Terms and Conditions

Terms and Conditions

Definitions

1.1

In these Terms and Conditions, following terms are used in the following meaning, unless explicitly stated otherwise. Executor: DPDK B.V., registered in the Chamber of Commerce under number 27243574. Client: the counterparty of the executor. Agreement: services agreement.

1.2

If an agreement is committed with the executor of a company in the making or otherwise a yet nonexistent company, the commitment will be contracted between the signatory of the agreement besides the client functioning as a private person.

General

2.1

These conditions are valid for every offer, quotation and agreement between executor and client, to the extent that there has not been deviated from these conditions expressly and in writing by the parties.

2.2

These conditions are as well applicable to all commitments with the executor, for the execution of which third parties need to be involved.

2.3

Any deviations on these general conditions are only valid if they have been agreed on expressly in writing.

2.4

The relevance of any possible purchase or other conditions of the client are refused explicitly.

2.5

If one or more of these determinations in the general conditions are null or have to be nullified, the remaining determinations of these general conditions continue to apply. Executor and client will then consult to obtain new determinations replacing the null ones c.q. nullified determinations, taking into account to the maximum the purpose and scope of the original determinations.

2.6

It doesn’t mean that determinations do not apply if the executor does not desire strict compliance at all times, or that the executor would lose the right to any degree to demand strict compliance of the determinations of these conditions in other cases.

Offers and bids

3.1

All offers are non-committal, unless a deadline for acceptation is stated in the offer.

3.2

The offers made by the executor are non-committal, they are valid for a period of 14 days, unless otherwise stated. The executor is only committed to the offers if the acceptation has been confirmed in writing within 14 days, unless otherwise stated.

Offers or bids, which are accepted after expiration of the validity period by the client, will commit the executor only if confirming this in writing.

3.3

The prices in mentioned offers and quotations are excluding taxes and other government taxes, as any eventual costs that can be made in the context of the agreement, such as mailing, travel- and administration costs, unless otherwise stated.

3.4

If the acceptation (on minor points) deviates from the offer included in the quotation, the executor is not bounded to that acceptatation. Then, the agreement is not developed in accordance with the deviating acceptation, unless otherwise stated by the executor.

3.5

A composed quotation doesn’t oblige the executor to perform a part of the mission corresponding to an equal part of the quotation.

3.6

Offers or quotations are not automatically valid for future missions.

3.7

The executor cannot be held to his quotation if the client reasonably can understand that the quotation, or a part of it, contains an obvious mistake or error.

3.8

Quotations, offers and/ or agreements with the executor survey explicitly the use of the delivered product or service by the executor on behalf of the Dutch market. Only if explicitly agreed in writing, the executor is allowed to use the delivered product or service in international spheres.

3.9

Hours, which are listed as “invested hours” on the invoices of the executor, can be taken in account retroactively by the executor to the client in case of that the executor will be taken over by a third party during the commitment, meaning that by the transfer he loses (the majority) of his shares and the control of operations, or if he decides not to use the product.

Implementation of the agreement

4.1

The executor will implement the commitment to the best of his ability and according to the requirements of good workmanship. And based on the known state of art on that moment.

4.2

If and insofar required to obtain a good execution of the agreement, the executor has the right to involve a third party to perform activities.

4.3

The client takes care that all necessary data, which are indicated by the executor as necessary or which can be assumed to be necessary to be able to perform duties by the executor, are provided on time. If the necessary data to perform the duty adequately are not provided on time to the executor, the executor has the right to postpone the

implementation of the agreement and/ or to charge the corresponding costs according to usual rates to the client.

4.4

The executor is not responsible for the damage, of what nature whatsoever, if the executor has been provided erroneous and/ or incomplete data.

4.5

If agreed that the implementation will be implemented in phases, the executor can postpone the following phase, until the client has approved in writing the previous phase.

4.6

If third parties implemented by the executor in the context of the duties perform activities on the location of the client or the location assigned by the client, the client will take care of the desired facilities of these contributors without additional cost.

4.7

The client safeguards the executor for any possible claims of third parties who suffered damage in context with the implementation of the commitment and which is the responsibility of the client.

Modification of the agreement

5.1

When it seems necessary, during the performance of the agreement, to change or to complete the to be performed activities to ensure a proper effectuation, the parties will adapt the commitment timely and in consultation.

5.2

If the parties agree that the agreement will be changed or completed, it is possible that the time of completion can be influenced. The executor will inform the client of such as soon as possible.

5.3

If the change or completion will have financial and/ or qualitative consequences, the executor will inform the client on beforehand.

5.4

If a fixed fee has been agreed on, the executor will indicate to which extent the change or completion will involve this fixed fee.

Duration of contract, execution time

6.1

The agreement between the executor and client will be valid for an undetermined period, unless the nature of the agreement evolves differently or if the parties agree explicitly and in writing otherwise.

6.2

If during the period of an agreement to be able to finish certain activities, a timeframe has been agreed on, then this timeframe is never final. When exceeding a timeframe, the client has to default the executor in writing.

Completion and acceptance

7.1

Unless the executor based on the agreement will host the application on his own

computer system or on the computer system of a third party selected by the executor for the benefit of the customer, the executor will deliver the application on an information carrier and in the form of his choice to the client.

7.2

Only if agreed upon in writing between both parties, the executor will install the application with the client or with a third party indicated by the client (host-provider).

7.3

If the parties didn’t agree on an acceptation test, the client will accept the application in the state in which it encounters upon the moment of delivery (‘as is’), therefore with all visible and invisible defects and errors, without prejudice to the obligations of the executor based on the law, the agreement between the parties and/ or article 18 (warranty) of these general Terms and Conditions.

7.4

Only if an acceptation test between parties has been agreed on by written, the parts 5 until 12 included of this article are applicable.

7.5

Whereas in this article ‘errors’ are mentioned, they must be understood as the substantial non-compliance to the parties of specifically agreed specifications. We can only talk about an error if the client can demonstrate this and if it can be repeated. The client is obliged to report errors immediately to the executor.

7.6

If an acceptation test has been agreed on, the test period shall cover fourteen days after delivering, or, if a to be performed installation by the executor has been agreed on by written, after completion of the installation. During the test period, the client doesn’t

have the right to use the application for productive or operational means. The executor can at all times demand that the client performs a test with sufficient scope and depth by sufficiently qualified personnel in order to report the (intermediate-) results of the development by written on an organized and understandable basis to the executor.

7.7

If an acceptation test has been agreed on, the client is obliged under his full and exclusive responsibility to test if the delivered application responds to the agreed specifications between both parties by written. Unless agreed upon differently by written, the provided assistance by the executor while performing an acceptation test is completely on behalf of the client.

7.8

The application will be considered accepted as agreed upon between both parties:

a. if between both parties hasn’t been agreed upon that the client performs an acceptation test: upon delivery or, if a to be performed installation by the executor has been agreed upon by written, upon finishing the installation, or
b. if between both parties has been agreed on that the client will perform an acceptation test: upon the first day after the test period, or
c. if the executor receives a test report as mentioned in part 7 of this article before the end of the test period: on the moment that in the concerning test report mentioned errors have been restored, notwithstanding the presence of deficiencies which are not obstructing as mentioned in part 10 of this article. In deviation of these the application will be considered as fully accepted from the moment of using if the client uses
the application for productive or operational means before the moment of explicit acceptance.

7.9

If it seems that the application contains errors when performing the agreed acceptation test, the client will inform the executor utterly on the last day of the test period about the errors by means of a written and detailed test report. The executor will make his outermost effort to restore the errors within a reasonable time frame.

7.10

Acceptance of the application cannot be withheld based on facts which are not related with the agreed specifications between the parties and neither because of
the existence of minor errors, meaning errors which wouldn’t obstruct the operational or productive use of the application, nevertheless with the obligation of the executor to restore, if applicable, these minor errors in the context of the warranty. As well, acceptation cannot be withheld because of aspects of the application that only can be judged on a subjective basis, such as style, aesthetic aspects and aspects concerning design.

7.11

If the application is being delivered and tested in phases and/ or pieces, the non- acceptance of a certain phase and/ or piece will not be of any influence of a possible acceptation of another phase and/ or piece.

7.12

Acceptance of the application as meant in one way or another in this article, has the effect that the executor is obliged to the fulfilment of his obligations concerning the design and development of the application and, if as well the installation by
the executor has been agreed on, installation of the application. Acceptation of the application doesn’t change the rights of the client based on part 10 of this article concerning minor errors and article 18 concerning warranty.

Fee

8.1

For offers and agreements in which a fixed fee has been offered or agreed on, the parts 2 and 5 until 13 included in this article are valid. If no fixed fee has been agreed on, parts 3 until 13 included are valid.

8.2

Parties can agree on a fixed fee upon establishment of an agreement.

8.3

If no fixed fee has been agreed on, the fee will be calculated based on actual hours. The fee will be calculated based on the usual hourly rates of the executor, valid for the period in which the activities are being performed, unless a divergent hourly rate has been agreed upon.

8.4

The fee and any possible costs do not included taxes.

8.5

In case of missions that last more than 1 week, the due costs can be taken into account periodical.

8.6

In case of a jointly commissioned mission, the clients will be allied to the change the fee of the executor.

8.7

In case of agreement of a fixed fee between the executor and the client, the executor remains the right to increase that fee or rate as specified under parts 7 and 8.

8.8

The executor has the right to take into account the price increases if the executor can demonstrate that upon the moment of offer and delivery, the rates, such as wages, have considerably increased.

8.9

As well, the executor has the right to increase the fee when it seems that upon performing the activities the original agreed and expected amount of work has been inadequate estimated in such degree upon closing the agreement, and not imputable to the executor, that it cannot be expected from the executor to perform the agreed activities for the original agreed fee.

8.10

The client has the right, if in case of price-increase, to dissolve the agreement if the fee or rate has been increased during the first three months after starting the agreement. After this period, the client has the right to dissolve the agreement if the increase numbers more than 10%. The client doesn’t have the right to dissolve the agreement if the raise of the fee concerns law involvement.

8.11

The executor will inform the intention to increase the fee or rate to the client by written. The executor will inform about the extent of the increase and the date of commencement.

If the client doesn’t agree upon the informed increase of the fee or rate of the

executor, the client has the right to denounce the agreement within seven days after acknowledgment, or to cancel the agreement starting from the date of commencement when the price- or rate adjustment takes place.

8.12

If the parties agreed on another currency than Euro, the client will be responsible for the risks involved in the currency exchange.

Payment

9.1

Payment needs to be done within 21 days after invoice date, the way the executor has indicated and the currency in which is declared. Objections against these declarations do not suspend the payment.

9.2

If the client defaults the payment within the term of 21 days, then the client is in default by law. Then, the client is due an interest of 1% per month, unless the legal interest is higher, in such case the legal interest is applicable. The interest of the amount due will be calculated from the moment that the client is in default until payment of the full amount.

9.3

If the client remains in default during the term of 21 days, the executor has the right to suspend his obligations, as noted in article 13 of these general Terms and Conditions.

9.4

In case of liquidation, (imminent) bankruptcy, embargo or suspension of payment of the client, or if the client by means of transferring (the majority) of his shares loses his actual

control of business, the receivables of the executor to the client are due immediately.

9.5

The executor has the right to divide the done payments by the client first in deduction of the costs, subsequently in deduction of the open interest and finally in deduction of the principal amount and accrued interest.

9.6

The executor can, without being in default, refuse an offer of payment, if the client specifies another sequence of designation.

9.7

The executor can refuse the full payment of the total sum, if the open and accrued interests as well as the costs are not included.

9.8

If the payment occurs within the 21 days after invoice date, the executor won’t charge any additional costs.

9.9

If the payment occurs after a period of 21 days, the client is due to pay a fee of 2%, unless agreed upon differently by the parties by written.

9.10

Invoicing happens by all means upon acceptance and/ or on the date or dates, as mentioned in the quote and/ or order confirmation.

Retention

10.1

All delivered objects by the client, including possible designs, sketches, drawings, movies, software, (electronic) files, etc., remain property of the executor until the client has fulfilled all following obligations as agreed upon with the executor, as mentioned in article 21 concerning intellectual property.

10.2

The client doesn’t have the right to pledge any objects in ownership nor to encumber in any other way.

10.3

If third parties seize any objects in ownership or establish rights, the client is obliged to inform the executor as quick as possible as possible and in a reasonable manner.

10.4

The client is obliged to insure the delivered objects in ownership and keep them insured in case of fire, explosion and water damage as well as against robbery and the policy should be available at all times when requested.

10.5

Delivered objects by the executor, which are included in 1. of this article of retention, can only be sold in the context of normal business and never be used as currency.

10.6

If the executor wants to exercise his designated property rights, the client gives his permission unconditionally and irrevocably to the executor or third party designated by the executor to enter all places where these properties of the executor are located and to take along all objects.

Collection costs

11.1

If the client defaults within the (timely) compliance of his duties, all reasonable costs to pay extrajudicial are for the client. Anyway, in case of a money claim, the client is due for the collection costs. The collection costs will be calculated corresponding the collection rate as advised by the Dutch Lawyers’ Association.

11.2

If the executor incurs higher costs, which were reasonably necessary, these will be taken in account for compensation.

11.3

Any reasonable legal and enforcement costs incurred will be taken into account by the client.

Denouncement

12.1

Both parties can denounce the agreement by written at all times.

12.2

If the agreement is denounced interim by the client, the executor has the right to

demand compensation because of the occurrence and likely loss of capacity, unless facts and circumstances that found the cancellation are the responsibility of the executor.

Furthermore, the client is liable for payment of the declarations of the activities performed so far. The preliminary results of the activities performed so far will be provided under reservation to the client.

12.3

If the agreement is denounced interim by the executor, the executor will consult with the client to make sure the transfer of the to be performed activities to a third party, unless facts or circumstances of the notice are the responsibility of the client.

12.4

If the transfer of the activities carries extra costs for the executor, these costs will be charged to the client and paid to the executor.

Suspension and termination

13.1

The executor is authorized to suspend the fulfilment of the obligations, including, amongst others but not exclusively, getting offline of a hosted application of the executor for the purpose of the client, or to dissolve the agreement, if:

13.2

The client doesn’t honor his payment duties, incomplete or untimely, or;
after concluding an agreement, the executor fears that through circumstances become known the client will not fulfil his duties, incomplete or untimely.

13.3

If reasonable doubt exists, that the client will fulfil his duties incomplete or untimely, the suspension is only permitted for so far the shortcoming justifies it, or;

13.4

If the client upon conclusion of the agreement has been asked to provide security for the compliance of his duties concerning the agreement and he can’t ensure this security or inadequately.

13.5

The executor is not responsible for the (in)direct damage suffered by the client, as a consequence of the suspension of the executor. The client safeguards the executor for the responsibilities for third parties, if they claim to have suffered damage as a consequence of the suspension of the duties of the executor in the name of the client.

13.6

Furthermore, the executor has the right to suspend the agreement if the circumstances are of such a nature that compliance of the agreement is impossible or to reasonable and fair standards are not demandable anymore or if other circumstances occur of such a nature that unaltered conservation of the agreement cannot be expected.

13.7

If the agreement is being dissolved, the claims of the executor to the client are claimable immediately. If the executor suspends the fulfilment of obligations, he remains his rights under the law and the agreement.

13.8

The executor remains the right to claim compensation at all times.

Return of the provided articles

14.1

If the executor has provided articles to the client during the performance of the agreement, the client is obliged to return these articles within 14 days after written request in his original state, free of defects and complete. If the client doesn’t fulfil this obligation, all concerning costs are on his behalf.

14.2

If the client, for what reason whatsoever, after being warned, stays in default concerning the obligation 1., the executor has the right to relate the concerning costs and damage, including the replacement and losses, to the client.

Responsibility

15.1

If the executor is responsible, then the responsibility is limited to what is regulated in this stipulation.

15.2

The executor is not responsible for an attributable shortcoming concerning the compliance of his duties, before the executor has been noticed of default by written by the client given a reasonable period to pay the shortcoming and the executor hasn’t paid that shortcoming within a reasonable period.

15.3

If the executor is responsible for direct damage, then his responsibility is limited to the maximum amount corresponding the provided benefits of the insurer of the executor, at least up to maximum twice the invoice amount, at least that part of the mission

concerning the responsibility. The responsibility of the executor for direct damage is at all times limited to maximum 750.000 Euros (meaning: seven hundred and fifty thousand Euros).

15.4

In deviation of what is determined under part 2 of this article, when applicable for a mission with a duration of a minimum of six months, the responsibility is limited to the part of the fee corresponding to the last six months.

15.5

Direct damage implies:

a. The reasonable costs to determine the cause and the extent of the damage, as far as the determination concerns the damages as in the sense of these conditions;
b. The possible reasonable costs made to restore the deficient performance of the executor as stated in the agreement, unless these cannot be taken into account to the executor;

c. reasonable costs, made to prevent or to limit the damage, as far as the client demonstrates that these costs have caused limitation of direct damage as meant in these general Terms and Conditions.

15.6

The executor is never responsible for indirect damage, meaning consequential damages, lost profits, lost saving and damage and damage caused by business stagnation.

15.7

The limitations included in these conditions for the responsibility for direct damage aren’t applicable if the damage is caused on purpose or because of grand negligence of the executor or his subordinates.

Disclaimers

16.1

The client disclaims the executor for claims by third parties concerning the rights of intellectual ownership and/ or royalties on the provided materials or data by the client, which are used during the performance of the agreement.

16.2

If the client provides information carriers, electronic files or software etc. to the executor, he guarantees that these information carriers, electronic files or software are free of viruses and defects. Possible direct or indirect damage and costs that are carried along with this damage, derived from the non-compliance of these determinations are fully in charge of the client and are payable on demand.

Transfer risk

17.1

The risk of loss or damage of the objects included in the agreement, will be moved
on to the client from the moment that these are delivered to the client juridical and/ or actual and which will be in the power of the client or a third party assigned by the client.

Warranty

18.1

If the client has in mind specific browsers, versions of browsers, other software and/ or equipment which are of positive influence for the efficiency of that product, the client has to inform these specific data to the executor by written on beforehand. These specific wishes of the client will be adopted in the quotation and/ or order confirmation to the executor.

18.2

The executor doesn’t vouch for the proper functioning of the application in conjunction with all kinds of new versions of web-and internet browsers and potential other software. Nor doesn’t the executor vouch for the proper functioning of the application in conjunction with future technology, such as amongst others, but not exclusively, future equipment, devices, (mobile) browsers and/ or operating systems.

18.3

The executor doesn’t guarantee that the application will work without interruption, defaults or other defects or that all defaults and other defects will be restored at all times. The executor accepts that defaults and defects in the operation of an application can be the consequence of the actions of one or more third parties.

18.4

The executor will make any effort to restore the defaults imputable to him, in the
display of the content or defaults in the technical operation of the application, within a reasonable timeframe if these occur within the first three months after delivery, or, if an acceptation test has been agreed on between both parties, within the first month after acceptance when noticed in a detailed written report to the executor. The repair will be executed for free, unless if the application has been designed differently than for a fixed

price commissioned by the client, in that case the executor will take in account his usual rate for the cost of this repair.

18.5

The executor will take into account his usual rate for the cost of the repair when dealing with user errors or improper use of the client or other causes that cannot be related to the executor or if these errors or defaults could have been detected during the agreed acceptation test.

18.6

The obligation to repair expires if the client makes any changes to the application without written permission of the executor, which permission will not be unreasonably withheld.
Repairing errors or defaults will occur on a location chosen by the executor. At all times, the executor has the right to apply workarounds, detour programs or problem-avoiding restrictions in the application.

18.7

The executor is never obliged to repair maimed or lost data.

18.8

The warranty expires if the errors or defaults are caused because of an act or omission by the client.

18.9

The executor isn’t obliged to repair the errors or defaults which are noted after finishing the warranty period as mentioned in part 4 of this article, unless a separate maintenance agreement has been made in which such duty to repair is included.

Force majeure

19.1

The parties are not obliged to fulfil their obligations, if they are hindered as a result of a circumstance which is not due to debt, nor by law, or an act in traffic accounted practices .

19.2

Force majeure noted in these general Terms and Conditions not only means what
is stated in the law and jurisprudence, but as well all external causes, foreseen or unforeseen, on which the executor has no influence, but which make it impossible for the executor to accomplish his duties, also including but not limited to;

a. Strikes in the company of the executor;
b. Interruption of the internet with the executor or client;
c. Failure or malfunction with a hosting party chosen by the executor;
d. Change or failure of an API of the executor or a third party, on which the executor connects or should connect.

19.3

The executor has the right to claim force majeure if the circumstance which hinders (further) compliance, occurs after that the executor should have complied with his duties.

19.4

Parties can suspend the duties of the agreement during the period of force majeure. If this period lasts longer than two months, each party has the right to dissolve the agreement, without the obligation to compensation of the damage to the other party.

19.5

If the executor whilst entering the period of force majeure, already has honored a part of his duties as mentioned in the agreement or if he will be able to accomplish these duties, and if possible to assign independent value to these duties, the executor has the right to declare that respectively separate part. The client is obliged to meet this declaration as if it were a separate agreement.

Non-disclosure

20.1

Both parties do not disclose any confidential information which they have obtained in the context of the agreement from each other or from another source. Information is considered confidential if this has been communicated by the other party or if deriving from the nature of the information.

20.2

If, based on a legal provision or statement by court, the executor should inform that confidential information to the court or to a third party assigned by a competent judge, and the executor cannot rely on a legal or the right to change granted by a competent judge, than the executor is not obliged to compensation or indemnification, and the counterparty has no right to dissolve the agreement based on any damage originated such way.

Intellectual property and royalties

20.1

Undiminished, besides the general Terms and Conditions, the executor remains the rights and competences which are entitled to him based on copyright.

20.2

All pieces provided by the executor, such as reports, advice, agreements, designs, sketches, drawings, software, program code etc. are exclusively meant to be used by the client and cannot be duplicated, published nor informed to third parties without prior authorization by the executor, unless deriving otherwise based on the nature of the provided pieces.

20.3

The executor remains the right to use the increased knowledge obtained while performing the duties for other purposes, as long as no confidential information is being shared with third parties.

20.4

Unless explicitly and agreed upon differently by written, the agreement doesn’t include the transfer of the source code by the executor. If agreed upon by written and for the agreed payment, the executor will transfer the source code to the client, assuming it’s programmed for the client.

The executor manages a standard percentage for this 10% of the total project value, with a minimum of 2.500 Euros, taxes excluded.

Samples and models

22.1

If a sample or design has been displayed or given to the client, it’s assumed this is only provided as an indication, unless explicitly agreed upon that the delivered product will correspond likewise.

22.2

The client can’t deduce the rights to the displayed or given, as mentioned in part1.

Non-take-over of personnel

23.1

During the period of the agreement and during a year after the ending of this, the client won’t, in no way, only if agreed upon by written by the executor, hire any contributors related to the executor or related to firms that have been involved in the compliance of the agreement, neither will he, directly or indirectly, let them work for him.

23.2

The client knows that the contributors of the executor aren’t allowed by contract without written agreement of the executor, to perform any duties in the Netherlands within a period of a year after finishing the employment for him. Neither, as well directly as indirectly, to accept money, in any form whatsoever from the client, either against payment or not.

Disputes

24.1

The judge in the place of establishment of the executor has the exclusive jurisdiction
to be aware of any disputes, unless the judge of the canton has the jurisdiction. Nevertheless, the executor has the right to present the dispute to the judge qualified by the law.

24.2

Parties will only invoke a judge if both parties have made the maximum effort to settle the dispute on their own.

Applicable law

25.1

On every agreement between the executor and the client, the Dutch and European law is applicable.

Modification and location of the conditions

26.1

These conditions are filed in the office of the Chamber of Commerce in Rotterdam.

26.2

The last filed version c.q. the version valid upon the time of establishment of the agreement is the applicable one.