General Terms and Conditions
Date of last update: 02/06/2020
General Terms and Conditions
These general terms and conditions apply to all offers and agreements resulting from this between MITE3 Cybersecurity (“Contractor”) and its counter-parties (“Client”).
MITE3 Cybersecurity, MITE3 and MITE3 Security are registered trading names of Digicy.Cloud B.V. (Limited Liability Company) in Emmen, Chamber of Commerce 71698892.
Provisions or conditions set by the Client that deviate from, or do not occur in, these general terms and conditions are only binding to Contractor if and insofar as this has been explicitly accepted in writing.
Article 1 Quotation and acceptance
- Contractor draws up a quote in which Contractor indicates which work (“the Services”) Contractor offers to perform, which is included in the Services and what amount will be due. Only the description of the Services indicated in the quotation is binding.
- In general, the Services include the execution of test and research work, Cloud services, software licenses or subscriptions at the request of the Client, and everything related thereto. Work will only be performed if this is stated in the quotation.
- A quote is entirely free of obligation and valid 14 days after being sent, unless otherwise stated in the quote. Contractor can never be obliged to accept an acceptance after this period, but if Contractor proceeds to do so, the quotation will still be accepted.
- The agreement is concluded at the time the notice containing acceptance of the quote is received by the Client by Contractor. The quotation must be accepted by the Client in writing by signing it and returning it by electronic mail (e-mail).
- If the Client does not explicitly agree with the quotation, but nevertheless agrees to it, or gives the impression that Contractor performs work that falls within the description of the Services, then the quotation is deemed accepted. This also applies when the Client requests the Contractor to carry out certain work without waiting for a formal offer.
- Modification of the Services is only possible with the consent of both parties, except to the extent provided otherwise in these terms and conditions.
- Contractor will make an appropriate offer when requesting additional work.
Article 2 Delivery of the Services
- After the agreement has been concluded, the Services will be executed by Contractor as soon as possible in accordance with the quotation, taking account of reasonable wishes of the Client.
- The Client is obliged to do everything that is reasonably desirable and necessary to enable proper and timely execution of the Services. In particular, the Client shall ensure that all data, of which Contractor indicates that these are necessary or of which the Client should reasonably understand that these are necessary for the execution of the Services, are provided to Contractor in time.
- The Client will grant Contractor access to all places, services and accounts under its management that Contractor reasonably needs to provide the Services.
- Contractor guarantees that the Services are carried out carefully, thoroughly and as well as possible. If a proper execution of the Services so requires, Contractor has the right to have certain work performed by third parties. Contractor is and remains accountable to the Client.
- Contractor is entitled, but never obliged, to investigate the correctness, completeness or coherence of the source materials, requirements or specifications made available to it and to suspend the agreed activities in the event that any imperfections are found until the moment the Client discovers the imperfections in question has taken away.
- Unless agreed otherwise, Contractor is not a party to the provision of services from third parties, such as software licenses or hosting that are required by Services, not even if Contractor purchases these services for the benefit of the Client.
- Contractor has the right not to supply the Services (temporarily) or to a limited extent if the Client does not comply with an obligation towards Contractor in respect of the agreement or acts contrary to these general terms and conditions.
- Contractor will endeavor to respond within 4 hours to a request from the Client during office hours, unless otherwise agreed in the quotation.
Article 3 Development of works
- If a Service extends to the development, configuration and / or adaptation of Works such as websites, databases, software, documentation, advice, reports, analyzes, designs, texts, photographs, films, sound recordings, images, audiovisual material, logos or corporate identities (hereinafter “Works”), Contractor has the right, unless otherwise agreed, to use third-party graphics, software and components in the development, configuration or adaptation of Works.
- Contractor is allowed to use open source software whose rights lie with third parties. This means, among other things, that Contractor may supply open source software to the Client and may process open source software in Works that makes or adapts Contractor in the context of a Service. If the license of certain open source software entails that the Client can only distribute (parts of) the software as an open source, Contractor will adequately inform the Client of all applicable license terms.
- After delivery, the responsibility for correct compliance with the relevant licenses of third parties lies with the use of the developed Works at the Client.
Article 4 Delivery and acceptance
- Contractor will produce the result after execution of work or parts thereof if this satisfies the specifications in its professional opinion or is suitable for use.
- The Client must then evaluate the delivered goods within 14 days of completion and approve or reject them. If the Client does not reject the delivered goods within this period, the delivery is deemed to have been accepted.
- If work is delivered in phases, the Client must give the approval or rejection of the part of the work of that phase after completion of each phase in the manner as described in the previous paragraph. The Client may not base a good or rejection at a later stage on aspects that have been approved at an earlier stage.
- If the Client rejects all or part of the delivery, Contractor will endeavor to remove the reason for rejection as quickly as possible. Contractor can do this by revamping the result or motivating why the reason is not true. The client then has again 14 days to approve or reject the revision or motivation.
- If the Client has completely or partially rejected the delivery after the first revision or motivation, Contractor will follow a reasonable number of revision rounds. If a party indicates that further revisions are not (any longer) meaningful, both parties are entitled to terminate the agreement for the relevant Service. In that case, the Client will reimburse the hours actually incurred by Contractor, with a maximum of the amount offered for the rejected price. However, the Client is not entitled to use the rejected product in any way whatsoever.
- After acceptance of the delivered, all liability for defects in the delivered will lapse, unless Contractor knew or should have known the defect at the time of acceptance. In any case, any liability for defects lapses after one year after termination of the Agreement for whatever reason.
Article 5 Intellectual property rights
- All intellectual property rights to all Services or Works developed or delivered within the framework of the agreement rest solely with Contractor or its licensees. Only if explicitly stated in the quotation or separately explicitly agreed can rights be transferred to the Client.
- The Client only obtains the rights of use and powers that arise from the scope of the agreement or that are granted in writing and otherwise the Client will not multiply or publish the Works or other results of Services materials. Any use, duplication or disclosure of the materials that fall outside the scope of the agreement or rights of use granted is considered to be a violation of copyright. The Client shall pay Contractor an immediately due and payable penalty of € 50,000.00 for each offense that is not subject to judicial moderation. This does not detract from Contractor’s right to receive compensation from the infringement or to take other legal measures in order to bring the infringement to an end.
- The Client is entitled to make changes to Works that it receives in the right of use.
- The Client is not permitted to remove or change any designation concerning copyrights, brands, trade names or other intellectual property rights from the materials, including indications concerning the confidential nature and secrecy of the materials.
Article 6 Prices and payment
- The Client owes the fixed amount(s) stated in the quotation for the Services. Other amounts will only be charged if mentioned elsewhere in these general terms and conditions.
- For services involving a one-time assignment, the Client owes 30% at the start of the work and the remaining amount at the time that the work is performed. Down payments are due as soon as Contractor reports that the work will begin.
- Services involving a Cloud service, software license or another form of a subscription or recurring service, the Client owes 100% no later than 7 days before the start of the license or subscription.
- Contractor will send an invoice by electronic mail (e-mail) to the Client for the amounts of Contractor due by the Client.
- The payment term for invoices is 14 days after the date of the invoice, unless a longer payment term is indicated on the invoice. If the Client does not pay on time, he will be in default by operation of law after the expiry of this period without notice of default being required. If an amount due is not paid within the payment term, statutory interest will be due on the outstanding invoice amount.
- If the Client believes that (a part of) an invoice is incorrect, he must notify Contractor within the payment term. The payment obligation of the disputed (but not the remainder) is suspended until Contractor has investigated the report. If after investigation by Contractor it appears that the dispute was unjustified, the Client must still pay the disputed claim within seven days.
- In the event of overdue payment, the Client is obliged, in addition to the amount owed and the interest thereon, to pay full compensation for both extrajudicial and judicial collection costs, including the costs for lawyers, bailiffs and collection agencies. In particular, Contractor is entitled to charge administration costs of € 73,31 in this case.
- The claim for payment is immediately due and payable in the event that the Client is declared bankrupt, applies for a moratorium of payment or is placed in full on the assets of the Client, the Client dies, goes into liquidation or is dissolved.
Article 7 Confidentiality
- Parties will treat information that they provide to each other before, during or after the execution of the agreement, confidentially when this information is marked as confidential or when the receiving party knows or ought to know that the information was intended as confidential. The parties also impose this obligation on their employees as well as on third parties engaged by them to execute the agreement.
- Contractor will endeavor to avoid having knowledge of data that the Client stores and / or distributes via the hardware or software to which the Services relate, unless this is necessary for the proper execution of the agreement or the Service Provider is obliged to do so pursuant to a statutory provision or court order. In that case, the Service Provider will endeavor to restrict the knowledge of the data as much as possible, in so far as this is within its power.
- Contractor may use the knowledge we have gained during the execution of the agreement for other assignments, insofar as no information from the Client is available to third parties in conflict with confidentiality obligations.
- Parties are mutually authorized to place each other’s logo on their website(s) and in other communications. The condition is that the expression is limited to the existence of a business relationship between the parties and that the expression is not specific enough to constitute an infringement of compliance with Article 7, Confidentiality.
- The obligations under this article also remain after the termination of the agreement for whatever reason, and for as long as the party providing the information can reasonably claim the confidential nature of the information.
Article 8 Liability
- Contractor is only liable to the Client in the event of an attributable shortcoming in the fulfillment of the agreement and solely for replacement compensation of the value of the performance that has not been made.
- Any liability of Contractor for any other form of damage is excluded, including, among other things, additional compensation in any form whatsoever, compensation for indirect or consequential damages, damage due to lost sales or profits, loss due to loss of data and damage due to exceeding deadlines due to changed circumstances.
- In the event of liability under the first paragraph, the maximum amount that Contractor is obliged to reimburse will be equal to the amount due for the relevant Service. This maximum amount will be canceled if and insofar as the damage is the result of intent or gross negligence of Contractor.
- The liability of Contractor due to imputable shortcoming in the fulfillment of the agreement only arises if the Client gives Contractor direct and proper written notice of default, in which a reasonable period is set to remove the shortcoming, and Contractor also after that term imputable in the fulfillment of his obligations remains inadequate. The notice of default must contain as detailed a description as possible of the shortcoming, so Contractor is able to respond adequately.
- In case of force majeure, which in any case includes disruptions or failures of the Internet, the telecommunication infrastructure, power failures, domestic disturbances, mobilization, war, blockage in transport, strike, exclusion, business disturbances, stagnation in supply, fire, flood import and export restrictions, epidemics, pandemics and in the event that Contractor is not enabled by its own suppliers, irrespective of the reason for this, to deliver, as a result of which fulfillment of the agreement can not reasonably be required from Contractor, the execution of the agreement will be suspended, or the agreement will be terminated when the force majeure situation has lasted longer than ninety days, all without any obligation to pay compensation.
Article 9 Duration and cancellation
- The agreement is entered into for the period required for delivery of the Services.
- If the agreement is subject to an automatic annual renewal (such as, but not limited to, Cloud services, software licenses and subscriptions), a standard notice period of 45 days applies before the end of the period. This can be deviated from for specific services.
- The agreement can only be canceled prematurely as stipulated in these general conditions, or with the consent of both parties.
- After termination, termination or dissolution for whatever reason, Contractor is entitled to delete all data stored for the benefit of the Client immediately after the date on which the agreement expires. Contractor is not obliged in that case to provide the Client with a copy of these data.
- The agreement automatically ends if a party is declared bankrupt, applies for a moratorium or applies a total attachment to assets, dies, goes into liquidation or is dissolved.
Article 10 Changes to agreement
- After acceptance, the agreement may only be changed by mutual consent.
- If the agreement is a continuing performance agreement, however, Contractor is entitled once per calendar year to unilaterally amend or extend these general terms and conditions. To this end, it must notify the Client of this at least 60 days before the adjustments or expansions take effect. Changes to the terms and conditions can never set aside a specific agreement.
- If the Client objects within this period, Contractor will consider whether it wishes to withdraw the objectionable modifications or extensions or not. Contractor will notify the Client of this decision. If Contractor does not wish to withdraw objectionable modifications or extensions, the Client has the right to cancel the agreement as of the date that this will be affected.
- Contractor may make changes to these terms and conditions at any time if these are necessary due to changed legal regulations. Client can not object to such changes.
- The above arrangement also applies to prices.
Article 11 Final provisions
- Dutch law applies to this agreement. Insofar as the rules of mandatory law do not prescribe otherwise, all disputes that may arise as a result of this agreement shall be submitted to the competent Dutch court for the district in which Contractor is located.
- If any provision of this agreement proves to be invalid, this will not affect the validity of the entire agreement. The parties will in that case replace (a) new provision (s), which as far as legally possible to the intention of the original agreement and these general conditions is given shape.
- Under “in writing”, these conditions also include electronic mail (e-mail), provided that the identity of the sender and the integrity of the content are sufficiently established. Parties will endeavor to confirm the receipt and content of communication by electronic mail (e-mail).
- The version of any communication received or stored by Contractor is considered to be authentic, subject to proof to be provided by the Client.
- Each party is only entitled to transfer its rights and obligations under the agreement to a third party with the prior written consent of the other party. By way of derogation, Contractor is always entitled to transfer its rights and obligations under the agreement to a parent, subsidiary or sister company.
Article 12 SecurityScorecard
- The “Master Subscription Agreement” (MSA) is inextricably linked with a license on SecurityScorecard. The MSA can be viewed via the following link: https://securityscorecard.com/msa
- With regard to Article 9.2, a different notice period applies to the SecurityScorecard service. This service is subject to a standard notice period of 100 days. Note, this is 10 days more than the 90 days mentioned in the MSA.