General terms and conditions
Aurum Europe BV
2019
By purchasing or accepting Services and/or Products from Aurum, you enter into an agreement with us. These General Terms and Conditions apply to this agreement.
GENERAL PROVISIONS
1) Who ar we and what is this document for?
a) We are Aurum Europe B.V. or one or more of its group companies.
b) In these General Terms and Conditions, we agree on the basic rules that apply to the relationship between you and your affiliated companies and us, for all products and services we provide to you. These rules also apply to our offers and proposals. These offers and proposals are non-binding unless we have agreed otherwise with you. Your own general terms and conditions do not apply.
c) We provide our services and deliver our products only based on an order that you have given us. This can only occur by our acceptance of a signed order or by making verbal agreements. It may be that we have made arrangements in the order that deviate from these basic rules. In that case, the arrangements in the order take precedence.
d) From time to time, we may make minor changes. We will inform you in advance about major changes. If there are changes that you do not accept, you may terminate the order. We make clear agreements regarding price changes later in these General Terms and Conditions.
2) What do we do for you and how?
What do we do?
a) We deliver the products and/or services as described in the order. Of course, we strive to provide the services with care and take into account your wishes and needs. As a standard, we make reasonable efforts to achieve the agreed results. If we guarantee a specific result, we will explicitly describe this in the order.
b) The orders automatically end once the agreed products and services have been delivered. If a term is agreed upon in the order for providing the services, that term will automatically be extended by periods of one year, unless other agreements are made in the order, or you or we terminate the order at least two months before the end of the term.
c) In principle, we follow our own procedures and are not obligated to follow your instructions. If we do follow your instructions or requests, we may charge you for the extra time it takes according to our standard rates.
d) If we agree with you that the services will be performed by a specific person, we will do our utmost to make this person available. If this is not possible, we will inform you and may replace this person with someone of similar qualifications at no additional cost.
How do planning and deadlines work?
e) We strive to adhere to the agreed schedule and deadlines. If it becomes clear that the schedule cannot be met, we will inform you and propose a new schedule. In such a case, you will always grant us a reasonable time to minimize the delay.
f) It may happen that we perform work in phases. We may postpone the work of the next phase until you have approved and/or paid for the results of the previous phase.
What usage rights are granted?
g) All intellectual property rights on the products and services we deliver are owned by us or our suppliers and licensors.
h) We may agree (only explicitly and in writing) with you that you will receive the intellectual property rights for specifically developed products. We always retain the (intellectual property) right to continue using components or materials that form the basis of these specific products for ourselves or third parties. This does not limit us from developing and exploiting a similar product unless other agreements are made in the order.
i) In any case, you will receive the right from us to use the products we deliver for the purposes described in the order during the term of the order or the time specified in the order. This right is exclusive to you and cannot be transferred, passed on, or pledged.
How is security arranged?
j) We secure your information according to the specifications agreed upon with you. If no specifications have been determined, our security will meet a level that is reasonably appropriate, considering the state of the art, the sensitivity of the data, and the associated costs.
k) We strive for good security but cannot promise that security will be effective under all circumstances.
l) You provide passwords, codes, and certificates only to authorized personnel within your organization and treat them confidentially. We may change codes and certificates.
m) To the extent that this does not fall within the service provided by us to you, you must secure your systems and infrastructure appropriately and always use up-to-date antivirus and other security software.
3) What do we expect from you?
a) For the work to succeed, good cooperation is necessary. If we make a reasonable request for your help, you will provide us with all the necessary assistance. You will also ensure the necessary facilities for our employees working on your premises and ensure that these facilities meet legal requirements. You will not charge for these facilities.
n) We rely on information from you to perform our services. If we ask for it, you will provide us with all relevant information. However, even if we do not specifically ask for it, good cooperation requires that you provide us with all the information that you might reasonably suspect is relevant to us. You understand that we rely on your information, statements, designs, specifications, and other declarations being complete and accurate.
b) If you provide us with software, equipment, or other resources, you must ensure that all necessary licenses or approvals are in place for us to perform our work.
c) You are also responsible for the use by and instruction to users. This means that you ensure your staff is well-trained before using the products and services we provide. If desired, we can provide that training for you.
d) You may want our staff working on your premises to comply with your house and security rules. We will instruct our staff to observe those rules, provided you clearly communicate those rules to us and our staff in advance.
4) What do we both need to do?
How does communication work during our collaboration?
a) To make communication as smooth as possible, you appoint a contact person for each order who will be the direct point of contact. This contact person should have the necessary experience, material knowledge, and insight into your objectives.
b) We will regularly update your contact person on the progress of the work.
c) If we want to release information about our collaboration publicly, we will first coordinate this with you.
How is confidential information handled?
d) Confidential information includes data that the recipient knows or reasonably should know to be confidential. This may include information or systems that may contain trade secrets from us or our suppliers and producers. Information indicated as confidential also falls under this category.
e) Confidential information may only be used for the purpose for which it was received. The recipient must ensure that confidential information remains secret. This prevents it from reaching third parties or being misused.
f) We may share confidential information with third parties if required by a court ruling or legal provision. We may also share confidential information with third parties if it is necessary for the proper execution of the agreement.
Can personnel transfer?
g) Yes, that can happen. Personnel working for you or us may want to move to the other party.
h) Conditions apply to the transfer of personnel during the order or one year after its end. In the case of personnel transfer, written permission must be obtained from the party where the personnel was employed. Permission is also required if personnel are indirectly engaged (via third parties). Conditions may be attached to the permission. However, different conditions apply to the hiring of personnel, which are explained later (see Chapter 9).
5) How are finances manged?
What do we charge you?
a) For our services, you owe us a fee. If no specific prices are agreed upon in the order, we apply our standard rates. Upon request, we will gladly send you the latest version of those rates.
b) For usage rights and licenses, you must pay for the relevant units, such as the number of users, servers, or virtual machines. You are responsible for ensuring you have paid for sufficient licenses and usage rights.
c) Taxes, levies, and similar charges that may arise from our relationship must be reimbursed to us and are not included in the price (the same applies to VAT).
d) Pre-calculations, estimates, or proposed budgets are merely estimates. You cannot derive any rights from them unless we have expressly agreed in writing.
e) If we provide you with more services or products than initially agreed upon, for example, because you requested or authorized it, the standard rate will be charged unless specific agreements are made.
How can we change rates?
f) We will always inform you of a price change as much in advance as reasonably possible.
g) For our services, we may change the price if we notify you at least three months in advance unless we have expressly agreed with you that the price will not be adjusted during a specific period. If you disagree with a price change for our services, you may terminate the order on the day the new prices take effect. In such a case, a notice period of 30 days applies. If you terminate the order, you must reimburse the costs and investments we have made concerning your order.
h) If you purchase software or services from another supplier through us and pay for them, we may immediately change the price to pass on a price change from that other supplier. The termination option described above does not apply in this case.
i) We may adjust the price annually based on the CBS index figure for business services. You cannot terminate the order in this case.
When do you have to pay?
j) You pay our invoices within 14 days of the date stated on the invoice.
What happens if you don’t pay?
k) We will send you a reminder for your outstanding payment and give you a final deadline to make the payment. If you still have not paid, we may suspend our obligations to you. In that case, we may also choose to terminate the order.
l) If you do not pay, we may hand over the collection to a third party. In that case, you must also reimburse the (extrajudicial) collection costs and costs for experts.
6) What guarantees do you have with Aurum?
What guarantees do we give you?
a) We offer you a warranty for the products or services of third parties that we deliver, as provided by the manufacturer.
b) Concerning the services we provide, we guarantee that:
- i) we will exercise our obligations carefully,
- ii) we will employ sufficiently qualified personnel, and
- iii) we will strive to achieve the agreed results.
c) We cannot guarantee that our products can be used with other systems not provided by us.
d) Errors covered by the warranty will be corrected at no cost to you. We will inform you where and when this correction will take place. If necessary, we may use temporary solutions, (program) workarounds, or problem-avoiding limitations. If parts that are your property need to be replaced, the new parts will become your property, and the old parts will become our property.
e) The warranty may also be voided. The warranty is void if you or someone you engaged:
- i) uses our products or services in an unprofessional manner;
- ii) has made changes or performed other work (unless these changes and work have been coordinated with us); or
- iii) has used the product or service in a way that is not specified in the documentation.
What indemnifications do you offer us, and what do we offer you?
f) We indemnify you against all third-party claims based on the assertion that our products or services infringe on third-party intellectual property rights. This applies only if you notify us as soon as possible about the claim, leave its handling entirely to us, and assist us by providing the necessary authorizations and information.
g) We do not indemnify you if the infringement is related to:
- i) materials you provided to us or changes;
- ii) changes you or a third party made for you without our written permission; or
- iii) how you use our products or services, not in accordance with the documentation.
h) You indemnify us against:
- i) third-party claims based on the assertion that our use of facilities, materials, or products you provided to us infringes on a third party’s rights;
- ii) third-party claims for damage caused by your actions or omissions or unsafe situations in your organization;
- iii) third-party claims based on a violation of laws and regulations concerning the processing of personal data. You do not have to indemnify us if you prove that the damage is solely attributable to us.
i) An indemnification means not only that the other party must act on behalf of the other in legal proceedings but also that the other party must be compensated for damages.
When does ownership transfer to you? And when does the risk transfer?
j) Ownership of (delivered) items is transferred at the moment you have paid the full amount you owe us.
k) If you are a reseller, you may pass on and sell items with a retention of title, provided it falls within the normal course of your business.
l) We may retain developed or received software or other products and data until you have paid the full amount agreed upon, even if we would deliver them to you under the order.
m) You bear the risk for products and services from the moment we deliver them to you.
How do we handle personal data?
n) In the course of our services, it may happen that we process personal data concerning your personnel or customers. If this is the case, we do so as your processor. You are the data controller for processing that personal data.
o) We do our utmost to keep your personal data secure and, therefore, at least ensure appropriate technical and organizational measures. These are the measures described in the order. If nothing is agreed upon in the order, we apply our standard measures. If you want to know what measures we take and how we protect your data, we will be happy to inform you.
p) You must ensure that you and your employees comply with all obligations under the law (the Personal Data Protection Act and – from May 25, 2018 – the General Data Protection Regulation) and other relevant regulations. If we have questions about this, you will send us the information we need. We will assist you with these obligations, as far as it is technically possible. If we incur costs for this, they will be charged according to standard rates.
q) If it is clear that we are processing personal data for you, we do so based on a separate data processing agreement.
Can you transfer your rights and obligations?
r) Yes, you may transfer, sell, or pledge your rights and obligations if you have obtained our permission. We will only refuse permission if we have good reasons and may attach conditions to our consent.
7) What if something goes wrong?
What if (you believe that) we do not meet our obligations?
a) If you believe that we are not meeting our obligations, you will notify us as soon as possible. You will provide us with as much detail as possible. You will then always grant us a reasonable time to fulfill our obligations. If a deficiency falls within our responsibility and we have not remedied it within the correction period, we will be liable for the damage directly resulting from the deficiency.
b) If it becomes permanently impossible for us to fulfill our obligations, you can hold us liable for the damage directly resulting from it.
What damages do we compensate?
c) If we are liable, we will compensate your direct damage. This includes only:
- i) damage to your software, equipment, and other items, including damage and non-functioning;
- ii) the reasonable costs you had to incur because it was necessary to keep old systems and facilities operational for longer. However, any savings resulting from the delay must be deducted from these costs;
- iii) the reasonable costs you incurred, after our approval, to determine the cause and extent of the direct damage.
d) We compensate your damage up to a maximum amount you have paid us for the order. If an order runs for more than one year, we will compensate your damage up to a maximum amount equal to the agreed fee for our products and services for one year. In both cases, a maximum of €500,000 applies.
e) We are not liable for damages other than direct damages unless the damage is caused by intent or reckless conduct by an Aurum executive.
f) We compensate your damage for bodily injury up to a maximum of €1,250,000.
g) We are not liable for damage caused by (network) failures beyond our control.
How is insurance against damage arranged?
h) Our insurance provides coverage up to €5,000,000 per event for which we are liable, with a maximum of €10,000,000 per year. Upon request, we will send you a certificate of our insurance. Of course, we will not change this insurance to your disadvantage without prior consultation.
Is postponing or offsetting payments allowed?
i) If something goes wrong, we will try to find a solution together. Postponing your payments or offsetting your payment with amounts we owe you is not allowed.
How can the relationship or an order be terminated?
j) An order that is agreed upon for a specific period cannot be terminated early. An order agreed upon for an indefinite period can be terminated. In that case, a notice period of two months applies.
k) An order can be dissolved if the legal conditions are met. Dissolution applies only to the future. All fees for our services up to the day of termination must be paid.
l) If you are declared bankrupt or granted suspension of payments, we may immediately terminate or suspend ongoing orders, and you may no longer use the software, websites, and services will end. This occurs automatically; we do not need to warn you.
How do we resolve disputes?
m) We want you to be satisfied with our products and services. However, things can sometimes go differently. If you are not satisfied, you will let us know your complaint. We will then look together to see if we can offer you an appropriate solution.
n) If we cannot find a solution together, disputes can be submitted to the court. Disputes between you and us can only be submitted to the competent court in Utrecht. This applies if you initiate legal action, but also if we do.
o) The court will apply only Dutch law to our dispute, without the rules of conflict of laws. We exclude the provisions of the Vienna Sales Convention.