These Terms consist of two parts:
PART A - GENERAL PROVISIONS AND ADVISORY AND/OR CONSULTING SERVICES
1. Applicability
1.1. These Conditions shall apply to all Offers and Agreements, as well as to all obligations arising therefrom and thereafter. If the Conditions have been applicable to an Agreement, then they shall automatically - without the need for a separate agreement between the Parties concerned - apply to every Agreement concluded thereafter between the Parties, unless otherwise expressly agreed between the Parties in Writing in the Agreement concerned.
1.2. The applicability to an Agreement of general or specific terms and conditions used by Customer is explicitly rejected by TeamValue, unless and after such terms and conditions have been explicitly declared applicable to an Agreement in Writing by TeamValue. Acceptance in this way of the applicability of terms and conditions of the Customer to an Agreement shall in no way imply that such terms and conditions are tacitly applicable to any Agreement concluded thereafter.
1.3. In the event of nullity or annulment by the Client of one or more provisions of the Terms and Conditions, the other provisions of the Terms and Conditions will remain fully applicable to the Agreement. The parties will consult together to replace an invalid or annulled provision of the Conditions by a provision that is valid or non-annullable and that corresponds as closely as possible to the purpose and purport of the invalid or annulled provision.
To the extent that an Agreement deviates from one or more provisions of the Terms, the provisions of the Agreement shall prevail. The other provisions of the Conditions shall in that case continue to apply to the Agreement in full.
2. Offers and formation of Agreements.
2.1 Unless expressly stated otherwise, an Offer is without obligation and valid for the period stated in the Offer. If the Offer does not state a period for acceptance, the Offer will lapse in any event fourteen (14) days after the date stated in the Offer. The Client cannot derive any rights from the contents of an Offer unless that Offer is explicitly made part of the Agreement.
2.2. Subject to the other provisions of the Terms and Conditions, an Agreement will only be established if TeamValue has confirmed it in Writing or performs it. If the Customer has not objected within fourteen (14) days after receipt of the order confirmation, the order as described in the order confirmation is accepted.
3. Duration and modification of the Agreement.
3.1. The Agreement is entered into for the period stated in the Agreement. If no period is stated in the Agreement and the Agreement is a continuing performance agreement, the Agreement is entered into for an indefinite period with a minimum of one year.
3.2. If the Agreement is amended, including an addition, TeamValue has the right to execute the Agreement only after written approval by the TeamValue authorized person and the Customer has agreed to the price and other conditions, including the time of execution. Failure to perform or not immediately perform the amended Agreement will not constitute a default by TeamValue and is no ground for the Customer to terminate or cancel the Agreement.
3.3. Without being in default, TeamValue may refuse a request to amend the Agreement, if this could have qualitative and/or quantitative consequences, for example for the work to be performed or goods to be delivered in that context.
4. Execution of the Agreement
In performing the Agreement, TeamValue will make every effort to achieve the result desired by the Customer. However, TeamValue does not warrant - or guarantee - that it can/will achieve any particular result.
4.2. TeamValue has the right to have certain work performed by third parties without Customer's consent. The applicability of Sections 7:404, 7:407 (2) and 7:409 of the Dutch Civil Code is expressly excluded.
4.3. TeamValue shall perform the Advisory and Consulting Services independently, at its own discretion and not under the supervision and direction of Client.
4.4. TeamValue will make every effort to provide one or more TeamValue Employee(s) with the expertise and craftsmanship that could be expected under normal circumstances by the Customer in the performance of the work. If the TeamValue Employee is no longer available as a result of leaving employment or long-term illness, TeamValue will, after consultation with Customer, make every effort to provide a replacement. If no replacement is found, the Agreement will end without any liability on the part of TeamValue for any damages suffered by the Customer.
4.5. TeamValue will perform the assignment properly and carefully, represent the interests of the Client to the best of its knowledge and ability, and perform its Services to the best of its knowledge and ability. TeamValue has the obligation to use its best efforts to ensure that the Consultant has the expertise and craftsmanship that could be expected by the Client in usual circumstances regarding the performance of the work.
4.6. If the Agreement is performed in phases, TeamValue may suspend the performance of those parts belonging to a subsequent phase until the Customer has approved in Writing the results of the preceding phase.
4.7. Customer will ensure that all data, which TeamValue indicates to be necessary or which Customer should reasonably understand to be necessary for the performance of the Agreement, will be provided to TeamValue in a timely fashion. If the data necessary for the performance of the Agreement are not provided to TeamValue in time, TeamValue has the right to suspend the performance of the Agreement and/or to charge the Customer the additional costs resulting from the delay in accordance with the then customary rates. The performance period will not start until after the Customer has made the data available to TeamValue. TeamValue is not liable for damages of any kind, because TeamValue has relied on incorrect and/or incomplete data provided by the Customer.
4.8. The delivery period given by TeamValue in the context of an Agreement is always an indication and is therefore never a deadline, unless the Parties expressly agree otherwise in writing. Failure to meet the agreed delivery time will not entitle the Customer to compensation. In determining the delivery time, TeamValue assumes that it can execute the order under the circumstances as they were at the time of the conclusion of the Agreement.
4.9. If Agreement relates to the deployment of Consultants to Client then Client controls the work of the relevant Consultant for errors and thereby assumes liability for the work from TeamValue.
4.10. If TeamValue provides Customer with (electronic) timesheet forms, Customer shall approve and return such forms to TeamValue signed no later than two (2) business days. If the forms are not returned in a timely manner or no comments are made, the accuracy of the number of hours reported shall stand.
4.11. If and to the extent TeamValue accesses the Customer's Microsoft Azure portal as part of the Services or Azure services are used at the Customer's premises, TeamValue is entitled to add its Microsoft partner ID to the Azure services.
5. Termination and Dissolution
5.1. Unless otherwise provided in the Agreement or these Terms and Conditions, TeamValue and Customer may terminate the Agreement at any time by giving one month's notice.
5.2. In case Customer fails to perform any or all of its obligations under the Agreement, Customer will be in default by operation of law and TeamValue will have the right to unilaterally terminate the Agreement, in whole or in part, without further notice and without judicial intervention, by giving Written notice to Customer and/or to suspend its obligations under the Agreement, without TeamValue being liable to pay any compensation and without prejudice to any rights to which TeamValue may be entitled, including the right to full compensation. All claims TeamValue may have or obtain against Customer in these cases will be immediately due and payable in full.
5.3. In case of bankruptcy, suspension of payments, shut down, liquidation or takeover or any similar condition of the Customer's business or if the Customer ceases its business or if a substantial part of the Customer's assets are attached or if the Customer should no longer be deemed able to fulfill its obligations under the Agreement, Customer will be in default by operation of law and TeamValue will have the right to unilaterally terminate all or part of the Agreement without further notice and without judicial intervention by means of a Written notification, without TeamValue being liable for any damages and without prejudice to its further rights, including TeamValue's right to full compensation.
5.4. If, at the time of the dissolution, Customer has already received performance in respect of the Agreement, such performance and the related payment obligation will not be subject to undoing, unless Customer proves that TeamValue is in default with respect to such performance. Amounts that TeamValue has invoiced before the dissolution in connection with what it has already duly performed or delivered in performance of the Agreement will remain payable in full with due observance of the previous sentence and will become immediately due and payable at the time of dissolution. In addition, the work performed and the working time reserved for the performance of the Agreement will be charged in full to the Client.
6. Acceptance
6.1. Acceptance by Customer of Services will, if agreed, be performed based on the principles of an acceptance test to be reasonably determined by TeamValue. If no acceptance test has been agreed upon, Customer is obliged to check the Services within a reasonable period (being no longer than 8 days after (delivery) of the Agreement by Team Value. If the Customer has not reported complaints in writing to TeamValue within the aforementioned reasonable period after (delivery) or after receipt of an interim (RAG) report, it will be deemed that the Services performed have been accepted by the Customer and meet the requirements and deliverables laid down in the Agreement or, as the case may be, meet the agreements made for the purpose of a specific sprint.
6.2. The results of an agreed acceptance test, or if no acceptance test is agreed upon, the results of the delivery or installation as meant in article 6.1, will be recorded in a protocol of delivery to be signed by both TeamValue and Customer. If the protocol of delivery has been signed by TeamValue and Customer, the delivery is considered accepted. Customer will not unreasonably refuse to sign the protocol of delivery. If Customer has not signed the protocol of delivery within14 days after it has been sent by TeamValue to Customer - other than stating reasonable grounds for refusal - the deliverable is considered accepted.
6.3. TeamValue shall endeavor to resolve any delivery items evidenced by the protocol of completion referred to in clause 6.2 within a reasonable time after the date of such protocol of completion.
7. Pricing and Payment
7.1. The price for the Services may consist of (i) a predetermined amount per (part of the) Agreement, (ii) a variable amount depending on the achievement of a predetermined result and/or (iii) may be calculated on the basis of rates per unit of time worked by TeamValue and is payable as and when TeamValue has performed work on behalf of Customer. The price for the Services does not depend on the outcome of the work performed, except for the price referred to in (ii). TeamValue is entitled to index the agreed price annually based on CBS figures for business services or the most appropriate in the IT industry.
7.2. Prices stated in an Offer or Agreement are in Euros and - unless explicitly stated otherwise - are exclusive of travel time, travel expenses and accommodation costs outside the Netherlands and also exclusive of turnover tax and/or other government levies of any kind.
7.3. If an order is given by the Customer to TeamValue without an expressly agreed price, it will be performed, regardless of previously made Offers or previously applied prices, at the price applicable at the time of the performance of the Agreement.
7.4. TeamValue generally invoices on a monthly basis. Payment is due within thirty (30) days of the invoice date, unless otherwise agreed. If payment of an invoice has not been made in full within the specified period, the Customer is immediately in default by operation of law, without further notice of default being required, and an interest of 1% per month (unless the statutory commercial interest rate is higher, in which case that interest rate will apply) will be payable from the date after the due date of the relevant invoice, with part of a month counting as a whole month. Furthermore, all extrajudicial collection costs will then be charged to the Customer, which costs are hereby determined by the Parties in advance to be at least 15% of the outstanding debt with a minimum of € 150, -, without prejudice to TeamValue's right to claim the actual extrajudicial costs if they amount to more.
7.5. If Client is in default of payment of any invoice, all other outstanding invoices shall also be immediately due and payable, without further notice of default being required.
7.6. Payments made by the Client shall respectively serve to settle costs due, interest and subsequently due and payable invoices that have been outstanding the longest, even if the Client states at the time of payment that the payment relates to another invoice.
7.7. Without prejudice to provisions of mandatory law, the Customer shall not be entitled to suspend and/or set off its payment obligations to TeamValue against TeamValue's payment obligations to the Customer.
7.8. All claims of TeamValue against the Customer shall be immediately due and payable if (i) after the conclusion of the Agreement, TeamValue becomes aware of circumstances which give it good reason to fear that the Customer will not comply with its obligations, such at the sole discretion of TeamValue, (ii) there is a situation as referred to in articles 5.2 and 5.3 and/or (iii) the provisions of article 7.9 are not complied with.
7.9. Based on its assessment of Customer's creditworthiness, TeamValue is entitled at any time to require security or full or partial prepayment for the fulfillment of due and non due payment obligations. If and as long as Customer fails to provide the required security or full or partial prepayment, TeamValue is entitled to suspend its obligations.
8. Liability and indemnity
8.1. TeamValue is liable to Customer for any damage suffered by Customer which is the direct and exclusive result of a failure in the performance of the Agreement attributable to TeamValue and which should manifest itself within a maximum period of six (6) months after termination of the Agreement or (interim) delivery. However, only damages for which TeamValue is insured are eligible for compensation and only up to the amount paid out by the insurer, if any. Not eligible for compensation are the damages described in article 8.3 under (a) and (b).
8.2. If TeamValue's insurer as referred to in article 8.1 does not pay out for any reason whatsoever, or if TeamValue is not insured for the damage concerned, such liability shall be limited to a maximum of three (3) times the invoice value excluding VAT, with a maximum of € 75.000,-. If the Agreement is a continuing performance agreement, the liability shall be limited to an amount equal to three (3) times the total amount stipulated in the context of the order in the last six (6) months prior to the occurrence of the damage from Principal excluding VAT, such with a maximum of € 75,000. This limitation of liability applies accordingly to any indemnification obligations of TeamValue.
8.3. In case TeamValue's insurer as mentioned in article 8.1 does not pay out for whatever reason, or in case TeamValue is not insured for the damage concerned, the following is not eligible for compensation:
(a) damage caused by acts or omissions of Customer or third parties in violation of instructions given by TeamValue or in violation of the Agreement and the Terms and Conditions;
(b) damage as a direct consequence of incorrect, incomplete and/or inadequate information provided by or on behalf of Customer to TeamValue.
8.4. The Customer shall indemnify TeamValue against any claim by the Customer and third parties in connection with the work performed and/or Services provided, including any fault of the Consultant involved in the work. If TeamValue, notwithstanding the foregoing, is held liable by a third party and TeamValue has had to pay damages in that case, TeamValue shall have a right of recourse against the Customer for the entire amount of damages and costs then paid by it.
8.5. A series of related damaging events shall be considered one event/claim for the purposes of this Article.
8.6. The limitations and/or exclusions of liability contained in this article also apply in favor of TeamValue's personnel and auxiliary persons involved by TeamValue in the performance of an Agreement.
9. Force Majeure
9.1. TeamValue is not obliged to fulfill its obligations to the Customer if it is hindered to do so as a result of a circumstance that is not attributable to fault, nor for its account under the law, legal act or generally accepted practice.
9.2. Force majeure means a failure in the performance of an Agreement that cannot be attributed to TeamValue. Force majeure as referred to in this article includes, but is not limited to, a failure due to (a) problems at suppliers, including utility companies, (b) strike, (c) excessive absenteeism of staff, (d) government measures (both national and international) and/or (e) sabotage / hacking / cyber attack.
9.3. In case of force majeure, TeamValue has the choice either to suspend the performance of the Agreement until the force majeure situation has ceased to exist, or to partially terminate the Agreement, whether or not after initially opting for suspension. In either case, the Customer is not entitled to any damages. If at the occurrence of the Force Majeure TeamValue has already partially fulfilled its obligations or can only partially fulfill its obligations, it is entitled to invoice that part separately and Customer is obliged to pay this invoice as if it were a separate Agreement.
10. Consultants
10.1. Customer is not allowed to have the Consultants mentioned in the Agreement or actually deployed by TeamValue, working as an employee or through third parties, perform work for it, unless Customer pays TeamValue a reasonable fee in advance with respect to the (possible) deployment, recruitment or training of the relevant Consultant.
10.2. The prohibition mentioned in 10.1 applies during the term of the Agreement, as well as for a period of twelve months after its termination.
10.3. A reasonable fee as referred to in 10.1 of this Article is set by TeamValue at an amount of €50,000 per Consultant, without prejudice to TeamValue's right to set another reasonable fee.
11. Intellectual property rights
11.1. For copyrighted works developed by TeamValue to be used or developed in Services, all rights are vested in TeamValue and the Customer obtains an unrestricted (non-exclusive) right of use vested in it alone.
11.2. If, based on the Services, TeamValue performs work that consists of the (re)development of works whose intellectual property rights are vested in the Customer, the rights to the re-development thereof also accrue to the Customer.
12. Other provisions
12.1. Both Parties are obliged to keep confidential all confidential information obtained from each other or from other sources within the framework of their Agreement. Information is considered confidential if it has been communicated by a Party or results from the nature of the information.
12.2. If, by virtue of a statutory provision or a judicial decision, TeamValue is bound to disclose confidential information to third parties designated by law or by the competent court, and TeamValue cannot in this respect invoke a right to refuse to give evidence, acknowledged or permitted by law or by the competent court, TeamValue will not be held to pay damages or compensation and Customer will not be entitled to dissolve the Agreement.
12.3. Legal claims and other powers of Customer, on any basis whatsoever, against TeamValue in connection with Services rendered shall expire after twelve (12) months from the date Customer became aware or could reasonably have become aware of the existence of such rights and powers, but no claim In Writing has been filed with TeamValue before the expiration of such period.
12.4. In the event that a claim In Writing has been filed by Customer with TeamValue within the period specified in clause 12.3 in connection with Services rendered by it, any legal claim in this respect by Customer shall also lapse if TeamValue has not been brought before the court having jurisdiction under clause 13 of the Terms and Conditions within a period of four (4) months after receipt of the relevant claim In Writing.
12.5. If translations of these Terms have been issued, the version in the Dutch language shall prevail over the version(s) in any other language.
13. Applicable law and competent court
All Agreements concluded by TeamValue will be exclusively governed by Dutch law. All disputes between Parties shall be exclusively settled by the District Court of Overijssel, location Zwolle.
14. Definitions
PART B - MANAGEMENT SERVICES
Part B of these Terms and Conditions, in addition to Part A, applies to the Services to be performed by TeamValue under an Agreement in the area of Managed Service Services and Service & Support Services.
15. Execution Service
15.1. TeamValue performs the Service on behalf of the Customer. Customer may use the Service exclusively for its own business or organization and only to the extent necessary for the use intended by TeamValue. Customer is not permitted to have the Service used by third parties without TeamValue's prior Written consent.
15.2. TeamValue shall make every effort to provide the agreed Service properly at all times and strive for the highest possible availability, quality and security of the Service. The conditions under which and the quality obligations on the basis of which TeamValue provides and/or makes available and/or performs the individual components constituting the Service to the Customer are stated in the relevant XLA(s). However, TeamValue does not guarantee that the Services will function entirely or partially without errors, failures or interruptions as stated in the relevant XLAs unless otherwise agreed upon and set forth in the relevant Agreement and/or SLA.
15.3. TeamValue does not guarantee the uninterrupted availability of the Managed Service Services, including defective indoor coverage of mobile telecommunications networks.
15.4. TeamValue may require Customer to modify its system (equipment, web browser, software, etc.) if necessary for the proper functioning of a new version of the Software. In addition, TeamValue reserves the right to make interim changes to the technical and functional features of the Service to improve functionality and to correct any errors or to comply with applicable laws and regulations.
15.5. TeamValue makes every effort to detect and correct any errors in the Service. However, TeamValue cannot guarantee that all errors will be corrected.
15.6. TeamValue reserves the right to temporarily take the Service out of service for the purposes of, inter alia, maintenance, modification or improvement of TeamValue's computer systems and infrastructure networks or third parties from whom TeamValue purchases services for the relevant Service. TeamValue will arrange for such out-of-use to take place outside business hours to the extent possible and will provide Customer with timely advance notice of the planned out-of-use. Such announced shutdown of the Service shall in no case be considered as a failure of TeamValue to fulfill its obligations to Customer.
15.7 (Suppliers of) TeamValue is permitted to take technical measures to protect the Software, other software, documentation and other materials developed or made available as part of the Service, provided that these measures do not adversely affect its functionality.
15.8. Customer is not entitled to independently repair errors in (parts of) the Service, make adjustments to it, transfer it to other equipment, link it with other equipment and software, independently expand functionality, change parameters and/or remove protections. Customer will always strictly observe agreed restrictions, of whatever nature or content, on the right to use the Software.
16. Use of and warranty on software
16.1. TeamValue hereby grants to Customer for the duration of the Agreement a non-exclusive and non-transferable right to the Software to the extent made available to Customer by or on behalf of TeamValue. This right shall never exceed the license granted to TeamValue by its supplier and the terms of use of supplier shall apply.
16.2. The right of use includes all actions with respect to the Software that are reasonably necessary in the context of the Customer's and Users' use of the Services.
16.3. Unless there is an applicable Service & Support Services Agreement which includes provisions for errors and malfunctions for Software, TeamValue will use its best efforts to repair any errors in the Software delivered by TeamValue to Customer within a reasonable period of time, free of charge, if reported to TeamValue in detail within a period of three months after the signing of the protocol of delivery referred to in article 6.2. Notification of errors after the said period shall result in the expiration of all claims of Customer.
16.4. If, in TeamValue's reasonable judgment, recovery is not possible, will take too long, or if recovery would involve disproportionately high costs, TeamValue is entitled to replace the Software free of charge with other, similar but not necessarily identical Software. Data conversion necessary as a result of repair or replacement is not covered by the warranty and TeamValue is not obligated to restore lost or affected data. The warranty obligation expires if the errors are the result of incorrect, careless or incompetent use by or on behalf of Customer, and/or Customer makes or causes to be made changes to the Software without TeamValue's permission (which Customer will never be permitted to do without such permission from TeamValue or its relevant suppliers).
16.5. If, with respect to the Software, a direct relationship arises between the Customer and TeamValue's supplier, TeamValue does not become a party thereto (unless the parties have agreed otherwise. In that situation, this article does not apply.
17. Resources
17.1. The Customer is responsible for the timely availability and proper functioning of the Resources required for the proper delivery of the Services of TeamValue, including but not limited to the data/IP network, (peripheral) equipment and software, (auxiliary) applications and (internet) connections of the Customer. In that respect, the Customer shall fully comply with any instructions given by TeamValue.
17.2. Customer is at all times responsible for taking and applying security measures for the necessary Means to prevent abuse/fraud/hacking by third parties. TeamValue's responsibility is limited to the reasonable taking and application of measures to prevent misuse/fraud/hacking by third parties exclusively affecting its own Service.
17.3. The Customer is responsible for maintaining a connection to the energy network and other connections necessary for access to and use of the Service, as well as proper insurance for the benefit of the Software made available for the Service.
18. Access to Service(s) and Security.
18.1. Customer is responsible for any use, with or without its consent, of the Service and of the Access Resources made available to it. TeamValue is not liable for any damage of the Customer and/or third parties caused by unauthorized use of the Access Resources.
18.2. The Access Means provided are non-transferable, strictly personal and exclusively for use within the Client's organization. Client shall exercise due care with respect to the use of the Access Means and keep them secret from third parties.
18.3. TeamValue may change the Access Resources at any time at its discretion of which TeamValue will notify Customer in a timely manner.
18.4 Customer shall immediately notify TeamValue if the Access Resources are used unauthorized or Customer reasonably suspects such use.
18.5. Customer may request TeamValue to block the Access Resources. TeamValue is also entitled at any time to block Access Means on its own initiative if TeamValue is aware of unauthorized use of the Access Means. In that case, TeamValue will not be liable for any damage of Customer and/or third parties caused by blocking the Access Resources.
18.6. If TeamValue will provide security services and/or perform security work under the Agreement, such security will conform to the state of the art in reasonable relation to the costs involved and to the specifications agreed upon in Writing between TeamValue and Customer. TeamValue does not warrant that the relevant security will be adequate under all circumstances.
Client shall at all times have properly and adequately secured its systems and infrastructure according to the state of the art in reasonable proportion to the costs involved.
18.8. If data stored, edited, processed or otherwise entered using the Service are unlawful towards third parties, TeamValue is entitled to remove and destroy such data from the relevant server immediately, without prior notice. As of now, Customer hereby grants TeamValue permission to remove and destroy all infringing data from the relevant server. In no event shall TeamValue be liable for any damages resulting from such action.
18.9. TeamValue may prevent access to the Service by decommissioning Access Resources or suspend the Service if it has a serious suspicion that it is being used in violation of the provisions of the Agreement. The obligation to pay shall continue to exist during such decommissioning.
Version July 2022
