General conditions

VOICT Services B.V.

(Version 2016.4)

Article 1 General provisions

1.1 These General Terms and Conditions apply to all offers and agreements (hereafter: ‘Agreement’) whereby VOICT Services B.V. (hereafter: ‘Supplier’) offers goods and services to a buyer (hereafter: ‘Customer’).

1.2 Deviations from and additions to these General Terms and Conditions shall only be valid if agreed in writing by all parties involved.

1.3 The Customer’s buying terms or any other terms and conditions are at all times expressly rejected.

1.4 In the event of a conflict between the provisions of the Agreement, the provisions of a Service Level Agreement (hereafter: ‘SLA’) and the provisions of these General Terms and Conditions, the following precedence shall apply: (i) Agreement, (ii) SLA, (iii) General Terms and Conditions.

Article 2 The Service

The Supplier’s service consists of remote provision and maintenance of standard computer software (hereafter: ‘Software’) under the name DireXtion via an internet connection and, if provided for in the Agreement, incident management and preventive and corrective maintenance (hereafter: ’the Service’). The Supplier shall only develop computer software for the Customer if both parties have agreed to this in writing in which case Article 5 shall also apply.

Article 3 Preventive and corrective maintenance

3.1 The Supplier shall ensure preventive and corrective maintenance as provided for in the Agreement and SLA.

3.2 The Customer is aware that the Software is standard software which means that from time to time, the Supplier makes changes to the Software through updates or new versions. If these changes lead to functional changes of the Service, the Supplier shall inform the Customer of this on time. The Customer is obligated to use a new version of the Software.

3.3 The Supplier warrants that, for a period of only three (3) months after the release of a new version, the Software is free from error (defects) that could result in the Software not functioning per the Specifications (hereafter: ‘Defects’). Failure to comply with the guarantee referred to in the previous sentence, shall not result in any obligations on the part of the Supplier other than the obligation to remedy Defects. The Supplier does not guarantee that the Software is virus-free, but shall make every effort to keep it virus-free.
3.4 The Supplier is not obligated to carry out Software updates or to release new versions of the Software unless this is necessary for the Service to comply with mandatory law or with Article 16.2 of these General Terms and Conditions.

Article 4 Incident management

4.1 In the event of any incidents regarding Service availability, the service levels in the SLA will apply.

4.2 The Supplier will provide a helpdesk that operates as the contact point for all events that result in the Software not functioning as per the Specifications or not being available for on-site use, and that occurs during the Customer’s use of the Software (hereafter: ‘Incidents’). The helpdesk’s tasks and service level are stipulated in the SLA. A coordinator will report Incidents to the helpdesk on behalf of the Customer.

4.3 The SLA stipulates the method for reporting an incident. Each Incident will be assigned to a priority category based on its nature and impact on the use of the Software and on the specified criteria in the SLA.

4.4 Incident resolution work will commence as soon as possible and according to the response times outlined in the SLA. The Supplier shall endeavour to resolve the Incidents within the recovery times, as indicated in the SLA.

4.5 The Supplier shall bear the costs of resolving Incidents unless circumstances on the part of the Customer causes the Incidents.

4.6 The Supplier shall regularly inform the Customer of the progress during the period of resolving the Incident, depending on the priority category into which the Incident falls.

4.7 The helpdesk also provides telephonic support regarding the use of the Software by the Customer and its employees if they should encounter any issues. The employees will report any issues to a coordinator as referred to in Article 4.2, who is the Incident contact person on behalf of the Customer.

Article 5 Custom software development

5.1 If the Customer wishes to instruct the Supplier to develop additional software in addition to the use of the Service, either for the additional functionality of the Software or otherwise (hereafter: ‘Custom Software’), the Customer and the Supplier shall in consultation specify in writing which software will be developed (hereafter: ‘Specifications’), within which period and at which costs and any other specific agreements.

5.2 When the developed Custom Software is ready, the Customer will be able to test it. If the tests show that the Custom Software meets a substantial part of the Specifications or if the Customer chooses not to test it, the Customer shall accept the Custom Software by signing an acceptance protocol. The provisions of Article 3.3 also apply to Custom Software, on the understanding that ‘after the release of a new version’, ‘after acceptance of Custom Software’ should be read.

5.3 The Supplier does not guarantee that the Custom Software is suitable for a particular use. If the Custom Software is intended to be part of the Service, it will be part of the Software after acceptance.

5.4 The Supplier shall be entitled to charge the Customer an additional fee for requests to implement adjustments or additions that do not fall within the Specifications of the Custom Software.

Article 6 Equipment for sale

6.1 If, as stipulated in the Agreement, the Customer buys equipment from the Supplier, the Supplier sells this according to the type and number as agreed in writing (hereafter: ‘Equipment’), and the Customer buys it accordingly. The Supplier does not guarantee that the Equipment is suitable for the specific use intended by the Customer.

6.2 No accessories, software, assembly and installation materials, cables or other items shall be supplied with the Equipment other than those expressly described in the Agreement or the Supplier’s quotation.

6.3 The Equipment will be delivered to a location indicated by the Customer. The risk for the Equipment shall pass to the Customer at the moment of delivery. The Customer is obligated to check the Equipment for any defects within 24 hours after delivery and if applicable, report these to the Supplier immediately.

6.4 In the event of Equipment defects, the Supplier has the option to repair or replace the Equipment free of charge, provided the Customer notified the Supplier of this within three (3) months. The guarantee will lapse if the defects – at the sole discretion of the Supplier – are the result of incompetent or careless use by the Customer or by the Customer’s employees. The Customer shall bear costs for repair or replacement outside the period mentioned in this article.

6.5 The Customer will report any defects in the Equipment to the Supplier within three (3) months after delivery. After the expiry of this period, the Customer’s right to claim against the Supplier for defective Equipment shall lapse.

6.6 If this is stipulated in the Agreement, the Supplier shall: install the Equipment or have it installed, configure it and/or have it configured, connect it and/or have it connected, and/or provide other services. The Supplier shall perform these services as a diligent contractor for the fee stipulated in the Agreement.

Article 7 Role division/responsibilities

7.1 Unless, within the Agreement, the Customer has expressly requested the Supplier’s advice on buying a particular product or service from the Supplier or a third party, the Customer acknowledges that the Supplier cannot be held responsible or co-responsible for the choices made by the Customer concerning that purchase. Insofar as the Customer needs advice for such a purchase, it shall agree on this in writing with the Supplier or commission a third party.

7.2 The parties recognise that the success of operations in the information and communication technology industry generally depends on proper and timely cooperation. To enable the Supplier to execute the Agreement properly, the Customer shall at all times provide the Supplier with all data or information it deems useful, necessary, and desirable on time, and provide full cooperation. If in collaboration with the execution of the Agreement, the Customer uses its own employees or agents, these employees and agents will have the necessary knowledge, expertise, and experience.

7.3 If computer, data, or telecommunication facilities, including the Internet, are used in the execution of the Agreement, the Customer shall be responsible for the correct selection of necessary resources and for their timely and full availability, except for those facilities under direct use and management of the Supplier. The Supplier shall never be liable for damage or costs due to transmission errors, malfunctions, or non-availability of these facilities unless the Customer proves that such damage or costs are the results of intent or wilful recklessness of the Supplier’s management.

Article 8 Duration and termination

8.1 Unless otherwise specified in the Agreement, it will be entered into for a period of three (3) years from the date of signing. In the absence of termination as referred to in Article 8.3, the Agreement will then be renewed automatically and successively for periods of one (1) year.

8.2 Insofar as (parts of) the Agreement does not include a continuing performance agreement, that part of the Agreement shall end when the Supplier has concluded its performance.

8.3 The Agreement referred to in Article 8.1 may only be terminated by written notice from one party to the other towards the end of the initial period or extension period referred to in Article 8.1, subject to a minimum notice period of three months before the end date.

Article 9 Intellectual property

9.1 The Supplier or its subcontractor is entitled to all intellectual property rights of the Software and Custom Software and all parts thereof, including but not limited to preparatory materials, designs, specifications, interfaces, documentation, and the data carriers on which that Software and Custom Software is stored (hereafter: IP rights). The use of the Service does not violate the intellectual property rights of third parties.

9.2 By signing the Agreement, the Customer transfers all IP rights to the Supplier beforehand, to the extent necessary. The Supplier accepts the transfer beforehand by signing the Agreement. Insofar as a further deed is required for this transfer and at the Supplier’s first request, the Customer shall cooperate unconditionally with this transfer.

9.3 If the Supplier and Customer agree in writing and contrary to the provisions in article 9.2, that an IP right regarding software, websites, data files, equipment, or other materials specifically developed for the Customer will pass to the Customer, this does not affect the right or ability of the Supplier to use or exploit, either for their benefit or for the benefit of third parties and without restrictions, the components, general principles, ideas, designs, algorithms, documentation, work, programming languages, protocols, standards, etcetera. Nor does the transfer of IP rights affect the Supplier’s right to make developments for itself or a third party that are similar to or derived from those made or still to be made for the benefit of the Customer.

9.4 The Customer only receives user rights regarding all work to which the IP rights have been attached if and to the extent that this has been granted to the Customer in the Agreement. The user rights referred to in the previous sentence are at all times non-exclusive, non-transferable to third parties, and not sub-licensable.

9.5 Even if the Agreement does not expressly provide the authority, the Supplier is permitted to apply technical devices to protect the Software, equipment, data files, websites, etcetera in connection with an agreed limitation in the content or duration of the right to use these objects. The Customer is prohibited from removing or bypassing such a technical device (or from having it removed or bypassed).

9.6 The Customer shall always respect the Supplier’s IP rights and the intellectual property rights of its subcontractors concerning the Service. The Customer acknowledges that the use of the Service and any Custom Software does not entail any transfer of intellectual property rights to the Customer, and waives any right or user right to or concerning the IP rights unless this has been explicitly stated otherwise in the Agreement.

9.7 The Customer is not permitted:
a. to give the Software or Custom Software in use to third parties or to use it for the benefit of third parties other than as stipulated in the Agreement;
b. to modify or adapt the Software or Custom Software;
c. to reconstruct the source code of the Software or Custom Software through reverse engineering. If a Customer requires information to achieve interoperability of the Software or Custom Software with its systems, the Customer shall request this from the Supplier, who shall then inform the Customer within a reasonable time whether the requested information and the conditions under which it is provided can be made available to the Customer;
d. to remove any indication concerning copyrights, trademarks, trade names, or other rights of property, or intellectual property from the Software or Custom Software.

Article 10 Confidentiality

10.1 Neither Supplier nor Customer shall, without the other party’s written consent, disclose any Confidential Information about each other. Confidential Information includes, among other things, financial information, processes, commercial information, relations, technical information, designs, and the existence and content of the Agreement. However, this excludes information of which the disclosing party can demonstrate that it was already publicly known or, other than by breach of the confidentiality obligation, was already in possession.

10.2 The Supplier and Customer both also commit to keeping all Confidential Information and information of which they know or should reasonably suspect to be confidential, secret from third parties and to impose the same secrecy on their employees and subcontractors.

10.3 Regarding the Confidential Information of one party, the other party will:
a. take all reasonable measures for safe storage;
b. distribute obtained information only within its organisation based on a ‘need-to-know’ principle;
c. not retain the information for longer than is reasonably necessary for the execution of the relevant Agreement, and make this information, including copies thereof, available again to the other party immediately after full performance of the Agreement or destroy it after permission has been obtained, in which case proof of destruction must be provided to the other party.

Article 11 Rates and rate changes

11.1 Rates for the Supplier’s services and products and when these are charged are recorded in the Agreement. The Customer may not derive any rights from an estimate or provisional quotation issued by the Supplier. The Supplier shall only be obliged to inform the Customer in the event of imminent exceedance of a budget issued by the Supplier if this has explicitly been agreed in writing between the Supplier and the Customer.

11.2 The Supplier reserves the right to increase the agreed rate no more than once a year on January 1st of that year, by the price index for family consumption, as published annually by the Dutch Central Agency for Statistics (CBS).
Article 12 Invoicing and payment
12.1 The Customer shall pay all the Supplier’s invoices sent to the Customer in connection with the execution of the Agreement within 14 days of the invoice date unless another term of payment is stated on the invoice, in which case that term shall apply. The Customer shall not be entitled to deduct or postpone the payment of amounts invoiced by the Supplier.

12.2 In the event of late payment, the Customer shall owe statutory commercial interest on the outstanding amount, without any required reminder or notice of default on the part of the Supplier. If the Customer continues to fail to pay the debt after a reminder or notice of default, the Supplier may assign the debt to a third party for collection. In which case, the Customer shall, in addition to the total amount due at that time, also be liable to pay all judicial and extrajudicial costs.

Article 13 Delivery times

13.1 The Supplier shall make reasonable efforts to adhere as far as possible to final (delivery) periods and (delivery) dates. All (delivery) periods and dates mentioned or agreed by the Supplier are always considered target dates, are not binding and are only indicative. The Supplier is not bound by any (delivery) deadline or (completion) date, whether or not final, that has been agreed due to (i) circumstances beyond its control that occurred after the Agreement was entered into or (ii) a change in the content or scope of the Agreement (additional work, change in specifications, etc.) or (iii) a change in the approach to the performance of the Agreement. If any term threatens to be exceeded, the Supplier and Customer will consult with each other to discuss the consequences of this regarding further planning.

13.2 The mere exceeding of a (delivery) term or (delivery) date mentioned by the Supplier or as agreed between the parties shall not cause the Supplier to be in default. In all cases – therefore also if the parties have expressly agreed in writing on a final (delivery) term or (delivery) date – the Supplier shall only be in default on account of exceeding the time limit after the Customer has given him notice of such negligence in writing. The notice of default must contain a description of the shortcoming that is as complete and detailed as possible so that the Supplier is allowed to respond adequately.

Article 14 Liability

14.1 If the Supplier fails to uphold the SLA as agreed between itself and the Customer, the Supplier’s liability for performance or compensation will be limited to the payment of service credits under the conditions and as stipulated in the SLA, regardless of any stipulation to the contrary in these General Terms and Conditions.

14.2 Liability of the Supplier for any failure other than those referred to in article 14.1 shall be limited to direct damage caused by those failures and capped at an amount equal to the total compensation paid by the Customer to the Supplier in the year preceding the event causing the damage.

14.3 Direct damage as referred to in Article 14.2 exclusively means:
• the reasonable costs to be paid to third parties due to the Customer’s diversion to a service that replaces the Service during the period of the failure;
• the reasonable costs needed to limit the damage;
• the reasonable costs of urging the defaulting party to comply with the Agreement;
• the reasonable costs for determining the cause and extent of the damage;
• the reasonable legal fees.

14.4 Irrespective of any stipulation to the contrary in these General Terms and Conditions, the Supplier and the Customer shall not be liable to each other for any indirect or consequential damage, including but not limited to damage due to loss of profit or turnover, damage from third parties, and damage due to loss of data, except for damage caused by intent or gross recklessness.

14.5 Regardless of any stipulation to the contrary in these General Terms and Conditions, the Customer shall indemnify the Supplier against damage suffered by the Customer’s clients and by third parties contracted by the Customer (including but not limited to shippers/carriers).

Article 15 Force majeure

15.1 The Supplier is not liable for failures that are not imputable to it. In other words not due to its fault, nor by law, legal act or generally accepted views for its account, including but not limited to failures as a result of the following circumstances: force majeure of suppliers, internet failures, or failures of telecommunication connections.

15.2 In the event of force majeure as referred to in Article 15.1, both the Supplier and Customer shall be entitled to terminate the Agreement after 90 days from the start of the force majeure.

Article 16 Personal data

If personal data are processed as a result of the Agreement, the ‘Verwerkersovereenkomst VOICT Services B.V.’ (Processing Agreement) shall apply unless the Customer and Supplier have explicitly agreed on another processing agreement.

Article 17 Insurance

During the entire duration of the Agreement, the Supplier shall ensure that the relevant risks regarding the fulfilment of the Agreement by the Supplier, are adequately insured according to market terms.

Article 18 Publicity

Neither the Supplier nor Customer shall make any announcement (public reference, references, press release or other statements) relating to the other party or the Agreement without the prior written consent of the other party unless it is required by law, in which case the party that is making the announcement shall notify the other party as soon as possible, and before the announcement.

Article 19 Employee non-acquisition

19.1 During the term of the Agreement as well as twelve (12) months after termination thereof, neither party shall employ employees of the other party who are/have been involved in the execution of the Agreement, unless the other party has given its prior written consent.

19.2 If one of the parties violates the prohibition stipulated in Article 19.1, this party will forfeit to the other party an immediately payable fine of EUR 5,000.00 for each day that the violation continues. The other party retains the right to claim performance or compensation for the damage actually suffered.

Article 20 Dissolution

20.1 The Supplier and the Customer shall be entitled to terminate the Agreement in whole or in part, without judicial intervention, if:
(i) the other party is in serious attributable breach of an obligation under the Agreement, such breach justifies dissolution, and fails to perform after that other party has been declared in default, setting a reasonable term for performance;
(ii) the other party has applied for postponement of payment or has been granted one;
(iii) the other party has been declared bankrupt or has filed a petition for bankruptcy with regard to this party;
(iv) the undertaking of the other party is wound up or terminated other than for the purpose of reconstruction or amalgamation of undertakings.
20.2 A failure in the fulfilment of a payment obligation by the Customer that is not remedied within three (3) months shall be considered a serious attributable failure and a justifying dissolution within the meaning of article 20.1 under (i) and the Supplier shall be entitled, if this situation occurs, to dissolve the Agreement immediately.

Article 21 Miscellaneous

21.1 Both parties operate as independent contractors in the performance of the Agreement. The Agreement does not lead to a franchise, joint venture, or partnership between the parties, nor to a relationship of employer and employee or principal and agent.

21.2 This Agreement contains the entire Agreement and supersedes any prior oral or written agreements between the parties with respect to matters governed by the Agreement.
21.3 Neither the Supplier nor the Customer may transfer or subcontract its rights and/or obligations under the Agreement to a third party that is not an affiliated company without the prior written consent of the other party.

21.4 Any amendment or addition to the Agreement shall require the prior written consent of both Parties.

21.5 Any failure or delay by either party in exercising its rights shall never be construed as a waiver thereof.

21.6 Any notice or other communication required by the Agreement must be in writing and sent by e-mail or registered mail to the Party concerned.

21.7 If any provision of the Agreement is or is deemed to be, illegal, invalid, or unenforceable, it will not affect in any way the other provisions of the Agreement, which will remain in full force and effect. The parties will make every effort to replace a possible provision with a valid and enforceable provision so that the same effect will be achieved, as much as possible, as would have been achieved by applying the invalid provision.

21.8 The provisions of the Agreement which, by their nature, remain in force after its termination, shall remain in force until they are fulfilled, including provisions relating to confidentiality, applicable law, warranty, indemnification, intellectual property rights, and liability, notwithstanding any obligations to undo as a result of termination.

21.9 The Agreement is exclusively governed by Dutch law. The Vienna Convention on Contracts for the International Sale of Goods is expressly excluded. Disputes between the Customer and the Supplier fall under the exclusive jurisdiction of the competent court in Arnhem.