ConnectingTheDots Terms and Conditions.

ID Interactive B.V., trading under the name ConnectingTheDots (hereinafter: "ConnectingTheDots") is registered in the Trade Register at the Chamber of Commerce and Industry in Zwolle under number 08185975.

1. Applicability.

1.1.These General Terms and Conditions apply to all offers, agreements and resulting obligations regarding the Delivery of products, usage rights and/or services by ConnectingTheDots to or on behalf of the Client.
1.2.In the event that specific provisions in the Agreement or one of the Appendices to these terms conflict with these General Terms and Conditions, the specific provisions shall prevail, whereby the provisions in the Agreement shall prevail over the provisions in the Appendices.
1.3.Deviations from these General Terms and Conditions are only valid if and to the extent that these have been explicitly agreed upon in writing. Deviations only relate to the agreement for which they were made.
1.4.General purchasing or other general terms and conditions that the Client may use are not applicable to the legal relationship between the Client and ConnectingTheDots.
1.5.If any provision of these general terms and conditions is void or is annulled, this shall not affect the validity of the remaining provisions.

2. Definitions.

Unless the context indicates otherwise, the following shall be understood as:

Equipment: The equipment, whether or not specified in or with the agreement, on which or in connection with which the Software is to be implemented by ConnectingTheDots and is to function, or the services or products are to be delivered by ConnectingTheDots;
Availability: The degree to which ConnectingTheDots itself can make the Software available. This specifically does not mean the availability guaranteed by, for example, a hosting party, or the availability of servers set up or managed by the Client on which the Software runs. This is unless explicitly agreed otherwise;
Error: Failure to comply with (one or more) functional specification(s) explicitly made known and agreed upon in writing by ConnectingTheDots that are of substantial importance for what has been agreed. Furthermore, an Error only exists if it can be demonstrated by the contracting party and (in the case of Software) can be reproduced;
Implementation: The introduction of Software on the Equipment in the agreed manner such that the Software functions in accordance with the agreed specifications;
Delivery: The actual making available of goods and/or (the results of) services by ConnectingTheDots to the Client or to a third party designated by the Client;
Materials: The auxiliary materials required for the use, Implementation and modification of the Software, such as supplies, interfaces, compilers etc.;
Client: The counterparty of ConnectingTheDots for offers, agreements and resulting obligations;
Agreement: The agreement between ConnectingTheDots and the Client in which the mutual rights and obligations regarding the Software to be made available by ConnectingTheDots or services and/or products to be delivered by ConnectingTheDots are set out;
Software: The Software to be made available by ConnectingTheDots to the Client, as laid down in the Functional Design (FD);
Channels: Digital sales, marketing or customer contact expressions that are part of the Software such as webshops, websites, data feeds, print expressions etc. The purchased Channels are explicitly recorded in the Agreement.

3. Formation of Agreements.

3.1.All offers made by ConnectingTheDots are valid for thirty (30) days and entirely without obligation.
3.2.If the acceptance deviates from the offer made by ConnectingTheDots, this acceptance will be regarded by ConnectingTheDots as an invitation to make an offer. If it wishes to respond, ConnectingTheDots will make a new offer, to which articles 3.1 and 3.2 apply.
3.3.Unless ConnectingTheDots withdraws its offer, an Agreement is concluded by acceptance by the Client of the offer from ConnectingTheDots. The content of the Agreement is recorded in a deed to be signed by both parties.

4. Deadlines.

4.1.Agreed (delivery) deadlines of ConnectingTheDots only commence after any down payment due upon order has been received by ConnectingTheDots. This term can furthermore be extended by ConnectingTheDots if the Client (to be assessed by ConnectingTheDots) has not (yet) provided all information necessary for the execution of the order to ConnectingTheDots.
4.2.ConnectingTheDots is never in default by the mere passing of the agreed deadlines. For this, a written notice of default is always required, whereby ConnectingTheDots is granted a reasonable period to still perform, which will be at least thirty (30) days.

5. License and Usage Right.

5.1.The purchased license(s) as stated in the agreement with ConnectingTheDots regarding the use of Software grant the Client the non-exclusive and non-transferable right to use the Software made available to the Client, if agreed including additions and new versions, in a computer-readable language (object code) on the configuration specified in the Agreement, with due observance of the provisions of these General Terms and Conditions and the Agreement.
5.2.The purchased license(s) give the purchaser the right to use the Software and the Channels that have been explicitly purchased as they are stated in the Agreement.
5.3.The purchased license(s) give the Client a user right to the Software including the channels named in the agreement.
5.4.In the absence of a specification of the configuration for which the user right has been provided, the configuration on which the Software was first used applies as the configuration for which the user right has been provided.
5.5.Without prejudice to what is stated elsewhere, the user right exclusively includes the right to load and execute the Software.
5.6.The Client is prohibited from copying (including decompiling), disclosing the Software made available by ConnectingTheDots and the accompanying Documentation and confidential information in any form whatsoever, or granting third parties permission to copy, disclose, transfer or make it available to third parties, except in cases where the Law mandatorily determines otherwise.
5.7.The user right is not transferable to third parties without the express permission of ConnectingTheDots. The Client is not permitted to sell, (sub)license, rent, lend, alienate, pledge the Software or make it available to third parties in any other way whatsoever.
5.8.The Client is not entitled to modify (or have modified) the Software other than in the context of correcting errors (for which ConnectingTheDots shall always receive a first request), insofar as this is necessary for the regular use thereof arising from the nature of the Software (explicitly referring to what is stated in the quote in that regard). ConnectingTheDots expressly does not guarantee a fitness for use guarantee on the software (referring to the specific application thereof at the Client).
5.9.If the Client develops or has software developed or has the intention to (have) do so and he requires information in connection with the interoperability of the software to be developed with the Software to realize the interoperability, the Client shall request the necessary information from ConnectingTheDots in writing and in detail.
5.10.Within a reasonable period, ConnectingTheDots will then state whether and under what conditions (including financial conditions and conditions to be set for any third parties to be engaged by the Client) the Client can obtain the requested information.
5.11.Backup. Without prejudice to the provisions of the previous paragraph, the Client is permitted to make and possess one backup copy. That backup copy must be provided with the same labels and indications as the original copy and/or the original carrier of the Software concerned.

6. Maintenance fee for the Software.

6.1.Part of the Agreement is the maintenance fee. The maintenance fee guarantees the Client the Availability of the Software during the entire period that the Agreement is in force.
6.2.ConnectingTheDots always performs preventive and corrective maintenance on the Software with assumed approval and permission. These same conditions apply to this maintained Software (upgrades).
6.3.The user will be informed about an upgrade to be performed.
6.4.Guarantees and/or maintenance obligations of ConnectingTheDots lapse if the Client refuses to (have) install the most recent upgrades.
6.5.The costs of an upgrade are covered by the annual maintenance fee.

7. Prices.

7.1.Unless otherwise stated, the prices and (license) fees quoted by ConnectingTheDots and/or agreed between the parties are always exclusive of VAT, travel costs, cabling, consumables, transport, Implementation and installation costs and operating system, database and other software licenses required to use the Software.
7.2.If ConnectingTheDots, through no fault of its own, must use other products and/or materials to execute the Agreement instead of the agreed products and/or materials, any associated additional costs are entirely for the account of the Client.

8. Payment.

8.1.Unless otherwise agreed, payment of amounts due to ConnectingTheDots must take place at the latest within 30 days of the date of the relevant invoice. Payment will be made in EURO.
8.2.A payment is only completed on the day the amount has been credited to the bank account of ConnectingTheDots.
8.3.In the event of late payment of the monthly fees and/or invoices, ConnectingTheDots will send a reminder. If no payment has been received after the reminder, ConnectingTheDots is entitled to give the User notice of default. After the notice of default, the User still has five (5) working days to pay the fees. If full payment of the fee has not been received after this period of five (5) days, the Services will be suspended. Such suspension has no consequences for the obligations of the User; the monthly fees and/or the invoiced extra hours remain fully due during the period of suspension.
8.4.In the event of a notice of default, the Client is liable for interest of 1.5% per month on the outstanding amount from the day on which payment to ConnectingTheDots should have taken place at the latest until the day of full payment, whereby a part of a month is counted as a full month.
8.5.Any claim for set-off by the Client is excluded, unless the claim for set-off concerns a claim against ConnectingTheDots which ConnectingTheDots has unconditionally recognized.

9. Liability.

9.1.ConnectingTheDots is never liable for any compensation for damage suffered by the Client or third parties as a result of or during Implementation or installation carried out by or on behalf of ConnectingTheDots or Software, products and/or services made available and/or delivered by or on behalf of ConnectingTheDots.
9.2.ConnectingTheDots is never liable for business damage or other consequential damage suffered by the Client, including loss of data, lost turnover and profit.
9.3.The liability of ConnectingTheDots is limited in any case to the amount paid out by the liability insurer of ConnectingTheDots in the specific case, but will in no case amount to more than the invoices sent to the Client for the event causing the damage based on the Agreement.
9.4.Nor is ConnectingTheDots liable for damage caused by viruses, logic bombs, trojan horses and other programs or files received by the Client through goods or services delivered by ConnectingTheDots or otherwise.
9.5.In no case does ConnectingTheDots guarantee the uninterrupted availability of telecommunication connections and, if applicable, the uninterrupted access to its services whether or not via the Internet or other networks of ConnectingTheDots or third parties.
9.6.Otherwise, the liability of ConnectingTheDots is limited to € 25,000.-. ConnectingTheDots is never liable for indirect damage or consequential damage.
9.7.The liability limitations and exclusions lapse if the damage is the result of intent or deliberate recklessness by the management of ConnectingTheDots.
9.8.The limitations and exclusions also apply for the benefit of all (legal) persons engaged by ConnectingTheDots in the performance of the Agreement.
9.9.A condition for the occurrence of any right to compensation is always the presence of an Error, as well as: a) reporting the damage within 1 month after this could reasonably have come to the knowledge of the Client or did come to his knowledge, and b) in such a way that it is indicated exactly and by means of a person specialized for that purpose which (contractual) obligation ConnectingTheDots has not met and c) after ConnectingTheDots has had at least a period of 30 days to repair the described and by ConnectingTheDots recognized default or error.

10. Warranty.

10.1.ConnectingTheDots will, for a period of four and a half (4.5) months after acceptance of (any part of) the Software, repair or undo any defects in the Software to the best of its ability if the Software does not comply with the written specifications.
10.2.Any right to warranty lapses if the Client has repairs, changes and/or adjustments carried out by parties other than ConnectingTheDots.
10.3.Repairs, adjustments and/or replacements that are not covered by this warranty take place on the basis of the SLA or a further agreement.
10.4.The warranty period is not extended by repairing or undoing Errors or improving the Software.

11. Acceptance and Complaints.

11.1.If the Client is of the opinion that the Software made available by ConnectingTheDots and/or the Implementation performed by ConnectingTheDots does not comply with the concluded Agreement, he must inform ConnectingTheDots of this within seven (7) days after Implementation or Delivery of the relevant Software.
11.2.In the absence of a notification as referred to in the previous paragraph, the Client is deemed to have accepted the Implementation or the Software. The Client is also deemed to have accepted the Implementation or the Software as soon as the Software is taken into operational use.
11.3.In the event of a complaint as referred to in the first paragraph, ConnectingTheDots has the opportunity to replace, repair or adjust Software and/or Implementation for a period corresponding to the original Delivery term for which it has been established that it was not delivered or performed in accordance with the agreed specifications.
11.4.(Client-specific) Software is always offered for testing to the Client. After testing and acceptance by the Client, the relevant Software is deployed in production on the planned date. If what was offered for testing by the Client: was not tested within the agreed test period (without notification that the test period proved insufficient), was not put into operation, or if a message of non-acceptance was not made within five (5) working days, then the entire Software is considered accepted starting five (5) working days after it became available.

12. Force Majeure.

12.1.In the event of a non-attributable shortcoming ("force majeure") due to circumstances beyond the control of the parties (such as war, mobilization, trade blockade, lack of means of transport, or (temporary) non-availability of telecommunication connections) which prevent compliance with the Agreement or make it unreasonably costly, and are outside the sphere of influence of ConnectingTheDots, the obligation to comply will be suspended for a period equal to the duration of the aforementioned circumstances.
12.2.If compliance with the Agreement has become impossible as a result of the events referred to under paragraph 1 for a period of more than three (3) months, each party has the right to dissolve the Agreement by means of an explicit and written notification without judicial intervention.
12.3.If one of the events mentioned under paragraph 1 occurs, ConnectingTheDots is never liable for any compensation to the Client.

13. Duration and termination of the Agreement.

13.1.Unless otherwise determined, the Agreement is entered into for an indefinite period. The Service Level Agreement is entered into for a period of twelve (12) months each time.
13.2.
Notwithstanding what is stated elsewhere in or with this Agreement, parties are entitled to dissolve the Agreement with immediate effect by registered letter without notice of default or judicial intervention:
- each party, if and as soon as the other party is granted (provisional) suspension of payments and the (provisional) suspension of payments has lasted for more than six consecutive months;
- each party, if and as soon as the other party is declared bankrupt;
- each party, if and as soon as the other party's company is liquidated.
13.3.Upon termination of the user right for the Software, the Client will return all copies of the Software in his possession to ConnectingTheDots and retain no copies.
13.4.Obligations which by their nature are intended to continue even after termination of the Agreement will continue to apply even after the end of the Agreement.

14. Intellectual Property.

14.1.All copyrights and any other intellectual property rights to all Software made available by ConnectingTheDots to the Client as well as to any preparatory documents shall (remain) vested both during and after the end of the Agreement concluded between ConnectingTheDots and the Client in ConnectingTheDots or in the third party from whom ConnectingTheDots has obtained the right to make the Software in question available to the Client.
14.2.These terms apply in full to changes, adjustments and/or new versions of the Software.
14.3.Unless expressly agreed otherwise, ConnectingTheDots also retains all its (intellectual property) rights to all other documents provided by it such as manuals, drawings, images, photos, sketches, models and offers.
14.4.Documents provided to the Client may not be copied, imitated, shown to third parties or used other than for private use by the Client.

15. Confidentiality.

15.1.Each of the parties shall take all measures that can reasonably be taken to guarantee confidentiality with regard to all confidential information of which they or persons engaged by them in the execution of the Agreement become aware.
15.2.If additional terms and conditions regarding security measures must be agreed upon, these will be recorded in a separate appendix to the Maintenance Agreement.

16. Entire Agreement, deviations and severability.

16.1.The written Agreement between the parties with all appendices contains all agreements between the parties and replaces all other agreements, promises and Agreements between the parties.
16.2.Changes and additions to the Agreement(s) between the parties are only valid if these have been agreed upon in writing.
16.3.If one or more provisions of the Agreement or these terms should prove to be non-binding or invalid, the remaining provisions shall remain in full force. Parties then undertake to enter into negotiations to agree on replacement provisions which approach the intention of the parties as closely as possible.

17. Applicable law and competent court.

17.1.Dutch law is exclusively applicable to these General Terms and Conditions and obligations governed thereby.
17.2.All disputes that may arise between ConnectingTheDots and the Client as a result of an Agreement or as a result of further agreements that may be a consequence thereof, will be settled in accordance with the Arbitration Rules of the ICT Dispute Resolution Foundation (Stichting Geschillenoplossing Automatisering), established in The Hague. The Minitrial Regulations of this Foundation are also applicable.
17.3.In the event of non-(timely) payment of undisputed outstanding payable invoices, the ordinary court shall nevertheless remain fully competent. Likewise, the President of the District Court shall remain competent in case of urgent necessity.