Terms and conditions

Article 1 Definitions

1.1 In these XSARUS Terms and Conditions, the following terms are used with an initial capital letter, in both singular and plural. These terms mean:

• Service: The services to be provided to the Client by XSARUS under the terms of the Agreement, including, if applicable, results of services;
• XSARUS Terms and Conditions: These XSARUS Terms and Conditions including any applicable attachments;
• IP rights: All intellectual property and related rights;
• Client: The natural or legal person who has concluded or will conclude an Agreement with XSARUS;
• Contract: The contract between XSARUS and the Customer regarding the provision of the Service;
• Parties: XSARUS and Client
• Personal data: Any data relating to an identified or identifiable natural person, as referred to in Article 1(a) Personal Data Protection Act.

Article 2 General

2.1 The XSARUS Terms and Conditions are applicable to and form an integral part of all XSARUS offers and quotations, Contracts and any other related legal acts between XSARUS and the Client or its legal successor.
2.2 Any reference in these XSARUS Terms and Conditions to the fact that an action must be submitted in writing shall be deemed to include an e-mail message.
2.3 Divergences from XSARUS Terms and Conditions are only valid if expressly agreed upon in writing by XSARUS and the Client and only apply to the specific contract for which they have been agreed upon.
2.4 The XSARUS Terms and Conditions always prevail over any purchasing or other terms and conditions which may be used by the Client.
2.5 Once these XSARUS Terms and Conditions have been enforced in a legal relationship between XSARUS and the Client, the Client is deemed to have accepted the applicability of these XSARUS Terms and Conditions to all future contracts and agreements which have been or may be concluded thereafter.
2.6 If and insofar as any provision of these XSARUS Terms and Conditions is declared invalid or is declared null and void, the remaining provisions of these XSARUS Terms and Conditions shall remain in full force and effect. In such a case, the parties will agree on a new provision to replace the void/terminated provision, which will, as far as possible, reflect the spirit of the void/terminated provision.
2.7 In the event of a contradiction between any provision of an Agreement and the XSARUS Terms and Conditions, the provisions of the Agreement shall prevail.
2.8 Electronic communication between the Parties shall be deemed to have been received on the day it is sent, unless proof to the contrary is provided.

Article 3 Offers and formation of agreement

3.1 Offers and other offers by XSARUS are non-binding and must be regarded as an invitation to make an offer to enter into an Agreement, unless otherwise specified in writing by XSARUS.
3.2 Offers and offers lose their validity four weeks after their date, unless otherwise specified in writing.
3.3 Customer is responsible for the accuracy and completeness of the information provided to XSARUS by or on behalf of him on which XSARUS bases his offer. Should the information prove to be inaccurate or incomplete, XSARUS reserves the right to modify the offer.
3.4 If XSARUS submits a revised offer, any previous offers made by XSARUS will become null and void.
3.5 A contract is concluded through the written confirmation by the Client of an unmodified and valid offer and/or quotation by XSARUS.

Article 4 Execution of the agreement and delivery

4.1 XSARUS will carry out the Agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship, based on current scientific and technical knowledge. The Agreement between XSARUS and the Customer is an obligation to perform to the best of XSARUS' abilities, unless XSARUS has explicitly agreed to a specific result in the written contract and if this result is specified in the contract. Service level agreements are always agreed upon separately in writing.
4.2 Parties determine in the Agreement the delivery periods and dates as well as the place and manner in which the Services will be delivered and/or supplied. The lead time of an assignment depends on various factors and circumstances, such as the quality of the data and information provided by the Client and the cooperation of the Client and relevant third parties. Mentioned delivery deadlines shall therefore not apply as deadlines, unless the Parties have expressly agreed otherwise in writing. In the event of an (impending) exceeding of a (delivery) term, Parties shall enter into consultation in order to take appropriate measures.
4.3 XSARUS shall not be bound by any (delivery) date or (delivery) term, whether final or not, if the Parties have agreed on a change in the content or scope of the Agreement (additional work, change in specifications, etc.) or a change in the approach to the execution of the Agreement. If the exceeding of any deadline is imminent, the Parties shall consult to discuss the consequences of the exceeding for further planning.
4.4 If it has been agreed that the Agreement will be executed in phases, XSARUS is entitled to postpone the commencement of Services which belong to a subsequent phase until the Client has approved, in writing, the results of the preceding phase.
4.5 XSARUS is not obliged to follow any instructions which change or supplement the content or scope of the agreed Services; if such instructions are followed, the work involved will be reimbursed in accordance with XSARUS' usual rates and XSARUS will notify the Client accordingly.
4.6 XSARUS has the right to have all or part of the Agreement executed by a third party, or to engage a third party for the purpose of executing the Agreement.
4.7 Services will be deemed to have been accepted by the parties if the Client does not provide a written, detailed and reasonable justification as to why the Services are not accepted within twenty (20) business days after the delivery of the Services in question. The part of the Services not covered by such written substantiation shall be considered accepted. For Services which are not accepted, XSARUS must replace or modify the Services within a reasonable period of time. If the Customer again does not accept the Services, the parties will go through the acceptance procedure again. This procedure will be repeated each time if, during the renewed acceptance test, the Customer once again substantiates why the Services are not accepted.
4.8 The risk of loss, theft, embezzlement or damage to items, products, information/data, documents or programmes created or used within the scope of the execution of the Agreement is transferred to the Customer as soon as they are placed under the actual control of the Customer or an assistant of the Customer.

Article 5 Prices and payment terms

5.1 All prices are exclusive of value-added tax (VAT) and other government levies.
5.2 Unless explicitly agreed otherwise, XSARUS' estimates, budgets and/or pre-calculations are purely indicative and no rights or expectations can be derived from them. Only when agreed upon by the parties, XSARUS is obligated to inform the Client if a pre-calculation or budget is exceeded.
5.3 The parties will stipulate in the Contract the date or dates on which XSARUS will invoice the Client for Services. Invoices shall be paid by the Client in accordance with the payment terms stated on the invoice. In the absence of a specific arrangement, the Client shall pay within thirty (30) days after the invoice date.
5.4 If the Client fails to pay the amounts due in a timely manner, the Client shall, without any reminder or notice of default being required, owe statutory interest on the outstanding amount. If the Client remains negligent after a reminder or notice of default, XSARUS can pass on the debt for collection, in which case the Client will be liable to pay all judicial and extrajudicial costs, including the costs of external experts, in addition to the total amount owed.5 XSARUS has the right to retain any Services which are still with XSARUS if the Client does not fulfil his payment obligations, until such time as the Client has fulfilled his payment obligations, regardless of whether the delay in payment relates to Services which are still with XSARUS.
5.6 XSARUS has the right to increase the prices for its Services annually, starting on 1 January, during the term of an Agreement, in accordance with reasonableness and fairness. XSARUS is entitled to postpone the increase to a later date if it deems it necessary from an administrative point of view. Such complaints do not suspend the payment obligation for that part of the invoice which is not the subject of a dispute.
5.8 XSARUS has the right to invoice the Client on an interim basis and/or on the basis of advance payments, to offset invoices or to require security for compliance from the Client.
5.9 Client agrees to electronic invoicing by XSARUS.

Article 6 Changes to the order or additional work

6.1 Client accepts that the schedule of the Contract may be affected if the scope of the Contract is extended and/or changed in the interim. XSARUS will inform the Client as soon as possible if any changes in the scope of the Agreement will affect the agreed upon fee.
6.2 If, as a result of a change in the scope of the Agreement as a result of additional requests or requirements from the Client, XSARUS is required to carry out additional work (additional work), this work will be charged to the Client on a subsequent costing basis in accordance with the usual rates applicable at that time, unless expressly agreed otherwise in writing.
6.3 XSARUS is entitled to carry out such additional work without the (prior) written consent of the Client insofar as the costs incurred for this additional work do not exceed ten percent (10%) of the originally agreed total fee.
6.4 If the costs for additional work exceed ten percent (10%), XSARUS will inform the Client thereof. The parties will then discuss by mutual agreement the measures to be taken.
6.5 This Article relates to Contracts for which a total fee has been determined and does not relate to Services for which an estimate, budget and or pre-calculation has been issued (see Article 5.2).

Article 7 Client's obligations

7.1 The Client ensures that XSARUS receives all information and/or data, which XSARUS indicates to be necessary or which the Client should reasonably understand to be necessary for the execution of the Agreement, including information with regard to laws and regulations which XSARUS is required to observe and which are specific to the industry of the Client, in a timely manner and will provide XSARUS with all requested cooperation. XSARUS' offers and quotations, as well as the subsequent conclusion of an Agreement, are based on the information provided by the Client.
7.2 If XSARUS is not provided in a timely manner with the information required for the execution of the Agreement, XSARUS has the right to suspend the execution of the Agreement and/or to charge the Client for any additional costs resulting from the delay in accordance with the usual rates applicable at that time.
7.3 The parties acknowledge that the success of work in the field of information and communication technology generally depends on correct and timely mutual cooperation. In order to enable XSARUS to properly execute the contract, the Customer will timely provide XSARUS with all data and information which XSARUS deems useful, necessary or desirable, as well as all cooperation. Should the Customer, within the scope of providing cooperation in the execution of the contract, deploy his own personnel and/or assistants, such personnel and assistants will have the necessary knowledge, expertise and experience.
7.4 If user names and/or passwords are provided by XSARUS within the scope of the Agreement, the Client is responsible for such user names and/or passwords and is solely and independently liable for any misuse of such user names and passwords, unless such misuse is the result of any wilful misconduct or gross negligence on the part of XSARUS.
7.5 If user names and/or passwords are provided by XSARUS within the scope of the contract, the Client is prohibited from disclosing these user names and/or passwords to third parties without XSARUS' consent.

Article 8 (Interim) termination and its consequences

8.1 An Agreement shall commence on the date described in Article 3 for the period as agreed in writing between the Parties and shall terminate by operation of law on the date agreed between the Parties or upon completion of the provision of the Services.
8.2 Unless expressly agreed otherwise, the Parties cannot terminate the Agreement prematurely.
8.3 Either Party is entitled to terminate the Agreement in whole or in part in the event of bankruptcy or suspension of payments of the other Party, as well as in the event of shutdown or liquidation of the business of the other Party other than for the purpose of reconstruction or amalgamation of companies, or if the decisive control of the business of the other Party changes.
8.4 Dissolution of the Contract on the grounds of culpable breach of contract is only permissible after a written notice of default which is as detailed as possible and which sets a reasonable deadline for remedying the breach, unless otherwise stipulated in these XSARUS Terms and Conditions or prescribed by law.
8.5 In the event that the Agreement is terminated, XSARUS will not be able to undo any of the deliveries and/or services provided by XSARUS and the associated payment obligations, unless the Customer proves that XSARUS is in default with regard to the substantial part of such deliveries and/or services. Any amounts XSARUS has invoiced before the termination of the Agreement for work already carried out or delivered by XSARUS in connection with the execution of the Contract will, subject to the provisions of the previous sentence, remain due in full and become immediately payable upon termination. The Customer is no longer entitled to use the Service.
8.7 Articles that by their nature are intended to continue to apply after the end of the Agreement shall remain in full force after termination of the Agreement.

Article 9 IP rights

9.1 Unless otherwise stipulated in the Agreement, all IP Rights pertaining to all Services provided within the scope of the Agreement, as well as any other materials or information made available by XSARUS, are vested solely in XSARUS and/or its licensors.
9.2 Nothing in these XSARUS Terms and Conditions and/or the Agreement shall imply any transfer of IP Rights. The Client only acquires the non-exclusive and non-transferable right to use the Services for the purposes and under the conditions set forth in the Agreement.
9.3 The Client is not allowed to remove or change any indication of IP Rights from the results of Services.
9.4 XSARUS expressly does not waive any of its moral rights listed in Article 25 of the Copyright Act.
9.5 XSARUS is permitted to use the Services and the materials used in the execution of the Agreement for its own promotion and/or publicity, unless otherwise stipulated in the Agreement.
9.6 XSARUS reserves the right to introduce technical protection measures into the Services. The Customer is not permitted to circumvent these technical protection measures or to offer means for that purpose.
9.7 XSARUS will indemnify the Client against third-party claims which are based on the allegation that (parts of) the Services developed by XSARUS infringe upon any applicable IP-right in the Netherlands, provided that the Client immediately informs XSARUS in writing about the existence and content of the claim and leaves the handling of the case, including the conclusion of any settlement, entirely up to XSARUS. To this end, the Client shall provide XSARUS with the necessary authorisations, information and cooperation to defend itself, if necessary on behalf of the Client, against such legal claims.
9.8 The aforementioned obligation to indemnify will cease to apply if the alleged infringement is related to:
(i) materials made available to XSARUS by the Client; and/or
(ii) changes which the Client has made or caused to be made to the Service.<9.9 In the event that it has been irrevocably established in law that the Services developed by XSARUS infringe any IP Rights of third parties or if XSARUS believes that there is a reasonable likelihood that such an infringement will occur, XSARUS will, if possible, ensure that the Customer can continue to use the Service (or a functionally similar Service) without interruption.

Article 10 Privacy

10.1 If, within the scope of the provision of the Services by XSARUS, Personal Data of the Client's customers are to be processed by XSARUS, XSARUS is to be regarded as a "processor" within the meaning of the Data Protection Act and the Client as the "controller".
10.2 The Client guarantees XSARUS that the data is not unlawful and does not infringe upon the rights of third parties. The Client indemnifies XSARUS against any claims by third parties, including supervisory authorities and data subjects, on any grounds whatsoever, in connection with the processing of such data within the scope of the Agreement.
10.3 The Client has obligations towards third parties under the laws governing the processing of Personal Data (such as the Personal Data Protection Act), such as the obligation to provide information, as well as to allow inspection, correction and deletion of Personal Data of data subjects. The responsibility for compliance with these obligations rests solely and exclusively with the Customer. XSARUS will, to the extent technically feasible, cooperate with the obligations to be fulfilled by Customer, including the forwarding of requests from third parties within the scope of Customer's obligations. The costs associated with such cooperation will be borne entirely by the Client.
10.4 XSARUS will discuss with the Client the appropriate technical and organisational measures to be taken in order to secure Personal Data against loss or any other form of unlawful processing.
10.5 Supplier acknowledges that it has full knowledge of the technical and organisational measures to be implemented by XSARUS and hereby declares that, taking into account the state of the art and the costs of implementation, they guarantee an appropriate level of security, taking into account the risks posed by the processing and the nature of the data to be protected.
10.6 If, despite the fact that XSARUS has implemented the appropriate measures agreed upon, a security incident occurs involving i) destruction, ii) loss, iii) falsification, iv) unauthorised dissemination and/or access to, or v) any other form of unlawful processing of Personal Data, the Client cannot hold XSARUS liable for any damages suffered by the Client as a result thereof.
10.7 If the Client explicitly requests measures which, in the opinion of XSARUS, cannot be deemed to be appropriate technical and organisational measures, the implementation of these measures will take place entirely at the expense and risk of the Client and XSARUS will not accept any liability for any damages suffered by the Client or third parties.
10.8 XSARUS will notify the Client immediately after becoming aware of any breach of security which results in a significant risk of serious adverse consequences or which has serious adverse consequences for the protection of personal data processed by XSARUS within the scope of providing Services on behalf of the Client.
10.9 The Client will fully indemnify XSARUS against all claims by third parties, including - but not limited to - fines imposed by supervisory authorities, which are in any way based on the assertion that the technical and organisational measures implemented by XSARUS as set out in Clause 10.7 are not appropriate and/or otherwise not sufficient.

Article 11 Confidentiality

11.1 Parties shall treat all information that they obtain from each other in any form - written, oral, electronic or tangible - including - but not limited to - software, (source) code, programmes, applications, customer data, know-how, technical specifications, documentation ("Confidential Information") as strictly confidential and keep it secret.
11.2 Parties shall only use the Confidential Information for the purposes for which it has been provided and in doing so they shall observe at least the same duty of care and safeguard that apply to their own internal confidential information. Parties shall only provide the Confidential Information to employees to the extent necessary within the framework of the (performance of the) Agreement.
11.3 The obligations to maintain the confidentiality of the Confidential Information shall not apply to the extent that the Party that received information can prove that the relevant information:
i) was already known to him at the time of receipt;
ii) was already publicly known at the time of receipt;
iii)publicly known after receipt without being attributable to the receiving Party;
iv)was lawfully received from a third party together with the right to disclose it free from any obligation of confidentiality;
v) required to be disclosed by law or regulation or pursuant to a court order and the disclosing Party has notified the other Party of such mandatory disclosure;
vi)disclosed with the approval of the disclosing Party.
11.4 During the term of the Agreement as well as for one (1) year after its termination, the Client shall not, without XSARUS' prior consent, hire or employ, directly or indirectly, XSARUS employees who are or have been involved in the performance of the Agreement.

Article 12 Liability

12.1 The total liability of XSARUS for any culpable breach of contract or for any other reason, expressly including any breach of a warranty obligation agreed upon with the Customer, is limited to compensation for direct damages up to the amount of the price (excluding VAT) stipulated in the contract. If the agreement is mainly a continuing performance agreement with a duration of more than one year, the price stipulated for the agreement shall be set at the total of the fees (excl. VAT) stipulated for one year. In no event shall XSARUS' total liability for direct damages, on any grounds whatsoever, exceed € 500,000 (five hundred thousand Euros).
12.2 Any liability on the part of XSARUS for damages other than direct damages ("indirect damages"), including, but not limited to, consequential damages, loss of and/or damage to data, loss of profits and loss of business is excluded.
12.3 The limitations set forth in the preceding clauses of this Article cease to apply if and insofar as the damages are the result of intentional or deliberate recklessness on the part of XSARUS or its superiors ("willful misconduct").
12.4 The liability of XSARUS for culpable breaches of contractual obligations will only arise, in all cases, if the Client gives XSARUS immediate and proper notice of default in writing, setting a reasonable deadline for XSARUS to remedy the breach and XSARUS, even after this deadline, continues to be accountable for the breach of contractual obligations, unless the breach is of a permanent nature. The notice of default must contain as complete and detailed a description of the breach as possible, so that XSARUS is able to respond adequately.
12.5 A precondition for the occurrence of any right to compensation is always that the Client notifies XSARUS in writing of the damages as soon as possible after their occurrence. All claims for damages against XSARUS become void by the mere expiry of twelve (12) months after the occurrence of the claim.
12.6 The use of the Services by the Customer is at the sole risk and responsibility of the Customer. XSARUS does not accept any liability for the Client's use of the Services. The Client shall indemnify XSARUS against any claims by third parties resulting from the use of the Services by the Client.

Article 13 Force majeure

13.1 There shall be no attributable failure by the Parties to perform the Agreement if there is force majeure.
13.2 Force majeure includes interruptions in the supply of electricity, strikes, labour strikes, general transport problems, unavailability of one or more staff members, riots, government measures, fire, natural disasters, floods, war, shortcomings of the Parties' suppliers, shortcomings of third parties engaged by the Parties, failures in connection with the Internet, hardware failures, failures in (telecommunication) networks and other unforeseen circumstances.
13.3 If the force majeure continues for at least ninety (90) days, the Parties shall be entitled to dissolve the Agreement, without being obliged to compensate any damage, undoing or compensation in respect of such dissolution.
13.4 If XSARUS is still able to partially perform, or has performed, at the time of an event of force majeure, it is entitled to invoice such a partial performance as if it were a separate Contract.

Article 14 Transfer of rights and obligations

14.1 The rights and obligations under the Agreement can only be (sub)licensed and/or transferred by the Parties to third parties if the other party agrees to this in writing.

Article 15 Settlement and mediation

15.1 If a dispute between the Parties cannot be satisfactorily resolved, the dispute shall, prior to submission to the court, be submitted to duly authorised representatives of the Parties to try the possibilities of settlement, or to an independent mediator for mediation.

Article 16 Applicable law and competent court

16.1 The laws of the Netherlands are exclusively applicable to these Terms and Conditions
16.2 The applicability of the Vienna Sales Convention is excluded
16.3 Any disputes which may arise between XSARUS and the Client under or in connection with this Agreement will be submitted exclusively to the competent court in the district of Rotterdam.