Offer and agreement

All DopeCode’s offers and other forms of communication are without obligation. Until DopeCode and the Client (hereinafter jointly referred to as the ‘Parties’) have duly executed their agreement in writing, DopeCode shall be entitled to withdraw its offer(s). ‘In writing’ does for the purpose of entering into an agreement with DopeCode not necessarily mean ‘on paper’; an agreement with DopeCode can be concluded electronically, for instance per email. These General Terms and Conditions will of course apply in any event.

The Client acknowledges that DopeCode makes its offers based on information provided by the Client. This means that if the Client provides incorrect or incomplete information, DopeCode’s offer(s) and consequently the agreement may be incorrect or incomplete. If this happens, DopeCode shall not be bound by its offer(s) and/or the agreement. In such case, the parties shall discuss in good faith whether, and if so how, the offer(s) and/or the agreement can be amended.

General or other terms and conditions of the Client are not applicable to the services or products that DopeCode delivers

DopeCode may make services or products of third parties available to the Client or grant access thereto. If this is the case, the terms of the third parties in question apply to these services or products in the relationship between DopeCode and the Client. The third party terms replace the provisions in these General Terms and Conditions that depart from those third party terms. DopeCode will inform the Client in the event that it makes services or products of third parties available, and shall provide the Client with the opportunity to take note of the third party terms applicable to such services or products. This with the exception of ‘copyleft’ open source software code. If any third party terms are invalid or unenforceable in the relationship between DopeCode and the Client, these General Terms and Conditions shall apply in full.

Price and Payment

All prices communicated by DopeCode shall be exclusive of turnover tax (VAT) and other product or service-specific levies imposed by a governmental authority. DopeCode quotes its prices in euros and the Client will pay DopeCode in euros

All invoices of DopeCode shall be paid by the Client within fourteen (14) days after the invoice date. If the Client fails to (timely) pay any amount due, the statutory interest for commercial agreements shall be payable by the Client on any outstanding sum, without a reminder or notice of default being required. The Client is only entitled to suspend payments if DopeCode is in default in accordance with Dutch law and the amount of the payment suspended should at all times match the net value of the services of products with respect to which DopeCode is in default. If DopeCode in such case repairs the default, all suspended amounts shall be immediately due and payable. The Client is not entitled to set off any amounts to the amounts due.

If DopeCode issues cost estimates or budget(s) the Client shall not be entitled to derive any rights or expectations therefrom. A budget shall only be a fixed price if this has been explicitly agreed in writing.

In the event that an agreement mentions payment of amounts that will become due periodically, DopeCode has the right to adjust its prices and rates from time to time. DopeCode is allowed to exercise this right under the condition that the Client is informed of the adjustment at least three calendar months prior to the adjustment becoming effective. In the first twelve months of the agreement, DopeCode shall not increase its prices and rates on the basis of this article 2.4. If the price adjustment exceeds the (common) inflation rate in the Netherlands by more than 5%, the Client shall have the right to terminate the agreement by serving notice of termination in writing within thirty days following the notification of the price adjustment and effective from the date on which the new prices and/or rates would become effective.

Term and Termination

An agreement with DopeCode can either (i) be for the duration of a specific assignment, or (ii) be a continuing performance contract. In case of the latter, the agreement shall be concluded for subsequent one year terms if no other specific duration has been agreed upon.

An agreement concluded for a specific assignment (article 3.1 (i)) cannot be terminated intermediately by the Client. A continuing performance contract (article 3.1 (b)) can be terminated by either Party taking into account a notice period of three (3) months prior to the end of the then current term.

Each Party is entitled to terminate the agreement for breach (ontbinden) following an irreparable failure of the other Party to meet an essential obligation under the agreement. In any such event, a notice of default has to be served to the Party breaching its obligation(s). In order to qualify as such, the notice of default will be (i) as detailed as possible and (ii) contain a reasonable period of time to remedy the breach. Only after this reasonable period of time has lapsed without the breach being cured, the right to terminate the agreement as meant in this article 3.3 can be exercised.

If, at the time of a termination for breach, the Client has already received goods or services in the performance of the agreement, this performance and the related payment obligations cannot be undone unless the Client proves that DopeCode was in default with respect to the essential part of such performance. Notwithstanding the foregoing in this article 3.4, sums that are invoiced by DopeCode for services or products properly delivered prior to the termination for breach, remain due in full and become immediately due and payable as per the termination date.

Either Party is entitled to terminate the agreement, in writing, in whole or in part, without notice of default being required and with immediate effect, if the other Party is granted a suspension of payments, a petition for bankruptcy is filed against the other Party or the company of the other Party is liquidated or dissolved other than for restructuring purposes or for a merger of companies.

DopeCode shall also have the right to terminate the agreement, in whole or in part, without notice of default being required and with immediate effect, if a direct or indirect change occurs in the decisive control of the Client’s company.

DopeCode shall never be obliged to repay any sum of money already received or pay any sum of money in compensation because of a termination as meant in articles 3.5 and 3.6. In the event the Client is irrevocably bankrupted, its right to use the software, websites and the like made available to the Client ends, as does its right to access and/or use DopeCode’s services and/or any third party services provided through DopeCode, without DopeCode being required to cancel these rights, arrangements or third party agreements.

Performance of the services and software

DopeCode will always perform the agreed services to the best of its ability and in accordance with the arrangements and procedures that DopeCode and the Client have agreed to in writing. Services provided by DopeCode are performed on the basis of a ‘besteffort obligation’ (inspanningsverplichting) but in specific circumstances the Parties can agree to DopeCode delivering a specific result (resultaatsverplichting). The latter can only be agreed upon under the following conditions: (i) the result concerned has been described in the agreement in a precise manner, (ii) the agreement is in writing (including electronically) and (iii) explicitly mentions that DopeCode commits itself to obtain the result in question.

DopeCode is not obliged to follow the Client’s instructions when performing the agreement if such instructions change or add to the content or scope of the services agreed upon. If the Client has a desire to change or add to the content or scope once the agreement has been concluded, the Parties shall in good faith discuss the consequences thereof (including the financial consequences and the consequences for the delivery time). If the discussions lead to an outcome both Parties can agree to, the amendment(s) to the original agreement will be executed in writing. The original agreement (including these General Terms and Conditions) will otherwise remain unchanged.

DopeCode does not guarantee that any software and services it develops, delivers or provides (regardless of the manner in which such software and/or services are provided) are free of errors or defects and will function without interruption.

Terms and deadlines, delivery periods

The Client acknowledges that DopeCode’s ability to perform services for or deliver products to the Client, is usually dependent on the Client’s cooperation and input. Against this background, DopeCode makes reasonable efforts to comply to the greatest extent possible with the terms, delivery periods and/or delivery dates which the Parties have agreed to. This is explicitly also applicable to ‘fixed’ or ‘fatal’ dates or deadlines. Interim dates and delivery dates are always target dates. DopeCode’s efforts remain subject to the Client’s cooperation and input.

DopeCode will inform the Client if a term or delivery period is likely to be exceeded. In such case, the Parties will discuss the consequences of the term being exceeded in relation to the further planning.

Even if a fixed term, fatal deadline or strict delivery period has been agreed upon, DopeCode shall only be in default because of such arrangement not being met if (i) the Client has not attributed to the delay or only in a minor way, (ii) the Client has served DopeCode with a written notice of default that is as detailed as possible and (iii) the Client has granted DopeCode a reasonable period of time to remedy the failure to meet its obligations and this reasonable period of time has lapsed without the failure being remedied.

DopeCode is not bound by the (original) date or delivery term or period if the Parties have since then agreed to an adjustment in the content or scope of an agreement, or a change in the approach with respect to the performance of the agreement, or if the Client fails to fulfil its own obligations under the agreement in time or in full.

Confidentiality

Each Party shall observe secrecy with respect to all information received from the other Party of which information the receiving Party knows or should reasonably know it is confidential. This duty of secrecy does not apply if and insofar as the information concerned must be provided to a third party in compliance with a judicial decision, a statutory requirement (under applicable law), a statutory order by a competent authority of for the proper performance of the agreement. The Party receiving confidential information may only use this information for the purpose for which it was provided.

The Client acknowledges that software made available by DopeCode is always confidential in nature and that its software contains trade secrets of DopeCode and its suppliers.

Data protection

The Client is fully responsible for the personal data it processes when making use of the services and products of DopeCode and shall inform DopeCode on its first request about the way in which it performs its obligations under applicable privacy laws. The Client indemnifies and holds the Client harmless against any third party claim in connection with this data processing.

In the event that DopeCode performs activities for the Client as a processor, the Client agrees to conclude the standard data processing agreement of DopeCode which will be sent to the Client by DopeCode if applicable.

Intellectual Property Rights

All intellectual property rights (‘IP-Rights’) to everything that DopeCode delivers to the Client remain exclusively vested in DopeCode, its licensors and/or its suppliers. This includes IP-Rights to software, websites, data files, hardware, training, testing and examination materials, analyses, designs, documentation, reports, offers and preparatory materials for all of the foregoing. If DopeCode develops and delivers bespoke or custommade software to the Client, this shall not have any effect on the principles laid down in this article 8.1.

The Client is solely granted the rights to use the IP-Rights laid down in these General Terms and Conditions, the agreement entered into by the Parties and in the applicably statutory provisions of mandatory law. All rights of use granted to the Client are non-exclusive, nontransferable, non-pledgeable and non-sublicensable.

In specific circumstances, the Parties may deviate from article 8.1 and transfer certain IPRights to the Client. Such transfer can only be agreed to in writing. Regardless of such transfer, DopeCode shall at all times remain entitled to use and/or exploit without any restriction, the parts, designs, algorithms, documentation, works, protocols, standards and the like on which the developments protected by the transferred IP-Rights are based for other purposes than for the provision of services to the Client. DopeCode is in such case also entitled to use and/or exploit, without any restrictions, the general principles, ideas and programming languages that have been used as a basis to create or develop any of the works to which the transferred IP-Rights apply for other purposes. Any transfer of IP-Rights does not affect DopeCode’s right to continue developing software – or elements of software – that are similar to or derived from software – or elements of software – that have been developed for the Client.

DopeCode indemnifies and holds the Client harmless against any third party claim based on the allegation that the deliveries of DopeCode to the Client that are developed by DopeCode itself, infringe the intellectual property rights of such third party. Provided always, that the Client will promptly inform DopeCode of such claim(s) in writing and leaves the settlement of the claim(s), entirely up to DopeCode. To this end, the Client will provide all the assistance DopeCode reasonably requires to defend itself against such claims. This obligation to indemnify does not apply if the alleged infringement concerns (i) work or materials made available by the Client to DopeCode or (ii) modifications the Client has made (itself or by means of a third party) to DopeCode’s deliveries without DopeCode’s permission.

The Client warrants that no third party rights stand in the way of DopeCode performing the agreed services. This warranty specifically means (although not exclusively) that the Client is to make sure that it has the relevant software licenses and user rights for DopeCode to perform and deliver its services and products. The Client indemnifies DopeCode against any claim of a third party based on the allegation that performing the services for the Client and/or making the deliverables available to the Client (through for instance installation, implementation, integration) infringes such third party’s rights.

DopeCode is never obliged to perform data conversion unless this is explicitly agreed to in writing.

Security

If DopeCode has agreed to provide a form of information security, such will be based on the specifications explicitly defined in the agreement between the Parties. DopeCode does not warrant that the information security is effective under all circumstances.

If it is agreed in writing that DopeCode shall provide a form of information security, but the method of information security is not explicitly defined, the information security shall meet a level that is not unreasonable in view of the state of the art, the implementation costs, the nature, scope and context as known to DopeCode of the information to be secured and the probability and seriousness of the foreseeable risks. DopeCode’s obligations in this respect shall at all times be subject to the Client observing due and reasonable care in respect of information security. The meaning of this ‘due and reasonable care’ depends on the circumstances, but will at least require that the Client makes sure that the Client (including its employees and staff) keeps access and identification codes and certificates confidential.

In the event that security features or the testing of security features pertain to software, hardware or infrastructure not delivered to the Client by DopeCode, the Client guarantees that it has obtained sufficient licenses and approvals to allow for the performance of such activities by DopeCode. DopeCode is not liable for any damages caused by or in relation to the performance of these activities. The Client indemnifies and holds DopeCode harmless against any claims, for whatever reason, arising from or in relation to these activities being performed.

DopeCode is entitled to adapt security measures from time to time.

The Client shall adequately secure its systems and infrastructure and keep these adequately secured.

Retention of title, reservation of rights and suspension

All goods delivered to the Client remain the property of DopeCode until all sums due by the Client in relation to such goods have been paid to DopeCode in full. The risk of loss, theft or damage of such goods shall however pass to the Client at the moment the goods are actually delivered to the Client.

If the agreement entails a transfer of rights to the Client, such transfer shall only take place after the Client has paid all sums due under the agreement in relation to the rights to be transferred and – if not directly related – any other sums duly invoiced within thirty days after the delivery of the software or goods to which such rights apply

DopeCode may retain all information, documents, software and/or data files received or created in the context of the agreement, despite an existing obligation to hand these over or transfer them, until the Client has paid all sums due to DopeCode.

Limitation of liability

Each Party’s total liability vis-à-vis the other Party for an irreparable failure in the performance of the agreement or arising from any other legal basis, explicitly including each and every failure to meet a guarantee or indemnification obligation agreed upon, is limited to the compensation of damages as described in more detail in this article.

Liability for indirect damages, including but not limited to consequential loss, loss of profits, lost savings, reduced goodwill, loss due to business interruption, loss resulting from claims of clients, data loss and data corruption is excluded.

A Party’s total liability for direct damages is limited to the maximum of the price stipulated in the agreement in question (excluding VAT). If the agreement is mainly a continuing performance agreement with a duration of more than one year, the price stipulated for the agreement is set at the total sum of the payments (excluding VAT) in the twelve months preceding the incident giving rise to the damages. In no event does DopeCode’s total liability for any direct damages however, on any legal basis whatsoever, exceed EUR [500,000 (five hundred thousand euros).]

Each Party’s total liability for any damage arising from death or bodily injury or arising from material damage to goods is limited to the amount of EUR [1,250,000 (one million two hundred fifty thousand euros)].

The limitations of liability as laid down in this article are not applicable insofar as the damage is caused by intent or deliberate recklessness on the part of the management of the Party causing the damage.

The right to compensation of damages exclusively arises if the injured Party reports the damages in writing to the other Party as soon as possible after the damages first occurred. Any claim for compensation of damages lapses by the mere expiry of a period of twenty four months following the inception of the claim unless legal action to recover the damages has been initiated against the Party causing the damages prior to the expiry of this term.

Force majeure

Neither Party is obliged to meet any obligation, including any statutory and/or agreed warranty obligation, if it is prevented by doing so by circumstances beyond its control. Circumstances beyond DopeCode’s control include, among other things: (i) circumstances beyond the control of DopeCode’s suppliers, (ii) defects in goods, hardware, software, infrastructure or materials of the Client or third parties that DopeCode uses on the Client’s request or instructions, (iii) measures by public authorities, (iv) power failures, (v) failures of the internet, data network or telecommunication facilities, (vi) (cyber)crime, vandalism, war or terrorism and (vii) general transport problems. An obligation to pay an amount due, shall never be considered an obligation of which the fulfilment can be prevented by force majeure.

If a force majeure situation lasts for more than sixty days, either Party has the right to terminate the agreement in whole or in part in writing. In such event, all that has already been performed under the agreement must be paid for on a pro rate basis, without anything else being due by either party to the other party in relation to the termination and/or the force majeure situation giving rise to the termination.

Service Level Agreement

If, given the nature of the services to be provided by DopeCode, the parties wish to agree on service levels, such service levels will be laid down in a separate written service level agreement (‘SLA’).

Backups

If the Parties have agreed in writing that DopeCode shall make regular backups of the Client’s data, DopeCode shall make a complete backup of the Client’s data in its possession, with due observance of the periods of time agreed on in writing, or once a week if no such terms have been agreed upon. DopeCode keeps the backup for the duration agreed upon, or for the duration of DopeCode’s usual term if no further arrangements have been made in this regard. DopeCode shall keep the backup with due care and diligence.

Adjustments and extra work

If, at the Client’s request, DopeCode has performed services or delivered goods outside the scope of the agreed services and/or goods, DopeCode shall charge the Client for these services and/or goods on the basis of the agreed rates or, if no rates have been agreed upon by the Parties, on the basis of DopeCode’s usual rates.

SaaS

If DopeCode provides SaaS to the Client (functionality available for the Client remotely through the internet or another data network without providing the Client with a copy or download of the relevant underlying software) the following shall apply.

The Client may solely use the SaaS for its own organization or company and only for the use intended by DopeCode. The Client may not allow third parties to use the SaaS.

DopeCode may adjust the content or scope of the SaaS. If such adjustments are substantive and result in a change in the Client’s business procedures, DopeCode shall inform the Client of such changes as soon as possible. If the adjustments are of such nature that the Client cannot reasonably be expected to continue to use the SaaS, the Client shall have the right to terminate the agreement by serving notice of termination in writing within thirty days following the notification of the adjustment.

DopeCode is not obliged to maintain, modify or add particular features or functionalities of the SaaS specifically for the Client.

DopeCode may temporarily put all or part of the SaaS out of service for preventive, corrective or adaptive maintenance services or other forms of service. DopeCode makes sure that the period of time during which the SaaS is out of operation does not take longer than necessary and – where possible – that the service takes place at times when the SaaS is usually used less intensively.

If no other arrangements have been made, the Client itself is responsible for designing, configuring, parameterising and tuning the SaaS, for converting and uploading data and, where required, for modifying hardware and user environments.

Unless agreed otherwise, the Client’s payment obligations for the SaaS commence once DopeCode has granted the Client access to the SaaS. Sums payable for the SaaS shall become due and payable in advance, per calendar month.

Software

DopeCode’s obligation to make software available and the Client’s right to use software provided by DopeCode exclusively extend to the ‘object code’ of the software and not to the source code. The source code and technical documentation related thereto are not made available to the Client unless explicitly agreed otherwise.

The Client is only entitled to use the software in and for its own organization or company and only insofar as required for the intended use. The Client may not use the software for the benefit of third parties.

The Client is never entitled to sell, lease, transfer or grant limited rights to the software to third parties. The Parties agree that the agreement entered into by the Parties is not intended and never to be deemed a purchase agreement where it is related to making software available for use

Except to the extent mandatory statutory provisions provide otherwise, the Client shall not be entitled to modify the software.

Acceptance

If the Parties have not agreed on specific acceptance testing, the Client accepts DopeCode’s deliveries (including software) in the state in which it is when delivered (‘as is, where is’). Thus, with all visible and invisible errors and defects, without prejudice to DopeCode’s obligations and warranties under the agreement.

Maintenance

The Parties may agree that DopeCode provides maintenance services regarding software. In the event such maintenance services are intended to be performed on third party software, the Client shall be responsible for obtaining the necessary permission (or licenses) from the third party concerned in order for DopeCode to be allowed to perform the intended maintenance services.

If the Parties agree that DopeCode shall provide maintenance services, the specific arrangements will be laid down in a maintenance agreement. If nothing different or further has been arranged for, DopeCode will to the best of its ability, do its utmost to fix errors in the software of which the Client has notified DopeCode and which errors can be reproduced by DopeCode. DopeCode shall be entitled to install temporary solutions, workarounds or problem-avoiding restrictions in the software

DopeCode may charge repair costs according to its usual rates if there have been operating errors or improper use on the Client’s part or other causes making maintenance necessary that cannot be attributed to DopeCode. Maintenance does not include fixing mutilated data or data recovery.

Advisory and consultancy services

DopeCode may provide advisory and consultancy services. DopeCode shall perform such services in a fully independent manner, at its own discretion and without the Client’s supervision and directions.

The use that the Client makes of any advise and/or reports provided by DopeCode is always at the Client’s own risk.

The Client may not provide any advise or reports of DopeCode to any third party without DopeCode’s prior written consent.

Applicable law and dispute resolution

All agreements between the Parties (including these General Terms and Conditions) are governed by and construed in accordance with the laws of the Netherlands. The applicability of the Vienna Convention (1980, on the international sales of goods, CISG) is excluded.

Any disputes arising out of or in relation to any agreement between the Parties (including these General Terms and Conditions) will – if not amicably resolved – in first instance exclusively be submitted to the Court of Rotterdam, the Netherlands.