General Terms and Conditions OrangeCoach B.V.
These General Terms and Conditions (“Terms”) shall apply to all quotations, offers and/or all subsequent agreements regarding the delivery of products and/or services by OrangeCoach to a client (“Client”).
The definitions used in these Terms have the following meaning:
Service(s): the services provided by OrangeCoach in connection with the delivery of the Product, including (but not limited to) development, maintenance and support services.
IP rights: any and all intellectual property rights, registered and unregistered, including but not limited to, patent rights, copyrights (including rights to source- and object codes), database rights, trademark rights, rights with respect to knowhow and trade secrets.
Agreement: the oral or written order or instruction from Client to OrangeCoach to deliver certain Products and/or Services, which may also include the licensing terms and conditions with regard to such Product, which have to be accepted prior to the download, installation and/ or online access of the Product.
Product(s): the (software) product developed and/or offered by OrangeCoach, whether or not under a license.
OrangeCoach: the private limited liability company, having its registered office and principal place of business at the Industrieweg 19, 2254 AE Voorschoten and registered with the Dutch Chamber of Commerce under number 59745762.
Article 1. Offers and applicability
- A change or an addition to these Terms shall only occur with express written consent of OrangeCoach. In the event of a change to one or more of the articles in the Terms, the remaining articles shall remain in full force unless expressly agreed otherwise in writing.
- The applicability of the general terms and conditions of the Client is excluded, regardless of any references thereto by the Client.
- All quotations and offers issued by OrangeCoach are non-binding.
- OrangeCoach withholds the right to unilaterally amend these Terms. If Client does not consent to the proposed amendments, Client is entitled to object in writing within 14 days after receipt of the notification and to terminate the Agreement as of the effective date of such amendments. Client shall be deemed to have approved the amended Terms if it has not or not timely objected thereto.
- All specifications in brochures, quotations, manuals, or as specified on the OrangeCoach website(s) are made as accurately as possible. OrangeCoach shall not be held liable for any mistakes made therein.
Article 2. Prices, fees and payments
- All prices or amounts in quotations, offers and/or the agreement shall be exclusive of VAT or any other levies imposed by the official authorities.
- If prices and/or tariffs of price determinants, including foreign currencies, as far as not under the sphere of influence of OrangeCoach, increase for any reason whatsoever, OrangeCoach is entitled to amend its prices or fees correspondingly.
- The Client shall pay to OrangeCoach the fees as described in the Agreement, or in the absence thereof, as described on the website. The fees shall be due prior to the delivery of the Product and/or Services.
- Any fees shall be paid in the manner described by OrangeCoach and due within fourteen (14) days, unless agreed or prescribed otherwise in writing. OrangeCoach is entitled to demand payment prior to delivery of the Product or Service. Client is not permitted to offset or suspend any payments due to OrangeCoach. If Client does not or not timely fulfill any payments that are due, Client shall be in default automatically without a notice of default being required.
- The Product, including the related license (where applicable), and/or the Service are subject to the suspensive condition of complete payment of the due fee(s). For as long as any due fee has not been completely paid by the Client, regardless of the reason, OrangeCoach is entitled to deactivate the (access to the) Product and/or suspend its own obligations under the Agreement without prior notice.
Article 3. Term and termination
- The effective date of the Agreement between OrangeCoach and Client shall be the date as described in the Agreement, or in the absence thereof, the moment on which OrangeCoach received the applicable fee(s). The initial term of the Agreement is three (3) calendar years, or the remaining period of that calendar year, unless determined otherwise in the Agreement.
- Unless agreed otherwise in writing, a term set forth in the Agreement shall be automatically extended for a new period of one (1) year. As far as the term of the Agreement continues for the remaining period of a calendar year, the Agreement shall automatically end at the end of such calendar year.
- Termination of the Agreement for convenience, or termination of a specific Product or Service, by the Client is possible by written notification to OrangeCoach at least 3 months before the expiration of the applicable term, unless agreed otherwise in writing.
- OrangeCoach is entitled to terminate the Agreement (in whole or in part) in writing, with immediate effect and without incurring any liability in the event: (a) Client breaches one or more of its obligations under the Agreement (b) Client or its creditors file for bankruptcy, apply for suspension of payment or the company of Client is being liquidated.
- In the event of termination, regardless of the reason thereof: (a) the Client shall immediately cease and remain ceased the use of the Product and/or Service, (b) OrangeCoach will deactivate the access of the Client to the Product and/or Service, (c) Client shall, as far as applicable, remove and destroy all copies of the Product (software) including any related documentation in its possession, (d) Client shall destroy all materials and documentation related to the Product and/or Service, without withholding any copies thereof, (e) Client shall confirm to OrangeCoach in writing that the removal and destruction in accordance with (c) and (d) above has taken place.
- OrangeCoach is furthermore entitled to suspend its obligations under the Agreement without prior notice and/or to block access to the Product if Client acts in breach of the Agreement.
Article 4. Delivery terms and installation
- Any delivery terms provided by OrangeCoach have an indicative nature and shall never be regarded as fatal terms, unless explicitly agreed otherwise in writing. The mere expiration of the indicated (delivery) term shall not be not enough to deem OrangeCoach in default.
- OrangeCoach shall not be bound by any (delivery)terms, if circumstances beyond OrangeCoach’s control have occurred after the effective date of the Agreement and which result in overrunning that term. In case an overrun of a (delivery)term is foreseen, OrangeCoach and Client will consult in order to find a solution.
- Only to the extent agreed upon in writing, OrangeCoach (or a third party upon the responsibility of OrangeCoach) shall install, configure and/or connect the Product. Any such obligation excludes the obligation to execute data conversion or to install software of Client.
- Prior to installing or downloading the Product, Client has to submit an electronic declaration that it is bound by the applicable license terms and conditions.
- OrangeCoach is entitled, either by itself or by appointing a third party, to inspect whether Client and/or end users, comply with the license terms and conditions. Such an inspection will be carried out during office hours and in a manner that will have the least possible impact to the Client’s business. The costs for the inspection will be borne by OrangeCoach, unless the Client fails to meet its obligations under the Agreement (and/or the license terms and conditions), in which case the costs shall be borne by the Client.
Article 5. Services and additional work
- OrangeCoach shall perform the Services with due care, where appropriate, in accordance with the Agreement. Any obligations of OrangeCoach are best effort obligations, unless a certain result has been expressly agreed upon and OrangeCoach has committed itself to the completion of such result.
- If a fixed fee has been agreed in relation to the Service(s), OrangeCoach will inform the Client in advance when any changes or additions to the agreed Services will cause the price to exceed the fixed fee.
Article 6. Cooperation obligations
- Client shall at all times provide to OrangeCoach all relevant and necessary data and information and provide all required cooperation for the proper execution of the Agreement.
- If employees of OrangeCoach need to perform activities at the Client’s premises, the Client shall provide the proper and required facilities without charge. Client shall indemnify and hold OrangeCoach harmless against any claims by third parties, thereby including employees of OrangeCoach, who suffer or suffered damages as a result of any act or failure to act by Client.
- Client is responsible for the availability of any required computer-, data-, or telecommunication facilities, including the internet. OrangeCoach shall never be liable for any damages or costs caused by transmission errors, malfunctions or unavailability of the aforementioned facilities, unless Client proves that these damages were caused by intent or gross negligence by OrangeCoach’s management, employees and agents.
- Client shall at all times provide OrangeCoach with all useful, necessary and desirable data or information and lend all necessary assistance as may be required by OrangeCoach. In so far Client utilizes its own employees and/or third parties in order to assist in the execution of the Agreement, Client warrants that such employees will have the proper and necessary knowledge, expertise and skills.
- Client warrants that any information, specifications and designs supplied either directly or via a third party to OrangeCoach, shall be accurate, complete and consist. Any consequences due to the inaccuracy, incompleteness or inconsistency shall at all times be for the expense and risk of the Client.
Article 7. Intellectual Property Rights
- Any and all IP rights in relation to the developed and/or delivered Products and/or Services vest with OrangeCoach or its licensors, unless explicitly agreed otherwise in writing with respect to a certain Product or a part thereof.
- Unless agreed otherwise in the Agreement, the Client is granted with a non-exclusive, non-transferable and non-sublicensable right to use the Product(s) for the term and under the conditions of the Agreement. Client shall solely use the Product(s) within or for the benefit of Client’s organization and in accordance with the purposes described in the Agreement.
- As far as any rights with regard to a Product are transferred to Client, such transfer shall only occur upon the condition of complete and timely payment of all applicable fees and remunerations.
- All materials, analyses, designs, documentation, reports, quotations, standards, methods, processes, technical knowledge and knowhow that OrangeCoach develops in connection with its Products and/or Services, including all (intellectual property) rights in connection therewith (collectively referred to as “Materials and Knowhow”), shall remain the exclusive property of OrangeCoach and OrangeCoach shall at all times be entitled to use these Materials and Knowhow to its own benefit and for the development of new products and services.
- The Client is not authorized to remove or alter any designations related to copyrights, trademarks, trade names or any other intellectual property rights from the Product, including designations concerning the confidential nature and secrecy of the Products.
- Any content or information provided by the Client, whether or not for the development of a Product by OrangeCoach, shall continue to belong to the Client or its licensor. Client warrants that such content or information does not infringe any third party (intellectual property) rights.
- Client is responsible for all personal data collected by or via the Product, including end users’ personal data, and Client warrants to comply with any relevant and applicable data protection laws and regulations (including the General Data Protection Regulation).
Article 8. Maintenance
- OrangeCoach develops its Products with the utmost care, however, OrangeCoach does not guarantee that the Products are free from errors or interruptions, nor that all errors will be fixed at all times. Nor does OrangeCoach guarantee that the Products are suitable for the Client’s intended use, unless expressly agreed otherwise in the Agreement.
- The Products are provided ‘AS IS’ and Client accepts the Product in the condition at the time of delivery. OrangeCoach strives to repair or solve potential errors in the Products, but shall never be under the obligation to repair such errors, unless expressly agreed otherwise in writing. OrangeCoach is entitled to introduce temporary solutions, program bypasses or problem-avoiding restrictions in the Product. OrangeCoach is not liable for any data losses during its maintenance services.
- As far as applicable, OrangeCoach shall endeavor to achieve optimal availability and accessibility of the Product. OrangeCoach is authorized to deny or restrict access for a certain period of time without prior notice, if necessary for providing maintenance or introducing updates, releases, adjustments and/or improvements to the Product, without Client being entitled to claim any damages from OrangeCoach. OrangeCoach will at all times be entitled to process automatic updates and changes to the Product in order to improve the operation of the Product.
- Any references to ‘maintenance’ within these Terms are meant to include: locating and repairing any errors or irregularities in the Product and the subsequent adjustments and any provided new, improved or changed versions of the Product, and updating the corresponding user manual.
- OrangeCoach endeavors to execute the maintenance activities without any errors and the least impact as possible, but cannot guarantee the continued compatibility of the Product after an update or new release with other applications such as the Client’s hardware, -software or -systems.
Article 9. Support
- As far as agreed upon in the Agreement, OrangeCoach will provide support services to the Client.
- Support services will be performed during OrangeCoach’s normal business hours (from 09:00 AM to 05:00 PM) from Monday to Friday, with the exemption of generally recognized public holidays (unless agreed otherwise).
Article 10. Liability and indemnification
- Without prejudice of the other provisions in this article, OrangeCoach shall not be responsible for any damage incurred by the Client, unless this damage is caused by intent or gross negligence by OrangeCoach’s management, employees or Agents.
- OrangeCoach’s liability shall be limited to the compensation of direct damages only and capped at maximum 50% of the most recently invoiced and collected amount. Direct damages only compromise:
- the reasonable costs necessarily incurred by the Client to have the Product or Service comply with the Agreement, provided however, that the Agreement has not yet been terminated for cause by the Client;
- the reasonable costs incurred by the Client to keep its former system and associated facilities operational longer than anticipated out of necessity due to delayed delivery of the Product or Service by OrangeCoach, as far as such delivery date was expressly agreed upon in writing in the Agreement, with deduction of any savings resulting from the delayed delivery;
- the reasonable costs necessarily incurred by the Client to assess the cause and scope of the direct damages within the meaning of these Terms;
- the reasonable costs incurred by the Client to prevent or limit the damage, to the extent that the Client demonstrates that those costs have led to a limitation of the direct damage referred to in these Terms.
- Unless the correct fulfillment by OrangeCoach is permanently impossible, OrangeCoach’s liability due to an attributable failure in observing the Agreement shall arise solely when the Client immediately issues a notice of default to OrangeCoach thereby setting a reasonable term for remedy of the failure, and OrangeCoach has failed to remedy the failure within that term. The notice of default should contain a complete and detailed description of the failure. Furthermore, any liability and/or damage claims will be voided when OrangeCoach has not been notified about the damages without undue delay, but not later than 5 days after the event that caused the damage occurred. Any claim for damages shall furthermore be voided if no legal action has been instigated by the Client to claim damages within 12 months after the date the damage occurred.
- OrangeCoach is not required to fulfill a contractual obligation if it is prevented from doing so as a consequence of force majeure. Force majeure is intended to cover amongst others: (i) governmental actions (ii) electricity disruption (iii) disruption of the Internet, computer network- or telecommunication facilities, including Internet providers and/or datacenters, (iv) war, (v) occupation, (vi) strike, (vii) general transport problems, (viii) deficiency of products, equipment, applications, software or materials which are prescribed upon the Client’s request, (ix) force majeure of OrangeCoach’s suppliers (x) governmental changes and/or failure by suppliers of third party software (as far as applicable).
- OrangeCoach does not make any guarantees to the compatibility or functioning of its Products in combination with all software or hardware. For the proper functioning of the Product, OrangeCoach advises to use the hardware, software and systems that meet the system requirements as described on OrangeCoach’s website. OrangeCoach shall not be held liable as a consequence of incompatibility the Product with the Client’s hardware or software.
Article 11. The processing of personal data
- In view of the performance of the Agreement and, in the absence thereof, the provision of the Services by OrangeCoach, OrangeCoach may process personal data on behalf of the Client, in the meaning of the General Data Protection Regulation (“GDPR”). Where OrangeCoach processes personal data upon the Client’s behalf and instruction, the following provisions shall apply and qualify as a ‘Data Processing Agreement’ within the meaning of the GDPR, as wherein OrangeCoach shall be considered the “processor” and the Client the “controller”.
- The processing of personal data by OrangeCoach will only take place in view of its performance under the Agreement or, in the absence thereof, in view of providing the Services, especially in connection with the hosting- maintenance and support services of OrangeCoach and any purposes reasonably related thereto or as determined otherwise by Client and OrangeCoach.
- The processing will occur in accordance with the Client’s written instructions and relevant laws and regulations and under (ultimate) responsibility of the Client. OrangeCoach shall only use the personal data for its own purposes or those of third parties when it has a valid legal basis, such as consent of the data subject. OrangeCoach is explicitly not responsible for other processing of personal data, including but not limited to the collection of the personal data involved or processing for purposes which have not been reported by the Client to OrangeCoach. Furthermore, the Client warrants that the instruction to OrangeCoach to process the personal data is not unlawful and in line with applicable laws and regulations and the Client indemnifies OrangeCoach against and from any claims or actions of third parties (including data subjects) resulting from a breach of such warranty.
- OrangeCoach will endeavor to take adequate technical and organizational measures to protect the personal data against loss or any form of unlawful processing (such as unauthorized disclosure, deterioration, or alteration of personal data), whereas taking into account the state of the art, nature of the personal data concerned and the implementation costs involved. OrangeCoach does not guarantee that the security measures will be effective under all circumstances. Client is well informed about the security measures taken by OrangeCoach, and has assured itself that these security measures are of a level that is adequate with respect to the nature of the personal data and the risks involved with the processing of the personal data.
- OrangeCoach will process the personal data within the European Economic Area (EEA). The transfer of personal data to a country outside the EEA is permitted, provided that the legal requirements for such transfer have been fulfilled. Upon request, OrangeCoach shall notify the Client as to which country or countries the personal data will be transferred to.
- The Processor is authorized within the framework of the Agreement to engage third parties (hereinafter: “Sub-Processors”). Client has the right to object against the use of a specific Sub-Processor. Should Client object, OrangeCoach and Client shall jointly endeavor to find a solution. In any event, the Processor shall ensure that any Sub-Processors are bound to at least the same obligations as agreed upon in this Data Processing Agreement.
- All personal data received by OrangeCoach from Client and/or compiled by OrangeCoach within the framework of these Terms is subject to a duty of confidentiality vis-à-vis its employees, sub-processors or other third parties.
- Client shall at all times be responsible for notifying a data breach (a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data- or any indication that such data breach might happen or happened) to the relevant data protection authority and/or the data subjects. In order to enable Client to fulfill its legal obligations, OrangeCoach shall inform Client within 48 hours about a data breach, stating the following information: (i) the nature of the breach, including, where possible, the categories and approximate number of data subjects concerned, and the categories and approximate number of data records concerned, (ii) day and time of the detection of the data breach, (iii) the (potential) consequences of the data breach, (iv) the measures that have already been taken to address the personal data breach, including, where appropriate, to mitigate its possible adverse effects, and (v) OrangeCoach’s contact and contact details for further correspondence with respect to the data breach.
- Client is entitled to have an independent IT-auditor that is bound to confidentiality, carry out an audit, with a maximum of once per calendar year and upon prior notice to OrangeCoach, in order to check OrangeCoach’s compliance with the provisions of this Data Processing Agreement, more especially the security measures taken by OrangeCoach. Any such audit shall only take place after Client has requested from OrangeCoach any available audit reports and provides reasonable arguments to justify the proposed audit. This would be the case when the audit report provides no or insufficient information about compliance with this Data Processing Agreement. Any findings resulting from the audit will be assessed by OrangeCoach and at sole discretion of OrangeCoach implemented in the manner determined by OrangeCoach. The costs of an audit shall be for the account of the Client.
- If a data subject submits a personal data request (e.g. insight, amendment, deletion, objection etc.) to OrangeCoach, OrangeCoach will forward the request to Client and Client will further handle the request. OrangeCoach may notify the data subject hereof.
- This Data Processing Agreement is entered into for the term set out in the Agreement, and in absence thereof, for the duration of the delivery of Products and/or Services by OrangeCoach.
Article 12. Applicable law and competent court
- These Terms, the Agreement or any subsequent agreements related to the delivery of Products and/or Services by OrangeCoach shall be exclusively governed by Dutch law.
- Any and all disputes that may arise between Client and OrangeCoach in connection with or in respect of the performance of these Terms or the Agreement shall be exclusively brought before the competent court, or upon discretion of OrangeCoach to the Foundation for the Settlement of Automation Disputes (Stichting Geschillenoplossing Automatisering (SGOA)).
- In case of a conflict between provisions of these Terms with provisions of the Agreement, the provisions in the Agreement shall prevail.