Terms and Conditions DeepBlue Security & Intelligence B.V.
version 20230615
1.1 The following capitalised terms used in these General Terms and Conditions have the following meanings:
1.2 General Terms and Conditions: these general terms and conditions of supply and any additional general terms and conditions used by Supplier that have been declared applicable to the Agreement;
1.3 Services: the services supplied by Supplier to Customer, as described in the Quotation;
1.4 Documentation: documents concerning the Services, Data and Software made available by Supplier to Customer, whether or not in electronic form;
1.5 Data: data and information made available by Supplier to Customer as part of the Agreement, whether or not electronically;
1.6 Customer: the party with whom Supplier enters into an Agreement for the supply of Products, Services and Data, or to whom Supplier, or a party acting on Supplier’s behalf, issues or has issued a Quotation for that purpose;
1.7 Customer Data: data and information provided by Customer to Supplier in the context of Supplier’s services, including information and files sent or processed by Customer through the Services;
1.8 Supplier: DeepBlue Intelligence B.V., with whom Customer enters into an Agreement for the supply of Products, Services and Data, or which makes an offer or Quotation to Customer for that purpose;
1.9 Quotation: a formal offer to enter into an agreement, prepared at Customer’s request, consisting at least of the description of the Products, Services and Data to be supplied by Supplier to Customer, the fee payable for them, and the duration or scope of the Products, Services and Data to be supplied under the Agreement, supplemented by special conditions or any amendments or additions to these General Terms and Conditions.
1.10 Agreement: the legal relationship between Supplier and Customer concerning or connected with the supply of Products, Services and Data, consisting of the Quotation signed by the parties, any annexes and these General Terms and Conditions;
1.11 Products: items, Software, Documentation, other materials and the result of an assignment supplied or made available by Supplier to Customer;
1.12 Software: software code and/or software made available by Supplier to Customer under the Agreement;
1.13 Update: a new version, repair or improvement of the Products, Services and/or Data;
2.1 These General Terms and Conditions apply to the supply of Products, Services and Data by Supplier to Customer under the Agreement.
2.2 If any provision of these General Terms and Conditions is void or annulled, the remaining provisions of these General Terms and Conditions remain in full force.
2.3 If any provision of these General Terms and Conditions conflicts with any other provision of the Agreement, the provision of the Agreement prevails over the provisions of the General Terms and Conditions;
3.1 All offers, Quotations and other similar statements by Supplier are non-binding and may be revoked by Supplier at any time, unless Supplier has expressly stated otherwise in writing.
3.2 The Agreement is formed when the Quotation is signed by Supplier and Customer.
3.3 Customer warrants the accuracy and completeness of the data provided to Supplier by or on behalf of Customer, such as requirements, performance specifications and other data, on which Supplier bases its offer.
4.1 For use of the Products, Services and Data, Customer owes the agreed fees as described in the Quotation or otherwise recorded under the Agreement. All prices exclude turnover tax (VAT) and other government-imposed levies.
4.2 For continuing performance agreements, Supplier is entitled at any time, once per calendar year, to increase current prices and rates by written notice to Customer by the inflation percentage equal to the Consumer Price Index set by Statistics Netherlands (CBS), subject to at least one month’s notice.
4.3 Customer shall pay invoices in accordance with the payment terms stated on the invoice. In the absence of a specific arrangement, Customer shall pay within thirty days after the invoice date. Customer is not entitled to set-off or to suspend payment.
4.4 If Customer fails to pay the amounts due on time, Customer is in default without any reminder or notice of default being required, and owes the applicable statutory commercial interest by operation of law from the day on which the agreed payment term has expired, without prejudice to Supplier’s other rights.
4.5 If Customer, after reminder or notice of default, remains negligent in paying the claim, Supplier is entitled to suspend the provision or supply of Products, Services and/or Data and/or to hand over the claim for collection. All judicial and extrajudicial costs incurred, including Supplier’s actual costs for legal assistance and legal advice, are then for Customer’s account.
Submission of the relevant invoice is sufficient proof of the amount due.
4.6 Each payment by Customer shall first be applied to payment of the interest owed by Customer and the collection costs and administrative costs owed to Supplier, and then to payment of outstanding claims in order of age.
5.1 All intellectual property rights in the Products, Services and Data made available by Supplier under the Agreement are vested exclusively in Supplier, its licensors or its suppliers.
5.2 To the extent new intellectual property is created in the performance of the Agreement, it vests exclusively in Supplier. To the extent such intellectual property does not vest in Supplier by operation of law, Customer shall provide all cooperation necessary to transfer full intellectual property rights to Supplier.
5.3 Customer acknowledges that Data is made available to Customer confidentially, and that Customer may not use, reproduce or provide that Data to third parties, except where expressly agreed otherwise, even if intellectual property rights would not have prevented this.
5.4 Customer shall not use Supplier’s trademarks, trade names or logos without Supplier’s express prior written consent.
6.1 Supplier grants Customer a non-exclusive, non-transferable, non-sublicensable and revocable right to use the Products, Services and Data for the agreed purpose, in accordance with the Documentation and subject to the agreed conditions and restrictions.
6.2 Unless expressly agreed otherwise in writing, the granted right of use is limited to use (i) for the duration of the Agreement, (ii) for Customer’s internal business processes in the Netherlands, (iii) by the users designated in the Agreement or by the maximum number of users stated in the Agreement, and (iv) for the agreed purpose and within the framework of regular use.
With respect to the right of use for a website made available by Supplier to Customer, contrary to (ii) above, the right of use is limited to use for Customer’s business.
6.3 For the avoidance of doubt, unless expressly agreed otherwise in writing, Customer is not permitted, among other things, to:
a. make Products, Services or Data available or open them for inspection to third parties in any manner, including Customer’s subsidiaries and other group companies, and/or use Services for their benefit;
b. resell Products, Services and/or Data, whether or not as an integral part of Customer’s or third parties’ services and/or products.
6.4 The right of use for Software extends only to the object code and not to the Software source code. Customer shall not reproduce, modify or supplement Software and related Documentation in whole or in part, convert it into source code or otherwise attempt to access the source code, download it, reverse compile it or disassemble it. Customer shall, however, regularly make a copy of the Software for its internal security purposes.
If the Software is damaged or lost, Customer may obtain a copy from Supplier in the Netherlands at cost price. Customer warrants that every copy of the Software includes all information appearing in and on the copy made available, such as copyright notices, captions, logos, trademarks, identification numbers and serial numbers, and Customer shall not alter or erase any such information.
6.5 Rights of use are granted, where applicable, subject to Customer paying the agreed fees for them on time and in full.
7.1 The parties undertake towards each other, both during the term of the Agreement and after the Agreement has ended for any reason, not to disclose in any way to anyone, or otherwise grant access to, data whose confidential nature they know or should know, including information concerning each other’s organisation, except where expressly agreed otherwise in writing.
7.2 During the term of the Agreement and for one year after its termination, each party shall hire or otherwise have work for it, directly or indirectly, employees of the other party who are or have been involved in the performance of the Agreement only with the other party’s prior written consent.
8.1 Each party shall at all times comply with its own obligations under the General Data Protection Regulation (GDPR) and/or other applicable privacy laws and regulations, and is responsible for such compliance when processing personal data under the Agreement.
8.2 To the extent Supplier processes personal data of data subjects on behalf of Customer in performing the Agreement, as further described in the Agreement, Supplier shall be regarded as processor within the meaning of the GDPR and Customer as controller. Unless expressly agreed otherwise, the following applies as a data processing agreement within the meaning of Article 28 GDPR between the parties:
a. Supplier shall process personal data only in accordance with Customer’s instructions, for the performance of the Agreement and any related or resulting new or further agreements, and always subject to this provision and applicable privacy laws and regulations, including the GDPR;
b. Supplier shall keep the personal data confidential from third parties and ensure that all employees it authorises to process personal data are also bound by confidentiality;
c. Supplier shall engage another processor (“sub-processor”) only with Customer’s prior written consent. By signing the Agreement, Customer gives Supplier consent to use the sub-processors used by Supplier at the time of signing by Customer. At Customer’s request, Supplier shall provide a list of these sub-processors.
Supplier may engage a new sub-processor or replace an existing sub-processor, provided it informs Customer in advance and gives Customer the opportunity to object to these changes on reasonable grounds within 14 days after receipt of the notice. Supplier shall impose the same obligations on its sub-processors as those included in this Article 8.2;
d. Supplier shall take appropriate technical and organisational measures to ensure a level of security appropriate to the risk, taking into account the state of the art, implementation costs, and the nature, scope, context and purposes of processing, as well as the varying likelihood and severity of risks to the rights and freedoms of data subjects;
e. Supplier shall notify Customer without undue delay of personal data breaches within the meaning of Articles 33 and 34 GDPR of which it becomes aware, and provide reasonable cooperation to Customer for a notification as referred to in Article 33 and/or 34 GDPR;
f. Supplier shall reasonably assist Customer in handling requests from data subjects concerning their rights under the GDPR, taking into account the nature of the processing and the information available to Supplier;
g. Supplier shall grant Customer and any auditors engaged by Customer access during office hours to its buildings and computer systems where personal data is processed for Customer, so Customer can verify whether Supplier complies with this Article 8 and its statutory obligations as processor.
Supplier shall provide the reasonably required cooperation, provided the persons conducting the audit comply with Supplier’s security procedures that are in force and have been made known to Customer, and provided these persons sign a confidentiality statement prepared by Supplier together with Customer before starting their work.
The costs of an audit initiated by Customer are for Customer’s account, unless the audit shows that Supplier has acted in material breach of this Article 8. With Customer’s approval, Supplier may choose to replace the audit with an assurance statement.
h. Upon termination of the Agreement, Supplier shall cease processing personal data and immediately destroy the personal data in such a way that it can no longer be used and is no longer accessible. If Customer requests before the termination date that Supplier instead transfers certain personal data to Customer, Supplier shall comply with that request as soon as possible.
If a statutory provision prevents the deletion or return of certain personal data, Supplier shall continue to process the relevant personal data only if and to the extent necessary to comply with Supplier’s own statutory obligations or otherwise with Customer’s prior written consent.
i.
Without Customer’s prior written consent, Supplier shall not transfer personal data, and shall ensure that any sub-processor does not transfer personal data, to a country or territory outside the European Economic Area, unless a) the transfer takes place in the context of performing the Agreement; b) international or national laws or regulations require Supplier to make that transfer; and/or c) the country is one for which the European Commission has determined that it ensures an adequate level of protection.
If the transfer takes place on the basis of b), Supplier shall inform Customer of that statutory requirement before processing, unless that law prohibits such notification on important grounds of public interest. To the extent required under a data processing agreement between Supplier and Customer, or otherwise necessary, Customer hereby gives written consent for the transfer of the personal data, whether or not through a sub-processor, to Switzerland.
8.3 Customer indemnifies Supplier against all third-party claims, including claims by the Dutch Data Protection Authority, brought against Supplier in relation to a breach attributable to Customer of this Article 8, the GDPR and/or other applicable privacy laws and regulations.
8.4 Unless expressly agreed otherwise in the Agreement, the parties are not permitted to process or have processed special category or sensitive personal data. To the extent this is expressly agreed, the parties shall make arrangements on the applicable security level and possible measures. In such a case, the processing party shall act at its own risk.
9.1 Supplier shall use its best efforts to perform the Agreement with due care. All Products, Services and Data of Supplier are supplied on the basis of a best efforts obligation, unless and to the extent a result has been expressly agreed in writing and the relevant result is described with sufficient specificity. Any service level arrangements are agreed only expressly in writing.
9.2 All delivery periods or other periods stated or agreed by Supplier have been determined to the best of Supplier’s knowledge on the basis of the data known to Supplier when entering into the Agreement. Supplier shall use proper efforts to observe agreed delivery periods or other periods as much as possible. The mere expiry of a stated or agreed delivery period or other period does not put Supplier in default.
9.3 Supplier has the right to engage third parties for the work in the context of performing the Agreement and to subcontract the work in whole or in part.
9.4 Customer shall always provide Supplier in good time with all data, information and cooperation useful and necessary for proper performance of the Agreement.
10.1 Supplier’s total liability towards Customer, on any ground, is limited to compensation for direct loss up to the amount of the price agreed and paid for the Agreement, excluding VAT. If the Agreement concerns the supply of several types of products and/or services, the agreed price is deemed to relate to those products or services that caused the direct loss.
If the Agreement is mainly a continuing performance agreement, Supplier’s liability towards Customer, on any ground, per event or series of related events, is limited to compensation for direct loss up to the amount of the fees actually paid for the service or product in the 6 (six) months preceding the occurrence of the loss, excluding VAT.
10.2 In no event shall total liability under the Agreement for direct loss exceed €100,000 (one hundred thousand euros). Direct loss means only:
a. reasonable costs that Customer would have to incur to make Supplier’s performance conform to the Agreement, but this substitute loss is not compensated if the Agreement is dissolved by or at Customer’s request;
b. reasonable costs incurred by Customer for being forced to keep its old system or systems and related facilities operational for longer because Supplier failed to deliver by a final delivery date binding on Supplier, less any savings resulting from the delayed delivery;
c. reasonable costs incurred to determine the cause and extent of the loss, to the extent the determination relates to direct loss within the meaning of these terms;
d. reasonable costs incurred to prevent or limit loss, to the extent Customer proves that these costs led to limitation of direct loss within the meaning of these terms.
10.3 Supplier’s liability for loss other than the loss referred to in Articles 10.1 and 10.2 is excluded. Other loss includes indirect loss, consequential loss, loss of profit, lost savings, reduced goodwill, loss caused by business interruption, corruption or loss of data, documents, materials or software, and loss resulting from claims by Customer’s customers.
10.4 The limitations set out in the preceding paragraphs of this Article 10 cease to apply if and to the extent the loss results from intent or deliberate recklessness by Supplier or its management, or if the relevant liability may not be limited under Dutch law.
10.5 Every claim for damages against Supplier lapses by the mere expiry of 12 months after the claim arises.
10.6 Customer indemnifies Supplier against third-party claims concerning Customer’s use of the Products, Services and Data in a manner other than agreed, in breach of applicable laws or regulations, or in a manner unlawful towards a third party.
10.7 The provisions of this Article 10 also apply for the benefit of all legal and natural persons used by Supplier in performing the Agreement.
Neither party is obliged to perform any obligation if prevented from doing so as a result of force majeure. Force majeure means any failure that is not attributable to the relevant party because it is not due to its fault and is not for its account under the law, a legal act or generally accepted principles.
Supplier’s force majeure includes in any event: force majeure of Supplier’s suppliers, failure by suppliers prescribed to Supplier by Customer to properly fulfil obligations, defects in items, materials or third-party software whose use has been prescribed by Customer to Supplier, improper functioning of the internet or other electronic communication channels, and failures caused by virus spread, hacking and/or power outages.
If the products and/or services supplied by Supplier to Customer are used or must be used outside the Netherlands, Supplier is not responsible for ensuring that the products and/or services to be supplied comply with the requirements, standards and/or regulations, whether technical or otherwise, imposed by the laws or provisions of the country where the products and/or services are used or must be used. Supplier is not liable in any way in this respect.
This does not apply if the Agreement provides otherwise.
13.1 The Agreement commences on the agreed date or, failing that, on the date of formation.
13.2 Unless expressly agreed otherwise in writing, the Agreement is entered into for an indefinite period and may be terminated by either party by written notice, subject to a notice period of three months ending on the first day of a calendar month.
Agreements entered into for a fixed term shall each time be tacitly renewed for a period of 12 calendar months, unless either party terminates the Agreement in writing subject to a notice period of three months ending at the end of the then-current contract term. Contrary to Article 408 of Book 7 of the Dutch Civil Code, contracts for services cannot be terminated early by Customer, except as set out in these General Terms and Conditions.
13.3 The Agreement may be dissolved by either party with immediate effect if:
a. the other party fails to perform any obligation under the Agreement, fails to perform it properly or fails to perform it on time, and, unless default occurs immediately, still has not performed the obligation, has not performed it properly or has not performed it on time thirty days after notice of default, provided the non-performance justifies dissolution;
b. de andere partij verklaart een verplichting niet, niet goed of niet tijdig te zullen nakomen of dit uit een handeling van die Partij kan worden afgeleid en dit de ontbinding rechtvaardigt;
c. de andere partij in staat van faillissement wordt verklaard dan wel surseance van betaling aanvraagt;
d. de andere partij door overmacht een verplichting uit de Overeenkomst niet, niet goed of niet tijdig nakomt en dit langer dan 30 dagen duurt of vaststaat dat dit langer zal gaan duren en dit de ontbinding rechtvaardigt (indien sprake is van overmacht, zal de andere partij dus niet op grond van (a) of (b) kunnen ontbinden).
13.4 Klant zal bij beëindiging van de Overeenkomst onverwijld het gebruik van de Producten, Diensten en Gegevens staken, en alle originelen en kopieën daarvan vernietigen of aan Leverancier retourneren, behalve voor zover uitdrukkelijk schriftelijk anders is overeengekomen of hij wettelijk verplicht is daarvan een kopie te bewaren.
13.5 Tenzij uitdrukkelijk anders overeengekomen is Leverancier tijdens of na de looptijd van de Overeenkomst niet gehouden om eventuele data of informatie van de Klant, die Leverancier onder zich houdt in het kader van de verlening van de Dienst (zoals een Xaas- of Hosting Dienst), te retourneren of af te geven aan de Klant. Klant zal er zelf voor zorgdragen dat zij een back-up of kopie heeft van dergelijke data of informatie.
Leverancier is gerechtigd om voornoemde data of informatie te vernietigen zonder behoud van een kopie. Voor het voorgenomen handelen en de gevolgen daarvan is Leverancier niet aansprakelijk.
14.1 De Klant is niet gerechtigd de rechten en verplichtingen die uit deze Overeenkomst voortvloeien geheel of gedeeltelijk aan een derde over te dragen.
14.2 Leverancier is gerechtigd de rechten en verplichtingen die uit deze Overeenkomst voortvloeien geheel of gedeeltelijk over te dragen aan haar gelieerde ondernemingen. Leverancier kan die rechten en verplichtingen tevens aan andere derden overdragen indien dat plaatsvindt als onderdeel van een gehele of gedeeltelijke overdracht van de onderneming.
14.3 Alle bepalingen van de Overeenkomst zijn bindend voor zowel Partijen als hun respectievelijke rechtsopvolgers.
14.4 Op de Overeenkomst is Nederlands recht van toepassing. Toepasselijkheid van het Weens Koopverdrag is uitgesloten.
14.5 Alle geschillen die voortvloeien uit of verband houden met de Overeenkomst zullen uitsluitend worden voorgelegd aan de Rechtbank Midden-Nederland, locatie Utrecht.
