Algemene voorwaarden CORAX ECOM+
Last Updated: 01-01-2019
Article 1 Definitions
In the Agreement, several terms are used, in singular or plural, starting with a capital letter, and their meanings are defined in this article in italics.
1.1 Availability: The percentage of the time of the Service Window during which the Customer can use the Functionality.
1.2 Annex: Annex to the Agreement that is an integral part of the Agreement.
1.3 Functionality: The usage functions and possibilities of the computer software underlying the SaaS service, whether or not divided into sub-functions and/or modules; Customer Management, Item Management, Location Management, Inbound, and Outbound.
1.4 Defect: The non-compliance, either partially or entirely, of the Functionality with the agreed specifications.
1.5 User: A person attributable to the Customer who uses the Functionality.
1.6 Maintenance Window: The period during which the SaaS service does not need to be available and is reserved for maintenance.
1.7 Training: Service consisting of providing a form of knowledge transfer with the aim of familiarizing Users with the Functionality provided by WICS Solutions B.V. and training them in its use so that they can work with it adequately for their specific tasks.
1.8 Agreement: This agreement.
1.9 SaaS Service: Service consisting of making Functionality available remotely via electronic means by WICS Solutions B.V.
1.10 Service Window: The period, outside the Maintenance Window, during which the SaaS service should be available.
1.11 Support: Providing information and advice on the use of Functionality by WICS Solutions B.V. during Working Hours, by phone and/or email and/or through a website or helpdesk, as well as assisting in identifying causes, including Defects, that hinder the unhindered use of Functionality and/or SaaS service, and resolving these problems.
1.12 Working Days: Monday through Friday, excluding national holidays.
1.13 Working Hours: Hours on Working Days between 09:00 and 17:00.
Article 2 Cooperation
2.1 WICS Solutions B.V. will attempt to meet agreed-upon data, deadlines, etc., as much as possible. However, all data and deadlines are indicated to the best of knowledge, and exceeding these data and/or deadlines is never fatal.
2.2 If WICS Solutions B.V. observes that the Customer is not making sufficient effort, it will inform the Customer in writing.
2.3 In case the Customer is negligent in providing information necessary for the execution of the Agreement, including information that the Customer may suspect is necessary for the execution, WICS Solutions B.V. is not obligated to perform more than it can do to the best of its ability during the duration of this negligence.
2.4 The Customer agrees to exercise the utmost care in the execution of the Agreement.
Article 3 Customer Obligations
3.1 The Customer is not allowed to use the SaaS service in such a way that it may cause damage to the SaaS service, to WICS Solutions B.V., and/or to third parties, or create a disturbance in Availability.
3.2 WICS Solutions B.V. offers its SaaS service based on "fair use," meaning that it generally does not impose restrictions on the system and network load caused by the Customer. Nevertheless, WICS Solutions B.V. reserves the right to take measures in the case of excessive use, which is use significantly higher than that of the average customer of WICS Solutions B.V.
3.3 The Customer must take measures promptly after the first notification by WICS Solutions B.V. of excessive system and/or network load. WICS Solutions B.V. is entitled to suspend the SaaS service and/or any other obligation to be performed under the Agreement for the duration of this continuous excessive system and/or network load.
3.4 In case of a structural excessive system and/or network load, the Parties will consult on the costs thereof.
3.5 The Customer shall ensure careful handling by Users of login credentials provided by WICS Solutions B.V.
3.6 In using the SaaS service, the Customer shall use the (browser) software specified by WICS Solutions B.V. To use the SaaS service optimally, (browser) software must be used; in the most up-to-date versions of Google Chrome, Safari, Firefox, Internet Explorer, and Opera.
3.7 The Customer indemnifies WICS Solutions B.V. against claims from third parties based on actions of the Customer that violate articles 3.1 and 3.5.
3.8 The Customer is responsible for selecting and acquiring, in a timely manner, a suitable telecommunication facility to be able to use the SaaS service effectively.
3.9 The Customer agrees to enter into an agreement with a supplier regarding the services referred to in the preceding paragraph and may grant WICS Solutions B.V. a power of attorney to do so, if and to the extent possible, on her behalf. WICS Solutions B.V. is willing to assume a coordinating role between the Customer and the supplier if necessary to conclude such an agreement regarding a telecommunication facility. The Customer acknowledges and agrees to be bound by all provisions and conditions of the supplier in this regard.
3.10 WICS Solutions B.V. is not liable for the costs related to the telecommunication facilities as referred to in article 3.9, which costs are caused by the use of the SaaS service.
Article 4 Intellectual Property Rights
4.1 WICS Solutions B.V. guarantees that it has all the necessary rights to grant the SaaS service, including all rights related to the underlying computer software.
4.2 Intellectual property rights, including database rights and/or copyrights, remain entirely with WICS Solutions B.V. or its suppliers. Except for the intellectual property rights in data that the Customer builds up through the use of the SaaS service, the intellectual property rights concerning this data remain with the Customer.
Article 5 SaaS Service
5.1 WICS Solutions B.V. aims for an Availability of 99% per year. If any non-Availability lasts for a maximum of four (4) consecutive hours, the SaaS service will be considered fully functional and uninterrupted.
5.2 WICS Solutions B.V. will strive to start and, if possible, complete all activities related to a Customer's request for Support without unnecessary delay. This includes handling User queries and resolving Defects.
5.3 The processing of a Defect will only occur if and to the extent that this Defect is demonstrable or reproducible. If the time it takes to resolve a Defect, or is expected to take, is of such duration that it is believed that the Availability of the Functionality will be affected, WICS Solutions B.V. will try to provide a temporary, adequate solution.
5.4 Defects in Availability caused by:
a. Improper use by the User;
b. Working with equipment and/or (browser) software that do not meet the specifications approved in advance by WICS Solutions B.V.;
are never within the scope of the Agreement. Only based on a written order confirmation from the Customer, will WICS Solutions B.V. attempt to rectify such Defects, at its then-applicable rates.
5.5 If Users do not have adequate knowledge of the Functionality and/or the SaaS service, WICS Solutions B.V. may require the Customer to obtain Training from WICS Solutions B.V. to bring the Users' knowledge to a level where they no longer make an undue demand on Support or gain the necessary knowledge in other ways. WICS Solutions B.V. will base the reasonableness of this requirement on its (Support) history. If the Customer does not comply, WICS Solutions B.V. has the right to suspend its obligations under Support until the knowledge of Users is brought to a sufficient level, without the Customer being entitled to a refund of already paid amounts or any compensation.
5.6 WICS Solutions B.V. independently determines the version policy and ensures that the most recent Functionality is available to the Customer whenever possible.
5.7 Prior to the implementation of updates and/or other changes to the Functionality, WICS Solutions B.V. will consult with the Customer if these changes are expected to result in a loss of performance of the SaaS service and/or loss of Functionality and/or reduced Availability.
5.8 The provisions of Article 5.7 do not apply in the case that the updates in question need to be applied for security reasons.
Article 6 Training
6.1 WICS Solutions B.V. can provide Users and/or other personnel of the Customer with adequate Training for the use of the Functionality.
6.2 WICS Solutions B.V. ensures that the instructors have sufficient knowledge of the subject and sufficient didactic skills to provide the Training properly.
6.3 Cancellation and/or rescheduling of the Training(s) by the Customer can only be done 2 working days before the scheduled Training date. Cancelling the Training(s) after this period means that the agreed-upon costs for this Training(s) are fully due from the Customer.
Article 7 Prices, Rates, Invoicing, and Payment
7.1 Prijzen en tarieven staan vermeld in de “Tarieven en functionaliteiten CORAX ECOM+ ”. Alle prijzen en tarieven zijn exclusief omzetbelasting (BTW).
7.2 Voor Support buiten Werkuren kan, indien en voor zover in “Tarieven en functionaliteiten CORAX ECOM+ ” gespecificeerd, een toeslag in rekening gebracht worden.
7.3 The agreed-upon prices and rates may be increased annually by WICS Solutions B.V. as of January 1.
7.4 Price changes resulting from substantial expansions of the desired Functionality by the Customer will be billed immediately and are immediately due.
7.5 WICS Solutions B.V. will specify on the invoices to the Customer the date, period of the service, the extent thereof, and the total amount due in euros.
7.6 The fee for the SaaS service is invoiced monthly in advance.
7.7 Other services and activities not covered by the Agreement are provided at the then-applicable rates for the relevant employees of WICS Solutions B.V. In this case, invoicing takes place afterwards based on the number of hours actually spent, unless expressly agreed otherwise.
7.8 Invoicing for Functionality added to the Agreement during the interim period is pro-rated up to the next invoice date.
7.9 The Customer will pay the amounts due to WICS Solutions B.V. based on the Agreement within thirty (30) days after the invoice date, provided that the invoice is correct in substance.
7.10 If the Customer disputes the substance of the invoice(s), this does not affect their obligation to pay at least the undisputed part of the invoice(s).
7.11 If the Customer has not paid the invoiced amounts within the payment term, unless it has objected to the substantive inaccuracy of the invoice within ten (10) days, the Customer, without the need for any notice of default, shall owe statutory interest on the outstanding amount. If the Customer remains negligent in fulfilling the claim after a notice of default, WICS Solutions B.V. is entitled, in addition to the statutory interest due, to claim compensation for extrajudicial collection costs, the amount of which is determined at a minimum of 15% of the total invoice amount.
7.12 If the Customer has a payment arrear of more than two (2) months, WICS Solutions B.V. is entitled to suspend its services, provided the Customer has been informed of this intention in writing, and the Customer is granted at least five (5) Business Days to still fully comply with all payment obligations, including statutory interest, extrajudicial, and other costs.
Article 8 Duration, Termination, Renewal, and Exit
8.1 The Agreement comes into effect when both Parties have signed it.
8.2 The Agreement is entered into for a minimum period of six (6) months.
8.3 The Agreement is tacitly renewed for one (1) year each time if neither of the Parties has terminated the Agreement in writing at least one (1) month before the end date, through a registered letter with acknowledgment of receipt.
8.4 Apart from what is stipulated elsewhere in the Agreement:
a. One Party is entitled to immediately terminate the Agreement by means of a registered letter with acknowledgment of receipt if the other Party defaults in the performance of its obligations arising from the Agreement, and persists therein even after a notice of default, with a reasonable period set for the other Party to fulfill its obligations.
b. One Party is entitled, without any reminder or notice of default being required, to immediately terminate the Agreement by means of a registered letter with acknowledgment of receipt if the other Party applies for a suspension of payments or has been granted a suspension of payments; the bankruptcy of the other Party is requested or it has been declared bankrupt; the business of the other Party is liquidated or terminated other than for the purpose of merging businesses; a significant portion of the assets of the other Party, or the infrastructure and/or software involved in the execution of the Agreement, is seized, or the other party can no longer be deemed capable of fulfilling the obligations under the Agreement.
8.5 If the Customer terminates the Agreement based on what is stipulated in Article 8.4, the Customer, upon first request, has the right to continue using the Functionality for a period of two (2) consecutive months, against a reasonable fee determined by WICS Solutions B.V. and paid in advance by the Customer.
8.6 All rights obtained by the Customer under the Agreement regarding the use of the Functionality expire upon termination of the Agreement, except as stated in Article 8.5.
8.7 Unless otherwise specified, obligations that, by their nature, are intended to continue after termination of the Agreement will continue to exist after termination thereof. The termination of the Agreement explicitly does not release the Parties from the provisions regarding confidentiality, liability, intellectual property rights, personnel takeover, applicable law, and choice of forum.
8.8 In the event of termination of the SaaS Service(s), the Parties will immediately enter into consultation regarding the (method of) transfer of data, services, and/or other management measures necessary for the uninterrupted continuation of the Customer's use of its data and/or SaaS Service(s).
8.9 All work carried out by WICS Solutions B.V. under the preceding paragraph will be invoiced on a time and material basis at the then-applicable rates.
Article 9 Guarantees
9.1 WICS Solutions B.V. guarantees that the services regarding the SaaS service will be carried out in a professional manner.
9.2 WICS Solutions B.V. guarantees Availability in accordance with the Agreement up to its infrastructure. WICS Solutions B.V. is not responsible for telecommunications connections from its infrastructure, including the telecommunications connections of the Customer as referred to in Article 3.8 and 3.9.
Article 10 Liability
10.1 The Party that culpably fails to fulfill its obligation(s) is liable to the other Party, subject to the limitations in this article, for compensation for the damage suffered or to be suffered by the other Party.
10.2 Liability of WICS Solutions B.V. due to an attributable failure to perform the Agreement is fully excluded, except in cases of intent or gross negligence.
10.3 If and insofar as the limitation of the preceding paragraph is not legally possible, the total liability of WICS Solutions B.V. due to an attributable failure to perform the Agreement is limited to compensation for direct pecuniary damage up to a maximum of the fees received by WICS Solutions B.V. from the Customer (excluding VAT and other government-imposed levies) over six (6) months, immediately preceding the month in which the damaging event occurred. Direct pecuniary damage is understood to mean exclusively:
a. reasonable costs that the Customer would have to incur to have WICS Solutions B.V.'s performance comply with the Agreement; however, these costs are not reimbursed if the Agreement is or has been terminated by or at the request of the Customer.
b. reasonable costs incurred to determine the cause and extent of the damage, insofar as the determination relates to direct pecuniary damage within the meaning of these conditions;
c. reasonable costs incurred to prevent or limit damage, insofar as the Customer demonstrates that these costs have led to the limitation of direct damage within the meaning of these conditions.
10.4 Liability for damage other than mentioned in the preceding paragraph is excluded.
10.5 The liability of a Party for failure to perform the Agreement only arises after the defaulting Party has been notified by the other Party, unless the performance of the relevant obligations has already become permanently impossible, in which case the defaulting Party is immediately in default. The notice of default will be made in writing, granting the defaulting Party a reasonable period to still fulfill its obligations.
Article 11 Force Majeure
11.1 In case of force majeure, the performance of the Agreement and all related obligation(s) are wholly or partially suspended for the duration of the force majeure situation, without the parties being obliged to pay any compensation for this. A Party can only invoke force majeure against the other Party if the party invoking force majeure informs the other Party in writing as soon as possible, with submission of supporting documents.
11.2 If a Party defaults in the performance of any obligation arising from the Agreement due to force majeure, and it is established that performance will be permanently impossible, or if a period of more than thirty (30) Business Days has elapsed, the other Party may, if it is determined that performance will be permanently impossible, or if a period of more than thirty (30) Business Days has elapsed, terminate the Agreement in full or in part, by means of a registered letter with acknowledgment of receipt, out of court, without the parties being obliged to pay any compensation to each other. What has already been performed by WICS Solutions B.V. will be paid by the Customer immediately.
11.3 Force majeure on the part of WICS Solutions B.V. includes, in any case: illness of personnel, lack of personnel, strikes, whether or not attributable failures of suppliers, loss of data, power failures, and/or failure of network connections, all at the side of WICS Solutions B.V.
Article 12 Confidentiality and Security
12.1 Both Parties will observe strict confidentiality regarding each other's information, the operation of the files, Functionality, the SaaS service, etc. Without the prior written consent of the other Party, a Party will not make available to third parties information, data carriers, and data made available to it, and will only disclose it to its personnel to the extent necessary for the performance of the agreed services. Parties will oblige their personnel to comply with these confidentiality provisions.
12.2 With regard to data originating from the other Party, which are in any form or on any information carrier whatsoever within a Party's possession or provided to it, a Party undertakes to:
a. take all reasonable measures for safe storage or storage;
b. not to use the data for any purpose other than the agreed purpose;
c. not to keep the data under its control for longer than is reasonably necessary for the performance of the agreed obligations and to make the data, including copies made, immediately available again to the other Party after full compliance with said obligations or to destroy them with the prior consent of the other Party;
d. to have the agreed obligations performed only by persons whom the Party on whom the obligation rests reasonably believes to be reliable;
e. to cooperate with the exercise of supervision by or on behalf of the other Party on the storage and use of data.
12.3 Each of the Parties will ensure that its employees and/or third parties involved in the work are contractually obliged to maintain confidentiality regarding what is stipulated in this article.
Article 13 Transfer of Rights and Obligations
13.1 The Customer is not entitled to transfer the rights and obligations from the Agreement without the written consent of WICS Solutions B.V.
13.2 WICS Solutions B.V. is at all times authorized to transfer rights and obligations arising from the Agreement.
13.3 WICS Solutions B.V. is authorized to use the services of third parties in the execution of the Agreement, either by subcontracting or by temporary hiring of personnel. This authorization of WICS Solutions B.V. does not affect its responsibility and liability for the performance of its obligations under the Agreement and the obligations imposed on it as an employer and/or main contractor under tax and social security legislation.
Article 14 Applicable Law and Disputes
14.1 Dutch law applies to the Agreement and any subsequent agreements arising therefrom.
14.2 In case of a dispute, the most aggrieved party will inform the other Party in writing that there is a dispute, as well as a brief description of what, in the opinion of that Party, is the subject of the dispute. All disputes arising from or as a result of the Agreement will be submitted to the competent court in the district where WICS Solutions B.V. is established, including the preliminary relief judge of this district court, acting in summary proceedings.
14.3 The provision in Article 14.2 does not affect the obligation of both Parties to make maximum efforts to resolve disputes related to the Agreement as much as possible through mutual consultation.
Article 15 General Provisions
15.1 In case of a violation of Article 3.1, 3.5, 8.7, 12, and 15.7, the Customer is immediately and without judicial intervention liable to WICS Solutions B.V. for a penalty of € 10,000 (ten thousand euros) excluding VAT. This penalty does not exempt WICS Solutions B.V. from claiming additional damages.
15.2 Oral communications, promises, or agreements related to the execution of the Agreement have no legal effect unless confirmed in writing by the respective Party.
15.3 In cases where the Agreement does not provide, or if a change to the Agreement is necessary, the parties will enter into consultations for this purpose. Changes and/or additions are only valid insofar as they are agreed upon in writing.
15.4 The failure by a Party to demand compliance with any provision within a term specified in the Agreement does not affect the right to demand compliance later, unless the Party has expressly and in writing agreed to the non-compliance.
15.5 If it is stated in these conditions that a notification can be made in writing, then that communication, unless it is evident from the context that it is indeed intended in writing, can also take place digitally, i.e., by email. Nevertheless, the Party that chooses to use an electronic medium bears the risk of proof if a notification is not or not correctly received according to the other Party.
15.6 If any provision of the Agreement is declared null and void or is annulled, the other provisions of the Agreement will remain in effect, and the Parties will enter into consultations to agree on a replacement provision.
15.7 During the term of the Agreement, as well as (6) six months after the termination of the Agreement, the Parties will not hire each other's personnel. For the purposes of this provision, a Party is understood to mean all subsidiaries in which a Party has (part) ownership or companies in which a Party has (part) ownership.
15.8 In the event of inconsistencies between the Agreement and the accompanying Appendices, the provisions of the Agreement apply.
