General

1 GENERAL

1.1 Applicability

Any purchase or other terms and conditions of the Client or of third parties are not applicable and are therefore expressly rejected by Basic Orange, unless they have been expressly accepted in writing by Basic Orange. These terms and conditions apply to all quotations and all deliveries by Basic Orange, the resulting provisions and the related activities, regardless of whether they take place pursuant to written, oral and/or electronic agreements, unless otherwise agreed in writing.

1.1.1 The General Terms and Conditions BASIC ORANGE have been filed with the Amsterdam Chamber of Commerce under number 33272357.
1.1.2 The indications above the sections of these terms and conditions are intended solely to make them easier to read. The content and scope of the article under a particular heading are therefore not limited to that indication.

1.2 Definitions
1.2.1 In the Basic Orange General Terms and Conditions, the following words and terms are capitalised. All of the following words and terms in the singular have the same meaning as in the plural and vice versa.

1.2.2 General Terms and Conditions Third Parties: General Terms and Conditions Third Parties include, but are not limited to, the terms and conditions of delivery applied by third parties, licence conditions,
warranty conditions and other conditions.

1.2.3 Data: The data entered by the Client and/or the data entered by third parties.

1.2.4 Third Party Products: All products and services supplied by Basic Orange, the resulting facilities and the related activities originating from third parties and of which any intellectual property rights, industrial property rights and other rights are in principle not vested in Basic Orange.

1.2.5 Design: A design of 'visual' design, such as but not limited to logos, corporate identity and graphic design. This design can be recorded in both paper and digital form.

1.2.6 Fixed Price: As further defined in Article 7.3.

1.2.7 Errors: As further described in Section 6.6.

1.2.8 Warranty: As further described in clause 6.7.

1.2.9 Hosting: The direct and/or indirect provision (through a third party) of the database and/or application and/or any combination thereof on a server made available by or on behalf of Basic Orange.

1.2.10 Basic Orange: Basic Orange B.V. or a company or partner affiliated with Basic Orange B.V. that enters into a legal relationship with the Client and has declared the General Terms and Conditions of Basic Orange to be applicable.

1.2.11 Basic Orange Products: All products and services delivered by Basic Orange, the resulting provisions and the related activities that do not originate from third parties and of which any intellectual property rights, industrial property rights and other rights are vested in Basic Orange.

1.2.12 Identification data: Log-in name, passwords, addressing data and/or other codes.

1.2.13 Post-calculation: As further described in Article 7.4.

1.2.14 Maintenance: As further described in Article 2.8.

1.2.15 Client: Anyone who requests and orders the delivery of Products.

1.2.16 Products: All Basic Orange Products and/or Third Party Products supplied by Basic Orange, the resulting provisions and the related activities. Hosting and Design is part of Products.

1.2.17 Support: As further described in Section 2.8.

1.2.18 Advance: As further described in Article 7.5.

1.2.19 Working days: Normal Dutch working hours (9.00-17.30) and days (Monday to Friday)  excluding national holidays.

1.3 Agreements

1.3.1 If an offer, contract or other similar legally binding document is sent by Basic Orange to the Client and the Client fails to return this document to Basic Orange signed, the Client accepts the content of this document and the General Terms and Conditions of Basic Orange by paying the fees to Basic Orange.

1.3.2 Termination of an agreement takes place by means of a registered letter received by the other party no later than 30 (thirty) days before the expiry of the term of the agreement.

1.3.3 Each of the parties is entitled to terminate the agreement in whole or in part by means of a registered letter without judicial intervention if the other party fails to comply with its obligations even after a written demand has been given a reasonable period of time.

1.3.4 Basic Orange also has the right to dissolve or cancel the agreement and/or the offers with immediate effect and without judicial intervention by means of an extrajudicial declaration if the Client is a natural person in the event of the death of the Client, if the Client is declared bankrupt, if the Client is granted a moratorium on payments or if the Client's company is liquidated or terminated, other than for the purpose of reconstruction or merger of undertakings. In these cases, any claim of Basic Orange against the Client is immediately and fully due and payable.

1.3.5 After the end of the agreement, for whatever reason, the Client can no longer derive any rights from the agreement, without prejudice to the continued existence of the obligations of the parties that by their nature are intended to continue after the end of the agreement, such as, but not limited to, the obligations regarding property rights, confidentiality and non-compete clause.

1.4 Cooperation/Client's duty to provide information

1.4.1 All assignments will be carried out by Basic Orange on the basis of the data, information, wishes and/or requirements made known to Basic Orange by the Client.

1.4.2 The Client will provide Basic Orange with all cooperation and will always provide all useful and necessary data and/or other information in a timely manner for the proper execution of the agreement. The Client will guarantee the accuracy of this data and/or other information.

1.4.3 If Client does not comply with article 1.4.2, or if Client does not comply with its obligations in any other way, Basic Orange will in any case have the right to terminate or dissolve the agreement or suspend the execution of the agreement and will have the right to charge the costs incurred as a result according to its usual rates.

1.4.4 In the event of interim changes or new facts in the data, information, wishes and/or requirements previously made available, Basic Orange will at all times be entitled, in consultation with the Client, to adjust the agreement to these new circumstances or to dissolve or terminate it.

1.4.5 If the Client makes functional improvements or other changes to the Products (after first having received the required written permission from Basic Orange as further explained in Article 2.2.3), the Client is obliged to communicate these adjustments to Basic Orange in the cases that Basic Orange provides Maintenance, Support or other services with regard to the Products delivered to the Client.

1.4.6 In the event that Basic Orange performs activities on location other than its own, the Client will provide the facilities reasonably required by Basic Orange, such as a workspace and telecommunication facilities, free of charge.

1.5 Confidentiality/non-competition clause

1.5.1 Basic Orange and the Client mutually undertake to maintain the confidentiality of all data and information about each other's organisation, each other's clients, the files and the Products, of which the parties become aware in the course of work on behalf of each other or on behalf of clients of the Client. Data and information may only be used for the execution of the agreement concluded between the parties.

1.5.2 Basic Orange is entitled to place the name and logo of the Client or its clients to which rights to the Products have been granted on the Basic Orange website and/or a reference list and to make them available to third parties for information, unless otherwise agreed in writing.

1.5.3 During and up to 12 (twelve) months after the termination or dissolution of the agreement, the Client and its clients shall not enter into any direct or indirect business, employment or other similar relationships with any employee of Basic Orange, except with the written consent of Basic Orange. The Client must ensure that its clients comply with the aforementioned obligation.

1.5.4 In the event of a violation of the provisions of Article 1.5.3, the Client will owe an immediately payable penalty of Euro 50,000 (fifty thousand) per violation without further notice of default, without prejudice to Basic Orange's right to claim compensation for the entire damage suffered.

1.6 Liability

1.6.1 The total liability of Basic Orange due to attributable shortcoming in the performance of the agreement will, with due observance of articles 1.6.2 and 1.6.3, be limited to compensation for direct damage and then to a maximum of the amount of the price stipulated for that agreement (excluding VAT).

1.6.2 If the agreement also consists of a continuing performance agreement, with a term of more than 1 (one) year and the liability of Basic Orange arises from this continuing performance agreement, the stipulated price will be set on the total of the fees (excluding VAT) actually paid by Client to Basic Orange on the basis of the continuing performance agreement for 1 (one) year (being the year in which the damage occurred).

1.6.3 Basic Orange has insured itself in respect of damage. In any case, Basic Orange is not liable for further damage and will not compensate this further damage that Client should suffer on the basis of the contract concluded with Basic Orange, however and for whatever reason, including possible claims against Client from third parties, then will be covered and paid out by this insurance, unless there is intent or gross negligence.

1.6.4 Basic Orange's total liability for damage caused by death or bodily injury shall in no case exceed Euro 500,000 (five hundred thousand), whereby a series of related events shall be considered as one event.

1.6.5 Direct damage is exclusively understood to mean:

a) The reasonable costs incurred in determining the cause and extent of the damage;
b) The reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have led to the limitation of damage.

1.6.6 Liability of Basic Orange for indirect damage, including consequential damage, loss of profit, missed savings, destruction or loss of files and/or data, damage caused by delay, loss suffered, damage caused by the Client's inadequate provision of information and/or cooperation, damage due to business interruption or claims of third parties against Client, is excluded.

1.6.7 Apart from the case referred to in Articles 1.6.1 and 1.6.4, Basic Orange is not liable for any damages, regardless of the ground on which an action for damages would be based.

1.6.8 Basic Orange's liability only arises if Client immediately and properly gives Basic Orange notice of default in writing, setting a reasonable period to remedy the shortcoming and Basic Orange continues to imputably fail to comply with its obligations even after that period.

1.6.9 The condition for the existence of any right to compensation is always that the Client informs Basic Orange of this in writing by registered letter within 60 (sixty) days after the damage occurs, and takes such measures as possible to limit the damage as much as possible.

1.6.10 The Client indemnifies Basic Orange against all claims by third parties due to
liability as a result of a defect in a product, system or service supplied by the Client to a third party and which product, system or service also consisted of what was supplied by Basic Orange.

1.6.11 Basic Orange does not accept any liability for damage of any nature whatsoever caused by Third Party Products, which Basic Orange has delivered to the Client. If possible, Basic Orange will transfer its rights to claim compensation from the supplier of the Third Party Product in question to the Client.

1.6.12 Basic Orange is not liable for damage of any kind whatsoever resulting from the failure to provide Support, Maintenance and/or Warranty on time.

1.7 Assignment

1.7.1 The agreement concluded between Basic Orange and Client and the rights and obligations arising therefrom cannot be transferred to third parties without the prior written consent of Basic Orange.

1.8 Non-attributable Shortcoming

1.8.1 Neither party is obliged to fulfil any obligation if it is prevented from doing so as a result of a circumstance that is not attributable to it, nor is it responsible for it by virtue of the law, legal act or generally accepted opinions. The aforementioned circumstances also include circumstances beyond Basic Orange's control and Basic Orange's business risks.

1.8.2 If the non-attributable shortcoming is of a temporary nature, Basic Orange may suspend the agreement until the relevant situation no longer occurs, without being obliged to pay any compensation.

1.8.3 Basic Orange reserves the right, in the event of a non-attributable shortcoming, to claim payment of services already performed before the non-attributable shortcoming was known.

1.8.4 If the non-attributable failure of one of the parties continues for more than three months, both parties have the right to dissolve or terminate the agreement separately, without being obliged to pay any compensation regarding the dissolution.

1.9 Nullity

1.9.1 If one or more provisions of the agreement are null and void, have been declared null and void, are voidable or have lost their legal validity in any other way, the other provisions of the agreement will remain in full force.

1.9.2 With regard to provisions that are null and void, have been declared null and void, are voidable or have otherwise lost their legal validity, the parties will consult with each other in order to reach a replacement arrangement, in such a way that the parties will strive to maintain the purport of the agreement in its entirety.

1.10 Applicable law and dispute resolution

1.10.1 Dutch law applies to all agreements concluded by Basic Orange with the Client, unless the parties have agreed otherwise in writing.

1.10.2 Disputes between the parties, which cannot be resolved in consultation, will be submitted to the competent Dutch court in Amsterdam.

2 BASIC ORANGE PRODUCTS AND SERVICES

 

2.1 General

2.1.1 Basic Orange delivers Products that function in the context of technologies that have been explicitly agreed upon or are customary at the time of delivery. This includes, but is not limited to, browsers, operating systems, and protocols. Basic Orange has no obligations to adapt Products to new versions of the technologies. If Basic Orange is forced to make adjustments to changing technologies, it is entitled to charge the rates prevailing at that time.

2.2 Right to use software

2.2.1 Basic Orange grants the Client the non-exclusive right to use the Products, with any agreed accompanying documentation.

2.2.2 The right of use is limited to the exclusive use of the Products for its own use on the processing unit agreed with Basic Orange and the number of users, servers and/or workstations agreed with Basic Orange. In the absence of further arrangements, the right of use is limited to the processing unit on which the Products are first installed and the number of users, servers and/or workstations is limited to 1 (one).

2.2.3 Client is prohibited from copying, duplicating or modifying the Products in any way itself and/or through third parties, without having received the prior written permission of Basic Orange.

2.2.4 The right to use the Products is not transferable to third parties.

2.2.5 The Client is not authorised to make the Products available to third parties under any title whatsoever or in any manner whatsoever.

2.2.6 The right of use will commence after payment has been made by the Client and the other obligations incumbent on the Client have been fulfilled.

2.2.7 The scope of the right to use Third Party Products is determined by the General Terms and Conditions Third Parties as set out in Article 5. Insofar as the foregoing does not deviate from the General Terms and Conditions for Third Parties, the foregoing shall apply mutatis mutandis.

2.3 Controls

2.3.1 Basic Orange is entitled to incorporate technical restrictions and control mechanisms in the Products in order to prevent and/or verify that the actual number of users, servers and/or workstations does not exceed the agreed number of users, servers and/or workstations.

2.3.2 Furthermore, as long as the Client makes use of the Products, Basic Orange is entitled, either by itself or through a third party, to carry out unannounced inspections at the locations where the Products are used. The Client will provide full cooperation and access to this. If the Client refuses cooperation or access to Basic Orange, Basic Orange is entitled to terminate the agreement with immediate effect. In this case, the Client is no longer entitled to the use of the Products and is obliged to return all Products and destroy any copies made within 30 (thirty) days at the first request of Basic Orange.

2.4 Opinions

2.4.1 All Products that can be regarded as advice or have an advisory character, such as but not limited to Maintenance and Support (article 2.5), consultancy, project management, etc., will only be given to the best of our knowledge and ability.

2.4.2 Basic Orange is not responsible and/or liable if the activities resulting from the advice result in a project of the Client not being able to be completed within the fixed budget, the fixed time and any other predetermined conditions.

2.4.3 Basic Orange will give advice on the basis of preconditions indicated by Basic Orange and information obtained from the Client as stated in Article 1.4. If it turns out that not all relevant information has already been obtained and/or if other types of problems and/or insights may arise, such as but not limited to incompatibility problems (products that are incompatible with each other), the advice given can be adapted to this new situation.

2.5 Development and acceptance process

2.5.1 The application and any accessories will be developed on the basis of the functional specifications formulated by the Client, supplemented by the acceptance criteria approved by the Client.

2.5.2. Modification of approved materials, or approved content, or approved designs, or approved functionality, supplied by the Client, will be regarded as additional work, unless explicitly agreed otherwise in the agreement

2.5.3 Acceptance Criteria; During the acceptance procedure, each version of the application will be tested against the specifications as described in the backlog. Each functionality will be reviewed by the Client and qualified as accepted or refused. Responses to a functionality are assessed based on the specifications described in the backlog.

2.5.4 If, according to the Client, a functionality in a (partial) delivery does not meet the specifications described in the backlog (and the functionality in question is qualified as rejected):

• Inform the Client immediately of any necessary corrections or changes.
• The Contractor will then process these corrections or changes in a subsequent (partial) delivery in accordance with the Client's written specifications. The corrected or amended (partial) delivery will then be offered to the Client for acceptance.

2.5.9 Types of bugs :

• Blocker – anomalies, crashes, corrupted data, etc. that (a) prevent the user from using any functionality in the application and (b) for which there is no alternative solution. Blocker bugs can also include errors that cause a lower performance of the application than may be specified in the contract agreement, block access to a functionality or misrepresent data. Blocker bugs prevent the application from being tested adequately.
• Critical – these bugs can refer to incidents (in which the normal running of the program is changed to temporary interruption or a total breakdown) or other bugs that only occur under special circumstances. An alternative solution is available for these bugs. Critical bugs do not affect the testing of the application.
• Major – bugs that mainly affect the performance of the application. These major bugs affect the performance of the application and thus the productivity of the user. Major bugs do not block the functionalities in the application, but they do cause performance problems.
• Minor – mainly 'nuisance' bugs. Think of desired settings that are not applied, a 'read-only' field that is shown as an 'editable' field, etc.
• Trivial – cosmetic bugs such as spelling mistakes or wrong fonts (not being content), on buttons or in fields in the application.

2.5.10 Bug fixing criteria: Blocker, Critical or Major bugs are only investigated when they occur in the pre-agreed browser versions and when they can be reproduced according to a clear scenario.

2.5.11 Bugs that cannot be fixed with certainty:

• A bug that only occurs in a development environment.
• A bug that occurs once.

2.5.12 Bugs should be reported using the following information:

• Date
• Browser version
• Device (desktop, smartphone or tablet)
• If Smartphone or tablet: brand and type and OS version
• Title of the screen that was visible in the application / URL
• Description of the bug
• Step-by-step plan to reproduce bug
• The expected result, including reference to the specifications in the backlog if any.
• Screenshot (if relevant)
• Video (if relevant)
• Log file (if relevant)

2.6. Milestones

2.6.1 The different milestones are explained below. If unexpected and unforeseen (technical) problems cause delays, the Contractor will warn the client at least one week before the date of the milestone. As a result, the Contractor has the right to postpone the milestone (and the subsequent milestones) by a reasonable period.

2.6.2 The acceptance criteria for the various milestones in development and (partial) deliveries:

• Delivery definition phase: an approved final delivery of the deliverables realised in the definition phase (e.g. project plan, web style guide, backlog, wireframes, personas and/or technical document)
• Acceptance version: version of the application that contains all functionalities. Blocker bugs are reviewed and fixed. The structure of the application/website will not be changed, except for the logic and architecture if they do not meet the specifications described in the backlog. All implemented functionalities meet the specifications set in the backlog. Acceptance of the Acceptance version makes the Acceptance version equal to Production version. The specified functionalities in this version are considered an upper limit. Acceptance of the Acceptance Version is considered a 'Feature freeze'. After acceptance of the Acceptance Version, no new functionalities will be implemented for the creation of the Production Version, even if this functionality is specified in the backlog. It is possible to remove functionalities if they can achieve the performance conditions.
• Production version: version of the application/website where the feedback from the bug fixing period has been incorporated and the bugs have been fixed. This live version meets the criteria below:
• All functionalities and specifications described in the backlog have been implemented, unless it has been agreed that functionalities fall outside the scope of the assignment. This is clearly indicated in the backlog for each functionality.
• All Blocker, Major, and Critical bugs have been fixed. Minor and Trivial bugs are considered acceptable. Remaining bugs are considered negligible or a mutual agreement has been reached to eliminate these bugs free of charge during the warranty period or in the next version, if applicable.

2.7 Delivery time

2.7.1 The Contractor will do everything within its power to comply with the communicated delivery times. We must take into account the fact that website development is a dynamic process, in which both the Contractor and the Client bear responsibility for timely and complete communication. Timely and complete communication is necessary for the continuous development of the project.

2.7.2 If the Client does not respond to the Contractor's questions, the lead time of the development will be extended by equal to the number of days that the Contractor waits for a response. If there are dependencies on the client or third parties with regard to the realisation and delivery , the client is responsible for managing these dependencies. If the work stagnates as a result of delays on the part of the Client or these third parties, the Contractor will revise the agreed delivery times. If this delay leads to having to stop work and/or reschedule the work, this cannot always be immediately absorbed by our planning. At that time, the Contractor is entitled to charge the Client for any vacancy.

2.8 Maintenance and Support

2.8.1 Support includes the provision of verbal (telephone) and written (including e-mail) support with regard to the use and operation of the Products.

2.8.2 Maintenance includes the provision of updates, including documentation, of the Products licensed to the Client that constitute a qualitative (Error Correction) or functional improvement of the Product made available. Basic Orange is not obliged to actively keep the Client informed of any updates.

2.8.3 For Maintenance and Support, a Maintenance & Support agreement can be concluded with Basic Orange in which the number of hours to be spent on Support and Maintenance is determined. If no Maintenance & Support agreement has been agreed, the hours that Basic Orange spends on Maintenance and/or Support will be charged on the basis of Post-calculation.

2.9 Customization

2.9.1 All assignments that consist partly or entirely of customisation will be settled on the basis of subsequent calculation, unless otherwise agreed in writing in the quotation.

2.9.2 The Parties shall specify in writing which Basic Orange Product will be developed and how this will be done. Basic Orange will carry out the Basic Orange Product Development with care on the basis of the information to be provided by the Client, in which the Client guarantees the accuracy, completeness and consistency.

2.9.3 Basic Orange is entitled, but not obliged, to investigate the correctness, completeness or consistency of the data or specifications made available to it and, in the event of any inaccuracies, incompleteness or inconsistency, to suspend the agreed work until Client has removed the relevant imperfections.

2.9.4 Intellectual property rights, industrial property rights or other custom-made rights remain at all times vested in Basic Orange, as described in Article 8.1.

2.10 Additional work

2.10.1 If Basic Orange is of the opinion that a project change indicated by the Client is an additional work assignment, Basic Orange will notify the Client of this before proceeding with the execution. At the Client's request, the notification will be followed by a statement of the price and other conditions. The Client will decide on the proposed additional work as soon as possible, but no later than within 3 Working Days.

2.10.2 The Client shall be deemed to have agreed to the performance of additional work and the associated costs if the Client has allowed the performance of the additional work to take place without first indicating in writing that it does not wish to perform additional work or has not indicated otherwise within the period set out in Article 2.10.1.

2.11 Installation and Deployment

2.11.1 Only if agreed in writing, Basic Orange will install and/or implement the Products, or have them installed and/or implemented.

2.11.2 Before installation and/or implementation can be carried out, the Client shall ensure, at its own expense, that all conditions specified by or through Basic Orange are met, in order to achieve a successful installation and/or implementation.

2.11.3 The Client shall ensure and is fully responsible that the required General Terms and Conditions of Third Parties have been obtained in order for the installation to take place lawfully.

2.11.4 If, due to the actions of the Client, the installation and/or implementation could not take place within the agreed time, the Client will make payments as if the installation and/or implementation had taken place, without prejudice to Basic Orange's obligations to install and/or implement at a time to be redetermined.

2.12 Activities

2.12.1 All work, Maintenance, Support or other services, will generally be carried out uninterrupted and on Working Days and under normal working conditions.

2.12.2 For each uninterrupted period in which Basic Orange performs work for less than 3 (three) hours at a location other than Basic Orange, Basic Orange is entitled to charge for a minimum of 3 (three) hours. There is an uninterrupted period if the time in which no work is carried out between one period and the next period in which work is carried out does not exceed 1 (one) hour.

2.12.3 Work performed outside Working Days shall be regarded as overtime. In the event of overtime before or after Working Days, the then applicable rate will be increased by a surcharge of 50%. In the event of overtime during weekends and public holidays, the then applicable rate will be increased by a surcharge of 100%.

2.12.4 Basic Orange is entitled, without the explicit permission of the Client, to engage third parties in the performance of work.

3 DESIGN

 

3.1 Design General
3.1.1 The Design shall be developed on the basis of the specifications established in writing between the parties.

3.1.2 If, in the opinion of the Client, the Design does not comply with the specifications referred to in Article 3.1.1 and the Client wishes to make adjustments to the Design, Basic Orange is entitled to charge the then applicable rates for these adjustments.

3.1.3 Basic Orange is not obliged to make available the source code of the Design or other software and/or other digital products designed by Basic Orange on behalf of the Client, unless otherwise agreed in writing.

3.1.4 Article 2.2 expressly applies to Design.

3.1.5 The non-exclusive right of use ends when Article 1.3.4 is complied with.

 

4 HOSTING

 

4.1 Hosting General

4.1.1 Hosting takes place exclusively at a location approved by Basic Orange and on the equipment approved by Basic Orange.

4.1.2 Basic Orange may, at its own discretion, offer the Client the opportunity to make adjustments, extensions and/or changes to Hosting. If this option is offered to the Client, the Client is responsible and liable for all adjustments, extensions and/or changes and the resulting consequences.

4.1.3 In the context of access to and use of Hosting, Client directly or indirectly has equipment and software at its disposal that complies with the standards and/or requirements established by Basic Orange and the standards and/or requirements communicated directly or indirectly to the Client. The Client must also continue to comply with the conditions set out in this paragraph. If and for as long as equipment and/or software do not comply with this, Basic Orange's obligation to provide Hosting and its use by Basic Orange will be suspended.

4.1.4 The Client shall give Basic Orange the opportunity to check whether the standards and/or requirements referred to in Article 4.1.3 of this article are complied with.

4.1.5 If, after the inspection referred to in Article 4.1.4, Client still fails to comply with the standards and/or requirements referred to in Article 4.1.3, Basic Orange has the right to terminate or dissolve the agreement in whole or in part without prior written notice of default and judicial intervention.

4.1.6 The Client is obliged to follow Basic Orange's instructions regarding Hosting.

4.1.7 Basic Orange is entitled to inspect log files and the like for the purpose of analysing the use of Hosting. The results of such an analysis will not be made available to third parties (third parties do not include the parent company and/or subsidiaries affiliated with Basic Orange). This does not apply to figures and data regarding the use of Hosting that are not directly traceable to the Client's use.

4.1.8 If the Client detects a hosting-related malfunction, this must be reported immediately to Basic Orange. After notification of a malfunction by the Client, Basic Orange will take those measures that lead to or may possibly lead to recovery.

4.1.9 Basic Orange will inform the Client in advance of the intended Maintenance with regard to Hosting, if this Maintenance leads to problems with regard to gaining access to Hosting or the unavailability of Hosting, unless the Maintenance falls within a pre-agreed maintenance window and the Maintenance relates to the updates of Third Party Products.

4.1.10 Other Maintenance will take place during Business Days.

4.2 Basic Orange Hosting Obligations

4.2.1 Basic Orange will strive to the best of its ability and insofar as it can be influenced by Basic Orange to ensure the good availability of Hosting. Guarantees are only given if they have been laid down in writing by Basic Orange in an agreement.

4.2.2 Basic Orange does not guarantee, among other things, that the telephone lines, the Internet and/or other networks offer optimal use and access, when Basic Orange is dependent on third-party telecommunications providers for the use and/or delivery of these connections.

4.2.3 Basic Orange has no obligations with regard to the availability, reliability or other performance requirements with regard to telephone lines, the Internet and/or other networks and the resulting facilities.

4.3 Use of identification data

4.3.1 Basic Orange will only make Identification Data available to the Client for the use of Products. The Client will handle these Identification Data with care. In the event of loss, theft and/or other forms of unlawful use, the Client will notify Basic Orange of this, so that the parties can take appropriate measures.

4.3.2 The Client bears all responsibility, liability and costs caused by the use of Identification Data, used and/or distributed by the Client. Under no circumstances is Basic Orange liable for the misuse and/or unlawful use of Identification Data.

4.3.3 If it can reasonably be suspected that misuse or unlawful use has been made of Client's Identification Data, Basic Orange may give Client instructions that must be carried out.

4.3.4 If the Client has misused Identification Data or has not complied with the instructions as referred to in Article 4.3.3, the Client will be in immediate default.

4.4 Changes In Hosting
4.4.1 Basic Orange is entitled, after written notice with due observance of a reasonable period of time and without any compensation to be owed to the Client, to make additions and/or changes to Hosting with regard to, but not limited to:

(a) access procedures, such as:

- procedures relating to operational rules
- Security requirements.

b) changing a third-party provider/supplier, location, hardware, software and other facilities relevant to the provision of Hosting.

4.4.2 If the changes result in a demonstrable and such a large negative change in the working methods of the Client's company and/or the functionality of Hosting, the Client may, after first having demonstrated the deterioration in writing, request Basic Orange in writing to offer an alternative. If Basic Orange does not offer a reasonable alternative, Client has the right to terminate the use of Hosting, without Basic Orange and/or third party being obliged to pay any compensation in this respect or refund of monies already paid.

4.5 Client's data traffic

4.5.1 Basic Orange has no control over and/or insight into the content of the data traffic to and/or to the Client. Basic Orange merely acts as a conduit. Basic Orange does not provide any guarantees with regard to the content of Data with regard to, among other things, reliability and completeness.

4.5.2 The Client is responsible for the content of data traffic originating from
Client. Where applicable, the Code of Conduct, as set out in Article
4.8, for the Client and its users.

4.5.3 If a third party points out to Basic Orange that the rights of that third party are being infringed by means of Hosting, Basic Orange is entitled, if it is plausible that the relevant actions are acting unlawfully, to discontinue Hosting with immediate effect or to remove the relevant information with immediate effect. Basic Orange will never be liable for damage of any nature whatsoever suffered by Client or third parties as a result of the measures taken by Basic Orange.

4.5.4 Client indemnifies and holds Basic Orange indemnified against any form of claim, complaint or dispute by a third party in connection with (the content of) the data traffic or the information originating from the Client.

4.5.5 Log files can be stored for a maximum period of 6 months as long as the agreement continues. After the end of the agreement, Basic Orange is not obliged to store log files.

4.5.6 Basic Orange will cooperate in the transfer of Data to another application as requested by the Client. Basic Orange never guarantees that the Data present can be transferred to another application during the agreement and/or after the end of the agreement. The Client is fully responsible for the completeness and correctness of the Data from the moment the Data is imported into another application.

4.5.7 All costs associated with the transfer of Data to another application at the Client's request shall be borne in full by the Client.

4.6 Obligations of Client Hosting

4.6.1 If Hosting concerns, among other things, the hosting of a website of the Client and/or for the benefit of the Client, the Client must have a domain name, issued and registered by an authorised institution, in accordance with the General Terms and Conditions for Third Parties used by the institution in question. If the application for domain registration is made by Basic Orange, Basic Orange will only act as an intermediary. Each request is made entirely at the expense and risk, as well as in the name of the Client. Basic Orange cannot guarantee undisturbed use of the domain name. Client indemnifies and holds Basic Orange indemnified against any form of claim, complaint or proceedings in connection with (the use of) the domain name on behalf of or by Client.

4.6.2 If personal data and/or other data/Data are transported by means of Hosting or commercial and/or other activities are carried out through Hosting, Client indemnifies Basic Orange against all liability, costs or damage as a result of claims by third parties in the event that this personal data and/or other data/Data are exported or commercial and/or other activities are carried out in violation of the relevant (privacy) legislation and/or other legislation in this area.

4.7 Personal data

4.7.1 The Client is responsible for the protection of (personal) data that is sent or processed/processed by Basic Orange's equipment and/or software for the benefit of the Client.

4.7.2 The Client indemnifies Basic Orange against all claims due to an invasion of privacy.

4.7.3 The Client is responsible for supplying and making available anonymised test data.

4.7.4 With the exception of what is stated above in this article, Basic Orange is responsible for the protection of personal data of which the use by Basic Orange is necessary for the correct execution of the agreement and it will indemnify Client against liability in the event that Client is sued by a person on the basis of an invasion of privacy as a result of an act or omission of Basic Orange.

4.8 Code of Conduct

4.8.1 Responsible use must be made of Hosting and/or the other facilities offered. It is forbidden to use Hosting and/or the other facilities offered in such a way that:

a) damage may occur in the systems of Basic Orange and/or third parties;
(b) disruptions in use may occur.

4.8.2 It is forbidden to use Hosting and/or other facilities offered for illegal practices and/or in violation of the agreement. This includes, but is not limited to, the following acts and behaviours:

a) infringe the rights of third parties such as, but not limited to, intellectual property rights and privacy rights;
b) failure to comply with applicable legislation and/or other relevant regulations;
(c) spamming (unsolicited distribution of advertising and other communications);
d) the storage/distribution of (child) pornography;
(e) sexual harassment, discrimination and/or other harassment of persons;
(f) to distribute or make available to third parties obscene, offensive and harassing material and/or other material of a similar nature;
(g) threats;
h) storage and distribution of viruses, worms and/or other destructive activities;
i) unauthorised intrusion (hacking) of third-party accounts and/or systems and/or Basic Orange.

4.8.3 Basic Orange reserves the right, at its own discretion, to put the use of the Hosting and/or the other facilities offered out of service, to remove the relevant information and to recover the entire damage from the Client.

 

5 THIRD PARTY PRODUCTS

5.1 Third Party Products

5.1.1 Basic Orange is entitled to supply Third Party Products or to involve Third Party Products in the fulfilment of its obligations arising from the agreement. Basic Orange is not responsible for Third Party Products, unless otherwise agreed in writing.

5.1.2 If Basic Orange supplies Third Party Products to the Client, then in addition to these General Terms and Conditions Basic Orange, the General Terms and Conditions for Third Parties also apply to the agreement.

5.1.3 Basic Orange provides rights to Third Party Products under the conditions as described in the General Terms and Conditions for Third Parties.

5.2 General Terms and Conditions for Third Parties

5.2.1 General Terms and Conditions Third parties who are declared applicable in these General Terms and Conditions Basic Orange will, if available from Basic Orange, only be sent to you on request. The General Terms and Conditions for Third Parties will be made available in the same format and language as received by Basic Orange.

5.2.2 The Basic Orange General Terms and Conditions take precedence over the Third Party General Terms and Conditions, unless otherwise indicated. In the event of a conflict between the General Terms and Conditions Basic Orange and the General Terms and Conditions for Third Parties, Basic Orange may declare the relevant conflicting provisions in the General Terms and Conditions of Third Parties inapplicable or declare them applicable.

6 DELIVERY

6.1 Delivery time

6.1.1 All delivery periods mentioned by Basic Orange and applicable to it have been determined to the best of its knowledge on the basis of the information that was made known to Basic Orange at the time of entering into the agreement and will be observed as much as possible.

6.1.2 Delivery periods are therefore not considered as a strict deadline within which deliveries must be made, but as a period within which Basic Orange will strive to do its best to deliver what has been agreed. If there is a possibility that any term will be exceeded, Basic Orange and Client will consult about a new term as soon as possible.

6.1.3 The exceeding of any applicable delivery period by Basic Orange shall never constitute an attributable shortcoming on the part of Basic Orange. Basic Orange does not accept liability under any circumstances if a delivery period is exceeded.

6.2 Disclaimers

6.2.1 Basic Orange only undertakes to execute the agreement concluded between Basic Orange and Client after a signed copy of the agreement drawn up by Basic Orange has been received and/or all fees due have been paid in full and on time. If Basic Orange commences the execution of the agreement before receipt of a signed copy of the agreement and/or all fees due have been paid in full and on time, Basic Orange reserves the right to suspend the execution of the agreement until a signed copy of the agreement has been received and/or all fees due have been paid in full and on time.

6.2.2 Rights, such as but not limited to the transfer of Products, are granted to the Client under the suspensive condition that the Client pays the agreed fees in full and on time. In the event of non-payment, the Client must return the Products to Basic Orange at its own expense within one week, after being instructed to do so by Basic Orange. All other remedies will continue to apply.

6.3 Risk

6.3.1 The Product is at the risk of the Client from the date of delivery, even if the ownership or right of use has not yet been transferred. Therefore, the Client remains liable for the (purchase) price, regardless of the destruction or deterioration of the Product due to a cause that cannot be attributed to Basic Orange.

6.3.2 The same applies from the moment at which the Client is in default of performing an action with which the Client must cooperate in the delivery.

6.4 Delivery, Delivery, Installation and Acceptance Process

6.4.1 Basic Orange will deliver the Products to the Client in accordance with the specifications laid down in writing by Basic Orange and, if desired by the Client, install them.

6.4.2 Delivery of services, by or through Basic Orange, takes place at the place(s) and at the times when the services are performed.

6.4.3 Delivery of Products takes place by making the Products available to the Client at the location of Basic Orange's warehouse. The costs of transport and any insurance are at the expense of the Client. The choice of the mode of transport is determined by Basic Orange and insurance of the Products to be transported is not provided by Basic Orange, unless otherwise agreed in writing.

6.4.4 Only in the case where installation takes place by Basic Orange, an acceptance period will apply immediately after completion of the installation. The acceptance period for the Client is 14 (fourteen) days after completion of the installation, unless otherwise agreed. During the acceptance period, the Client is not permitted to use the Products for productive and/or operational purposes.

6.4.5 The Products shall be deemed to have been accepted between the parties:

(a) at the time of delivery if the installation is not carried out by Basic Orange, or
(b) if Basic Orange has completed the installation, on the first day after the acceptance period,  or
c) if Basic Orange receives a Test Report (article 6.5)  before the end of the acceptance period: at the moment that the Errors mentioned in that Test Report (article 6.6) have been corrected,  without prejudice to the presence of minor Errors that do not prevent acceptance according to article 6.6.4.

6.4.6 If the Products are delivered and tested in phases and/or parts, the non-acceptance of a particular phase and/or part shall not affect any acceptance of an earlier phase and/or any other part.

6.4.7 Contrary to the foregoing, if the Client makes any use of them for productive or operational purposes before the moment of acceptance, the Products will already be deemed to have been fully accepted from the start of that use.

6.5 Test Report

6.5.1 If, during the acceptance period, it appears that the Products contain Errors, as described in Article 6.6, that impede the progress of the acceptance test, the Client shall inform Basic Orange of the Errors by means of a written and detailed Test Report no later than the last day of the acceptance period, in which case the remaining acceptance period will be interrupted until the Product has been adjusted in such a way that the Errors have been remedied.

 

6.6 Errors

6.6.1 Error(s) is understood to mean failure to comply with the functional specifications established in writing by Basic Orange and, in the case of the development of custom-made Basic Orange Products, with the functional specifications expressly agreed in writing
Specifications. An Error only exists if it can be demonstrated and reproduced. The Client is obliged to report any Errors to Basic Orange without delay.

6.6.2 Any right to rectification of Errors lapses if the Products delivered have been changed by the Client in any form or in any way whatsoever.

6.6.3 Correction of Errors will take place at a location designated by Basic Orange. Basic Orange is entitled to implement temporary solutions, emergency solutions, detours and/or other problem-limiting measures.

6.6.4 Acceptance of the Products may not be withheld on grounds other than those relating to the specifications expressly agreed between the parties and furthermore not because of the existence of minor Defects that do not reasonably impede the operational or productive commissioning of the Products. See 2.6.2 for the full definition of this.

6.7 Warranty

6.7.1 Bugs and defects (expressly not being the request for changes) that are found by the Client after final delivery will be remedied by the Contractor at no additional cost within the stipulated warranty period of 1 month after final delivery (Production Environment). Basic Orange will endeavour to rectify Errors as described in Article 6.6 to the best of its knowledge and ability, provided that Client informs Basic Orange about the Errors by means of a written and detailed report within the Warranty Period. At its sole discretion, Basic Orange is entitled to repair, modify or replace the Products at its own expense. In the event of Service Errors, Basic Orange will provide substitute services.

6.7.2 Basic Orange is entitled to charge the usual prices and costs for repair, modifications or replacement of the Products if Errors can be regarded as errors in a general sense on the part of the Client as a result of careless or improper use or other causes that are not attributable to Basic Orange or if the Client could reasonably have discovered the Error during the acceptance period.

6.7.3 Warranty does not cover the reconstruction and/or repair of damaged or lost files and/or data. Basic Orange does not guarantee that the Products will function without interruptions or Errors, are suitable for any use intended by the Client and/or will lead to the result desired by the Client during the Warranty Period and thereafter, unless otherwise indicated in writing by Basic Orange. Any right to Warranty lapses if the Client changes the Products or causes them to be changed without the written consent of Basic Orange, as required in Article 2.2.3.

6.7.4 After the end of the Warranty Period, Basic Orange will not be obliged to repair Errors, change and/or replace Products, unless otherwise agreed.

6.7.5 The Warranty given on Third Party Products is in any case limited to the General Terms and Conditions Third Parties used by the suppliers of Third Party Products, as stated in Article 5.

7 PRIZES/PAYMENTS

7.1 Prices and Payments

7.1.1 All prices are exclusive of VAT and exclusive of any other levies imposed by the government. The amounts due will be charged including VAT and duties.

7.1.2 Basic Orange will charge the Client the amounts due by the Client on a monthly basis, duly specified. The Client shall pay the amounts due within 14 (fourteen) days of the invoice date without being entitled to any deduction, set-off or set-off other than legally permissible.

7.1.3 If the Client fails to comply with any obligation, the Client will be in default without any further demand or notice of default being required. The Client owes Basic Orange the costs, both in and out of court, with regard to the collection of all that Client owes to Basic Orange. Extrajudicial collection costs amount to 15% of the amount due with a minimum of Euro 500 (five hundred). In any case, from the date on which the Client is in default, interest will be charged monthly on the amount owed by the Client, with a percentage equal to the statutory interest rate increased by 3%.

7.1.4 Basic Orange has the right to suspend its activities and other obligations until full payment has been made, without prejudice to the Client's obligation to comply with its obligations.

7.1.5 If Basic Orange is unable to deliver as a result of an omission on the part of the Client, Basic Orange is entitled to charge a monthly interest payment of 1.5% on the amount due.

7.1.6 The fee for Hosting and any other annual or periodic fees are due as an Advance at the time of the conclusion of the agreement between the parties and will be charged to the Client in a duly specified manner prior to each month or other period that the agreement between the parties continues.

7.1.7 The fee for Maintenance, Support and any other work on an hourly basis will be charged to the Client after the end of each month or other period that the agreement between the parties continues .

7.1.8 For work outside the office of Basic Orange, hourly wages, travel and waiting time allowances, travel expenses and/or mileage allowances, hotel costs and any other costs associated with such work will be charged. The travel and waiting time allowance is 50% of the hourly rate applicable at that time.

7.2 Price changes

7.2.1 The prices agreed between Basic Orange and the Client are based, among other things, on the costs of salaries, social security contributions, materials, travel and accommodation expenses, etc., as well as the exchange rate between the currency used, as it applies at the time of conclusion of the agreement. In the event of a change in one or more cost items and a change in the exchange rate, Basic Orange is entitled to adjust the prices to this change(s).

7.2.2 Basic Orange will offer the Client the opportunity to take note of any price changes. If the Client does not agree to a price change, the Client is only entitled to dissolve the agreement with effect from the date on which the price change will take effect if the total price increase for 1 (one) year exceeds the inflation rate published by CBS for the current year (or the previous year for price increases announced for the following year) by more than 5%.

7.3 Fixed Price

7.3.1 In the case of a Fixed Price agreement, the work is carried out for a pre-agreed amount.

7.3.2 Unless Basic Orange can invoke article 1.4.4, additional hours will not be charged.

7.4 Post-calculation

7.4.1 If settlement will take place on the basis of subsequent calculation, this means that, before Basic Orange starts with the agreed work, a global estimate can be made of the expected costs. At the end of the work to be carried out, all costs actually incurred in connection with the work will be charged
be brought. The Client is therefore aware that there is a possibility that the previously determined estimate may be lower than the actual costs incurred. If no method of settlement has been agreed in advance, work will be carried out on the basis of subsequent calculation.

7.5 Advance payment

7.5.1 Basic Orange is entitled to charge an advance. If full payment of the advance payment is not made, Basic Orange is entitled, without prejudice to its other rights, to immediately suspend the further execution of the agreement and all that Client owes to Basic Orange for whatever reason is immediately due and payable.

8 INTELLECTUAL PROPERTY RIGHTS

 

8.1 Rights of Basic Orange and Client

8.1.1 Basic Orange has the exclusive right to further develop the Basic Orange Products and to make the use thereof available to third parties by means of licenses.

8.1.2 Unless there are Third Party Products, for every assignment carried out by Basic Orange wherever and at any time, regardless of whether it concerns the delivery of an existing Product or a Product yet to be developed, all resulting intellectual property rights, industrial property rights and other rights remain vested in Basic Orange.

8.1.3 Client acknowledges that all current and future intellectual property rights, industrial property rights, other rights and the registration and/or application of the aforementioned rights and/or similar rights for the entire term and any extensions or renewals thereto will now or in the future be transferred to Basic Orange worldwide in perpetuity.

8.1.4 The Client is not permitted to remove or change any indication regarding intellectual property rights, industrial property rights, other rights, trademarks and trade names from the Products, or to have such actions carried out by a third party.

8.1.5 The intellectual property rights, industrial property rights and other rights of a Product, or part thereof, can only be transferred to Client by written deed if Basic Orange has these rights.

8.1.6 If Basic Orange, Client or third parties make functional improvements or other changes to the Products, the intellectual property rights, industrial property rights and other rights applicable to the improved or amended Products will remain unchanged in Basic Orange or the third party entitled to it. If the aforementioned rights are not vested in Basic Orange or a third party entitled party, Client will take care of the transfer of the aforementioned rights to Basic Orange or third party entitled party free of charge.

8.2 Indemnification

8.2.1 Basic Orange will indemnify the Client against any action insofar as it is based on the assertion that the Basic Orange Products infringe a copyright valid in the Netherlands. Basic Orange will pay the costs and awarded damages irrevocably determined by final judgement, provided that the Client:\

a) informs Basic Orange in writing about the claim immediately, but no later than within 10 (ten) days after the alleged infringement of copyright has been brought to the attention of the Client or that the Client could reasonably have become aware of it; and
b) leaves the overall handling of the case, including settlement negotiations, to Basic Orange. If such an action is initiated or the possibility to do so, Basic Orange reserves the right to acquire the license or sublicense right to the Basic Orange Product or to modify the Basic Orange Product in such a way that it no longer infringes a copyright valid in the Netherlands. If, in the opinion of Basic Orange, the foregoing options do not reasonably qualify, Basic Orange may take back the delivered Basic Orange Product in return for payment of only the fee already paid for this Basic Orange Product, less a reasonable fee for the use made of the Basic Orange Product.

8.2.2 Basic Orange will not indemnify the Client against an action insofar as:

a) it is based on the assertion that the Third Party Products supplied to the Client have a
infringe an intellectual property right applicable in the Netherlands or elsewhere, industrial property
property or other right;
b) that which is supplied by the Client or is delivered in conjunction with a Product;
c) The Client has made a change to or to the Product.
(d) it is the result of force majeure in the sense of electricity failures, natural disasters, terrorist attacks or other clearly definable force majeure situations.

8.2.3 If it has been agreed between Basic Orange and Client that the intellectual property rights, industrial property rights or other rights of a Product or part thereof will be transferred to the Client, Client will indemnify Basic Orange against any action insofar as it is based on the assertion that the Product or part thereof infringes an intellectual property right, industrial property right or other right belonging to a third party.