General Conditions Fellow Digitals bv
February 1, 2023
Fellow Digitals bv has its registered office in Amsterdam and is also registered in the Trade Register at the Chamber of Commerce under number 34126866. The General Conditions are filed there under the same number.
1.1 Scope of application
1.1.1 These General Conditions apply to all offers and agreements and/or other legal relationships between the Customer on the one hand and Fellow Digitals or any of its affiliated parties using these General Conditions on the other hand.
1.1.2 Amendments or additions to the General Conditions are only valid if they are confirmed by Fellow Digitals in writing. The Customer is entitled to object, in writing, to the General Conditions, as amended by Fellow Digitals, within 30 (thirty) days after the date of the amendment.
1.1.3 If the trading name used by the Customer refers to multiple legal entities or businesses, they will be jointly and severally obliged to comply with all obligations arising from the Agreement concluded with Fellow Digitals.
1.2.1 The following expressions have the meanings assigned to them where they appear in the Agreement.
1.2.2 Agreement: an Agreement between Fellow Digitals and a Customer pertaining to Products and/or Services.
1.2.3 Backup: reserve copies of digital data and/or files.
1.2.4 Customer: anyone requesting and commissioning the supply of Products and/or Services.
1.2.5 Data: the information entered or supplied by the Customer within SaaS.
1.2.6 Domain: a virtual environment within which Users may collaborate, publish and/or learn.
1.2.7 Employee: workers employed by Fellow Digitals or workers employed by a third party or self-employed individuals hired in by Fellow Digitals.
1.2.8 Fair Use: the reasonable use by the Customer of the Products and/or Services, measured by the average use made by Fellow Digitals’ customers shown in the administrative records of Fellow Digitals.
1.2.9 Fellow Digitals: the company using these General Conditions, as confirmed in the Agreement concluded by the parties.
1.2.10 Fellow Digitals Infrastructure: that part of the infrastructure over which Fellow Digitals can exercise control.
1.2.11 Fellow Digitals Products and Services: all products and services of Fellow Digitals, the facilities stemming from them and the associated work that has not originated wholly or partially from third parties and in respect of which fellow Digitals holds the intellectual property rights and other rights.
1.2.12 Identification Data: login name, passwords, address details and/or other codes.
1.2.13 Infrastructure: the set of ICT facilities. This may be Fellow Digitals Infrastructure, Customer Infrastructure or Public Infrastructure.
1.2.14 Maintenance: this is described in more detail in Clause 2.2 of the General Conditions.
1.2.15 Object Code: the software in a form that cannot be processed.
1.2.16 Products and/or Services: all Products and Services supplied by Fellow Digitals, including SaaS and/or (full or partial) Third-party Products and Services, the facilities stemming from them and associated work. Fellow Digitals is entitled to use Third-party Products and/or Services in the performance of the Agreement.
1.2.17 Public Infrastructure: that part of the Infrastructure that is managed and/or supplied by third parties and over which Fellow Digitals reasonably has no control. This includes the Internet.
1.2.18 Software as a Service (SaaS): Software as a Service includes SaaS whose use is made available by Fellow Digitals directly and/or indirectly (via third parties) by means of hosting, without the supply of Object Code or Source Code.
1.2.19 Source Code: the computer programming code that may be displayed in a format that is readable and understandable to a programmer of ordinary skill. This includes related Source Code system documentation, comments and procedural codes but does not include the Object Code.
1.2.20 Third-party General Conditions: the specific conditions applying to Third-party Products and Services.
1.2.21 Third-party Products and Services: all products and services provided by Fellow Digitals, the resulting facilities and the associated work originating from third parties.
1.2.22 User: a single named individual (named user) or person otherwise mentioned in the Agreement and who is connected to the Domain.
1.2.23 Working Days: conventional working hours (09.00-18.00 CET) and days (Monday to Friday) in the Netherlands, excluding national holidays.
1.3.1 Verbal commitments, instructions or other expressions of any nature whatever made by Employees of Fellow Digitals shall only be valid and binding if they are confirmed in writing by duly authorised representatives of Fellow Digitals.
1.4.1 All offers are made without engagement unless the contrary is indicated specifically in writing in the offer.
1.4.2 Offers are based on and assume the accuracy of the information, explanations, requirements and/or wishes expressed by the Customer.
1.5.1 An Agreement between Fellow Digitals and the Customer, in respect of which no further contract and/or further duration has been agreed, lasts for one (1) year. The agreement will be tacitly extended by a period of one (1) year at a time unless Fellow Digitals or the Customer terminates it in writing (including by email) and in good time, observing a notice period of at least three (3) months.
1.5.2 Either party is entitled to terminate the Agreement by means of registered letter, without judicial intervention, either in full or in part, if the defaulting party remains in default with compliance of its obligations even after having received a written warning incorporating a reasonable time limit for compliance.
1.5.3 Fellow Digitals is also entitled to terminate the Agreement and/or the offers, in full or in part, with immediate effect by means of dissolution or cancellation, without judicial intervention, in the following circumstances: on the death of the Customer if the Customer is a natural person; if the Customer files an application for statutory debt protection; if the Customer is subject to an application for bankruptcy or moratorium on payments; if the Customer is declared bankrupt or is or is awarded a moratorium on payments; or if the Customer’s business is liquidated or brought to an end other than for the purpose of reconstruction or merger of enterprises. In such cases, the Customer is in default and every claim by Fellow Digitals against the Customer becomes immediately payable in full.
1.5.4 Once the Agreement covers an end, for whatever reason, the Customer may not derive any further rights from the Agreement, without prejudice to the continuation of the parties’ obligations that are by their nature intended to continue after the end of the Agreement, including but not confined to the obligations regarding property rights, confidentiality and competition.
1.6 Cooperation/information requirements for the Customer
1.6.1 The Customer shall lend every cooperation to Fellow Digitals and shall consistently provide all useful and necessary information and/or other information, in good time, for the proper performance of the Agreement. The Customer warrants the accuracy of this information and/or other information, including all data and/or other information upon which Fellow Digitals has based on offer.
1.6.2 If Fellow Digitals does not possess any information, data, wishes and/or requirements for the performance of the Agreement or does not have this in good time or if it is not available to Fellow Digitals in accordance with the arrangements in the Agreement, Fellow Digitals will in any case be entitled to terminate or dissolve the Agreement and/or suspend performance of the Agreement and Fellow Digitals shall be entitled to charge any costs it incurs as a result, in line with its standard rates.
1.6.3 Should any interim changes occur or new facts become apparent in relation to previously provided data, information, wishes and/or requirements, Fellow Digitals will at all times be entitled to adjust the Agreement to these new circumstances or else terminate it by means of dissolution or cancellation, all in consultation with the Customer.
1.6.4 If the Customer introduces functional improvements or amendments to the Products and Services (having already received the requisite written permission to do so from Fellow Digitals, as explained in more detail in Clause 2.1.5), the Customer shall be obliged to share these adjustments with Fellow Digitals in cases where Fellow Digitals provides Maintenance, Support or other services in relation to the Fellow Digitals Products and/or Services provided to the Customer.
1.6.5 If Fellow Digitals performs certain work for the Customer at locations other than on its own site, the Customer will provide Fellow Digitals with the facilities that are reasonably desired, such as a workspace and telecommunication facilities, all free of cost.
1.7 Confidentiality and competition
1.7.1 Fellow Digitals and the Customer undertake to each other to observe confidentiality in relation to all data and information concerning each other’s organisation, clients, files and Products and Services, if that data or information comes to the knowledge of the parties during the course of work for each other or for the Customer’s own clients. Data and information may only be used for the performance of the Agreement concluded by the Parties. This does not apply to Fellow Digitals if and to the extent that disclosing the relevant data and information to a third party is required in terms of a judicial pronouncement, a statutory provision or for the proper performance by Fellow Digitals of the Agreement. Data is in any event deemed to be confidential if it is designated as such by Fellow Digitals or by the Customer.
1.7.2 Confidential information does not include information already in the public domain at the point when it became known or that the recipient has also acquired from a third party that was not subject to an obligation of confidentiality. The confidential information of Fellow Digitals includes all information, not in the public domain, relating to the features, functionality and implementation of the Products and/or Services or to its organisation, the rate that applies and its offers.
1.7.3 Fellow Digital shall be entitled to use the Customer’s name and logo for marketing purposes on the Fellow Digitals website and/or as a reference. The Customer is entitled to withdraw this consent by doing so in writing.
1.7.4 The Customer shall not, directly or indirectly, entered into any commercial, employment or other comparable relationships with any Employee of Fellow Digitals for a period of twelve (12) months after the end of the Agreement, unless it has received written permission to do so from Fellow Digitals.
1.8.1 The total liability of Fellow Digitals for any failure to comply with the Agreement or on any other ground, including a breach of a guarantee or indemnity obligation, is limited to the payment of direct loss and a maximum amount equal to the total of the payments (excluding VAT) that Fellow Digitals has received from the Customer in respect of the price stipulated for that Agreement (excluding VAT). For ongoing agreements (lasting for one year or more), the stipulated price is set at a maximum of the total of the payments for a single year. In all cases, total liability will not exceed five hundred thousand euros (EUR 500,000), with a series of associated events being deemed to be a single event.
1.8.2 Fellow Digitals has arranged insurance in relation to loss. Fellow Digitals is never liable for damage or obliged to pay compensation for damage, howsoever arising, including potential claims by third parties against the Customer, except as covered by this insurance and as actually paid out under the insurance, plus the excess payable by Fellow Digitals, unless the damage is caused by intent or gross negligence.
1.8.3 The total liability of Fellow Digitals for damage manifesting itself in death or physical injury shall not under any circumstances exceed one million euros (EUR 1,000,000), with a series of associated events being deemed to be a single event.
1.8.4 Direct loss is limited to the following:
a) the reasonable costs incurred for establishing the cause and quantum of the loss;
b) the reasonable costs incurred to prevent or restrict loss, to the extent that the Customer demonstrates that these costs have resulted in a restriction of loss.
1.8.5 The liability of Fellow Digitals for indirect loss – including consequential loss, lost profit, lost savings, destruction or misplacement of files and/or data, loss arising from delay, financial losses sustained and caused by the defective provision of information and/or cooperation by the Customer, loss caused through commercial stagnation or claims by third parties against the Customer – is hereby expressly excluded.
1.8.6 The liability of Fellow Digitals only arises if the Customer issues an immediate and proper notice of default to Fellow Digitals, which includes a reasonable period for rectification of the failure, and if Fellow Digitals persists in its culpable failure to comply with its obligations after the expiry of that period. The notice of default must contain as detailed a description of the failure as possible, so that Fellow Digitals is afforded an adequate opportunity to respond.
1.8.7 It is always a condition for the existence of any right to compensation that the Customer notifies Fellow Digitals in writing, by means of registered post, within sixty (60) days after the loss arises and takes such steps as shall limit the loss as far as possible.
1.8.8 The Customer indemnifies Fellow Digitals in respect of all claims by third parties for liability arising from a defect in a product, system or service provided to the third party by the Customer, being a product, system or service that consists partly of what has been provided by Fellow Digitals.
1.8.9 Fellow Digitals accepts no liability whatsoever for losses of whatever nature arising from Third-party Products and Services supplied to the Customer by Fellow Digitals. If possible, Fellow Digitals will assign its rights to claim compensation from the supplier of the Third-party Product in question to the Customer.
1.8.10 Except where and to the extent that a service level agreement has been concluded with Fellow Digitals that contains an explicit provision to the contrary, Fellow Digitals is not liable for losses of whatever nature resulting from the non-provision or late provision of hosting, SaaS, Support or Maintenance.
1.8.11 The exclusions and limitations of liability for Fellow Digitals, set out in this Clause, shall lapse if and to the extent that the loss in question is caused by intent or gross negligence on the part of Fellow Digitals or its Employees.
1.9 Force majeure
1.9.1 Neither of the parties is obliged to comply with any obligation if it is prevented from doing so as a result of force majeure. In addition to statutory definitions, force majeure is understood to include all external causes, foreseen or unforeseen, that are beyond the factual and decisive control of a party and entailing that the party is not in position to comply with its obligations. Force majeure includes failures by suppliers to Fellow Digitals, late availability of necessary information, data and/or specifications, changes in information already provided and also late availability of Third-party Products and Services and any products supplied by third parties, unlawful acts by third parties (such as hacking and DDOS attacks), electrical outages, disruption of the Internet, computer network or telecommunications facilities and government measures.
1.9.2 If either party is affected by a force majeure situation, that party will notify the other party of the situation as quickly as possible.
1.9.3 If the force majeure situation affecting one of the parties continues for more than three (3) months, the other party shall be entitled to dissolve the Agreement without being obliged to pay any compensation.
1.10.1 If any one or more provisions or parts thereof in the Agreement prove to be invalid or are declared invalid, are voidable or have otherwise lost their legal validity, the remaining provisions (or the remaining part of the provision in question) in the Agreement shall continue in full force and effect. In such cases, the parties will entered into negotiations with the aim of agreeing on new provisions to replace the invalid or annulled provisions (or parts thereof).
1.11 Applicable law and resolution of disputes
1.11.1 The Agreement between Fellow Digitals and the Customer is governed by the law of the Netherlands. The application of the Vienna Sales Convention (1980) is hereby excluded.
1.11.2 Any disputes arising in relation to the Agreement concluded between the parties and/or relating to further Agreements resulting from that Agreement will be determined by the competent court in Amsterdam, the Netherlands.
2. Products and Services
2.1 User right to Software
2.1.1 Fellow Digitals hereby grants to the Customer the non-exclusive, non-sub-licensable, non-transferable right to normal use of the Products and Services with the associated documentation, in the manner that has been agreed in writing.
2.1.2 The user right is limited to the application of the Products and Services, exclusively for the Customers own use, for the maximum agreed number of Users and/or workstations. Except as otherwise agreed, the user right is limited to the processing unit upon which the Products and Services are first installed and the number of Users, servers and/or workstations is limited to one (1).
2.1.3 The user right for software forming part of the Products and Services is limited to the Object Code. No rights are granted to the Source Codes themselves unless this has been explicitly agreed.
2.1.4 The Customer may not use the Products and Services otherwise than for its own use and may not admit Users to the Domain for payment unless this is permitted in terms of the Agreement.
2.1.5 The Customer is prohibited from copying, duplicating or changing the Products and Services in any manner whatsoever, whether itself and/or using third parties, unless it has received prior written consent to do so from Fellow Digitals.
2.1.6 The Customer is itself responsible for making Backups of Data in good time. Fellow Digitals will, if so requested, notify the Customer of the procedures that may be required to secure Data and in order to make Backups.
2.1.7 Notwithstanding the provisions in Clause 2.1.6, the parties may agree that Fellow Digitals itself will arrange to prepare Backups of Data. Fellow Digitals is not liable for these Backups under any circumstances, in respect of but not confined to full or partial loss of Backups and/or errors in the Backups of Data or any other loss or corruption of information.
2.1.8 The user right commences after payment by the Customer and compliance by it with all other obligations incumbent upon it.
2.1.9 The Customer must follow the (user) instructions and directions of Fellow Digitals when using the Products and Services of Fellow Digitals.
2.1.10 The extent of the right to use Third-party Products and Services is specified (in more detail) in the Third-party General Conditions.
2.2.1 If the parties agree to Maintenance of the Fellow Digitals Products and Services, this will be done on the basis of an advance payment or voucher card and on such further (financial) terms as may be agreed.
2.2.2 Maintenance includes the provision of updates, including any relevant documentation, with a view to improving functionality or quality (for instance Defect rectification). Fellow Digitals is not obliged to notify the Customer proactively of the existence of updates.
2.2.3 If Maintenance incorporates a functional improvement, Fellow Digitals is entitled to charge extra costs as compensation for such a functional improvement.
2.2.4 Fellow Digitals is entitled to refuse the provision of Maintenance if the Products and Services or the environment in which they operate has/have been changed by the Customer in any manner whatsoever.
2.2.5 If the Customer refuses to install new updates offered to it by Fellow Digitals, Fellow Digitals reserves the right to terminate the Agreement immediately by way of dissolution or cancellation or else to adjust the terms of the Agreement to that refusal.
2.3.1 Support includes answering questions in relation to the use and operation of the Products and/or Services via the Support system, where the level of explanation is what the Customer is reasonably entitled to expect. If the response takes more than one (1) hour, the current hourly rate will be charged.
2.3.2 Fellows Digitals will supply Support for the most recent updates of the Products and Services. Fellows Digitals will be entitled, at its discretion, to provide Support for older versions, releases, etc of the Fellows Digitals Products and/or Services.
2.4 Custom work
2.4.1 All commissions consistent partly or fully of custom work will be invoiced on the basis of Fixed Price or retrospective calculation at the rate in force at the time.
2.4.2 The parties will specify in writing which Fellows Digitals Product is to be developed and how this will happen. Fellow Digitals will perform the development with due care on the basis of the information provided by the Customer, for which the Customer will ensure its accuracy, completeness and consistency.
2.5 Additional work
2.5.1 If Fellow Digitals considers that a change indicated by the Customer amounts to additional work, Fellow Digitals will notify the Customer accordingly. Fellow Digitals is entitled to charge additional costs in such circumstances.
2.5.2 The Customer shall be deemed to have agreed to the performance of the additional work and associated costs if the Customer has allowed the additional work to be done without firstly having indicated in writing and within a reasonable period that it does not wish additional work to be done.
2.6.1 Fellow Digitals will only install and/or implement the Products and Services, or arrange for this to be done, if this has been agreed in writing.
2.6.2 Before any installation and/or implementation can commence, the Customer shall ensure at its own expense that all conditions indicated by or on behalf of Fellow Digitals have been complied with in order to achieve a successful installation and/or implementation.
2.6.3 Fellow Digitals shall be entitled to charge the Customer for a minimum of three (3) hours for all work done by Fellow Digitals for the Customer at a site other than at the Fellow Digitals premises that takes less than three (3) hours.
2.6.4 Work done outside Working Days is deemed to be overtime. The appropriate current rate will be subject to a 50% surcharge for overtime before or after Working Days. The appropriate current rate will be subject to a 100% surcharge for overtime during the weekend or on public holidays.
2.6.5 If it has been agreed that the work will be undertaken in phases, Fellow Digitals is entitled to defer the start of the work pertaining to a subsequent phase until the Customer has accepted the results of the previous phase in writing.
2.6.6 Fellow Digitals shall only be obliged to follow prompt and responsible instructions from the Customer in the performance of its work if this has been explicitly agreed in writing. Fellow Digitals shall not be obliged to follow instructions that change or supplement the substance or scope of the agreed work. However, if such instructions are followed, the work in question will be paid for on the basis of retrospective calculation at the rates then current.
2.6.7 Fellow Digitals is entitled to engage third parties for the performance of the work, without explicit consent from the Customer.
2.7.1 Fellow Digitals shall be entitled to introduce technical restrictions and verification mechanisms in the Products and Services in order to prevent and/or verify that the actual number of Users, servers and/or workstations does not exceed the agreed number of simultaneous Users, servers and/or workstations.
2.7.2 Fellow Digitals shall also be entitled to undertake unannounced verification procedures at the sites where the Products and Services are being used for the duration of the Agreement, either itself or by means of a third party. If the Customer refuses to cooperate with or allow access for Fellow Digitals, Fellow Digitals shall be entitled to terminate the Agreement immediately by means of dissolution or cancellation. In such cases, the Customer shall no longer be entitled to use the Products and Services and shall be obliged to return all Products and Services and destroy any copies that have been made within thirty (30) days after first being asked to do so by Fellow Digitals.
2.7.3 If the verification procedures mentioned above disclose that the actual number of Users, servers and/or workstations exceeds the number of agreed simultaneous Users, servers and/or workstations, the Customer must immediately purchase the number of missing User, server and/or workstation licences, plus a penalty of 25% above the additional amount to be paid. Any amount outstanding for Maintenance and Support of the missing User, server and/or workstation licences will be charged to the Customer with retrospective effect to the point of the most recent provision of the previously agreed number of simultaneous Users, servers and/or workstations.
3. Software as a Service (SAAS)
3.1 SaaS, General
3.1.1 SaaS is only provided at a location approved by Fellow Digitals, on the equipment approved by Fellow Digitals and on the basis of instructions given by Fellow Digitals.
3.1.2 Fellow Digitals may, at its discretion, offer the Customer the opportunity to perform adjustments, extensions and/or changes in the SaaS itself. If this opportunity is offered to the Customer, the Customer is then responsible and liable for all adjustments, extensions and/or changes and ensuing consequences.
3.1.3 In the context of access to and use of SaaS, the Customer must have direct or indirect access to equipment and software that satisfies the standards and/or requirements set by Fellow Digitals and notified directly or indirectly to the Customer. The Customer must also observe the terms set out in this paragraph.
3.1.4 The Customer will allow Fellow Digitals to verify whether the standards and/or requirements specified in Clause 3.1.3 are being observed.
3.1.5 If, following the verification described in Clause 3.1.4, the Customer is not observing the standards and/or requirements detailed in Clause 3.1.3, Fellow Digitals will be entitled to terminate the Agreement in full or in part with immediate effect by means of dissolution or cancellation without prior notice of default and/or judicial intervention.
3.1.6 Fellow Digitals shall be entitled to examine log files and suchlike with a view to analysing the use of SaaS. The results of any such analysis will not be disclosed to third parties (third parties in this context not including parent and/or subsidiary companies affiliated to Fellow Digitals). This does not apply to figures and data concerning the use of SaaS that may not be traced back directly to the Customer’s use.
3.1.7 If the Customer discovers a defect, it must report this immediately to Fellow Digitals. Once the Customer has reported a defect, Fellow Digitals will take such steps as will or may lead to rectification.
3.1.8 The costs for rectifying a defect are the financial responsibility of the Customer if it transpires that the cause of the defect is inexpert use or is otherwise the fault of user error or some other cause not attributable to Fellow Digitals.
3.1.9 Fellow Digitals shall notify the Customer in advance of any proposed Maintenance in relation to SaaS, if that Maintenance will result in problems relating to refusal of access to SaaS or in SaaS becoming unavailable. In such cases, Maintenance will be undertaken between 22.00 hours and 06.00 hours (CET). Other Maintenance will be undertaken during Working Days.
3.2 Obligations for Fellow Digitals
3.2.1 Fellow Digitals will arrange for SaaS to be available. Fellow Digitals will endeavour, to the best of its efforts and so far as it is able to influence the situation, to secure such availability as will be agreed in more detail in writing.
3.2.2 Fellow Digitals shall endeavour to keep SaaS available for the Customer. Availability here means that SaaS will actually be on offer from the server(s) at Fellow Digitals. Availability here explicitly does not mean the existence of an operational point-to-point connection between the Customer’s systems and the server(s). The fact is that Fellow Digitals cannot exert any influence over the systems at the Customer or the intervening Internet infrastructure.
3.3.1 SaaS is accessible to the Customer by means of a browser. Fellow Digitals is unable to offer support for or guarantee each web browser or version thereof.
3.3.2 Fellow Digital shall be entitled to introduce changes in SaaS, without being obliged to pay any amount, including compensation, that may have an impact on the browsers used by the Customer and/or recommended by Fellow Digitals.
3.3.3 If the situation as described in Clause 3.3.2 arises, Fellow Digitals will then make reasonable efforts to ensure that the Customer can transition to a different browser. The Customer will be responsible for its own associated costs arising from this.
3.4.1 Fellow Digitals will provide Identification Data exclusively to the Customer for the use of the Products and Services. The Customer shall observe due care in relation to this Identification Data. As soon as the Customer knows or has reason to suspect that Identification Data has ended up with unauthorised persons, the Customer must immediately notify Fellow Digitals of this in writing and by telephone, without prejudice to the Customer’s own obligation to take immediate and effective measures. Following any such abuse, Fellow Digitals may issue instructions to the Customers that the Customer must then follow. The Customer shall be in default if it is established that the Identification Data has been abused or that the Customer has not complied with the instructions.
3.4.2 The Customer accepts all responsibility, liability and expenses caused by the use of the Identification Data. Under no circumstances shall Fellow Digitals be liable for abuse and/or unlawful use of the Identification Data.
3.4.3 If Fellow Digitals is obliged in terms of the Agreement to provide some form of data security, such security shall coincide with the specifications regarding security that have been agreed between the parties in writing. Fellow Digitals shall never warrant that data security shall be effective in all circumstances. If any security measure described in specific terms in the Agreement is missing, the security shall comply with a level which is not unreasonable, having regard to the state of the art, the sensitivity of the data and the costs associated with the security to be provided.
3.5 Changes in SaaS
3.5.1 Following a written notification containing a reasonable notice period, Fellow Digital shall be entitled to introduce additions and/or changes to SaaS, at no cost to the Customer, which may include but are not confined to:
a) access procedures such as procedures relating to operational rules and security requirements;
b) change in a third-party provider/supplier, location, hardware, software and other facilities that are important for the provision of SaaS.
3.5.2 If the changes result in a demonstrable and significant adverse change to the working methods within the Customer’s business and/or the functionality of SaaS, the Customer shall be entitled to ask Fellow Digitals in writing to offer an alternative. If Fellow Digitals is unable to offer a reasonable alternative, the Customer shall be entitled to terminate the use of SaaS by means of cancellation, although Fellow Digitals will not be obliged to pay any compensation or return any money already paid.
3.6 Data traffic from Customer
3.6.1 The Customer decides what data is stored and/or exchanged using SaaS. The Customer warrants to Fellow Digitals that the contents, use and/or processing of the data are not unlawful and do not infringe any third party rights. The Customer indemnifies Fellow Digitals in respect of all legal claims by third parties, of whatever nature, in connection with such data or the performance of the Agreement.
3.6.2 The Customer or the owner of the rights retains property rights, including intellectual property rights, to the Data, including information based on or derived from the Data and supplied to the Customer for the implementation of SaaS. Fellow Digitals is entitled to use the data in the context of its business operations. Data may be made available to third parties provided that it cannot be traced back directly to the Customer.
3.6.3 If the Customer so requests, Fellow Digitals will cooperate in making Data available if and as far as possible, at the Customer’s expense. Fellow Digitals does not warrant the suitability for conversion or use in any other (contemplated) environment or system.
3.7 Obligations on the Customer regarding SaaS
3.7.1 The Customer will notify Fellow Digitals immediately and in writing of any changes that are or may be relevant for the proper performance of SaaS.
3.7.2 The Customer will comply with instructions from Fellow Digitals regarding Fair Use. If the Customer does not comply with instructions from Fellow Digitals, Fellow Digitals will be entitled to take technical steps to reduce any load caused by the Customer or else discontinue the availability of SaaS for the Customer in the case of persistent excessive load. Fellow Digitals shall never be liable for loss of any nature whatsoever sustained by the Customer or by third parties as a result of steps taken by Fellow Digitals and/or by third parties.
3.8 Personal data
3.8.1 If the use of SaaS entails the processing of personal data, as defined in the General Data Protection Regulation (GDPR), the Customer retains full liability for that data. Fellow Digitals will be designated as the data processor and the Customer as data manager. The rights and duties of the parties will be governed in such manner as is determined by the processing agreement that will be provided by Fellow Digitals.
3.8.2 The Customer indemnifies Fellow Digitals in respect of claims by individuals whose personal data is stored or processed in the context of a processing transaction undertaken by the Customer or for which the Customer is responsible, unless the Customer proves that Fellow Digitals is to blame for the facts underlying the claim.
3.9 Code of Conduct
3.9.1 The Customer must use SaaS and/or the other facilities on offer in a responsible manner. SaaS and/or the other facilities on offer may not be used in such a way as to cause any damage to the systems and/or disruption in the use; nor may they be used in a manner that might be unlawful or illegal or otherwise in breach of the Agreement.
3.9.2 If a secure activity by the Customer jeopardises the operation of SaaS or is in breach of the Agreement and/or the law, Fellow Digitals shall be entitled to deny or render impossible any access to SaaS for a particular period or permanently, to delete the information in question, to suspend its obligations and/or to dissolve the Agreement without being obliged to pay any compensation or refund any money already paid.
3.9.3 Neither Fellow Digitals nor any third parties shall ever be liable for loss sustained by the Customer and/or third parties, of whatever nature, resulting from the steps taken in terms of this Clause. The Customer indemnifies Fellow Digitals in respect of all claims by third parties due to or consequent upon the said steps. The obligations to pay the agreed amounts will remain in full force and effect.
4. Third-party Products and Services
4.1 Third-party Products and Services
4.1.1 Fellow Digitals is entitled to supply Third-party Products and Services or to use Third-party Products and Services when fulfilling the obligations arising under the Agreement. Fellow Digitals is not liable for Third-party Products and Services unless the contrary is explicitly agreed in writing.
4.1.2 If Fellow Digitals supplies Third-party Products and Services to the Customer, the Third-party General Conditions shall apply to the Agreement in addition to these General Conditions.
4.1.3 Fellow Digitals provides rights to Third-party Product and Services on the terms set out in the Third-party General Conditions.
4.1.4 Fellow Digitals does not provide Maintenance, Support or other services in relation to Third-party Products and Services unless the contrary has been agreed in writing.
4.1.5 Fellow Digitals will provide the service and any guarantee in relation to Third-party Products and Services that are supplied to a maximum of the same terms set out in the Third-party General Conditions, excluding any other right for the Customer.
4.2 Third-party General Conditions
4.2.1 Any Third-party General Conditions that are declared to be applicable in these General Conditions will all be sent, on request, if Fellow Digitals has them available.
4.2.2 The General Conditions take priority over the Third-party General Conditions unless otherwise indicated. In the event of any discrepancy between the General Conditions and the Third-party General Conditions, Fellow Digitals may either rule out or stipulate the application of the conflicting provisions in the Third-party General Conditions.
5.Supply of Products and Services
5.1 (Supply) dates
5.1.1 Any and all (supply) dates mentioned by Fellow Digitals and applicable to Fellow Digitals are established with the best of intentions on the basis of the information disclosed to Fellow Digitals and will be observed as far as possible.
5.1.2 (Supply) dates are therefore not regarded as fatal deadlines within which the supply must be made but as periods within which Fellow Digitals will endeavour, to the best of its ability, to supply what has been agreed. If it appears possible that a date may be missed, Fellow Digitals and the Customer will enter into consultations as quickly as possible regarding a new date.
5.1.3 Any failure by Fellow Digitals to meet an applicable (supply) date will never amount to a culpable failure on the part of Fellow Digitals. Fellow Digitals does not under any circumstances accept liability if a (supply) date is missed.
5.2 Supply, Installation and Acceptance procedure
5.2.1 Fellow Digitals will supply the Products and Services to the Customer in accordance with the specifications confirmed in writing by Fellow Digitals and shall install these Products and Services if this has been agreed with the Customer.
5.2.2 The supply of Products and Services occurs when the Products and Services are made available at the premises of Fellow Digitals. The Customer is liable for any ancillary expenses.
5.2.3 The supply of Services by or on behalf of Fellow Digitals occurs at the places and times when and where the Services are provided.
5.2.4 An acceptance period will only apply in cases where Fellow Digitals performs the installation and it commences immediately upon installation. The Customer’s acceptance period is fourteen (14) days after completion of the installation. The Customer is not permitted to use the Products and Services for productive and/or operational purposes during the acceptance period.
5.2.5 The Products and Services are deemed to have been accepted, as between the parties:
a) on supply, if Fellow Digitals is not performing the installation; or else
b) if Fellow Digitals is performing the installation, on the first day after the acceptance period; or else
c) if Fellow Digitals has reported Defects before the end of the acceptance period and these have been rectified, notwithstanding the presence of minor Defects that do not hinder acceptance.
5.2.6 If the Products and Services are handed over and tested in phases and/or elements, the non-acceptance of a specific phase and/or element shall not reverse any acceptance of a previous phase and/or another element.
5.2.7 Notwithstanding the foregoing provisions, the Products and Services shall be deemed to have been fully accepted if the Customer makes any use of them for operational purposes before the point of acceptance, and that from the start of such use.
5.3.1 Defects are understood to mean a failure to meet the functional specifications confirmed in writing by Fellow Digitals and, in cases of the development of customised Fellow Digitals Products and Services, to meet the functional specifications that have been explicitly agreed in writing. A Defect only exists if it can be demonstrated and reproduced. The Customer is obliged to notify Fellow Digitals immediately about any Defects.
5.3.2 Any right to have a Defect rectified will lapse if the Customer has altered the supplied Products and Services in any form or way.
5.3.3 Acceptance of the Products and Services may not be withheld for any other reason than those associated with the specifications explicitly agreed between the parties and likewise not because of the existence of minor Defects that do not reasonably hinder the operational or productive commissioning of the Products and Services.
5.4.1 Fellow Digitals shall endeavour to rectify Defects, as described in Clause 5.3.1, to the best of its knowledge and ability for a period of three (3) months (Guarantee Period) commencing at the point of acceptance (or the date of entering into the Agreement if there is any lack of clarity on this), provided that the Customer notifies Fellow Digitals about the Defects within the Guarantee Period by means of a detailed written report. Fellow Digitals is entitled, at its sole discretion, to repair, change or replace the Products and Services.
5.4.2 Fellow Digitals is entitled to charge the standard prices and expenses for repairing, changing or replacing the Products and Services if Defects can be classified as the Customers mistakes in a general sense, resulting from careless or inexpert use or other causes not attributable to Fellow Digitals, or if the Customer could reasonably have discovered the Defect during the acceptance period.
5.4.3 The Guarantee does not cover the reconstruction and/or recovery of damaged or lost files and/or data. Fellow Digitals does not warrant that the Products and Services will function without interruption or Defects, that they are suitable for any use proposed by the Customer and/or that they will yield the result desired by the Customer during the Guarantee Period or thereafter. All rights to the Guarantee lapse if the Customer changes or arranges to change the Products and Services without written consent from Fellow Digitals, as required in terms of Clause 2.1.5.
5.4.4 After the end of the Guarantee Period, Fellow Digitals will not be obliged to rectify Defects or change and/or replace Products and Services unless otherw
5.4.5 Any Guarantee applicable to Third-party Products and Services is limited in all cases to the provisions set out in the Third-party General Conditions.
6. Prices and Payment
6.1 Prices and payment
6.1.1 All prices are exclusive of VAT and any other taxes imposed by the government. The amounts due will be invoiced including VAT and including any other taxes imposed by the government.
6.1.2 Fellow Digitals will provide properly specified invoices to the Customer for amounts due by the Customer on a monthly or quarterly basis or on such other basis as may be specified in the Agreement. The Customer shall pay all amounts due within fourteen (14) days after the invoice date, with no entitlement to set-off.
6.1.3 Fellow Digitals is entitled to suspend its work and other obligations until full payment has been made, without prejudice to the Customer being bound to comply with its obligations.
6.1.4 The payment for Maintenance, Support and any other annual or periodical payments is due as an Advance Payment on the date when the Agreement is finalised between the parties and shall be invoiced to the Customer with proper specification before each new year or other period during which the Agreement between the parties continues.
6.1.5 Fellow Digitals invoices hourly rates, travel and waiting time, travel expenses and/or kilometre payments, hotel charges and any other expenses associated with the work for any work done outside the premises of Fellow Digitals. The payment for travel and waiting time amounts to 50% of the current hourly rate.
6.2 Changes to prices
6.2.1 The prices agreed between Fellow Digitals and the Customer are based in part on the cost levels and exchange rates at the point when the Agreement is finalised. Fellow Digitals shall be entitled to adjust the prices in line with any changes in cost headings (including Third-party Products and Services), fluctuations in the exchange rate, changes in the consumer price indices (CPI) or in the commercial service index of Statistics Netherlands (CBS Price Index 6202, Computer Advice). Fellow Digitals can increase its prices at least annually on 1 January, based on the figures published by Statistics Netherlands on 1 January in the form of ‘CBS Price Index 6202, Computer Advice’. Changes will be rounded up to the nearest multiple of EUR 2.50.
6.2.2 Fellow Digitals will offer the Customer an opportunity to find out about any price changes. If the Customer disagrees with a price change, the Customer shall only be entitled to terminate the Agreement with effect from the date when the price change comes into force, if and to the extent that the total price increase during a single (1) year exceeds the inflation figure published by Statistics Netherlands for the current year (or the previous year for price increases announced before the next year) by more than 5 (percentage) points.
6.3 Advance payment
6.3.1 Fellow Digitals is at all times entitled to invoice for an advance payment. If the advance payment is not settled in full, Fellow Digitals shall be entitled to suspend the further implementation of the Agreement immediately, without prejudice to its other rights, and all sums due by the Customer to Fellow Digitals, of whatever nature, shall become immediately due and payable.
6.4 Payment instalments
6.4.1 Unless otherwise agreed, the following payment instalments apply to the Customer:
a. first instalment: 30% of the due amount must be paid as an advance payment;
b. second instalment: 40% of the due amount must be paid in equal monthly portions between the date when the Agreement is concluded and the anticipated date for supply of the agreed Product;
c. third instalment: 30% or the balance of the due amount must be paid immediately upon supply.
7. Intellectual property
7.1 Rights of Fellow Digitals and the Customer
7.1.1 Fellow Digitals holds the exclusive right to continue developing the Fellow Digitals Products and Services and to make the use of them available to third parties (by means of a user right or otherwise).
7.1.2 Except in the case of Third-party Products and Services, all intellectual property rights and other rights stemming from any commission performed by Fellow Digitals, wherever and whenever, involving the supply of an existing Product or a Product yet to be developed, are vested in Fellow Digitals. Nothing in these General Conditions implies any transfer of intellectual property rights. Transfer or an agreement to transfer an intellectual property right may only be effected explicitly and in writing.
7.1.3 The Customer is not permitted, directly or indirectly, to remove or alter any notification relating to intellectual property rights and other rights from the Products and Services.
7.1.4 If Fellow Digitals, the Customer or third parties introduce any functional improvements or other changes to the Products and Services, the intellectual property rights and other rights to improved or changed Products and Services will remain or become vested in Fellow Digitals or the relevant third-party owner. If these rights are not vested in Fellow Digitals or a third-party owner, the Customer shall arrange for the transfer of these rights to Fellow Digitals or else to the third-party owner, free of charge.
7.1.5 With due observance of the provisions concerning intellectual property rights, the Customer indemnifies Fellow Digitals in respect of all claims by third parties, of whatever nature, in relation to the payment of damages, costs or interest associated with the Agreement