Version date: 13 October 2020
These are the General Terms and Conditions of Provolve IT B.V., with its registered office at Kalvermarkt 53 in The Hague, the Netherlands, and registered with the Chamber of Commerce under file number 60362401 (hereinafter: “Provolve”). Provolve provides a wide range of IT services including delivery of (third-party) software, management services, maintenance, IT support, cloud and hosting services, advice, training and secondment.
These General Terms and Conditions are divided into different chapters. Chapter 1 contains general provisions that apply to all services provided by Provolve. The other chapters contain specific provisions applicable only to the supply of certain types of services.
Table of Contents:
The provisions contained in this chapter “General Provisions” apply to all Products and Services provided by Provolve and apply to every Agreement between Provolve and the Customer.
Clause 1. Definitions
All capitalized terms used in these General Terms and Conditions, both singular and plural, have the meaning given to them in this clause.
1.1. Account: the personal account of the Customer or an End User with which he or she gains access to the Services (or parts thereof).
1.2. Customer: the legal person or natural person in the practice of their profession or business with whom Provolve concludes an Agreement.
1.3. Service(s): the services Provolve provides to the Customer, as described in the Agreement.
1.4. End User: a natural person using the Services provided by Provolve intended for the Customer.
1.5. Intellectual Property Rights: all rights of intellectual property, including but not limited to copyrights, database rights, domain name rights, trade name rights, trademark rights, design rights, related rights, patent rights, as well as knowhow rights.
1.6. Customer Data: all data stored by the Customer or End Users through the Services.
1.7. Materials: websites, applications and web applications, corporate identities, logos, flyers, brochures, leaflets, lettering, ads, marketing and/or communication plans, concepts, texts, sketches, documentation, advice, reports and (other) creations of the mind relating to the Services, as well as associated preparatory material and the data carriers on which the Materials are located.
1.8. Maintenance: carrying out repairs, taking precautions and regularly checking the Services, as further specified in the Agreement.
1.9. Agreement: the agreement between Provolve and the Customer on the basis of which Provolve will provide the Services to the Customer and of which these General Terms and Conditions, including any Data Processing Agreement (DPA) and Service Level Agreement (SLA) concluded between the Parties, form an inseparable part.
1.10. Party(ies): Provolve and Customer together or separately.
1.11. Software: software that Provolve supplies to the Customer on the basis of the Agreement.
1.12. Support: providing oral (telephone) and written advice regarding the use and operation of the Services.
1.13. Confidential Information: all nonpublic information related to one or both Parties and information that a Party indicates is confidential, or that, by the nature of the information or the circumstances under which the disclosure takes place, should be treated as confidential.
Clause 2. Applicability and Interpretation
2.1. The General Terms and Conditions apply to all offers and quotations from Provolve, the performance of work by or on behalf of Provolve and all current or future Agreements.
2.2. The applicability of any purchase or other terms and conditions of the Customer is expressly excluded.
2.3. The Agreement may consist of several documents. In the event of contradictions, the order of precedence set out below shall apply (whereby the documents referred to above shall take precedence over those referred to below):
a) any other written agreements made between the Parties;
b) the approved quotation or the approved offer;
c) any Service Level Agreement concluded between the Parties;
d) any Data Processing Agreement concluded between the Parties;
e) these General Terms and Conditions.
2.4. In the event of contradictions between the chapters of these General Terms and Conditions, the last chapter always takes precedence.
2.5. Insofar as the various parts of the Agreement do not contain any contradictions, these shall apply in addition to each other.
Clause 3. Formation of the Agreement
3.1. The Agreement is concluded at the time of sending of Provolve’s written confirmation of the work after receipt of Customer’s acceptance of an offer or quotation.
3.2. All Provolve offers and quotations are valid for a period of thirty (30) days. If the Customer accepts an offer or quotation after expiry of the period of validity and Provolve explicitly confirms this acceptance in writing, an Agreement will also be concluded.
3.3. If Provolve has made an offer based on information originating from the Customer and this information proves to be incorrect or incomplete, Provolve has the right to dissolve or terminate the Agreement, or to adjust the offer and prices accordingly, even after an Agreement has been concluded.
3.4. If the Customer does not formally agree with Provolve’s offer, but nevertheless creates that impression (for example, by having Provolve already perform certain work), the offer is also deemed to have been accepted by the Customer.
3.5. Contrary to the provisions of Section 225(2) of Book 6 of the Dutch Civil Code, Provolve is not bound to a deviating acceptance of the offer made, not even if the deviation concerns subordinate aspects of the offer.
Clause 4. Performance of the Agreement
4.1. After the conclusion of the Agreement, Provolve will make every effort to perform the Agreement within the agreed timeframe, or within a reasonable period if no timeframe has been agreed. Delivery dates and deadlines set announced by Provolve are indicative and do not count as final deadlines unless the Parties expressly agree otherwise.
4.2. Provolve has the right to engage third parties in the performance of the Agreement. Any related costs shall only be borne by the Customer if this has been agreed in advance.
4.3. At the request of Provolve, the Customer will provide all reasonable cooperation and all information and Materials that Provolve indicates are necessary for the execution of the Agreement. Such cooperation may include providing access to necessary accounts, digital environments and physical locations.
4.4. The Customer shall follow all reasonable instructions given by Provolve in the context of the performance of the Agreement.
4.5. All goods and products delivered by Provolve to the Customer remain the property of Provolve until the Customer has paid the full amount due. The Customer is not entitled to resell or pledge or otherwise encumber the goods covered by the retention of title.
4.6. The Customer shall immediately inform Provolve if the Customer suspects or knows that a third party wants to establish or assert rights or wants to seize (or have a third party seize) the goods subject to retention of title, as referred to in the previous paragraph. The Customer hereby grants Provolve (or third parties appointed by Provolve) unconditional and irrevocable permission to enter all those places where Provolve’s property is located and to take back those goods.
4.7. The risk of loss, theft, embezzlement or damage to goods, products, data, documents, software, data files or data (codes, passwords, documentation, etc.) manufactured or used in the context of the performance of the Agreement will pass to the Customer at the moment they are placed at the actual disposal of the Customer or an auxiliary person of the Customer. Insofar as Provolve or auxiliary persons of Provolve have taken actual possession of said objects, Provolve shall bear the risk of loss, theft, embezzlement or damage.
Clause 5. Contract Extras
5.1. If the Customer requests additional work or services that fall outside the scope of the Agreement (“contract extras”), the Parties will discuss this and Provolve may make an additional offer. Provolve will only carry out the additional work after acceptance of the offer by the Customer. Provolve has the right to refuse a request for additional work.
5.2. Provolve does not need permission for additional work that Provolve can demonstrate is reasonably necessary for the execution of the Agreement, or for additional work that reasonably arises from instructions from the Customer. Such activities are carried out based on subsequent calculation at Provolve’s hourly rate that applies at the time of the execution of the activities.
Clause 6. Third Party Products or Services
6.1. The Customer grants Provolve the power of attorney to place orders on behalf of the Customer for products or services of third parties if this is necessary for the execution of the Agreement. Unless otherwise agreed, any such associated agreements shall apply directly between the Customer and the third party in question.
6.2. Additional or different terms and conditions may apply to the use of the products or services of third parties. These conditions are available on request from Provolve. The Customer agrees to these terms and conditions in advance and is aware that the terms and conditions may be amended in the interim.
6.3. Invoicing of the products and services of third parties can take place via Provolve as well as directly to the Customer. If invoicing takes place via Provolve, the Customer is not permitted to suspend any payment obligation because of breach of contract by the third party concerned.
6.4. Provolve is in no way liable for products and services provided by third parties.
Clause 7. Support
7.1. Provolve offers Support with the delivery of the Service as stated in the Agreement, possibly supplemented with a Service Level Agreement.
7.2. Provolve may impose restrictions on the use of the forms of Support offered. In addition, Provolve is free to determine and/or change the availability and response times of the Support, unless agreed otherwise.
7.3. Further and additional agreements on (different) availability of (telephone) support and response times will, if agreed by the Parties, be laid down in a Service Level Agreement.
7.4. Repair of damaged or lost Customer data or other data of the Customer (if and as far as possible), does not fall under the Support as referred to in this clause and will be carried out on the basis of subsequent calculation at the hourly rates applicable at that time.
Clause 8. Maintenance of Services
8.1. Only if Parties expressly agree so will Provolve perform Maintenance Services for the Customer.
8.2. The Customer is at all times responsible for timely reporting of observed errors in what Provolve is required to manage or maintain for the Customer under the Agreement. Provolve will make every effort to solve any errors found or reported as soon as possible. Any further agreements in this respect can be laid down in a separate Service Level Agreement to be concluded.
8.3. If it appears that Provolve has to carry out Maintenance or work as a result of or related to usage errors by the Customer, improper use by the Customer, late reporting of malfunctions by the Customer, external factors and applications and the actions of third parties, Provolve may charge an additional fee to the Customer.
8.4. If the Maintenance relates to software that has not been delivered to the Customer by Provolve itself, the Customer shall, if Provolve deems this useful, necessary or desirable for the Maintenance, make the source code and the technical (development) documentation of the software (including data models, designs, change logs, etc.) available. The Customer warrants that it is entitled to such provision and that no rights of third parties oppose it. The Customer grants Provolve the right to use and modify the software, including the source code and technical (development) documentation, within the framework of carrying out the agreed Maintenance. The Customer indemnifies Provolve against all claims from third parties with regard to the availability and the use that Provolve makes of the items made available in the context of the Maintenance.
Clause 9. Confidentiality
9.1. Provolve and the Customer shall keep the Confidential Information of the other Party strictly confidential and shall only use it for the performance of the Agreement.
9.2. The receiving Party shall ensure that Confidential Information is afforded the same level of protection from unauthorized access or use as its own confidential information, but at least a reasonable level of protection.
9.3. The Parties shall also impose the obligations described in this clause on employees and any third parties to whom the Confidential Information is provided.
9.4. The obligations laid down in this clause shall not apply in the case of information that:
a) is or becomes generally accessible to the public for reasons other than disclosure by the receiving Party in violation of the Agreement;
b) was already in the possession of the receiving Party before it was disclosed to it by or on behalf of the disclosing Party;
c) is made available to the receiving Party on a non-confidential and lawful basis by a source other than the disclosing Party; or
d) has been demonstrably developed independently by the receiving Party.
9.5. If a Party receives an order for the issuance of Confidential Information from a competent authority, it has the right to hand it over. However, the disclosing Party shall be informed (in advance) of the order as soon as possible, unless this is not permitted. If the disclosing Party indicates that it wishes to take measures against the order (e.g. by way of preliminary relief proceedings), the receiving Party will wait until a decision has been made, insofar as this is legally possible.
Clause 10. Prices and Payments
10.1. All prices quoted by Provolve are in euros and are exclusive of VAT and other government levies.
10.2. Provolve is entitled to invoice in advance and electronically. All invoices must be paid within thirty (30) days of the invoice date.
10.3. Provolve is entitled to increase the prices annually, during the month of January, by a maximum of five (5) percent, without the option for the Customer to terminate the Agreement.
10.4. Prices may be increased by Provolve with immediate effect due to changed rates from suppliers that are passed on to the Customer on a pro rata basis, without the option for the Customer to terminate the Agreement.
10.5. If Provolve increases the prices outside the cases described in this clause, the Customer is entitled to terminate the Agreement in writing before and at the latest until the date on which the price increase takes effect.
10.6. The Customer is not entitled to set off any payment obligation incumbent on the Customer against any claim against Provolve for whatever reason.
10.7. If the Customer fails to pay an invoice within the payment term, the Customer will be in default by operation of law, without prior warning or notice of default being required. Provolve is in such a case entitled to charge statutory interest for commercial transactions on the amount or (if higher) an interest of two (2) percent per month.
10.8. If the Customer does not pay the invoice amount, Provolve has the right to pass on the claim for collection and/or to suspend the delivery of Products or Services until the outstanding amounts have been paid in full. In such a case, both the judicial and extrajudicial costs (including the costs for lawyers, legal experts, process servers and collection agencies) are for the account of the Customer.
10.9. If Provolve has reasonable doubt about the fulfillment of the payment obligations by the Customer, Provolve is entitled to demand a bank guarantee or surety, or to demand a reasonable deposit.
10.10. The Customer is not entitled to suspension of any payment obligation (whether full or partial).
Clause 11. Consultancy Services and Reporting
11.1. Provolve will make every effort to ensure that all advice, information, data, reports and opinions provided in the context of the Agreement are complete and accurate, but does not give any guarantees for this and accepts no risk for the use that the Customer makes of this advice.
11.2. Advice, information, data, reports and opinions provided are only intended for the Customer’s own use, unless otherwise agreed.
Clause 12. Intellectual Property Rights
12.1. The Intellectual Property Rights in all Services, Software and Materials supplied, developed, provided or made available by Provolve under the Agreement are vested in Provolve or its licensors.
12.2. The Customer is not entitled to make changes to the Software and Materials provided by Provolve in the context of the Agreement, unless this has been expressly agreed between Parties or arises from the intended use of the Software or Material by Provolve.
12.3. The Customer is not permitted to remove or modify any indication of Intellectual Property Rights in Software or Materials. It is also not permitted to remove indications of confidentiality from Provolve’s Software or Materials.
12.4. Customer is responsible for any Materials made available to Provolve and guarantees that their use by Provolve will not infringe any rights of third parties. The Customer indemnifies Provolve against claims from third parties related to or arising from the aforementioned guarantee.
12.5. Provolve is permitted to use the Customer’s trade and brand name and distinguishing marks for promotional purposes.
Clause 13. Liability
13.1. Provolve is only liable to the Customer for direct damage or loss as a result of an attributable failure in the performance of this Agreement.
13.2. Under no circumstances shall Provolve be liable for compensation for indirect or consequential loss or damage, such as loss or damage due to lost sales or profit, loss or damage due to missed meetings, losses due to delays or loss or damage due to loss or corruption of data or information.
13.3. Without prejudice to the foregoing, Provolve’s liability for direct loss or damage per year is limited to the amount (excluding VAT) that the Customer owes Provolve under the Agreement during twelve (12) months prior to the event giving rise to damage or loss.
13.4. Under no circumstances will the total compensation for any loss or damage exceed EUR 500,000 on an annual basis.
13.5. Any limitation of Provolve’s liability included in the Agreement will lapse if and insofar as the loss or damage is the result of intent or deliberate recklessness on the part of Provolve’s management, or death or physical injury.
13.6. Provolve’s liability on account of an attributable failure in the performance of an Agreement only arises if the Customer immediately and properly notifies Provolve in writing of its breach, giving Provolve a reasonable period to remedy the failure, and Provolve continues to fail imputably in the performance of its obligations even after that period. The notice of default must contain as detailed a description of the shortcoming as possible, so that Provolve is able to respond adequately.
13.7. A condition for the existence of any right to compensation is that the Customer reports the loss or damage to Provolve in writing within thirty (30) days after discovery at the latest.
13.8. The Customer indemnifies Provolve against any claims of third parties arising from a violation of the law or the Agreement by the Customer.
Clause 14. Force Majeure
14.1. Provolve cannot be held to fulfill any obligation under the Agreement if performance is prevented as a result of force majeure. Neither can Provolve be held liable for any loss or damage resulting from this.
14.2. Force majeure in any case includes power failures, internet failures, telecommunications infrastructure failures, network attacks (including DoS or DDoS attacks), attacks by malware or other malicious software, domestic disturbances, delays and circumstances beyond the control of suppliers, mobilization, war, terror, strikes, pandemics, staff shortages, import and export barriers, supply disruptions, fire and floods.
14.3. If a situation of force majeure has lasted longer than ninety (90) days, both Parties have the right to terminate the Agreement immediately in writing.
Clause 15. Privacy
15.1. If Provolve deems this to be important for the proper execution of the Agreement, the Customer shall immediately inform Provolve, upon request, in writing of the manner in which the Customer complies with its obligations under legislation regarding the processing of personal data.
15.2. If Provolve processes personal data for the Customer, Provolve can be qualified under the applicable privacy legislation as a “Data Processor” and the Customer as a “Data Controller”. In that case, the Parties will enter into a separate Data Processing Agreement (DPA) to record the agreements concerning the processing of personal data.
15.3. The Customer indemnifies Provolve against any claims from third parties as a result of a violation of applicable privacy legislation.
Clause 16. Nonpoaching restriction
16.1. As long as the Agreement continues, as well as one year after the expiry thereof, the Customer is not permitted to hire employees of Provolve or to have them work for Provolve in any other way, directly or indirectly, without the written consent of Provolve.
16.2. For this purpose, employees of Provolve are defined as persons employed by Provolve or one of its associated enterprises or who were employed by Provolve or one of its associated enterprises not more than one year prior to termination of the Agreement for any reason whatsoever.
16.3. In the event that the Customer fails to comply with the prohibition described above, the Customer shall owe Provolve an immediately payable penalty of €100.000 for each violation and of €1.000 for each day that the violation continues, without prejudice to Provolve’s right to claim damages if the damage or loss actually suffered is higher than the penalty owed by the Customer.
Clause 17. Duration and Termination
17.1. An Agreement within the framework of a well-defined one-off project ends by operation of law upon completion of that project.
17.2. The term of a continuing performance contract will be laid down in the Agreement. If no term is stated therein, it is deemed to have been entered into for an initial period of twelve (12) months.
17.3. If the Agreement is a continuing performance contract, it will be tacitly renewed for the same term after the initial term.
17.4. If the Agreement has been entered into for a definite period of time, none of the Parties is permitted to terminate the Agreement prematurely, except for in the situations described in this clause.
17.5. If the Agreement has been entered into for an indefinite period of time, it may be terminated by either Party at any time in writing with due observance of a notice period of six (6) months.
17.6. Provolve may immediately suspend or terminate the Agreement in writing, without a notice of default being required, if:
a) The Customer files for bankruptcy or is declared bankrupt;
b) The Customer applies for suspension of payments or the Customer is granted a suspension of payments;
c) the Customer’s activities are terminated, or the Customer’s business is liquidated; or
d) part of the Customer’s capital is seized.
17.7. In the event that the Agreement is terminated, Provolve’s claims against the Customer are immediately due and payable.
17.8. If the Agreement is dissolved, the Customer will continue to owe the amounts already invoiced and no obligations to cancel will arise. The Customer may only dissolve the part of the Agreement that has not yet been performed by Provolve.
Clause 18. Amendments
18.1. Provolve has the right to amend these General Terms and Conditions (in whole or in part) in the interim. Any changes will be notified by Provolve to the Customer at least one (1) month in advance.
18.2. If an amendment to the General Terms and Conditions announced by Provolve negatively affects the position of the Customer, the Customer may object to this in writing, stating reasons, before the amendment in question comes into effect. In the event of an objection, Provolve may reconsider the amendment and decide to withdraw it in whole or in part.
18.3. If Provolve decides to make the change despite the objection of the Customer, the Customer has the right to terminate the Agreement in writing before, and at the latest until, the date on which the change takes effect.
18.4. If the Customer does not object in writing to the intended amendment within fourteen (14) days after Provolve’s announcement, stating reasons, the Customer will be deemed to have agreed to the amendment.
18.5. Changes of minor importance, changes that are necessary due to changed legislation and regulations and changes that are to the Customer’s advantage may be made by Provolve without notice. In the event of such changes, the Customer does not have the right to object and/or terminate the Agreement.
Clause 19. Choice of Law and Forum
19.1. The Agreement is governed by Dutch law.
19.2. Disputes which may arise between Provolve and the Customer as a result of the Agreement or as a result of further agreements resulting therefrom, will be settled by arbitration in accordance with the Arbitration Regulations of the Foundation for the Settlement of Automation Disputes (Stichting Geschillenoplossing Automatisering, SGOA), having its registered office in The Hague, all this without prejudice to the right of either Party to request a provision in summary arbitral proceedings and without prejudice to the right of either Party to take precautionary measures (see www.sgoa.org).
19.3. Before initiating arbitral proceedings as referred to in the previous paragraph, either Party will initiate an ICT Mediation procedure in accordance with the ICT Mediation Regulations of the Foundation for the Settlement of Automation Disputes (SGOA) in The Hague.
19.4. Only if Provolve and/or the Customer have not yet brought, or have pending, any arbitration proceedings before the Foundation for the Settlement of Automation Disputes (SGOA) in accordance with the Arbitration Regulations of this foundation for the settlement of disputes arising from the Agreement concluded between the Parties or following further agreements resulting therefrom, each of the Parties shall be entitled, but not obliged, notwithstanding the provisions of the second paragraph of this clause, to bring the matter before the District Court, Subdistrict Sector, in The Hague, if the matter relates to a dispute that, according to the statutory rules of jurisdiction, falls within the absolute jurisdiction of the District Court, Subdistrict Sector. If, with due observance of the previous sentence, the case has been brought before the District Court, Subdistrict Sector, by one or more of the Parties, the District Court shall have jurisdiction to hear and decide the case.
Clause 20. Other Provisions
20.1. The Customer is not permitted to transfer the rights and obligations arising from this Agreement to a third party without the written consent of Provolve.
20.2. Provolve has the right to transfer its rights and obligations under the Agreement without consent to a parent, sister, or subsidiary company or to a third party that takes over the Products and Services or the relevant business activities of Provolve. Provolve will inform the Customer as soon as possible if such a transfer has taken place.
20.3. If any provision of the Agreement is found to be void, voidable or otherwise invalid, this shall not affect the validity of the entire Agreement. In this case, the parties will adopt (a) new provision(s) as a replacement, which will give shape to the intention of the original provision as far as is legally possible.
20.4. Written communication in the Agreement also includes communication by email provided that the identity of the sender and the integrity of the content are sufficiently established, with the exception of notices of default and dissolution or termination of the Agreement.
20.5. Provolve’s records and log files are authentic evidence, unless the Customer can prove to the contrary.
20.6. Applicability of the 1980 Vienna Sales Convention is excluded.
The provisions in this chapter “Delivery of Software” relate to the delivery of Software and related Services by Provolve to the Customer.
Clause 21. License
21.1. If Provolve delivers certain Software to the Customer on the basis of the Agreement, the Customer only acquires the non-exclusive, non-transferable and non-sublicensable rights of use arising from the Agreement or otherwise granted in writing by Provolve.
21.2. Unless otherwise agreed, the right of use to Software will only apply for the duration of the Agreement and the right of use will only relate to the use of the Software by one person on one device and the Software may only be used for the Customer’s own organization.
21.3. Costs for any updates and upgrades of the Software are not included in the Agreement, unless their provision is explicitly part of the agreed Services.
21.4. The Customer is not entitled to make changes to the Software provided by Provolve in the context of the Agreement.
21.5. In principle, the Customer is not entitled to a copy of the source code of the Software and it is expressly not permitted to retrieve it by means of reverse engineering, decompilation or similar techniques, except insofar as provided otherwise by mandatory law. Under certain circumstances the Supplier offers the possibility for the Customer to enter into an escrow agreement so that the Customer can gain access to the source code of the Software. If the Parties agree on such an escrow, the costs involved will be borne by the Customer.
21.6. Provolve (or its supplier) may take (technical) measures to protect the Software provided. If Provolve (or its supplier) has taken such security measures, the Customer is not permitted to circumvent or remove this security.
21.7. Provolve has the right to perform an audit on site and in the systems of the Customer, to check whether the Customer complies with any license restrictions. The Customer will fully cooperate with any such audit.
Clause 22. Implementation and Installation of Software
22.1. If the Parties have agreed that the Software must be implemented or installed by Provolve, Provolve will take care of this in accordance with the provisions of the Agreement.
22.2. During the implementation or installation of the Software, the Customer shall provide all necessary cooperation and comply with Provolve’s reasonable requests. Provolve will deliver the Software to the Customer after implementation and/or installation.
Clause 23. Warranties on Software
23.1. The Customer accepts that the Software only contains the functionality and other features that the Customer will find at the time of delivery (“as is”), accordingly, with all visible and invisible errors and defects.
23.2. The Customer themselves must check the calculations or processing of Customer Data made by means of the Software. Provolve does not guarantee that all calculations and/or processing are error-free at all times.
23.3. Provolve advises the customer on possible system requirements. If the Customer does not meet these system requirements, Provolve cannot be held liable for the Software not functioning (fully or otherwise).
Clause 24. Acceptance Test
24.1. An acceptance test for the Software will only be carried out if the Parties expressly agree to this.
24.2. The Customer will evaluate and subsequently accept the Software within 14 days after delivery, or reject it in writing, stating reasons. The Customer may only reject delivered Software if it does not meet the previously agreed specifications.
24.3. The Customer will not reject the Software because of minor defects that do not prevent its operational use. After notification by the Customer of minor defects, Provolve will make every effort to resolve these within a reasonable period of time.
24.4. The Software is considered accepted if the Customer:
a) accepts it;
b) puts it into operational use; or
c) does not reject it in writing, stating the reasons, within the abovementioned time limit.
24.5. If Software is delivered in phases, the Customer must approve or reject the part of the Software of each phase after delivery of each phase. The Customer may not base an approval or rejection at a later stage on aspects approved at an earlier stage.
24.6. If the Customer rejects the Software, Provolve will endeavor to remedy the reason for rejection within a reasonable period of time. Provolve can do this by stating the reasons why the reason for rejection does not apply, or by revising the Software. The Customer will then re-evaluate the Software in accordance with the procedure described above.
24.7. If the Customer continues to reject the Software in whole or in part after revision or substantiation, Provolve is entitled to charge additional costs for all subsequent revisions.
24.8. If, after at least two revision rounds, either Party indicates that it does not or no longer considers further revisions to be useful, both Parties shall be entitled to terminate the Agreement. In that case, the Customer is obliged to reimburse Provolve for the costs incurred and work already carried out.
24.9. After delivery of the Software, compliance with any conditions relating to the Software of third parties rests entirely with the Customer.
The provisions in this chapter, “Cloud Services”, relate to the provision of cloud services (such as software-as-a-service) by Provolve to the Customer.
Clause 25. Access to the Service
25.1. In order to facilitate the Customer’s access to the Services, an Account may be required. If required by the Agreement, Provolve may create an Account for or on behalf of the Customer (and if necessary, End Users) and provide login details (username and password).
25.2. All login details of the Customer (and its End-users) are strictly personal and may not be shared with any other person. These login details should be treated as Confidential Information.
25.3. Provolve may assume that everything that happens from the Accounts for which it has provided the Customer with login details, will take place under the management and supervision of the Customer.
25.4. If login details of an Account are lost or leaked, the Customer will immediately take all measures that are reasonably necessary and desirable to prevent misuse of the Account. The Customer shall also immediately report this to Provolve, so that any additional measures can be taken to prevent misuse of the Account and/or the Services.
25.5. If the Service is linked to the Customer’s own system by means of an Application Programming Interface (API) link, Provolve will provide the Customer with an API key. The Customer is itself responsible for the implementation of the API link, unless the Parties agree otherwise. Furthermore, the Customer must only use the API key for the use of the API by the Customer. Without written permission from Provolve, third parties may not use the API key. Provolve can provide the Customer with a new API key after changes in the Services or Maintenance.
Clause 26. Acceptable Use Policy
26.1. The Customer guarantees that the Services will not be used by it or its End Users for activities that conflict with any applicable laws or regulations. In addition, it is expressly forbidden (whether lawful or not) to offer, upload or distribute any Materials through the Services that:
a) contain malicious content (such as malware or other malicious software);
b) infringe the rights of third parties (such as Intellectual Property Rights), or are unmistakably libelous, defamatory, insulting, discriminatory or sow hatred;
c) constitute a violation of the privacy of third parties, including in any case, but not limited to, the unjustified distribution of personal data of third parties;
d) contain hyperlinks, torrents or references to (locations of) Materials that infringe copyrights or other Intellectual Property Rights; or
e) include child pornography, bestiality pornography or animations thereof, or appear to be intended to help others find such Materials.
26.2. Customer shall refrain from hindering other customers of Provolve or causing damage to the systems and networks of Provolve or others. It is prohibited to start processes or programs of which the Customer knows or should reasonably suspect that these hinder or damage Provolve or others.
26.3. If, in the opinion of Provolve, hindrance, damage or any other hazard arises to the functioning of the systems or networks of Provolve or third parties, Provolve is entitled to take all measures it reasonably considers necessary to avert or prevent this hazard.
26.4. Provolve may pass on the costs reasonably necessary for the measures referred to in the previous paragraph to the Customer if the danger is caused by or is specifically aimed at the Customer’s systems.
Clause 27. Notice and Take-Down Policy
27.1. If Provolve establishes or a third party points out that the Customer is storing or distributing unlawful Materials using the Services, or if the Services are otherwise used unlawfully or in violation of the Agreement, Provolve may block access to the relevant Materials and/or Services, or remove the relevant Materials, without having to make a backup. Provolve will make every effort not to affect any other Materials and will inform the Customer as soon as possible of the measures taken.
27.2. Provolve is entitled to provide the name, address and other identifying data of the Customer and/or End Users to a third party who complains that the Customer and/or the relevant End User is infringing its rights, provided that the applicable requirements under the law and case law have been met.
27.3. Provolve will strive to act as carefully and adequately as possible after any complaints about the Customer and/or End Users but is not liable for any loss or damage resulting from the measures taken pursuant to this clause.
Clause 28. Usage Limits
28.1. Provolve can set limits on the capacity (such as the amount of data traffic, data storage, power, computing power, etc.) that the Customer may or can use via the Service. If the Parties have not agreed on this in the Agreement, there is a limit based on fair use.
28.2. Fair use is deemed to exist if the Customer uses a maximum of twice as much capacity as other Provolve customers in a comparable situation.
28.3. If Provolve determines that the Customer has violated the fair use policy described in this clause or the agreed usage limits, Provolve is entitled to charge reasonable costs for this or, after prior warning to the Customer, to restrict access to or use of the Service.
28.4. Provolve accepts no liability in the event of the Services not functioning properly if Provolve establishes that the Customer does not comply with the fair use policy or the agreed usage limits.
Clause 29. Availability and Backups
29.1. Provolve will endeavor to achieve uninterrupted availability of the Services, but only offers guarantees if this has been agreed in an additional Service Level Agreement.
29.2. Only if this has been agreed in the Agreement or Service Level Agreement, Provolve will regularly make backup copies (backups) of Customer Data stored on Provolve’s systems and make these available to the Customer upon request for a fee.
Clause 30. Maintenance
30.1. Provolve will perform Maintenance on the Services.
30.2. The performance of Maintenance may result in the temporary inability to use the Services in question or only to use them to a limited extent. If Provolve foresees that certain Maintenance will result in total or partial unavailability, Provolve will endeavor to perform the work at times when the use of the Services is limited.
30.3. Provolve will make every effort to report planned Maintenance, if possible, to the Customer in advance.
30.4. Provolve is not obliged to provide Maintenance, Support or assistance for old versions of software for which an update has already been rolled out.
30.5. If the Customer reports a malfunction or defect to Provolve, this will only be taken into consideration if the defect is demonstrable and reproducible.
30.6. Provolve may change the functionality of the Service from time to time. The Customer’s feedback and suggestions are welcome, but Provolve has the right not to make the adjustments if it has reasonable grounds to do so. Provolve strives, but is not obliged, to give at least two (2) working days’ notice that updates will be carried out. Under no circumstances can the Customer lay claim to an announced update which has not been carried out due to circumstances.
Clause 31. Customer Data
31.1. All rights relating to Customer Data, including any Intellectual Property Rights, are vested in the Customer. Provolve acquires the right to use the Customer Data to the extent necessary for the performance of the Agreement.
31.2. After expiry of the Agreement, Provolve may, provided the Customer has fulfilled its payment obligations in full, at the request of the Customer, provide a copy of the Customer Data in a standard file format. The Customer must submit a request to this effect to Provolve before the date on which the Agreement expires. If no such request is made, or if Provolve has provided the requested copy, Provolve has the right to delete all Customer Data (including any backups thereof). Provolve is entitled to charge all reasonable costs associated with the provision to the Customer.
The provisions in this chapter, “Secondment” relate to the provision of secondment services by Provolve to the Customer.
Clause 32. Secondment
32.1. In the following clauses, “Seconded Person” means a natural person who is made available to the Customer by Provolve for a certain number of hours per week to perform work for the Customer.
32.2. The Customer will make every effort to ensure that the Seconded Person is available to perform work for the Customer for the agreed number of hours. In this respect, the Seconded Person may occasionally and in consultation with the Customer be unavailable to the Customer due to a business activity of Provolve, internal consultations, training or other reasons.
32.3. The Customer will only use the Seconded Person for work in the professional field and on location as agreed by the Parties. During the secondment, the Customer will agree with the Seconded Person exactly which work must be carried out within the framework of the day-to-day business operations. To the extent necessary, Provolve will supervise and guide the Seconded Person in his or her work. If the Customer wishes to have the Seconded Person perform work in a field other than that agreed upon, the Parties will again enter into consultation about the terms and conditions of the Agreement.
32.4. Provolve will ensure that the Seconded Person complies with the reasonable (standard) procedures and/or internal regulations of the Customer in the context of the execution of the work. The Customer shall ensure that Provolve can take note of such procedures and regulations.
32.5. The Customer is not entitled to transfer a Seconded Person or to make him or her available in any other way to a third party to perform work there under the management and supervision of the third party in question.
Clause 33. Customer’s Obligations
33.1. The Customer must ensure an adequate and safe workplace for the Seconded Person in accordance with the applicable Working Conditions Regulations and/or Working Conditions legislation.
33.2. The Customer will always provide the Seconded Person in a timely manner with all information and particulars that are important for the proper performance of the work.
33.3. All accidents relating to Seconded Person will be recorded and reported to Provolve without delay.
Clause 34. Working Hours and Leave
34.1. The Parties will lay down in the Agreement what the usual working hours will be for the Seconded Person. If no working hours have been agreed upon, a Seconded Person’s working day consists of a maximum of eight (8) hours during Provolve’s normal working hours.
34.2. The Customer is responsible for complying with legal obligations regarding rest and working hours. Leave of the Seconded Person will be taken by mutual agreement. The Customer will not refuse a request for leave from the Seconded Person on unreasonable grounds.
34.3. If the Parties have agreed on a fixed or minimum secondment period, the Customer will still owe compensation for this, even if the Customer (whether temporarily or not) has less work for the Seconded Person to perform.
34.4. Hours spent by the Seconded Person on training courses will be counted as hours worked, unless the training course in question is not attended for or at the request of the Customer.
Clause 35. Replacement of the Seconded Person
35.1. Provolve is entitled at its own discretion, without being obliged to pay damages and/or compensation for costs, to replace a Seconded Person by another Seconded Person who has similar knowledge and experience.
35.2. If, due to illness or any other cause, the Seconded Person is unable to perform work for the Customer for a period longer than five (5) working days, Provolve shall endeavor to arrange for a replacement Seconded Person, with as many equivalent qualifications as possible, as soon as possible.
Clause 36. Reimbursement
36.1. Travel time and travel and accommodation costs will be charged separately to the Customer, unless agreed otherwise. In the case of secondment, the fee is the hourly rate included in the Agreement.
36.2. The Customer will not be obliged to pay a fee to Provolve for the period that the Seconded Person has been unable to perform the agreed activities due to illness, holidays or for any other reason, unless a replacement Seconded Person is deployed by Provolve.
36.3. If and insofar as, in the Customer’s opinion, it is necessary for the Seconded Person to work extra hours outside Provolve’s normal working hours (e.g. weekends or evenings), a surcharge will be charged to the Customer.
36.4. The costs of training the Seconded Person will be borne by the Customer, unless Provolve itself replaces the Seconded Person without a prior request from the Customer.
Clause 37. Payment and Timesheets
37.1. Even in the event that the Customer uses a time registration form, the hours booked in the Provolve time registration system will be invoiced for the purposes of invoicing. The data from Provolve’s time recording system shall take precedence.
37.2. Unless agreed otherwise, Provolve will issue an invoice for each Seconded Person per calendar month. At the first request of the Customer, Provolve will provide a written overview of the timesheets.
37.3. If a Seconded Person works on an oncall basis, Provolve is entitled to charge at least four working hours per call.
Clause 38. End of the Agreement
38.1. As soon as the Agreement comes to an end, the secondment of the Seconded Person also ends.
38.2. The secondment of the Seconded Person also ends if the (employment) agreement between the Seconded Person and Provolve comes to an end, in which case Provolve is not obliged to conclude a new (employment) agreement with the Seconded Person. In this case, the Parties will discuss a suitable replacement. If no suitable replacement can be found, both Parties may terminate the Agreement, without being obliged to compensate any resulting damage or loss.
Clause 39. Intellectual Property Rights
39.1. All Intellectual Property Rights in services performed and/or works that are performed by the Seconded Person in the execution of the work for the Customer are vested in Provolve, unless otherwise agreed in writing.
39.2. If Parties explicitly agree that Intellectual Property Rights will be transferred to the Customer, Provolve will always receive a free and unlimited license back for all forms of use and exploitation. This license is perpetual and shall not terminate upon termination of the Agreement for any reason whatsoever.
39.3. If the Seconded is to produce works in which sensitive information of the Customer is processed, Provolve will, at the request of the Customer, make further agreements about the use of certain works by the Seconded Party and Provolve in good consultation with the Customer.
The provisions in this chapter, ‘“Training”, relate to the delivery of training, education or courses by Provolve to the Customer.
Clause 40. General Training Courses
40.1. If the supply of the Service (also) extends to the supply of general training (accessible to multiple customers) to the Customer, the conditions in this clause apply.
40.2. During a general training course, Provolve will take care of the necessary facilities.
40.3. Participation takes place in the order of registration. Provolve will confirm the registration by email or refuse it, stating the reasons. If a registration of the Customer only reaches Provolve after the maximum number of registrations has been reached, Provolve will inform the Customer in a timely manner and keep the registration and accept it in the event of a cancellation of another participant.
40.4. Provolve may change the location, date and time of the training. Provolve will inform the Customer no later than two (2) weeks before the start of the training course. If the Customer does not wish to accept such a change, the Customer may cancel its registration for the training in writing, provided the cancellation is received at least one week before the start of the training.
40.5. If a training course does not have sufficient registrations, at the discretion of Provolve, Provolve is at all times entitled to cancel the training course. The customer will be informed of this in good time.
Clause 41. Customized training
41.1. If the supply of the Service (also) includes the supply of (a) customized training course(s) (training specifically tailored for or aimed at the Customer) to the Customer, the conditions in this clause apply.
41.2. In the case of a customized training course at a location designated by the Customer, the Customer is responsible for providing the facilities required for the customized training course (which in any case includes sufficient and suitable training space, computers, beamers, internet connection) as well as for handling the registrations.
41.3. If the delivery of the customized training has been agreed with a view to the execution by a specific person, Provolve may also have the customized training carried out by another person under its responsibility.