Terms and conditions
General
1.1 Definitions
In these General terms and conditions, the following definitions are used:
- ProActive Compliance Tool: ProActive Compliance Tool., located in Utrecht, The Netherlands
- Clients: companies or institutions for which ProActive Compliance Tool will complete a project.
- Programming: the standard and/or custom SaaS software specifically installed by ProActive Compliance Tool
- PCT: ProActive Compliance Tool
- Documentation: the description of how the SaaS software must be used and/or how the management achieves the desired goal in connection with the use of the software.
1.2 Applicability
These General terms and conditions are part of the agreement between ProActive Compliance Tool and ProActive Compliance Tool’s Clients. These General terms and conditions are available without charge upon request and can be downloaded on our website.
The General terms and conditions apply to all offers, work, services, quotes and other agreements (licensing agreements) between ProActive Compliance Tool and Clients, and their legal successors. These General terms and conditions also apply to the non-exclusive right to use the ProActive Compliance Tool (PCT) products.
Derogations from these General terms and conditions are only valid if these are expressly agreed in writing. The applicability of terms and conditions of the client are expressly rejected.
2 Basis of quotes
Quotes from ProActive Compliance Tool are based on the information that is provided by the Client.
Client guarantees that to the best of the client’s knowledge all information to the set-up and conducting of the research has been provided. ProActive Compliance Tool will carry out the services to be provided to the best judgement of its abilities and in accordance with good professional practice. This obligation has the character of a ‘duty of effort’, because achieving the intended result cannot be guaranteed.
3 Making information and employees available by the Client
In order for the completion of the project to go as well and as close to on-schedule as possible, the Client will provide all documents and information that ProActive Compliance Tool needs in a timely fashion. This also applies for making available employees from the Client’s organization who will be involved in the work of ProActive Compliance Tool. If ProActive Compliance Tool can not perform work due to the non-timely provision of data and / or employees, this will be at the expense and risk of the client.
4 Rates and costs for the project
With respect to the rates and the cost estimates based thereon, the administrative costs, travel time, travel and lodging expenses and other project-bound costs are included. Insofar as these costs are not included, they can be billed separately. An interim change in the level of rates and costs that forces ProActive Compliance Tool to implement a rate adjustment or adjustment of the aforementioned expense reimbursements will be charged forward. No interest charges are included in the fee, unless otherwise indicated in the quote. All amounts stated by ProActive Compliance Tool exclude VAT.
ProActive Compliance Tool is entitled to adjust prices at any time. ProActive Compliance Tool will announce the changes in writing at least thirty (30) days before they come into effect so that the Client can take note of them. If the Client does not wish to accept the price change as referred to in the previous paragraph, they may terminate the Agreement, with due observance of a notice period of one (1) month. Use of the service after the date.
5 Payment conditions
All prices exclude sales tax (VAT) and other governmentally imposed charges.
The fee and the costs as mentioned in article 6, which are not included in the rates, will be billed at the end of the project, unless periodic payments are explicitly agreed.
Payment must be made within 14 days after the invoice date. After that due date, the statutory interest will be billed, without a notice of default being required. If payment continues to be lacking, ProActive Compliance Tool can forbid the Client to use the results of the project by calling on the uncertainty exception. If the Client is in default or in some other way falls short in the fulfilment of one or more obligations, then all reasonable costs, both inside and outside court, for obtaining satisfaction will be borne by the Client.
If the project is awarded by more than one Client, then all Clients are chiefly liable for the fulfilment of the obligations as indicated in this article (regardless of the allocation from the declaration).
6 Change to the project or additional work
The Client accepts that the schedule for the project can be influenced if parties expand or change the approach, method or scope of the project and/or the resulting work along the way. If the interim change to the project occurs due to the actions of the Client, ProActive Compliance Tool will make the necessary adjustments if the quality of the service delivery demands it. If such adjustments lead to additional work, this will be confirmed with the Client as an additional project.
7 Term and closing of the project
The term of the project can, apart from the efforts of the support team, be influenced by all kinds of factors, such as the quality of the information that ProActive Compliance Tool receives and the cooperation that is extended. ProActive Compliance Tool cannot therefore indicate in advance exactly how long the completion time for the project will be. In the financial sense, the project is closed as soon as the final billing is approved by the Client. If the Client wishes to check the statements from ProActive Compliance Tool, then ProActive Compliance Tool will cooperate with this. The costs of such a check will be borne by the Client.
8 Force majeure
If ProActive Compliance Tool cannot commence, complete or continue one or more of the obligations deriving from the project or a maintenance contract due to force majeure or any other cause outside the control of ProActive Compliance Tool, such as strikes, delays, lock-out, fire, riots, public unrest and the like, then the work on the relevant part of the project or the maintenance contract will be suspended. ProActive Compliance Tool will inform the Client as soon as possible of such a fact or circumstance.
‘Force majeure’ will include unforeseen circumstances with respect to persons and/or materials that ProActive Compliance Tool employs or attempts to employ for the completion of the project, which are of such a nature that the completion of the project therefore becomes impossible, or is so encumbered and/or disproportionately expensive that prompt fulfilment cannot reasonably be expected. The following are considered in particular to qualify as such circumstances: governmental measures, traffic and shipping disruptions, disruptions in the delivery of products, complications unforeseen by both parties and the like.
9 Dissolution
If Client remains in default of payment or any other obligation for the project, the licensing contract or maintenance contract, ProActive Compliance Tool will give Client a notice of default, and give Client a reasonable term to fulfill its obligations. If Client fails to fulfill its obligations even after receipt of the notice of default, Client is in default and ProActiveCompliance Tool is entitled without judicial intervention to resort to whole or partial dissolution of the agreement, as well as recovering the deliveries or closing the Programming, without prejudice to any obligation of the Client to compensate for damages.
ProActive Compliance Tool also has the power of dissolution and recovery intended in the preceding paragraph if the Client dies, is placed under curatorship, should enter liquidation, is declared bankrupt, is granted temporary suspension of payments, or is subject to seizure or garnishments.
10 Intellectual property
Models, techniques, instruments, including the PCT software, that are used for completing the project and included in the advisory or research results are and remain the property of ProActive Compliance Tool. Publication and further use can therefore only occur after obtaining permission from ProActive Compliance Tool. The Client of course has the right to duplicate documents for us in the Client’s own organization, insofar as appropriate within the goal of the project. In the event of premature termination of the project, the foregoing applies correspondingly.
11 Confidentiality and secrecy
ProActive Compliance Tool is required to keep all information and data from the Client secret from third parties. In the context of the project, ProActive Compliance Tool will take all possible precautionary measures to protect the interests of the Client. The Client will not make statements without consent from ProActive Compliance Tool to third parties regarding ProActive Compliance Tool’s approach, methods or the like.
12 Violations
Upon violation of that provided in article 10 , Client owes an immediately payable penalty of € 10,000.00, without prejudice to the right of ProActive Compliance Tool to compensation for damages suffered as a result of the violation.
Upon violation of that provided in article 11, the violating party owes an immediately payable penalty of € 10,000.00, without prejudice to the right of the other party to compensation for damages suffered as a result of the violation.
13 Liability
ProActive Compliance Tool is liable for the shortcomings in the completion of the project insofar as these are the result of not acting with the care, expertise and professionalism which may be expected from making recommendations in the context of the relevant project.
The liability for the damage caused by the shortcoming will be limited to the direct damage as well as to the amount of the fee that ProActive Compliance Tool has received for the work in the context of that project. For projects that last longer than six months, a further limitation applies to the liability intended here to a maximum of the amounts billed over the last six months. Any claims of the Client in the sense intended here must be submitted within one year after the discovery of the damage, in the absence of which the Client has waved such rights.
Client cannot hold ProActive Compliance Tool liable for any damages suffered that are connected with the certification (or not receiving certification) of the company.
If ProActive Compliance Tool would be liable vis-à-vis the client due to an attributable shortcoming with respect to the supply of the Tool, ProActive Compliance Tool’s liability is limited to the direct damage. ProActive Compliance Tool’s liability for indirect damage, consequential damage, consequential loss, lost profits, lost savings, damage relating to the loss of data or damage as a result of the temporary failure of the Tool, shall be excluded.
ProActive Compliance Tool’s total liability shall be limited to compensating up to at most the amount of two times the price (exclusive of VAT) stipulated for that Agreement, which has been paid by the client to ProActive Compliance Tool in the last twelve (12) months.
Notwithstanding the above, ProActive Compliance Tool shall not be liable, if ProActive Compliance Tool is not able to perform as a result of force majeure. Force majeure shall also (beside the definition in the law and in case law) include a situation over which no reasonable influence can be exercised and which prevent people, equipment and/or technology from normal functioning.
14 Applicable law and competent court
Dutch law applies to all offers and agreements.
Disputes resulting from or connected with an offer to or an agreement with the Client – with the exception of disputes regarding jurisdiction, over which the district court has exclusive jurisdiction – will be decided by the court designated by common law in Utrecht.
Delivery and use of programming
The conditions as formulated under the GENERAL part of these General Terms and Conditions shall also apply to the supply and use of software, unless explicitly stated otherwise.
15 Delivery of SaaS software
ProActive Compliance Tool offers a Service (SaaS) solution; The ProActive Compliance Tool (PCT) (“Programming”).
ProActive Compliance Tool will deliver the Programming on the agreed type and size of information carriers to Client and install the Programming for Client. In the absence of express agreements in this regard, Client will install, set-up, set parameters for, tune and if needed modify the devices and usage environment. Unless expressly agreed otherwise, ProActive Compliance Tool is not required to perform data conversion.
ProActive Compliance Tool advises on monitoring and managing related activities. As part of the service, Client may use ProActive Compliance Tool’s Software as a Service (SaaS) solution, The ProActive Compliance Tool (“Service”).
ProActive Compliance Tool has a license to the Service developed by ISO2HANDLE. ProActive Compliance Tool grants a non-exclusive right of use of the Service to the Client.
The right of use as referred to in this article also includes all future updates of the Service.
ProActive Compliance Tool will deliver the Service to the client on the agreed type and format of data carriers and install the software at the Client’s premises. In the absence of express agreements in this regard, the Client shall install, set up, parameterize and tune the software themself and, if necessary, adapt the equipment and user environment used in this connection. Unless expressly agreed otherwise, ProActive Compliance Tool is not obliged to carry out data conversion.
When logging in, ProActive Compliance Tool will create a user name and password for the Client. Client is aware that loss of the login details may lead to unauthorized access to the Service. Client will therefore shield the login details from unauthorized persons. The Client is responsible for all actions that are carried out via the Service, whether or not by End Users, in their Account.
In addition to the above, the Client will ensure that all End-users are aware of the restrictions on the use of the Service as set out in these General Terms and Conditions.
16 vailability and maintenance
ProActive Compliance Tool (and/or ISO2HANDLE) takes technical and organizational measures to ensure that the Service will be available. However, ProActive Compliance Tool (and/or ISO2HANDLE) cannot guarantee that these measures taken will be effective at all times.
Client is aware that the Service depends on a stable internet connection at the location where Client uses the Service. ProActive Compliance Tool (and/or ISO2HANDLE) cannot influence the Internet connection, network, equipment or any other Services/devices not provided by ProActive Compliance Tool (and/or ISO2HANDLE).
ProActive Compliance Tool (and/or ISO2HANDLE) has the right to temporarily shut down the Service, associated websites or portions thereof for the purpose of maintaining, adapting or improving it, and or maintaining, adapting or improving the associated software or other facilities. ProActive Compliance Tool (and/or ISO2HANDLE) in such decommissioning, make sure that attempts are made for this to take place outside office hours as much as possible. In the event that ProActive Compliance Tool (and/or ISO2HANDLE) is of the opinion that a decommissioning of the Service – whether or not during office hours – is necessary for the proper functioning of the Service, is entitled to immediately decommission the Service without prior notification to the Client. However, ProActive Compliance Tool (and/or ISO2HANDLE) is never obliged to pay any compensation for damage in connection with such decommissioning.
17 Guarantees and modifications
Client accepts that the Service only contains the functionality and other properties as found by Client in the Service at the time of delivery (“as is”), therefore with all visible and invisible errors and defects.
ProActive Compliance Tool (and ISO2HANDLE) does not guarantee that the software will work without interruption or defects. ProActive Compliance Tool uses the ISO2HANDLE platform and is therefore dependent on the availability and security (as described on www.iso2handle.nl) of ISO2HANDLE. ISO2HANDLE strives to ensure that the server is available seven (7) days a week and twenty-four (24) hours a day, with the exception of regular, corrective and preventive maintenance times. ISO2HANDLE aims for a server availability percentage of at least ninety-nine and a half (99.5) percent for the said days.
ProActive Compliance Tool cannot be held liable by the Client for any damage, in particular for business or other consequential damage, arising from or in connection with the use or inability to use the software.
The way in which maintenance is carried out is determined by ProActive Compliance Tool (or ISO2HANDLE). Client provides ProActive Compliance Tool and ISO2HANDLE during normal office hours, all cooperation for the performance of the maintenance, such as use of the system and inspection of the input and output, which relate to the maintenance.
ProActive Compliance Tool (and/or ISO2HANDLE) will correct the reported problems and/or defects at the next update of the Service. In the event of urgent problems and/or defects ISO2HANDLE shall endeavor to make the update available to Client as soon as possible.
ProActive Compliance Tool (and/or ISO2HANDLE) may modify the functionality of the Service from time to time. Client’s feedback and suggestions are welcome, but ProActive Compliance Tool (and/or ISO2HANDLE) has the right not to make the adjustments and will never focus on customization. Client can under no circumstances continue to use the old version of the Service.
18 Rules of conduct for user
It is prohibited for Client to use the Service to violate the Dutch or other laws or regulations applicable to Client or ProActive Compliance Tool (and/or ISO2HANDLE) or to violate the rights of others.
Client shall refrain from hindering other clients of ProActive Compliance Tool (and/or ISO2HANDLE) or internet users or causing damage to systems or networks of ProActive Compliance Tool (and/or ISO2HANDLE) or other clients. The Client is prohibited from initiating processes or programs, whether or not via the systems of ProActive Compliance Tool (and/or ISO2HANDLE), of which the Client knows or can reasonably suspect that this hinders or damages ProActive Compliance Tool (and/or ISO2HANDLE), its clients or internet users.
If in the opinion of ProActive Compliance Tool (and/or ISO2HANDLE) hindrance, damage or any other danger arises to the functioning of the computer systems or the network of ProActive Compliance Tool (and/or ISO2HANDLE) or third parties and/or of the service over the internet, in particular by excessive sending of e-mail or other data, (distributed) denial-of-service attacks, poorly secured systems or activities of viruses, trojans and similar software, ProActive Compliance Tool (and/or ISO2HANDLE) is entitled to take all measures it reasonably deems necessary to avert or prevent this danger. ProActive Compliance Tool (and/or ISO2HANDLE) may recover the costs reasonably necessary for these measures from Client.
Client is liable for, and fully indemnifies ProActive Compliance Tool (and/or ISO2HANDLE) against, all damage and costs suffered by ProActive Compliance Tool (and/or ISO2HANDLE) as a result of non-compliance with the provisions under point 23, unauthorized use of the Service, changes to the Service and/or unlawful storage of data. The previous sentence shall remain in force after termination of the Agreement.
19 Personal data
Personal data may be processed with the Service. ProActive Compliance Tool (and/or ISO2HANDLE) is hereby acting as processor within the meaning of the General Data Protection Order; the Client is thus to be regarded as the responsible party.
The personal data that ProActive Compliance Tool obtains from the Client are only used for the execution of the Agreement, including but not limited to the provision of the Service. In connection with the use of the Service, ISO2HANDLE acts as a sub-processor. A sub-processing agreement has been concluded between ProActive Compliance Tool and ISO2HANDLE.
ProActive Compliance Tool will process the Personal Data in accordance with applicable laws and regulations, including but not limited to the General Data Protection Order.
Personal data is irreversibly deleted when it is no longer necessary, unless retention is subsequently required by law.
20 Documentation
After installation and implementation of software developed by ISO2HANDLE, of which ProActive Compliance Tool has sold a license, ProActive Compliance Tool will provide the client with a digital copy of the documentation. The documentation contains a description of the software supplied by ProActive Compliance Tool.
21 Intellectual property rights to software
All rights of intellectual or industrial property to all Programming or other materials such as analyses, designs, documentation, reports and quotes, as well as preparatory materials therefor, developed or made available under the agreement, rest exclusively with ISO2HANDLE. ProActive Compliance Tool has a non-exclusive license to the software and the right to sublicense.
All intellectual or industrial property rights relating to the software rest exclusively with ISO2HANDLE. Client only acquires the rights of use and powers explicitly granted in these General Terms and Conditions or otherwise in writing. The Client is not free to reproduce or publish this Service. The Client shall never be entitled to receive the source code of the Service.
The intellectual or industrial property rights relating to the content included in the software by ProActive Compliance Tool or not (using the standard editor), such as standards, analyses, designs, forms, documentation, reports, as well as preparatory material thereof, belong exclusively to ProActive Compliance Tool. The Client is not free to reproduce or publish this content to third parties.
22 Transferability
The usage right to Programming is not transferable other than under general title.
23 Support
ProActive Compliance Tool provides all Clients with phone support at the following times: Monday through Friday between 09:00 and 17:00. Client can choose to make agreements with ProActive Compliance Tool about more comprehensive support (so outside the stated times).
24 Termination of on-going licensing agreements
Unless otherwise stated in the quotation, licensing contracts are always entered into for a period of a maximum of one year. Licensing contracts are automatically renewed for another year. Licensing contracts can only be terminated at the end of the term. Client must always take a period of notice of 30 days into account. Licensing agreements that are not terminated (in time) will be tacitly extended for a period of 1 year.
Either party may terminate the Agreement with immediate effect if the other party:
- is in default with regard to an essential obligation;
- Has been filed for banckruptcy or third parties have filed for banckruptcy of this party;
- has applied for suspension of payment;
- terminated its activities or liquidated its corporation.
If the Agreement is terminated or dissolved, ProActive Compliance Tool’s claims against the Client shall be immediately due and payable. Thirty (30) days after termination of the Agreement ProActive Compliance Tool (and/or ISO2HANDLE) will delete the Account and the data stored through the Service from its servers.
ProActive Compliance Tool
Registered name: FusionWorx B.V.
Registered and with offices at: Computerweg 22, 3542 DR, Utrecht, Nederland
Chamber of Commerce (KvK): 73752525
