstances.
- If it is impossible to comply with the Contract because of events under paragraph 1 for a period of more than three (3) months, either party has the right to dissolve the Contract by giving explicit and written notice thereof without judicial intervention.
- In the event that one of the circumstances indicated in paragraph 1 occurs, ConnectingTheDots shall not be liable to pay the Customer any compensation.
Duration and termination of the Contract
- Unless otherwise determined, the Contract is entered into for an indeterminate period. The Service Level Agreement shall be entered into for successive periods of twelve (12) months.
- Notwithstanding that which has been provided for elsewhere in or by this Contract, either party may terminate the Contract without notice or judicial intervention, by registered letter with immediate effect:
- if and as soon as the other party is granted a (temporary) suspension of payments, and this (temporary) suspension of payments has lasted for longer than six consecutive months;
- if and as soon as the other party is declared bankrupt;
- if and as soon as the other party’s enterprise is liquidated.
- On termination of the right of use of the Software, the Customer shall return to ConnectingTheDots all the copies of the Software in its possession and shall keep no copies.
- Obligations which by the nature are intended to persist after the termination of the Contract shall continue to apply.
- All copyright and any other intellectual property rights to all Software and to any preparatory documentation furnished to the Customer by ConnectingTheDots shall, both during and after the Contract concluded between ConnectingTheDots and the Customer, rest with ConnectingTheDots or with the third party from which ConnectingTheDots has obtained the right to furnish the Software in question to the Customer.
- These conditions are fully applicable to modifications, adaptations and/or new versions of the Software.
- Unless expressly otherwise agreed, ConnectingTheDots shall also retain all its (intellectual property) rights to all the other documentation it provides, including manuals, drawings, images, photos, sketches, models and quotations.
- Documents furnished to the Customer may not be copied, reproduced, shown to third parties or employed other than for own use.
- Each party shall take all reasonable measures to ensure the confidentiality of all confidential information which may come to their knowledge or the knowledge of persons they employ in performance of the Contract.
- If supplementary provisions and conditions for security measures must be agreed, these shall be set out in a separate annex to the Contract.
Entire agreement, divergences and severability
- The written Contract between the parties with all its annexes represents all the agreements between the parties and replaces all other agreements, undertakings and Contracts between them.
- Amendments and supplements to the Contract(s) between the parties shall only be valid if agreed in writing.
- If one or more provisions of the Contract or of these conditions should be non-binding or invalid, the remaining stipulations will remain in full force. The parties undertake to enter into negotiations with each other in order to agree replacement provisions which reflect their intentions as closely as possible.
Applicable law and competent court
- Only Dutch law shall apply to these General Conditions and the resulting obligations.
- Any disputes that may arise between ConnectingTheDots and the Customer under a Contract or any other agreements made pursuant thereto shall be resolved in accordance with the Mediation Regulations of the Foundation for the Settlement of Automation Disputes [Stichting Geschillenoplossing Automatisering] in The Hague. The Minitrial Rules of this organisation shall also apply.
- In the event of non-payment or overdue payment of undisputed outstanding invoices, the ordinary courts shall have jurisdiction. The Presiding Judge at the Court shall have jurisdiction in urgent cases.