General terms

Version: june 2020

1. Applicability of general terms and conditions, offer and acceptance

1.1 These general terms and conditions are applicable to any and all propositions, agreements and proposals that derive from the same by and between TOOGETHR in Utrecht, registered in the Trade Register of the Chamber of Commerce under number 66724821, and its other parties, the latter hereinafter referred to as: the ‘Client’.

1.2 Provisions or general terms and conditions of the Client are expressly not applicable and are, to the extent that the Client refers to the same, expressly rejected by TOOGETHR. Only terms and conditions of the Client expressly accepted by TOOGETHR in writing are applicable.

1.3 TOOGETHR prepares an offer in which TOOGETHR indicates what activities, hereinafter referred to as: the ‘Services’, TOOGETHR offers to perform for the Client, what is included with the Services and what amount shall be payable for it. Only the description of the Services included in the offer has binding effect.

1.4 In general, the services include the delivery and maintenance of the TOOGETHR software on behalf of the Client, the delivery of software under license, the provision of remote support, and everything related thereto. Other work will only be carried out if this is stated in the quotation.

1.5 An offer is entirely subject to contract and valid until it is revoked by TOOGETHR, unless indicated otherwise in the offer. TOOGETHR can never be held to accept acceptance after the said period, however if TOOGETHR does proceed accordingly, then the offer is yet accepted.

1.6 The agreement is concluded at the moment that the communication comprising acceptance of the offer by the Client is received by TOOGETHR. This communication can be sent by email.

1.7 If the Client does not expressly indicate to agree with the offer, but nonetheless agrees, or creates this impression, that TOOGETHR performs activities that fall within the description of the Services then the offer is deemed to have been accepted. This also applies when the Client requests TOOGETHR to perform certain activities without waiting for a formal offer.

1.8 In case of requests for contract extras TOOGETHR shall issue an appropriate offer or perform the same at the prices then stipulated with the Client, at additional costs.

2. Delivery of the Services

2.1 After the agreement has been concluded the Services shall be performed by TOOGETHR as soon as possible in conformity with the offer, in consideration of reasonable wishes of the Client. Without prejudice to the provisions set forth in article 2.8 of these General Terms and Conditions, TOOGETHR is always authorised to hire third parties for the performance of the Services and to grant sub-licenses to the Client instead of licences. This shall never result in a shortcoming on the part of TOOGETHR and TOOGETHR thus complies correctly with the agreement with the Client.

2.2 The Client is held to do and omit everything that is reasonably appropriate and required to enable a correct and timely performance of the Services. The Client particularly ensures that any and all data of which TOOGETHR indicates that they are required, or of which the Client should reasonably understand that they are required, for the performance of the Services are made available to TOOGETHR in a timely fashion.

2.3 A period for the completion of the contract, or parts of the contract, specified by TOOGETHR is merely of an indicative scope, unless the nature or the content of the agreement expressly indicates otherwise. In case of an overstepping of the specified period the Client must give TOOGETHR written notice of default and grant TOOGETHR a period of at least thirty (30) days to yet comply.

2.4 Unless stipulated otherwise, the performance of tests, the application of permits and exemptions, the implementation of instructions of the Client and the verification whether statutory or quality standards are met do not pertain to the contract or fall under the responsibility of TOOGETHR.

2.5 The Client shall provide TOOGETHR access to any and all locations, services and accounts managed by the same (e.g. web hosting accounts) that TOOGETHR reasonably requires to supply the Services.

2.6 TOOGETHR supplies the Services accurately, properly and in the best way possible. Without prejudice to the provisions set forth in article 2.8 of these General Terms and Conditions, TOOGETHR is always entitled to hire third parties for the performance of the Services. TOOGETHR is and remains the contractual other party responsible and liable vis-à-vis the Client in connection with the concluded agreement, unless the situation as intended in article
2.8 of these General Terms and Conditions occurs.

2.7 TOOGETHR is entitled, but never held, to examine the correctness, completeness or coherence of the source materials, requirements or specifications made available to the same and in case of the observance of potential inaccuracies suspend the stipulated activities up to the moment that the Client has removed the relevant inaccuracies.

2.8 Unless stipulated otherwise, TOOGETHR is not a party to the delivery of services of third parties, e.g. software licences or hosting, that are required with the Services, neither if TOOGETHR purchases the said services for the benefit of the Client. With software licences delivered with the Service it depends on the supplier whether TOOGETHR is the contractual party of the Client or the supplier. TOOGETHR shall inform adequately about this.

2.9 TOOGETHR is entitled not to (temporarily) deliver the Services or in a limited fashion, in other words: to fully or partly suspend its obligations vis-à-vis the Client if the Client does not comply with an obligation pursuant to the agreement vis-à-vis TOOGETHR or acts in violation of these General Terms and Conditions.

3. Provisions about maintenance

3.1 Maintenance is understood as having the Services and/or software operate in conformity with the offer or further arrangements, and more in general the remedy of errors.

3.2 TOOGETHR shall make an effort to perform the maintenance in the best way possible, however often depends on its supplier(s) and third parties for updates, error remedy software ('patches') or spare parts.

3.3 As part of the maintenance TOOGETHR shall make an effort to remedy errors regarding the delivered Services and thereto-pertaining software. In this respect TOOGETHR does, however, depend on supplier(s) and third parties. In case of a new functionality or changes that may essentially change the performance of the software TOOGETHR shall have prior consultations about this with the Client.

3.4 The Client can communicate changes and/or functionalities of the software to TOOGETHR. TOOGETHR is always entitled to refuse a request if, at its discretion, it is not feasible or may hinder a proper operation or availability of the software.

3.5 If, at the discretion of a supplier of TOOGETHR, a requested change may have an adverse effect on the operation or the security of the software then TOOGETHR shall report this to the Client in writing.

4. Provisions about remote support

4.1 If for the use of the services and products of TOOGETHR, service and maintenance has been agreed, this is stated separately in the offer/contract with the client. The following situations shall not be regarded as service and support disruptions:

- Interruptions as a result of changes to the service at the request of the client;

- Interruptions whereby specialists of Toogethr or its suppliers do not get access to the equipment to perform repair work;

- Interruptions as a result of adjustments to or disturbance of external factors (e.g. power failure, network availability, etc.);

5. Installation and configuration

5.1 if a cooperation/integration with a third party and/or software licenses of third parties is/are necessary for the use of the services with Client, Client will purchase these licenses and ensure that all necessary provisions are complied with. The Client indemnifies TOOGETHR against claims of third parties concerning installation and/or licenses, except insofar the claims are the result of information or licenses provided by TOOGETHR.

6. Development of works

6.1 If a Service extends to the development, configuration and/or adjustment of websites, data files, software, documentation, recommendations, reports, analyses, designs, texts, photos, films, audio recordings, images, audio-visual material, logos or corporate identities (hereinafter referred to as: the ‘Works’) then TOOGETHR is, unless stipulated otherwise, entitled to use images, software and components of third parties during the development, configuration or adjustment of Works.

6.2 TOOGETHR is allowed to use open source software of which the rights belong to third parties. This implies, inter alia, that TOOGETHR can deliver open source software to the Client and can process open source software in Works that TOOGETHR develops or adjusts in the context of a Service. If the licence of certain open source software implies that the Client can only distribute (parts of) software as open source then TOOGETHR shall inform the Client sufficiently about any and all applicable licensing conditions.

6.3 After delivery the responsibility for correct compliance with the relevant licences of third parties during the use of the developed Works is vested in the Client.

7. Delivery and acceptance

7.1 After the performance of the implementation activities or parts of it TOOGETHR shall deliver the result when this does, in its professional opinion, comply with the specifications or is suitable for use.

7.2 The Client must then, within a reasonable period after delivery, evaluate the delivered goods and approve or reject the same. If the Client does not reject the delivered goods within the said period then the delivered goods are deemed to have been accepted.

7.3 If an implementation service or work is delivered in phases then the Client must after delivery of every phase issue the approval or rejection of the part of the Service or the work of the said phase in the manner as determined in the previous paragraph. The Client cannot base an approval or rejection in a later phase on aspects that have already been approved in an earlier phase.

7.4 If the Client fully or partly rejects the delivered goods then TOOGETHR shall make an effort to remove the reason of the rejection as soon as possible, if the said rejection is founded. TOOGETHR can do this by revising the result or by indicating in a substantiated manner why the reason is not relevant. The Client then again has a reasonable period to approve or reject the revision or substantiation.

7.5 After acceptance of the delivered goods each and every liability for defects of the delivered goods expires, unless TOOGETHR was familiar or had to be familiar with the defect at the time of acceptance. Each and every liability for defects does in any case expire after a period of one year has lapsed since the termination of the Agreement, for any reason whatsoever.

8. Intellectual property rights

8.1 Any and all intellectual property rights in respect of any and all Services, software or Works developed or delivered by TOOGETHR in the context of the agreement are exclusively vested in TOOGETHR or its licensors. Exclusively of expressly indicated in the offer or expressly stipulated separately can rights be transferred to the Client.

8.2 The Client exclusively acquires the user rights and authorities that derive from the scope of the agreement or that are granted in writing and for the remainder the Client shall not reproduce or disclose materials of the Works or other results of Services. Each and every use, reproduction or disclosure of the materials that falls outside the scope of the agreement or the granted user rights is qualified as an infringement of the copyrights. The Client shall forfeit an immediately claimable penalty that is not susceptible to judicial moderation of € 25,000 (in words: twenty-five thousand euros) per infringing act to TOOGETHR. This does not alter the right of TOOGETHR to claim compensation for its damages resulting from the infringement or to impose other legal measures in order to terminate the infringement. 8.3 The Client is entitled to make changes in the Works in respect of which it acquires a user right, however only if that was expressly included in the agreement.

8.4 The Client is not entitled to a copy of source files of delivered Services, software or Works, unless this was expressly and unambiguously established in writing in the agreement.

8.5 The Client is not allowed to remove or change any indication regarding copyrights, trademarks, trade names or other intellectual property rights from the materials, including indications regarding the confidential nature and confidentiality of the materials.

9. Prices and payment

9.1 The Client purchases the Services or software:

1. Subscription basis, i.e. a fixed amount per period based on the agreed size of the number of users (contracted users), this amount must be paid in advance to an agreed period; and/or

2. Supplemented with any variable recurring costs, i.e. an amount per active user above the number of contracted users and/or supplemented with license fees. This amount must be paid per period afterwards. For this purpose, TOOGETHR uses the following definitions: a)
A user is considered 'active' when it is in the by Toogethr made available website and / or application has gone through the registration process and / or is registered as a user; b)
on each first day of the calendar month ('the reference moment') the number of active users within the community is determined. If the number of active users exceeds the agreed number of contracted users ("the overshoot"), this overshoot will be invoiced in advance for the next month subject to the following fair-use policy: invoicing follows when the overshoot on the reference date is at least 5% compared to the contracted users in the immediately preceding period. If the excess is more than 5%, the total excess including that 5% will be charged;

3. Supplemented with any costs on a project basis, i.e. a fixed amount per project, this amount must be paid in advance; and/or

4. Supplemented by any costs on a management basis for consultancy at a fixed rate. This amount must be paid afterwards.

9.2 During the term consultations shall take place between TOOGETHR and the Client that are related to the specific Contract, barring urgent circumstances.

9.3 TOOGETHR shall send a digital invoice to the Client for the amounts payable by the Client.

9.4 Unless stipulated otherwise in the agreement, the payment term of digital invoices of TOOGETHR is one month after the date of the invoice. If the Client does not pay in a timely fashion then the Client shall, after the expiry of the said term, be in default by operation of law without any notice of default being required for this. If a payable amount is not paid within the payment term then the statutory (commercial) interest shall be payable in the outstanding amount of the invoice.

9.5 If the Client is of the opinion that (a part of) a digital invoice is incorrect then the Client must report this to TOOGETHR within the payment term. The payment obligation of the disputed (but not the remaining) amount is suspended until TOOGETHR has examined the notification. If it becomes apparent after examination by TOOGETHR that the dispute was wrong then the Client must yet pay the disputed amount within seven days.

9.6 In case of late payment the Client is, apart from the payable amount and the interest accrued on the same, held to fully reimburse both the extrajudicial and the judicial (collection) costs, including the fees for lawyers, bailiffs and collection agencies. Moreover, TOOGETHR is, as the occasion arises, entitled to charge administration costs at € 50.

9.7 The claim for payment immediately falls due if the Client is declared insolvent, applies for suspension of payment or a general attachment is imposed on asset components of the Client, the Client passes away, enters into liquidation or is dissolved.

10. Confidentiality

10.1 The parties shall handle information that they provide to each other before, during or after the implementation of the agreement confidentially if the said information is marked as confidential or if the receiving party understands or should understand that the information was meant to be confidential. The parties also impose this obligation on their employees as also on the third parties hired by them for the implementation of the agreement.

10.2 TOOGETHR shall make an effort to avoid that it takes note of data that the Client stores and/or distributes via the hardware or software to which the Services are related, unless this is required for a proper implementation of the agreement or if TOOGETHR is held to do so pursuant to a statutory provision or a judicial order. As the occasion arises, TOOGETHR shall make an effort to limit knowledge of the data as much as possible, to the extent that this is within its control.

10.3 TOOGETHR can use the knowledge that it gained during the implementation of the agreement for other contracts, to the extent that in this respect information of the Client is not made available to third parties in violation of the confidentiality obligations.

10.4 The obligations pursuant to this article also remain in full force and effect after termination of the agreement, for any reason whatsoever, and the latter as long as the party that supplies the information can reasonably claim the confidential nature of the information.

11. Liability

11.1 TOOGETHR shall only be liable vis-à-vis the Client in case of an attributable failure to comply with the agreement and exclusively for alternative compensation, i.e. compensation for the value of the omitted performance.

11.2 Each and every liability of TOOGETHR for any form of damages is excluded, including, but not limited to, additional compensation in any form whatsoever, compensation for indirect damages or consequential damages, damages due to lost turnover or profit, damages due to a loss of data as well as damages due to an overstepping of periods as a result of changed circumstances. 11.3 The liability of TOOGETHR on account of an attributable failure to comply with the agreement only arises if the Client gives TOOGETHR direct and proper written notice of default, in the course of which a reasonable period is imposed to remedy the failure, and TOOGETHR also continues failing to comply with its obligations after the said period. The notice of default must contain a description of the failure that is as detailed as possible in order that TOOGETHR is able to react to it adequately.

11.4 In case of force majeure, including in any case disruptions or failures of the internet, the telecommunications infrastructure, power failures, domestic disturbances, mobilisation, war, traffic difficulties, industrial action, lock-out, business disruptions, stagnation in the supply, fire, flooding, import and export restrictions and in the event that TOOGETHR is, due to its own suppliers, regardless of the relevant reason, not able to deliver as a result of which compliance with the agreement can reasonably not be required of TOOGETHR, the implementation of the agreement shall be suspended or the agreement shall be terminated if the situation of force majeure has continued for more than ninety days, all without any obligation to pay compensation.

12. Term and termination

12.1 The agreement is concluded for an open term, unless expressly stipulated otherwise between the parties in the agreement.

12.2 Termination takes place as included in the agreement / signed proposal. Termination takes place effective from the end of the calendar month in which termination takes place. There is question of a continuing performance agreement if a term at the start of the said continuing performance agreement of more than one year was stipulated.

12.3 After notice, termination or rescission, for any reason whatsoever, TOOGETHR shall be entitled to, immediately after the date that the agreement expires, delete any and all data retained for the benefit of the Client, unless statutory provisions impose otherwise on TOOGETHR. TOOGETHR is, as the occasion arises, not held to provide the Client with a copy of the said data free of charge.

12.4 The agreement comes to an end automatically if a party is declared insolvent, applies for suspension of payment or a general attachment is imposed on its assets, passes away or is dissolved.

13. Changes in the agreement

13.1 Changes in the agreement concluded by and between the Parties is only possible and legally valid if the said changes are expressly stipulated in writing.

13.2 If the agreement is a continuing performance agreement then TOOGETHR is, however, entitled to adjust or expand these general terms and conditions once every calendar year. To this end it must inform the Client at least two months before the adjustments or expansions shall take effect. Changes in the general terms and conditions do not affect the specific arrangements between the Parties and neither affect the essence of the performances to be delivered by TOOGETHR.

13.3 If the Client objects within the period of two months, as intended in article 13.2 of these general terms and conditions, then TOOGETHR shall consider whether it wants to revoke the objectionable adjustments or expansions or not. TOOGETHR shall communicate the said decision to the Client. If TOOGETHR does not want to revoke the adjustments or expansions that are objectionable to the Client then the Client is entitled to terminate the agreement effective from the start date of the changed general terms and conditions, unless the change is of such minor importance that it does not justify this kind of termination of the agreement.

13.4 TOOGETHR can implement changes in these general terms and conditions at any time if they are necessary due to amended statutory provisions. These kinds of changes do not entitle the Client to terminate or otherwise rescind the agreement.

13.5 The provisions set forth in this article – Changes in the agreement – are equally applicable to the change of prices, unless they were stipulated contractually between the Parties prior to the change.

14. Final provisions

14.1 Dutch law is applicable to this agreement. To the extent that mandatory statutory rules do not prescribe otherwise, any and all disputes that may arise further to this agreement are brought to the cognisance of the competent Dutch court for the district where TOOGETHR holds its corporate seat.

14.2 If a provision of this agreement appears to be invalid then this shall not affect the validity of the entire agreement. As the occasion arises the Parties shall establish a new provision (new provisions) by way of replacement, which best approaches the intention of the original agreement and these general terms and conditions.

14.3 For the purpose of these terms and conditions ‘in writing’ is also understood as email and communication by facsimile, provided that the identity of the sender and the correctness and completeness of the content of the communication is sufficiently proven. The Parties shall make an effort to confirm the receipt and content of communication by email.

14.4 The written communication received from or on behalf of the Client or retained by TOOGETHR qualifies as authentic, barring evidence to the contrary to be furnished by the Client.

14.5 A Party is only entitled to transfer its rights and obligations pursuant to the agreement to a third party with prior written consent of the other Party. In derogation from the foregoing, TOOGETHR shall always be authorised to transfer its rights and obligations from the agreement to a parent company, subsidiary or sister company.

15. Downloads

This version consists of 8 pages and is available on the website of TOOGETHR under General Terms and Conditions version june 2020.