General delivery conditions

These general terms and conditions apply to organizations that purchase a community from Joinby

Joinby - general terms and conditions (license, development and support)  

 AGREEMENT

1. Offer and Agreement 

1.1. These General Terms and Conditions apply to all quotations, offers from JoinbyGildstraat, 3572 EJ Utrecht (after this "developer”) and to all agreements (each, an “agreement”) entered into between developer and client (hereinafter referred to as “client”), including all agreements for by developer services provided, including consultancy and training. Unless otherwise indicated, all quotations from developer without obligation. 

 1.2. The agreement with the client is only concluded after it has been approved by the authorized persons of developer and client is signed.  

1.3. All quotes from developer are without obligation, unless stated otherwise in the relevant quotation.  

1.4. A quote for several parts required developer not to perform part of the quotation for a corresponding part of the quoted price.  

1.5. These general terms and conditions also apply to additional assignments and follow-up assignments from the client. The rates mentioned do not automatically apply to future assignments.  

1.6. Any purchase or other general terms and conditions of the client do not apply, unless expressly agreed in writing by developer are accepted.  

1.7. Under the concept developer-software is understood the developer software, consisting of software (client component) and the associated data service (server component), the developer documentation and all other by developer materials made available to the client. The developer-software can consist of standard components, custom components, or a combination of both.  

1.8. Binding further oral or written agreements and stipulations developer only after this in writing developer have been confirmed.  

1.9. The ranking of the documents is: 

  1. the contract/quote/order confirmation; 
    ii. these terms and conditions;  
    iii. the inquiry/ request-for-proposal† and  
    iv. purchase or other general terms and conditions of the client, if explicitly declared applicable. In the event of inconsistencies or ambiguities, a higher-ranking document will prevail, with the treatment of a subject in a higher-ranking document being exhaustive.  

2 Uimplementation agreement 

2.1. Developer will make every effort to perform the agreement with care, where appropriate in accordance with the agreements and procedures laid down in writing with the client. The work of developer are performed on the basis of a best efforts obligation.  

2.2. Developer will, where possible and if necessary, keep the client informed of the progress of the work. 

3 Responsibility of and cooperation by the client 

3.1. The Client is responsible for the choice, use and correct application in its organization of the developer-software and of the by developer services to be provided. The Client is also responsible for securing its data.  

3.2. The client is familiar with the functional characteristics of the developer-software and he is responsible for ensuring that the developer-software meets his wants and needs. In case of any ambiguities, he can provide information before concluding the agreement developer or to be advised by an expert third party.  

3.3. The Client will ensure that it has the correct equipment, software and data and telecommunication facilities for the installation and use of the developer-software has.  

3.4. Client will developer always timely provide all data or information useful or necessary for the execution of the agreement, including (temporary) access to the necessary information files and experts of the client and furthermore all developer desired reasonable cooperation in a timely manner.  

3.5. It is the client's task to take appropriate measures such as contingency, data protection, regular checks on operation, etc., in case the developer-software wholly or partly does not function sufficiently or shows defects. Prior to operational use, the Client will developer-software thorough testing for any defects and for usability and safety in the actual operating environment. The same applies in case of new releases and/or feature updates of the developer-software

4 Delivery period, Term of the agreement 

4.1. All by developer named (delivery)periods have been determined to the best of our knowledge on the basis of the information provided when the agreement was entered into developer were known and they will be observed as much as possible, but these are never a strict deadline. If any term threatens to be exceeded, developer and the client will enter into consultation as soon as possible.  

4.2. If developer must wait for cooperation or information from the client, the (delivery)time limits extended, if necessary, by the duration of such waiting period.  

4.3. Unless otherwise specified in the quotation, the agreement is entered into for 1 year. The agreement is tacitly extended for the duration of the period stated in the offer, or if no period is stated in the quotation, each time with 1 year, unless developer whether the client terminates the agreement in writing (email is sufficient) with due observance of a notice period of at least 90 days before the end of the relevant period. 

5 Prices and payment 

5.1. All prices are exclusive of VAT. Unless otherwise agreed, prices are in EUR and payment must be made in EUR.  

5.2. Unless otherwise agreed in writing, the payment term is 30 days.  

5.3. Unless otherwise agreed, prices are exclusive of expenses paid for the benefit of the client. These are billed separately.  

5.4. if developer has provided an indication or estimate of the total cost of the service, this does not mean that there is a fixed price, unless developer has expressly indicated that it concerns a fixed price. An available budget made known by the client never counts as an agreed fixed price.  

5.5. In the event of late payment, the client owes the statutory interest. If the client continues to fail to pay the claim, the claim can be handed over in which case the client is also obliged to pay 15% extrajudicial collection costs.  

5.6. If the creditworthiness of the client gives reason to do so, developer require further security or advance payment, failing which developer may suspend the performance of the agreement.   

SOFTWARE LICENSE AND SERVICE 

6 Provision of software

 6.1. Developer will use the standard stated in the quotation developer-software, including the end-user app, and the developer make documentation available to the client in the manner stated in the quotation and for the duration and scope of use stated in the quotation. Where physical goods are concerned, the contractor will deliver them to a location in the Netherlands to be designated by the client. Only if this has been agreed in writing, will developer the developer-software to install.  

6.2. The technical possibilities and limitations of using the developer-software, such as the connection with database, operating system, equipment and data carriers, are stated in the hardware and software requirements, which are communicated with the client.  

6.3. The source code of the developer-software is not made available to the client.  

6.4. The information as stated in quotations, proposals, offers, appendices, test programs, documentation, product and project descriptions, etc. is only intended for general information and cannot be regarded as a promised or guaranteed property of the developer-software† More specifically is developer for some of the functionality of the developer-software subject to the availability of third-party services and content, which may not always be, or will be available without interruption. Developer cannot guarantee that the developer-software will function uninterrupted, on time, securely or without error or, if additional support has been agreed, all errors and defects will always be corrected. 

7 Software License 

7.1. 's systems developer are leading to the use of the developer-software to establish. Partly to check possible additional use, the client will developer provide the opportunity to use the developer-software to be measured by the client in order to verify whether the use by the client is in accordance with the agreement between developer and client. If the client has failed to developer about the additional use, will developer charge an additional charge to the client.  

7.2. With periodic payment (subscription) of the license and usage fee (and optional support fee), the right to use the developer-software (and support) when the client no longer pays the agreed periodic payments.  

7.3. Developer grants the client the non-exclusive and non-transferable right to use the developer-software, including associated documentation.  

7.4. The developer software may only be used by the client in the client's own company, organization or institution, up to the maximum of the number of users stated in the agreement or described use, all in accordance with the provisions of the agreement, unless the client has additional upgrade rates and costs shall be paid in accordance with the then applicable prices and graduated scales.  

7.5. In case of non-agreed use, developer right to compensation of at least three times the total contract amount, without prejudice to the right of the developer to claim compensation for the damage actually suffered.  

7.6. Client is not entitled copies of the developerto create software.  

7.7. Value developer-software (partially) made available via the platform of a third party, more in particular Apple's App Store for iOS or google's Google Play for android, then the terms and conditions of that platform apply with regard to the use of (that part of) the developer-software 

7.8. The client is not allowed to developer- sell, rent, dispose of or transfer the software as security, or in which in any manner whatsoever available to any third parties, unless expressly agreed otherwise in writing. Client will developer- do not change software, give it to third parties for use or use it for the benefit of third parties. 

8 Supplier Software

If a supplier of developer only grants the right to use subcontracted software in accordance with the terms of its license or user agreement or if the maintenance is performed in accordance with the terms of the maintenance agreement of such supplier, the provisions of said agreements shall prevail over the provisions set forth in these terms and conditions. At the request of the client, developer inform the client about the content of said agreements. Developer is not liable for the functioning of or defects in software or hardware of any supplier.  

CONSULTANCY, CUSTOMIZED / ADDITIONAL WORK, ACCEPTANCE 

9 Consultancy

 9.1. All by developer additional services to be provided will be provided by the client and developer be agreed in writing. Client and developer shall agree in writing the specifications and schedule for the services to be provided. If it has been agreed that the services will take place in phases, developer postpone the commencement of the services belonging to a following phase until the client has approved the results of the preceding phase in writing.  

9.2. Developer will take into account the wishes of the client when deploying its employees, but developer decides who the developer services will be performed. Developer may, if necessary, engage a third party for the performance of the work.  

9.3. If desired, you can developer carry out the work to be performed in whole or in part at the client's office and the client will make the necessary facilities available as workspace, without calculation of costs. The developer employees will adhere to the house rules of the client.  

9.4. Due to the necessity for the client to cooperate with the services to be provided, the client will developer always timely provide all data or information useful or necessary for the execution of the agreement, including (temporary) access to the necessary information files and experts of the client and furthermore all developer desired reasonable cooperation in a timely manner.  

9.5. If the necessary data for the execution of the agreement are not made available to the developer, not on time or not in accordance with the agreements, or if the client does not fulfill its obligations in any other way, this may affect the scheduled time of completion. The Developer has in any case the right to suspend the execution of the agreement and can charge the costs incurred and any idle time according to its usual rates. 

10 Customization/additional work 

10.1. If developer has performed activities that fall outside the agreed services, these activities will be carried out by the client developer are reimbursed according to the usual rates of developer 

10.2. If, due to additional wishes of the client, the requirements or specifications are expanded or changed compared to those stated in the agreement, this constitutes additional work that is reimbursement is eligible. If developer believes that there will be additional work, it will notify the client as soon as possible. Developer is, however, not obliged to comply with any request from the client to perform such work and may require that a separate agreement be concluded for this purpose.  

10.3. The Client accepts that, if the parties agree that the services to be provided will be expanded or changed, the time of completion of the service may be affected as a result. Developer will inform client about this as soon as possible.  

10.4. If developer has provided an indication or estimate of the total costs of the service, this does not mean that there is a fixed price, unless this has been expressly agreed. However, the Client is entitled to decide whether the work will be continued if the indication or estimate is exceeded. 

11 Acceptance, transfer of risk, and warranty 

11.1. If the parties have not agreed that an acceptance test will be performed, the client accepts the developer-software in the condition in which it is at the time of delivery ('as is'), with all visible and invisible errors and defects. If an acceptance test has been agreed in writing between the parties, the following applies:  

11.2. Where this refers to 'errors', this is understood to mean substantial non-compliance with the developer functional and technical specifications of the developer-software† An error only exists if the client can demonstrate it and if it is reproducible. The client is obliged to report errors immediately to developer to make.  

11.3. If an acceptance test has been agreed, the test period is fourteen (14) days after completion of the installation by developer† During the test period, the client is not entitled to developer-software for productive or operational purposes. The Client will carry out the agreed acceptance test with sufficient scope and depth on the developer-software and the test results in writing, in a clear and comprehensible manner developer report.  

11.4. Furthermore, if an acceptance test has been agreed, the client is obliged to check under his full and exclusive responsibility whether the delivered developersoftware conforms to the by developer functional and technical specifications made known and/or agreed upon in writing. Unless otherwise agreed in writing, the assistance that the developer provides in performing an acceptance test is at the risk of the client.  

11.5. If during the performance of the agreed acceptance test it appears that the developer-software contains errors, the client will developer inform of the errors by means of a written and detailed test report at the latest on the last day of the test period. Developer will make every effort to rectify the intended errors within a reasonable period of time, whereby developer is entitled to workarounds, program bypasses, or problem-avoiding restrictions in the developer-software to apply.  

11.6. Acceptance of the developer-software may not be withheld on grounds that are not related to the specifications expressly agreed between the parties and furthermore not because of the existence of minor errors, i.e. errors that affect the operational or productive commissioning of the developer-software do not reasonably preclude it, without prejudice to the obligation of developer to fix these minor errors in the first three months after delivery.  

11.7. The developersoftware shall be deemed to have been accepted between the parties:  
i. if the parties have not agreed on an acceptance test: upon delivery or, if a developer installation to be carried out has been agreed in writing, upon completion of the installation; or  
ii. if the parties have agreed on an acceptance test: on the first day after the test period; or  
iii. if developer receives an issue list before the end of the test period: when the errors mentioned in that test report have been fixed.  

11.8. Notwithstanding this, the developer-software, if the client makes any use of it for productive or operational purposes before the moment of explicit acceptance, are considered to be fully accepted from the start of that use.  

11.9. As the developer-software is delivered and tested in phases and/or parts, the non-acceptance of a certain phase and/or part does not affect any acceptance of an earlier phase and/or another part.  

11.10. Developer will make every effort to correct errors in delivered developer- to repair the software within a reasonable period of time if it is described in detail in writing within a period of thirty (30) days months after delivery, or, if an acceptance test has been agreed between the parties, within thirty (30) days after acceptance. developer have been reported. The recovery will be free performed, unless the developersoftware has been developed on behalf of the client other than for a fixed price, in which case developer will charge the costs of repair according to its usual rates. Developer can charge the costs of repair according to its usual rates in the event of user errors or injudicious use by the client or other parties not developer attributable causes or if the errors could have been discovered when performing the agreed acceptance test.  

11.11. The obligation to repair lapses if the client, without written permission from developer changes in the developer-software affixes or has affixed, which consent shall not be unreasonably withheld.  

SUPPORT 

12 Basic support 

Developer provides basic support for ninety (90) days after final acceptance on the developer-software on the basis of best effort, by mail. Basic support consists of answering second-line user questions. 

Responsibilities developer  
Developer is responsible for the maintenance of the CMS and for changes to the codebase of the app and the CMS. Developer is available during Dutch office hours for second-line support.  

Client Responsibilities  
The client is responsible for the distribution of the app and for first-line support, unless otherwise agreed.  

Uptime levels 
The CMS is hosted by a third party. The uptime level of this lot is 99.98%. Resolution Times Developer will always try to resolve errors as quickly as possible. It recognizes that the client's app is an important part of its organization and that downtime should be avoided. However, as the nature and causes of errors can vary greatly, developer do not give guaranteed solution times. In all cases, developer make every effort to resolve errors as quickly as possible. 

13 Additional support, support fee 

13.1. If developer and the client agree that additional support will be provided in time or scope, for example for training and the correction of errors, then this is based on the conditions stated in the agreement, against the periodic support fee stated in the agreement. Developer may change the extent of its additional support from time to time.  

13.2. Developer may change the additional support fee with effect from each new year. At least one month before the end of the relevant year, developer inform the client in writing of the change in the additional support fee that will apply for the following year. The support fee is paid by developer billed periodically in advance.  

13.3. Additional support is entered into for an initial period of one year, unless otherwise stated in the agreement. After of this initial period, the maintenance is tacitly renewed for periods of one year, unless developer whether the client terminates the maintenance in writing and by registered letter with due observance of a notice period of at least 3 months before the end of the relevant maintenance period.  

Support fee  
support; during Dutch office hours, per person, per hour EUR 85,-  
support; per person, per hour, evenings, nights, weekends and holidays EUR 125,- 

14 Third party support not allowed

To protect the secret and confidential information of developer, third parties are not authorized to carry out maintenance work on the developer delivered to client developer-software to perform.  

OTHERS 

15 Intellectual Property 

15.1. The intellectual property rights (including copyright, patent law, trademark law and know-how law, including the possibility to register it) on all developer-software, services or other materials (such as: analyses, designs, documentation, reports, quotations, etc.), including possible changes, additions and customization, which developer are delivered to the client or are made available in any way whatsoever, rest solely with the developer or its licensors. The Client only acquires the rights of use that are expressly granted in the agreement or these general terms and conditions.  

15.2. More specifically, the techniques and applications used by developer are or have been applied for the benefit of the goods manufactured for the client by developer can also be applied to other products cq† be used for the benefit of other clients. Developer has the right to use the knowledge, insights and methods gained by the execution of an agreement for other purposes, insofar as no confidential information of the client is brought to the attention of third parties. Concepts rejected by the client can be presented to other clients.  

15.3. The client is not permitted to use any designation regarding copyrights or brands from the developer-software or to remove or change materials, including indications regarding the confidential nature and secrecy of the developer-software 

15.4. If the agreement is divided into phases and is granted, the client, unless otherwise agreed, expressly does not have the right to use the results from (an) previous phase(s) for (a) subsequent phase(s) if the assignment has been given to developer.  

15.5. The client is not allowed to developer-software at reverse engineerdecompiledisassemble, or translate or attempt to access the source code to make derivative works of the source code of the developersoftware, except as permitted by law.  

15.6. It is developer allowed to take technical measures to protect the developer-software 

15.7. Developer the right to mention the relevant results and materials in its portfolio, presentations and press materials in the usual way for its own publicity and promotion. Developer may name the client as a customer in portfolio, presentations and press materials.  

15.8. Developer shall indemnify the client against any action and claim based on the allegation that the developer-software infringes a copyright of third parties in force in the Netherlands. Developer will pay any costs and damage irrevocably determined by final judgment, provided that the client developer immediately informs in writing and the handling of the case exclusively to developer and lend its full cooperation in this regard.  

16 Confidentiality and takeover of personnel 

16.1. Developer and the client will take all reasonable precautions to receive from the other party and to keep confidential information already received. In particular, the Client will provide the information with regard to the developer-software and treat the accompanying documentation confidentially, keep it secret and not make it available to third parties.  

16.2. During the term of the agreement and for a period of one year after the end of the agreement, the client will developer not actively approach, employ or otherwise allow them to work for themselves. 

17 Liability 

17.1. Liability of developer is limited to what is provided for in this provision.  

17.2. Developer is not liable for:  

  1. errors or shortcomings in the material provided by the client;
    ii† misunderstandings, errors or shortcomings with regard to the execution of the agreement if these are caused or caused by actions of the client; 
    iii† errors or shortcomings of third parties engaged by or on behalf of the client.  
    iv† defects in suppliers' quotations or for exceeding suppliers' quotations; and  
    v. errors or shortcomings in the result delivered, if the client has omitted to create or have a test performed, and these errors would have been observable in such a test.  

17.3. The liability of developer is limited to the extra costs of the client that are the direct result of the attributable shortcoming. This is exclusively understood to mean: the reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these terms and conditions; any reasonable costs incurred to correct the defective performance of developer comply with the agreement, insofar as these comply with the developer can be attributed; and reasonable costs incurred to prevent or limit damage, insofar as the client demonstrates that these costs have led to limitation of direct damage as referred to in these general terms and conditions. Developer is under no circumstances obliged to pay compensation for any trading loss, consequential loss or other indirect damage, including in particular damage due to loss of profit, expected savings or loss of data. Developer is also not obliged to compensate damage due to late delivery of the developer-software, the performance of work or services.  

17.4. The total liability of developer is limited to an amount equal to the lower of the following two amounts: EUR 50,000 or the amount equal to the total price paid (excluding sales tax) of the developer agreed work, services and deliveries in the year prior to the event causing the damage.  

17.5. Any further liability of developer for damage suffered by the client is excluded, irrespective of the grounds for the damage suffered, whether from breach of contract, from an unlawful act or otherwise. 

17.6. The limitation of liability of developer does not apply in the event of intent or gross negligence.  

17.7. Client indemnifies developer for all third-party claims arising from the agreement, including with regard to intellectual property rights of such third parties on materials and information provided by the client. If developer should thus be addressed by third parties, the client is obliged to developer to assist both in and out of court and to do everything that may be expected of him in that case without delay.  

17.8. Contrary to the statutory limitation periods, the limitation period for all claims and defenses against developer and the door developer third parties involved in the execution of an agreement, one year.  

17.9. Any further liability of developer for damage suffered by the client is excluded, regardless of the way in which a any action is instituted either in breach of contract, in tort or otherwise. 

18 Termination and dissolution 

18.1. The client cannot terminate the agreement prematurely.  

18.2. The parties may terminate the agreement in whole or in part with immediate effect without judicial intervention by means of a written notice to the other party if the other party:  
(i) is declared bankrupt,  
(ii) whether or not provisional moratorium is granted, or  
(iii) the company is liquidated or terminated.  

18.3. If the agreement by developer is dissolved due to an attributable shortcoming in the fulfillment of the agreement by the client, the client must pay the fee and the costs incurred with regard to the work performed until then. The client's right of use for the software also ends in that case (standard software and Custom Software† Conduct of the client on the basis of which the developer can no longer reasonably be expected to comply with the agreement, are also regarded as an attributable shortcoming in this regard.  

18.4. In the event of termination or dissolution, no other obligation to undo.

19 General 

19.1. Changes and amendments to the Agreements concluded between developer and the client must take place in writing. Developer may unilaterally change these Terms and Conditions. In that case developer inform the client in good time of the changes, but no less than thirty days before the amended terms and conditions come into effect.  

19.2. Developer will comply with its obligations under the legislation regarding the processing of personal data as a processor, and developer and client will have a separate processing agreement close, where developer will ensure, among other things, appropriate technical and organizational measures to protect personal data.  

19.3. Developer is authorized to suspend the fulfillment of the obligations or to dissolve the agreement if the client does not or not fully fulfill its obligations under the agreement.  

19.4. The Client cannot set off or suspend a payment obligation.  

19.5. Developer is not obliged to comply with any obligation if it is not possible to do so as a result of force majeure such as fire, strikes, industrial unrest, illness, government measures, late or non-delivery by suppliers or any other cause beyond its control. If a force majeure situation lasts longer than ninety days, each of the parties has the right to dissolve the agreement in writing. In that case, what has already been performed on the basis of the agreement will be settled proportionally, without the parties agreeing to each other.s will owe something. 

19.6. Contrary to the statutory limitation periods, the limitation period for all claims and defenses against developer and the door developer third parties involved in the execution of an agreement, one year.  

19.7. Dutch law applies to the agreement. The judge in the district where developer is exclusively authorized.  

19.8. Parties recognize that participating actively and constructively in a ICTmediation is a reasonable and appropriate measure to prevent or limit imminent damage if this imminent damage is related to the non-compliance, late or improper fulfillment of any contractual obligation by the supplier. For this reason, the Client undertakes at the first written request of developer to participate actively, constructively and unconditionally in any ICTmediation according to the ICTmediation Regulations of the Automatisering Disputes Resolution Foundation, with its registered office in The Hague (see www.sgoa.org and www.sgoa.eu).  

 

This version: January 2021.