Where capitalised in these Software and Services Terms and Conditions, the following terms have the meanings set forth hereafter:
“Agreement”:the relevant executed agreement between Onesecondbefore and Client, which may or may not be an accepted SO;
“Business Hours”:9:00AM-5:30PM CET;
“Confidential Information”:information disclosed under these SSTCs or an Agreement by the Discloser to the Recipient, which information is either marked as “confidential” or would reasonably under the circumstances be considered confidential information. It does not include information that the Recipient already rightfully knew, or which becomes public through no fault of the Recipient, or that was independently developed by the Recipient, or that was lawfully provided to the Recipient by a third party;
“Consultancy”: the provision of consulting services, implementation services, configuration services, development services, training services and project management services;
“Client”: the customer with which Onesecondbefore has entered into an Agreement;
“Discloser”: the Party disclosing Confidential Information to the Discloser;
“Fees”: the fees payable or paid by Client for the use of the Services;
“Onesecondbefore”: Onesecondbefore B.V., a private limited liability company, with statutory seat in Amsterdam, The Netherlands, and trade registration number 71183949;
“Party”: Client or Onesecondbefore, as the context requires;
“Personal Data”: any information relating to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;
“Recipient”: the Party receiving Confidential Information from the Discloser;
“Seconded Employee”: an employee or contractor made available by Onesecondbefore to Client under a SO or other Agreement, in order to have this employee or contractor perform work for and with Client;
“Services”: all services provided by Onesecondbefore to Client under an applicable or other Agreement, including but not limited to Consultancy, Support, secondment services and access to Software and a license to use such Software;
“SO”: a “Sales Order”, being the detailed offer from Onesecondbefore to Client on the provision of Services;
“Software”: the solutions “Capture” and “Transfer as well as any other software in executable form, provided by Onesecondbefore either through access via the Internet or otherwise;
“Support”: the provision of i) help desk support in response to reported Incidents, ii) corrective, perfective and preventive maintenance on the Software, iii) enhancements to the Software, and iv) documentation related to the Software;
“SSTCs”: the terms and conditions set forth in this document “Software and Services Terms and Conditions”, as amended from time to time by Onesecondbefore;
- OFFER AND AGREEMENT
- These SSTCs apply to all offers, Agreements, SO’s and legal relations under which Onesecondbefore supplies or may supply Services or information to Client.
- The applicability of purchase terms or other terms and conditions from Client is hereby expressly excluded.
- All Onesecondbefore’s offers and other statements are without prejudice and subject to agreement unless expressly stated otherwise by Onesecondbefore. Any Onesecondbefore offer will be valid for a period of 30 days after date of such offer.
- In case of absence of an Agreement or of a SO executed by both Parties, the request from or on behalf of Client to commence any work or the provision of Services and/or Software to Client, shall be deemed the acceptance by Client of these SSTC’s.
- Onesecondbefore has the right to amend these SSTCs at any time. Upon amendment, Onesecondbefore will provide Client with the amended SSTCs. In case Client does not accept the amended SSTCs being applicable to the Agreement, Client shall inform Onesecondbefore in writing within 30 days after the date on which Onesecondbefore has provided the amended SSTCs to Client. In such case, Onesecondbefore shall be entitled, in its sole discretion, to either offer Client a variation to the amendment or to terminate the Agreement. In case Client informs Onesecondbefore that it accepts the amended SSTCs or in case Client does not inform Onesecondbefore of its acceptance or non-acceptance within 30 days after the date on which Onesecondbefore has provided the amended SSTCs to Client, the amended SSTCs instead of the previous SSTCs shall be deemed applicable to the Agreement as of 30 days after the date on which Onesecondbefore has provided the amended SSTCs to Client.
- THE SERVICES
- Upon commencement of the relevant Agreement, and provided payment of the Fees due and further exclusively for the duration of the agreed term for the Services, Client is granted, and Client accepts, the non-exclusive, non-assignable, non-transferable, temporal, worldwide, limited right to use the Services, solely for Client’s internal use and benefit and for volume, usage and time parameters agreed and paid for.
- Services will be executed at and delivered from Onesecondbefore’s offices to Client, either as software-as-a-service, or otherwise through the Internet, through VPN and/or other secured connections. The delivery or provision of Services on-site at Client’s specified location(s) will be charged to Client at additional Fees.
- In case the provision of Services includes the access and license right to use Software, the provisions of this article 4. apply in addition to all other articles of these SSTCs.
- Client shall not modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Software, unless and in so far as explicitly permitted under the Agreement or under applicable law.
- Client shall not sell, rent, host, assign, lease, sub-license, transfer, network, reproduce the Software, except in so far as explicitly allowed by the Agreement.
- Client shall not offer on a bureau basis or use the Software to perform work for a third party, except with the prior written approval of Onesecondbefore.
- In case a part of the Services consists of access to and the use of Software from any third party, then Onesecondbefore shall notify Client of any license terms applicable for such third-party Software. Such license terms shall be applicable to the use by Client of the third-party Software. With respect to such third-party Software, in case of conflicting terms, the relevant terms and conditions of such third-party Software will prevail over the specific terms and conditions of these SSTCs.
- In case a specific initial license period has been agreed between the Parties, such license period shall deem to automatically renew for the same period (and periods thereafter), unless a Party informs the other Party in writing with 2 months prior notice that such renewal is not desired.
- Onesecondbefore reserves all rights not specifically granted to Client.
- Any Seconded Employee will work exclusively under Client's direct supervision, management and/or direction.
- The Seconded Employee will perform its work at the workplace of Client, or such other location as reasonably determined by Client. The Client will provide the office space, equipment and tools in which or with which the Seconded Employee can perform the work. The Seconded Employee will work in accordance with the guidelines and house rules applicable at the workplace of Client. The Client certifies that the Seconded Employee is provided proper instructions on the performance of work and on any applicable guidelines regarding safety and security.
- Client shall be entitled to request replacement of the Seconded Employee (i) if the Seconded Employee demonstrably does not meet expressly agreed quality requirements and Client provides written notice of this to Onesecondbefore within 3 working days after the work commences, or (ii) if the Seconded Employee experiences a long-term illness or leaves Onesecondbefore's employment. Onesecondbefore shall immediately address the request, however Onesecondbefore does not warrant that replacement shall always be possible. If replacement is not possible, each Party shall be entitled to terminate the relevant Agreement immediately, provided however that Client shall pay Onesecondbefore for all work delivered by the Seconded Employee until the Agreement terminates.
- Work performed by the Seconded Employee will be invoiced to Client on a weekly basis, unless agreed in writing otherwise. In case Client disputes the amount of the invoice or the underlying time and cost specification, it shall notify Onesecondbefore in writing no later than 1 week after the date of invoice.
- In accordance with article 7:658 sub 4 of the Dutch Civil Code, Client shall bear liability for damages incurred by Seconded Employee being a person performing work in the exercise of Clients’ profession or business with whom Client does not have executed an employment agreement.
- The intellectual property rights created by the Seconded Employee shall vest in Onesecondbefore. If as a result of any statutory provision or otherwise, the intellectual property rights of the works created by the Seconded Employee vest in Client, Client hereby assigns these intellectual property rights to Onesecondbefore, which it hereby accepts. Onesecondbefore hereby grants to the Client, and the Client hereby accepts from Onesecondbefore, a limited, non-exclusive and non-transferable right to use data, results and the like, for Client's own internal use and benefit.
- Onesecondbefore shall be obliged to make timely and complete payment of the wage tax and social security contributions (including advance contributions) to be paid for the Seconded Employee in connection with the Agreement. Onesecondbefore shall indemnify Client against all statutory claims by the Tax Authorities or social insurance agencies regarding taxes and social security contributions directly relating to Onesecondbefore's making the Seconded Employee available ("liability for using external personnel"), provided Client allows Onesecondbefore to handle the claims concerned completely, cooperates fully with it and furnishes it with all necessary information and, if Onesecondbefore desires, powers of attorney to conduct legal proceedings.
- Onesecondbefore shall use best efforts to ensure that the Seconded Employee remains available for the term of the Agreement.
- If the Seconded Employee is made available to Client for a definite period and Client wishes to terminate the Agreement prematurely, the Client shall be obliged to pay the Contractor an immediately due and payable termination fee equal to the value of 8 weeks of full time work of the Seconded Employee at the last applicable hourly rate for the Seconded Employee concerned. If the Seconded Employee has been made available to Client for an indefinite period, the Agreement may be terminated against the end of a month with due observance of a notice period of one full calendar month, unless agreed otherwise in writing. When during this termination period, Client does not actually have any work to be carried out by the Seconded Employee, the agreed hours, as stated in the Agreement, will be invoiced by Onesecondbefore to, and payable by, Client.
- Training services may be performed in-house with Client or at Onesecondbefore’s offices.
- For training services to be performed in-house with Client, Client guarantees that the required facilities will be present. If they are at Onesecondbefore’s sole reasonable discretion not adequately present, Onesecondbefore may suspend the training until the facilities are available, or cancel the training.
- Client may replace a participant in a training by another of Client’s employees.
- Cancellation of a training by Client is possible, however the following cancellation fees apply:
- until 4 weeks before the training: free of charge;
- between 4 and 1 weeks before the training commences: 25% of the agreed training fee;
- 1 week or less before the training commences: 100% of the agreed training fee.
- FEES AND PAYMENT
- All Fees set forth in SO’s, offers or Agreements, are in Euros and are exclusive of sales tax, withholding tax, value added tax (VAT) and any other taxes and levies, as well as exclusive of costs of hotels, travel and meals, unless specified otherwise. All such applicable taxes and costs will however be charged to Client.
- The Fees will be separately agreed in a SO or the Agreement. Onesecondbefore will provide an invoice to Client for the appropriate Fees.
- Software Fees will be invoiced annually in advance to the commencement of the applicable term for the use of the Software.
- Client shall pay the Fees not later than 30 days after date of invoice, by default of which Client shall be due, without notice of default from Onesecondbefore required, payment to Onesecondbefore of the applicable statutory trade interest rate from the date of invoice, in addition to the main sum due.
- If following a notice of default Client still fails to pay an invoice within 14 days of such notice of default, Onesecondbefore may engage a collection agency, in which case Client shall be due all judicial and extrajudicial costs in full, including but not limited to all costs charged by (external) experts and/or mediators in addition to the costs determined at law related to collection of this claim or of enforcement otherwise, the amount of which is a minimum of 15% of the total amount due.
- Client is not entitled to set-off or suspend payments.
- Upon a notice period of 1 month, Onesecondbefore has the right to modify once per calendar year the effective rates as agreed between Client and Onesecondbefore with a percentage equal to the increase in the consumer price index as published by the Central Bureau of Statistics in the Netherlands (CBS). Notwithstanding the foregoing, in case a third party provider of services or software that are or is used by Onesecondbefore in its delivery to Client of the Services, increases its fees, Onesecondbefore shall be entitled to increase such part of the Fees agreed between Client and Onesecondbefore that represents the share of such third party software and services, with the percentage with which such third party has increased its fees to Onesecondbefore.
- TERMINATION, SUSPENSION, CANCELLATION, RESCHEDULATION
- Either Party has the right to terminate the Agreement with immediate effect by registered letter, without any requirement to observe a notice period, if the other Party:
- has committed any material breach of its obligations under the Agreement and has failed to cure such breach within 30 days of written notice by the nonbreaching Party specifying in reasonable detail the nature of the breach (or, if such breach is not reasonably curable within 30 days, has failed to begin and continue to work diligently and in good faith to cure such breach); or
- applies for suspension of payments, reaches a settlement with creditors, or is declared bankrupt; or
- wishes to enter into a composition with its creditors or execution is levied on all its assets or otherwise loses control of its assets, or
- discontinues its operations or decreases its operations substantially, or a resolution has been passed to wind up or liquidate such other Party.
- Either Party has the right to terminate for convenience the Agreement: a. in case no expiration date is agreed: upon 12 months’ written notice to the other Party; b. in case an expiration date is agreed: at least 3 months’ prior written notice, by absence of which the then current term will automatically be extended for a same period of time.
- Onesecondbefore has the right to suspend its obligations under an Agreement if Client defaults on its payment obligations towards Onesecondbefore.
- In the event of termination of an Agreement other than by the expiration of it, the Services already rendered by Onesecondbefore at the time of termination of the Agreement and the related payment obligation cannot be revoked unless Client proves that Onesecondbefore is in default with regard to those Services. Any amounts invoiced by Onesecondbefore before termination in connection with the Services already duly provided under the Agreement will remain payable in full with due observance of the provisions contained in the preceding sentence and will become immediately payable upon termination.
- In case the delivery of Services to Client is cancelled or requested to be rescheduled by Client within 5 business days before the agreed delivery, Onesecondbefore is entitled to fully charge to Client the Fees applicable to such Services.
- Upon termination of an Agreement, Client shall immediately seize the use of the Services related to such Agreement.
- CUSTOMER OBLIGATIONS AND AUDIT RIGHTS
- Client agrees not to, and not to allow third parties to use the Services: to violate, or encourage the violation of, the legal rights of third parties; to engage in, promote or encourage illegal activity; for any unlawful, invasive, infringing, defamatory or fraudulent purpose; to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature; to interfere with the use of the Services, or the equipment used to provide the Services; to disable, interfere with or circumvent any aspect of the Services; or, to generate, distribute, publish or facilitate unsolicited mass email, promotions, advertisings or other solicitations.
- Client agrees to place any ‘trackers’ or other lines of codes on its websites or with other data sources, provided to Client by Onesecondbefore which are required for the correct performance of the Services.
- Onesecondbefore may audit Client’s use of the Services in order to verify compliance with the applicable terms of these SSTCs and the Agreement at any time during the term of the Agreement or 1 year thereafter.
- If any audit by Onesecondbefore yields any deficiency in the amounts paid to Onesecondbefore, Client shall promptly remit payment to Onesecondbefore of such amounts plus interest calculated at the maximum rate allowed under applicable law.
- CONFIDENTIAL INFORMATION
- The Recipient will not disclose the Confidential Information received form Discloser, except to affiliates, employees, agents or professional advisors who need to know it and who have agreed in writing to keep it confidential. The Recipient will ensure that the Confidential Information will exclusively be used to exercise rights and fulfill obligations under these SSTCs. The Recipient will use the same degree of care, but at least a reasonable degree of care, to keep the Confidential Information confidential. The Recipient may also disclose Confidential Information to the extent required by applicable competent court, provided that the Recipient uses reasonable efforts to: (i) promptly notify the Discloser of such disclosure before disclosing; and (ii) comply with Discloser’s reasonable requests regarding its efforts to oppose the disclosure.
- PROCESSING OF PERSONAL DATA
- Each Party agrees that Personal Data shall not be used by such Party for any purpose other than the performance or use of the Services.
- Each Party shall treat all Personal Data as Confidential Information. Neither Party shall make any copies of Personal Data without prior written approval from the other Party.
- Notwithstanding the provisions of articles 11.1. and 11.2., Onesecondbefore shall be entitled to use, or to procure a sub-processor to use, Personal Data and/or other Confidential Information, for the performance of general analyses, provided the results of the analyses a) may only be used in the context of creating new methods and algorithms, and b) if published, may only be published in scientific or business journals, and c) shall never show any data or information through which Client or data subjects may be identified. In the case of the use of (a) sub processor(s), Onesecondbefore shall impose on such sub processor(s), besides a data processing agreement, terms similar to the restrictions set forth in his article 11.3..
- Before performance of the Services, Parties shall enter into the data processing agreement from Onesecondbefore.
- INTELLECTUAL PROPERTY RIGHTS AND INDEMNIFICATION
- Onesecondbefore, or in so far as applicable its licensor(s), shall own and retain all right, title, and interest in the Software, other Services and any materials developed under Services, such as source code, executables, analyses, designs, documentation, reports, as well as preparatory materials (however excluding the data processed from, or generated for, Client) and all intellectual property rights inherent therein, including without limitation all changes and improvements made, requested, or suggested by Client, notwithstanding any use of terms such as “purchase”, “sale” or the like within these SSTCs or Agreements. Any unauthorized use of the Services will be deemed to be a material breach of the Agreement between Onesecondbefore and Client.
- Onesecondbefore and its licensors may take technical measures to protect the use of the Software. If the Software is secured by technical protection, Client shall not remove or evade such security features.
- Onesecondbefore shall defend or settle, at its expense, any claim, suit or proceeding brought or made against Client alleging that the Software or Services infringes any patent, copyright or trade secret of any third party in the Europe Union, and will pay all costs, damages and reasonable attorneys' fees attributable to such claim that are awarded against Client; provided however, that (i) Client shall have given Onesecondbefore prompt written notice of such claim, suit or proceeding, (ii) Client shall cooperate with Onesecondbefore in the defence and settlement thereof, and (iii) Onesecondbefore shall have control of the defence of such claim, suit or proceeding and any settlement or compromise thereof.
- Client shall defend, indemnify and hold harmless Onesecondbefore from and against all damages, liabilities, losses and expenses, including reasonable attorneys’ fees and expenses, resulting from any third-party claim, suit or proceeding that arises from the Client’s use of the Services.
- Onesecondbefore shall be entitled to use the name and logo of Client in any promotional materials used by Onesecondbefore, unless and until Client informs Onesecondbefore in writing to withhold from using such Client name and/or logo. Notwithstanding the foregoing, Onesecondbefore shall at all times be entitled to use in any promotional materials an anonymized description of the use and effects of Onesecondbefore’s Software or Services with Client.
- PERFORMANCE, SERVICE LEVELS AND WARRANTY
- Onesecondbefore shall use commercially reasonable efforts to perform and provide the Services with due care and within the time frames indicated in a SO or Agreement. Onesecondbefore shall however not be in default in case the time frames indicated cannot be achieved. The Services provided or performed under any Agreement shall be of a good and workmanlike manner, consistent with generally accepted industry standards for the performance of services of a similar nature.
- In case and in so far the Services consist of the provision of access to, and a license to use, any Software, Onesecondbefore:
- Warrants that the Software will perform substantially in accordance with the specifications in the Agreement;
- Warrants that the Software will be accessible to Client 99.5% of the time during any given calendar month, excluding any reasonable maintenance windows announced at least 72 hours in advance. As a measure for the availability, the measurements and observations from Onesecondbefore will be used. Onesecondbefore will not be liable for nor provide any service credits hereunder for any downtime caused in whole or part by a third-party data center provider nor for any downtime that Client experiences as a result of Client’s own network connectivity issues.
- Will use commercially reasonable endeavours to provide help desk Support if Client requires information about the use of the Software or in case Client experiences a Software outage and is unable to access the Software. Client must then immediately contact Onesecondbefore ’s help desk, providing any/all necessary information that may assist Onesecondbefore in determining the cause of the outage. Onesecondbefore will determine in good faith whether the outage was within Onesecondbefore ’s reasonable control. If Onesecondbefore determines that a timely reported outage was attributable to Onesecondbefore, then Onesecondbefore will credit Client 1 day of Software Fees for every 2 hours of downtime Client experienced, up to a maximum of half of that month’s Software Fees. This shall be Client’s sole remedy, and Onesecondbefore ’s sole liability, for Onesecondbefore ’s failure to provide the guaranteed availability set forth in this Article 13.;
- Will in its sole reasonable discretion attribute the relevant priority level to the incident, unavailability, bug, change request or other event, reported by Client to the help desk. Priority 1 means an urgent event in which the Software cannot be used at all or an event comprising of a breach which has occurred or likely has occurred with respect to the processing of Personal Data by Onesecondbefore, Priority 2 means that parts of the Software functionality can not be used or the Software performs slower than normally, and Priority 3 are all other events. Priority 1 events will be dealt with immediately within Business Hours, Priority 2 events will be dealt with within 1 working day, and the response time for Priority 3 events is 2 weeks or so much earlier or later as would be commercially reasonable.
- Will use commercially reasonable endeavours to provide non-help desk Support, meaning regular and general provision of corrective, perfective and preventive maintenance on the Software, enhancements and updates to the Software, and documentation related to the Software;
- Will evaluate any request from Client for changes to be implemented in the Software and will use commercially reasonable endeavours to implement minor changes. For other than minor changes, Onesecondbefore will first provide to Client a quotation for the work to be performed and the Fees to be payable by Client there for.
- Client may contact the help desk through email@example.com. The help desk uses best endeavours to respond within 1 working day.
- Except for the warranties expressly specified in this article 13., Onesecondbefore provides the Services without warranty or acceptance of liability of any kind, either express or implied, including but not limited to, any implied warranties of merchantability, or fitness for a particular purpose or warranties of quality or performance.
- To the extent permitted by applicable law, Onesecondbefore’s total liability under any Agreement shall not exceed the Fees paid or payable to Onesecondbefore in the 12 months preceding the event giving rise to the liability, with a maximum of € (euro) 250.000.
- Notwithstanding the foregoing, to the extent permitted by applicable law, in no event shall Onesecondbefore be liable to Client or any third party for any incidental, consequential, special or punitive damages, whether in tort or in contract, including lost profits, lost savings, reduced goodwill, damage caused by interruption of business operations, lost or damaged data, or other incidental or consequential damages, even if Onesecondbefore has been notified of the possibility of such damage.
- Onesecondbefore’s liability on account of breach in performance of the Agreement arises only if Onesecondbefore is given immediate and proper written notice of default by Client, with a reasonable term to remedy the breach and Onesecondbefore is still in breach of its obligations after that term.
- FINAL PROVISIONS
- Onesecondbefore and Client are independent contractors and nothing related to the performance of the Agreement shall be construed to create any agent, employee or similar relationship between Client and Onesecondbefore.
- Both Client and Onesecondbefore agree not to solicit or hire any personnel of each other until at least 12 months after the termination of the Agreement. A Party breaching the foregoing shall forfeit a penalty immediately payable to the other Party in the amount of € 50.000 without prejudice to the other Party’s right to claim damages.
- Neither Party shall be liable for non-performance or delay caused by wars, nuclear attacks, riots, strikes, fires, floods, earthquakes, pandemics, government restrictions or other causes beyond its reasonable control.
- Client does not have the right to transfer the rights and obligations under an Agreement to third parties in any manner whatsoever without Onesecondbefore’s prior written consent. Onesecondbefore will not withhold its consent on unreasonable grounds.
- If any provision of an Agreement or these SSTCs is null and void or is declared void, the other provisions of such Agreement or these SSTCs will remain fully effective and Parties will consult to agree on a new provision to replace the void provision, which’ purpose and purport should be approximated as much as possible.
- In the event of conflicting terms on the same subject matter, the order of prevalence of such conflicting terms shall be those of: 1. a SO, 2. any relevant written Agreement between Parties not being an SO, 3. these SSTCs, 4. any other documents.
- Any Agreement as well as these SSTCs is resp. are governed exclusively by the laws of The Netherlands and Parties shall submit to the applicable court in Amsterdam, The Netherlands.