GENERAL CONDITIONS OF AVIGJI B.V.
General conditions for offering, sale, use and delivery of (software) products of Avigji B.V., with statutory seat in Zuidland, municipality of Nissewaard, listed in the trade register of the Chamber of Commerce under number 62402765 (in the following referred to as: ‘Avigji’’).
Version October 2018
1. Applicability and Language
1.1. These general conditions are applicable to all offers, orders and/or agreements between Avigji on the one hand and clients, business partners and/or development partners (in the following jointly referred to as: the ‘’purchaser’’) on the other with regard to the sale, delivery and/or the provision of the non-exclusive right/license for the use of the (software) products of Avigji, if and to the extent it has not been emphatically established otherwise by parties in writing. The general (purchase) conditions of the purchaser are not applicable, and do not bind Avigji, unless Avigji accepts the relevant conditions of the purchaser emphatically in writing.
1.2 A Purchaser who has once contracted with Avigji under the present conditions is considered to have tacitly agreed with the applicability of these conditions to offers and/or orders with a repetitive character and to agreements concluded with Avigji later on.
1.3 Avigji has the right to unilaterally modify the underlying conditions. Such modifications are announced by Avigji as much as possible two (2) months before their entry into effect to the purchaser. It is permitted to the purchaser to terminate an agreement concluded with Avigji within two (2) weeks after the modifications in the underlying conditions have been announced to Avigji, if and to the extent the modifications are substantial and/or unreasonably onerous for the purchaser. In such case, the agreement ends at the time that the modifications become effective. Avigji is never held in such case to pay any compensation and/or refund of (license) charges already settled by the purchaser. If the purchaser does not object within the set term in writing in a substantiated manner against the announced modifications, the purchaser is considered to agree with these modifications.
2. Adoption, duration, and termination of agreements
2.1 Avigji enters into agreements (whereby is intended by written, digital as well) by:
a. The making of a written offer (quotation) by Avigji to the purchaser, which offer (quotation) is accepted by the purchaser in writing within the term set for it in the quotation, whereby it applies that Avigji has the right to revoke this offer in writing within two (2) business days after receipt of the acceptance;
b. The written acceptance by Avigji of an order and/or of an order form intended for this originating from the purchaser, whereby Avigji reserves itself the right at all times to reject such an order and/or order form within fifteen (15) days after receipt, without specifying grounds;
c. The conclusion of a (framework) agreement between Avigji and the purchaser.
2.2 The agreements are concluded for the period indicated in the agreement and the agreements are tacitly extended every time after expiry of the initial effective time, under the same conditions and provisions, by a period of one (1) year. The concluded agreements can be terminated in writing in this manner, as described in the relevant agreement, as follows:
a. By both parties against the end of the effective time of the agreement, as mentioned in the agreement, with due regard for a notice period of 2 months;
b. Avigji and/or the purchaser furthermore have the right to terminate a concluded agreement with immediate effect, without requiring judicial intervention, if:
I. The counterparty, also after having been offered a reasonable term in a written default notice, still does not comply with one or more of the contractual obligations;
II. Suspension of payments (whether or not provisional) is granted to the counterparty;
III. The counterparty is declared in state of bankruptcy;
IV. The counterparty submits an application for a debt restructuring arrangement;
V. The purchaser ceases his business operations entirely or partially or liquidates them otherwise and/or in the event he thoroughly alters or transfers to a third party his business activity without the prior consent of Avigji;
VI. The control over or within the purchaser is (directly or indirectly) altered.
2.3 Upon termination of the agreement, the purchaser must
a. Settle all fees which are (still) due within thirty (30) days after the ending of the agreement with Avigji; and
b. Return all delivered user rights (licenses), (software) products and/or associated documentation within thirty (30) days to Avigji free of charges.
2.4 If and to the extent it is not emphatically established otherwise by parties in writing, in the event of the termination of a concluded agreement parties have no right to any compensation, unless the claim for compensation is based on the failure of one of the parties to comply with its obligations pursuant to the agreement, as intended in art. 2.2c under (i) of these conditions.
3. Implementation agreement
3.1 Avigji will implement the agreement to the best of its insights and abilities, and in accordance with the requirements of good workmanship and based on such knowledge and expertise as are available to Avigji at that time.
3.2 All (delivery) terms are established by Avigji according to its best understanding and they are observed as much as possible. As soon as Avigji is aware of a circumstance which may prevent the timely delivery of the user rights (licenses) and/or (software) products, he enters into consultations with the purchaser. The purchaser under no circumstance is entitled to compensation for damages, of whatever nature, in connection with a late delivery. If possible, Avigji has the right at all times to make partial deliveries.
3.3 If and to the extent a proper implementation of the agreement requires such, Avigji has the right to let carry out certain activities (especially: the servicing and maintenance activities) by (a) third party(-ies), under the conditions as established in the agreement.
3.4 The purchaser will always provide Avigji timely with all data and/or information required and useful for the proper implementation of the agreement and fully collaborate to that effect. Avigji is not liable for damage, of whatever nature, resulting from Avigji relying for the implementation of the agreement on incorrect and/or incomplete information provided by the purchaser, unless this incorrectness or incompleteness should have been known to them.
4. Costs and payment
4.1 All prices are exclusive of sales tax (VAT), unless indicated otherwise.
4.2 The prices, (license) charges and/or fees for the use of the (software) products of Avigji, are monthly paid by the purchaser through direct debit to Avigji.
4.3 If monthly (license) charges have been established in an agreement, Avigji has the right to annually modify these charges, on condition this modification by Avigji is announced at least 30 days in advance to the purchaser.
4.4 If the purchaser does not, does not completely, or does not timely within the established term fulfil his payment obligation, he falls into default without requiring a further written default notice to that effect. The purchaser in such case owes, as from the date on which the payment has become due, an interest of 1.5% per month or a part of a month. All costs which Avigji has incurred both judicially and extrajudicially, including reasonably incurred legal fees, as a result of non-compliance by the purchaser with his obligations under an agreement are borne by the purchaser. The extrajudicial (collection) costs incurred by Avigji are set at, at least, 15% of the principal of the claim.
4.5 Avigji has the right at all times to suspend its obligations pursuant to agreements and/or, in the event it regards the granting of a user right/license to the products of Avigji, to disable this/these license(s) and keep them disabled, if and to the extent Avigji has not received the payments and/or fees owed by the purchaser in full.
4.6 The purchaser pays in a currency which is legal in the Netherlands, without deductions or setting off of debts, without (a right of) suspension on account of a supposed or actual shortcoming of Avigji in complying with its obligations under the agreement, and without the purchaser being allowed to block his payment obligations by attachment under his own control or otherwise.
5. User right and conditions
5.1 Avigji grants the purchaser for the duration of the agreement, and under the conditions of the agreement, a limited, non-exclusive, non-transferable (to third parties) right (license) to the use of the (software) products of Avigji.
5.2 The purchaser does not have the right to transfer the user right (license) or outsource it to a daughter company.
5.3 The user right and/or the delivered (software) products cannot be transferred to third parties without the written consent of Avigji. It is not permitted to the purchaser to sell, let, alienate, or transfer as a security the user right and/or the delivered (software) products. The purchaser will not alter, cede for use to a third party nor use for the benefit of third parties, the user right and/or the (software) products.
5.4 The purchaser commits himself to exclusively use the user right and/or the (software) products for the purpose the user right and/or the (software) products were developed for by Avigji, and the purchaser will apply and/or use the user right and/or the (software) products at all times in accordance with the associated documentation (including, though not limited to, the product specifications).
5.5 The purchaser is responsible for the correct use and the correct application at his organisation of the products, user rights (licenses), devices, and software delivered by Avigji, as well as of the services to be provided by Avigji, and the control and security measures (also including the regular creation of backups of data files) and an adequate system management. Furthermore, the purchaser will timely and correctly (let) install updates and such provided by Avigji to purchase.
5.6 The purchaser may not completely or partially integrate the (software) products of Avigji in, nor combine them with software or electronic data collection of third parties or of the purchaser himself, except in the event the emphatic written consent has been granted for this by Avigji.
5.7 The purchaser may not subject (software) products of Avigji to any form of decompilation, reverse engineering, or any other form of translation or editing of the programming code.
5.8 Avigji has the right to investigate whether the purchaser uses the (software) products of Avigji in a manner which corresponds with the conditions of the agreement with Avigji. The purchaser commits himself to collaborate at all times with such an investigation free of charges, and the purchaser grants Avigji access to all software, documentation, and other materials and to all locations where the goods provided by Avigji are located.
6.Intellectual property rights
6.1 All copyrights, patent rights, trade name rights, brand rights, source codes, and other intellectual and industrial property rights to, as well as all similar rights for the protection of information regarding the (software) products and documentation of Avigji, are and remain the exclusive property of Avigji at all times. None of the provisions included in an offer (quotation), order and/or agreement, including the present general conditions, can be interpreted in such a way that it would lead to a full or partial transfer of those rights to the purchaser, nor is such a transfer intended or can it be interpreted as such.
6.2 It is not permitted to the purchaser to alter, remove, or render unrecognisable an indication of the intellectual property rights on or in the (software) products or documentation. It is not permitted to the purchaser to register any brand, trade name, design, or domain name of Avigji or a similar name to be associated therewith, in any jurisdiction, anywhere in the world.
6.3 Avigji indemnifies the purchaser for any compensation for damages and all costs and expenses to which the purchaser is sentenced pursuant to a legal claim filed by a third party in connection with a violation or presumed violation of validly registered copyrights, patents, brands, trade names, or other third-party intellectual property rights with regard to (software) products provided by Avigji pursuant to an agreement to the purchaser under license, which is the result of the use of this license and/or (software) products by the purchaser in accordance with that agreement, on condition the purchaser informs Avigji, immediately upon such legal claim by a third party becoming known, of the moment when the legal claim is or has been filed, thereby providing all relevant information to Avigji.
7.1 Parties commit themselves both during the effective time of the agreement and after termination of the agreement to observe secrecy with regard to matters of or those related to the company of the other party.
7.2 Parties commit themselves to treat the data and/or information of the other party which have been provided to them in the context of this agreement, both during the effective time of the agreement and after termination of the agreement, as confidential information and not to make them known to a third party, barring after the prior written consent of the other party.
7.3 Parties take all reasonable preventive measures in order to comply with their non-disclosure obligation. None of the provisions included in this article imposes any restriction on the receiving party with regard to data and/or information:
a. Which is generally known or rendered generally accessible, otherwise than through an action or failure to act on the part of the receiving party;
b. Of which the receiving party can prove that this data and/or information was already in its legitimate possession before it was obtained from the involved party;
c. Of which the receiving party can demonstrate that it obtained it from a third party, without any non-disclosure obligation towards the party involved being violated;
d. Which must be disclosed by the receiving party pursuant to the law, a ruling, or a court order or through the decision of another government institution, on condition the receiving party exerts itself to limit the extent of that (compulsory) disclosure and informs the party involved beforehand of such disclosure.
7.4 Upon termination of the agreement, parties must return all (confidential) data and/or information received from the other party (including copies thereof) within thirty (30) days after the ending of the agreement to the other party free of charges.
7.5 Parties guarantee that their collaborators, (collaborators of) natural or legal persons associated directly or indirectly with parties, as well as third parties deployed by parties, will observe the non-disclosure obligations mentioned in this article.
8. Processing of personal data
8.1 If Avigji and the purchaser have concluded an agreement with regard to the granting of the non-exclusive right/license of use of the (software) products of Avigji, it may be that Avigji processes personal data by order of the purchaser. By personal data is intended all information regarding an identified or identifiable natural person.
8.2 To the extent Avigji processes personal data for the purchaser in the context of the implementation of the agreement, Avigji is designated as data processor and purchaser as data controller in the sense of the General Data Protection Regulation (GDPR). These general conditions will in such case also apply as a processor agreement in the sense of article 28 section 3 GDPR.
8.3 Avigji can process the following categories of personal data by order of the purchaser: last name, first name and initials, address/postcode, place of residence/establishment, e-mail address, phone number, payment details, gender, date of birth, nationality, social security number, ID number, ID photo, A1/E101-statement, GVVA (combined permit for residence and work), copy ID, work permit, VCA Basic diploma, and VCA-Vol diploma, as well as similar or related personal data. Avigji can process the above personal data for the following categories of data subjects: (sub-)contractors, clients, freelancers, employees, and staff hired from an agency.
8.4 Parties commit themselves to observe all obligations they are subject to pursuant to privacy legislation. The purchaser has the right to give reasonable instructions in the matter to Avigji.
8.5 Avigji only processes personal data by order of and for the benefit of the purchaser, in accordance with his written instructions and under his responsibility. Avigji will not process the personal data he processes for the purchaser for other purposes than those which have been explicitly established between the purchaser and Avigji.
8.6 Avigji immediately informs the purchaser in case in its opinion an instruction entails a violation of the applicable privacy legislation.
8.7 Avigji grants its collaborators exclusively access to data and/or information of the purchaser to the extent this is necessary for the implementation of the agreement.
8.8 Avigji will only process personal data outside the Netherlands with the prior written consent of the purchaser. If Avigji moves personal data outside the European Economic Area, Avigji will make sure that this takes place in conformity with the applicable privacy legislation.
8.9 Avigji will not provide or make available any personal data to a third party, unless with the prior written consent of purchaser, or pursuant to a legal obligation, in which case Avigji informs the purchaser prior to processing of such legal obligation, unless that legislation prohibits this notification on weighty grounds of public interest.
8.10 Avigji can deploy a third party for the carrying out of certain activities which result from the agreement. The purchaser grants permission in any case for the deployment of the third party Ivaldi. In the event of intended changes to the deployed third parties, Avigji informs the purchaser accordingly in writing. Then, the purchaser has the possibility of filing a written objection against such changes within 7 days.
8.11 Avigji makes sure that the deployed third parties are contractually bound by the same obligations in connection with processing as those by which Avigji is bound on grounds of the agreement concluded with purchaser and these general conditions.
8.12 Avigji provides the purchaser with all information which is required to be able to comply with his legal obligation to monitor compliance with the technical and organisational security measures by Avigji and enables audits, including inspections by the purchaser or a controller authorised by the purchaser and contributes thereto.
8.13 Avigji offers the purchaser all possible support for complying with his obligations with regard to the responding to requests concerning the rights of data subjects, such as the right of data subjects to peruse, remove, modify, or correct personal data. Parties will consult with each other in good faith about the reasonable division of such costs as may be involved.
8.14 Unless established otherwise between parties, in the event of the termination of the agreement with purchaser, Avigji will return all personal data provided to it as soon as possible to purchaser, will destroy all digital copies of personal data, and declare to purchaser it has carried out these actions and will present proof thereof if so requested.
8.15 If in the reasonable opinion of Avigji an independent legal obligation prohibits or restricts the entire or partial return or destruction of personal data by Avigji, it will inform purchaser as soon as possible in writing of the legal obligation and thereby furnish all relevant information which purchaser reasonably requires to determine whether destruction can take place and, if so, under what conditions. In that case, Avigji will continue to take care of the confidentiality of the personal data in conformity with these general conditions and will not process the general conditions except to satisfy its above-intended legal obligation or following the written order of purchaser.
9. Reporting of data leaks
9.1 By data leaks are intended all violations of security which come about by accident or in an illegitimate manner, leading to the loss, alteration, or the unauthorised distribution of or the unauthorised access to personal data.
9.2 Avigji must forthwith inform the purchaser, and in any case no later than 24 hours after the discovery of a (suspected) data leak. This notification contains in any case:
a) Time of the discovery and/or suspicion of the existence of a data leak;
b) The nature of the data leak and the progress on a possible investigation of the data leak;
c) What kind of personal data the data leak is in regard to and to what categories of data subjects;
d) The quantity of personal data involved in the data leak;
e) The actual and potential adverse effects of the data leak for the protection of personal data and for the data subjects;
f) The measures taken or proposed by Avigji to limit and resolve the adverse effects of the data leak.
If and to the extent it is not possible to provide all information simultaneously, the information may be provided in stages, without any unreasonable delays.
9.3 In case of a data leak, Avigji must provide the purchaser upon his request with all information and assistance which is reasonably necessary, to enable the purchaser to determine the cause, extent, and the consequences of the breach as soon as possible. In addition, Avigji takes measures forthwith for the purpose of mitigating possible damage resulting from the data leak. Furthermore, Avigji reasonably collaborates upon request of the purchaser with informing data subjects adequately.
10.1 In conformity with article 32 GDPR, Avigji will take all appropriate technical and organisational measures to secure personal data against loss or any other form of illegitimate processing. These measures guarantee an appropriate level of security at all times, whereby the state of the art, the costs involved in implementation and the execution of the measures are held against the risks and the nature of the personal data which Avigji processes.
10.2 Avigji will test the measures regularly and at least once a year or as often as is necessary and assess whether the measures still guarantee an appropriate level of security.
10.3 Avigji reports at least once a year and in addition upon request of the purchaser, on the security of the personal data. If Avigji modifies the security measures drastically, Avigji will inform the purchaser accordingly.
11. Force majeure
11.1 None of the parties is bound to comply with a contractual obligation, with the exception for payment, deriving from an agreement, and none of the parties is liable towards the other party for a delay on or non-compliance with its obligations resulting from an agreement, if such compliance is prevented by a situation of force majeure. Situations of force majeure are situations which fall outside the sphere of influence of one of the parties after conclusion of an agreement and which could not be foreseen at the moment of conclusion of the agreement, and which are if such a nature that the implementation of the agreement becomes impossible as a result, or at least burdensome to such an extent and/or disproportionately costly, that prompt compliance cannot reasonably be demanded. Situations of force majeure include, but are not limited to, military interventions, government interventions, natural disasters, fire, explosions, and labour conflicts.
11.2 If a situation of force majeure leads to a delay or the non-compliance by a party which persists for three (3) months or longer without interruption, the other party is authorised to rescind the agreement with immediate effect for that part of the obligation which has not yet been fulfilled. In such case, parties have no right to compensation of the damage, of whatever nature, incurred or to be incurred as a result of rescission. The purchaser does have the right in such case to the refund of the part of the license charges paid in advance which regard the period in which as a result of a situation of force majeure no use was possible of the licenses in case.
12.1 Barring what is emphatically stipulated in the agreement and/or in these general conditions, Avigji grants no other guarantees, promises, or conditions with regard to the delivered user rights (licenses) and/or (software) products and Avigji hereby rejects all other guarantees, pledges, or conditions, whether explicit, implicit, or pursuant to the law with regard to these user rights (licenses) and/or (software) products.
12.2 Avigji guarantees that the user rights (licenses) and/or (software) products at the moment of delivery are compliant with the specifications which are indicated in the associated documentation. The only and exclusive remedy for a breach of this guarantee is the replacement of the defective license(s) and/or (software) product(s) by a license and/or (software) product which does comply with the specifications in case. The purchaser must communicate such a warranty claim within two (2) weeks after receipt of the defective license and/or (software) product to Avigji in writing. Avigji will respond to such a claim within five (5) business days and will take care of replacement within eight (8) business days after receipt of the warranty claim. Though the greatest care has been dedicated to the development of the user rights (licenses) and/or (software) products, Avigji does not guarantee that the user rights (licenses) and/or (software) products will function without any interruption, errors, or otherwise undisturbed during the effective time of the agreement.
12.3 No warranty is granted for defects, and Avigji as such is not liable for resulting damage of whatever kind which:
- Cannot be reproduced;
- Does not constitute a deviation from the specifications intended in article 9.2;
- Is caused by the inexpert use of the user right (license) and/or the (software) products and/or by use which does not correspond with the purpose the user right (license) and/or (software) products were developed and/or by use which is not in accordance with the documentation provided by Avigji;
- Is caused by non-compliance with instructions for installation, implementation and/or use of the user right (license) and/or the (software) products provided by or on behalf of Avigji to the purchaser, unless these instructions are incorrect, defective and/or unclear;
- Is caused by the use of the user right (license) and/or the (software) products on or in conjunction with devices and/or software which are not compliant with the (technical) specifications indicated by or on behalf of Avigji to the client (whether or not in the documentation);
- Consists of the maiming or loss of data.
- Is caused by the poor functioning of devices on or in which the user right (license) and/or the (software) products are used;
- Is caused by the poor functioning of mains voltage, telecom- or network facilities.
- Is otherwise caused by matters which cannot be attributed to Avigji.
13.1 Avigji is exclusively liable for damage which the purchaser incurs, and which is the direct and exclusive consequence of a shortcoming attributable to Avigji, such up to a maximum amount of the fee stipulated in the agreement between Avigji and the client for one (1) year, or respectively the average monthly fee for the business partner or development partner.
13.2 Not eligible for compensation, nor is Avigji as such liable for, any form of indirect damage and/or consequential damage, also including, though not limited to, business damage, stagnation damage, missed savings, reduced goodwill, loss of profit, reputational damage and loss of turnover caused by intent and deliberate negligence of collaborators and/or third parties deployed by the purchaser.
13.3 Not eligible for compensation, and Avigji as such is not liable for, any form of damage, indirect damage and/or consequential damage, also including, though not limited to, damage resulting from damage caused by identity fraud and corporate fraud brought about by the violation by the purchaser of Netherlands legislation, including the General Data Protection Regulation.
13.4 For the collection, keeping, provision, and showing of information and documents of a third party through software of Avigji, by the purchaser, the purchaser is obliged to have obtained the written consent of this third party in advance.
Avigji is not liable for any form of damage, indirect damage and/or consequential damage as a result of the absence of this written permission.
14. Applicability law and competent court
14.1 To all offers (quotations), orders and/or agreements between Avigji and the purchaser, including these general conditions, Netherlands legislation is exclusively applicable. The provisions of the Vienna Commercial Treaty are not applicable.
14.2 All disputes resulting from or connected to an offer (quotation), order and/or agreement between Avigji and the purchaser will be exclusively submitted to the competent court of law of Rotterdam.