General Terms and Conditions of Delivery

1.1 Definitions

In these General Terms and Conditions, the following terms shall have the following meanings:

• Protify: Protify B.V., established in Maarssen
• Clients: companies or institutions for which Protify B.V. will carry out an assignment
• Software: the sublicensed standard and/or custom SaaS software specifically delivered by Protify B.V.
• PCT: ProActive Compliance Tool
• Documentation: the description of how the SaaS software should be applied, respectively how management, in conjunction with the use of the software, leads to the intended result.

1.2 Applicability

These General Terms and Conditions form part of the agreement between Protify and its clients. These General Terms and Conditions are available free of charge upon request and can be downloaded from our website.

The General Terms and Conditions apply to all offers, activities, services, quotations, and other agreements (licence agreements) between Protify and clients, or their legal successors. These General Terms and Conditions also apply to the non-exclusive right of use of the ProActive Compliance Tool (PCT) products.

Deviations from these General Terms and Conditions are only valid if expressly agreed in writing. The applicability of the client’s terms and conditions is explicitly rejected.

2 Basis of Quotations

Quotations from Protify are based on the information provided by the client. The client guarantees that they have provided all essential information to the best of their knowledge for the design and execution of the engagement. Protify will perform its services to the best of its knowledge and ability and in accordance with the requirements of good workmanship. This obligation has the nature of a “best efforts obligation”, as the achievement of the intended result cannot be guaranteed.

3 Provision of Information and Staff by the Client

In order to carry out the assignment properly and as much as possible according to the schedule, the client shall provide in a timely manner all documents and data that Protify needs. This also applies to the provision of employees from the client’s own organisation who are or will be involved in Protify’s activities. If Protify is unable to perform its work due to the failure (or late) provision of data and/or staff, this shall be at the client’s own risk and expense.

4 Involvement of Third Parties in the Execution of the Assignment

The involvement or engagement of third parties in the execution of the assignment by the client or by Protify shall only take place in mutual consultation.

5 Changes to the Advisory Team

6 Rates and Assignment Costs

With regard to the rates and the cost estimates based on them, administrative costs, travel time, travel and accommodation expenses, and other assignment-related costs are included. To the extent these costs are not included, they may be invoiced separately. An interim change in the level of wages and costs that requires Protify to adjust rates or other aforementioned reimbursements will be passed on. No interest costs are included in the fee, unless otherwise stated in the quotation. All amounts stated by Protify are exclusive of VAT.

Protify is entitled to adjust prices at any time. Protify shall announce changes at least thirty (30) days before they take effect so the Client is informed. If the Client does not wish to accept the price change referred to in the previous clause, they may terminate the Agreement with one month’s notice. Use of the Service after the effective date shall constitute acceptance of the amended or supplemented conditions. This provision does not apply to changes in the fee for the use of the ProActive Compliance Tool (PCT). A different arrangement is set out in Article 21.

7 Payment Terms

All prices are exclusive of VAT and other government-imposed levies. The fee and the costs mentioned in Article 6, which are not included in the rates, will be invoiced at the end of the project unless payment in instalments has been explicitly agreed.

Payment must be made within 14 days of the invoice date. After this due date, statutory interest will be charged, without the need for a notice of default. If payment is not made, Protify may, invoking the uncertainty exception, prohibit the client from using the results of the assignment. If the client is in default or otherwise fails to fulfil one or more of its obligations, all reasonable costs incurred to obtain payment shall be borne by the client, including both legal and extrajudicial costs.

If the assignment is issued by more than one client, all clients shall be jointly and severally liable for the fulfilment of the obligations stated in this article (regardless of the name on the invoice).

8 Amendment of the Assignment and/or Additional Work

The Client accepts that the scheduling of the assignment may be affected if the parties agree, during the course of the assignment, to expand or modify the approach, working method or scope of the assignment and/or the resulting activities. If the interim change to the assignment or its execution arises due to actions by the Client, Protify will implement the necessary adjustments, if the quality of the service provision requires it. If such an adjustment results in additional work, it will be confirmed to the Client as a supplementary assignment.

9 Duration and Completion of the Assignment

The duration of the assignment may be influenced not only by the efforts of the advisory team, but also by various factors such as the quality of the information received by Protify and the level of cooperation provided. Protify can therefore not state in advance how long the execution of the assignment will take. Financially, the assignment is considered completed once the final invoice has been approved by the Client. If the Client wishes to have Protify’s invoice reviewed by a certified public accountant, cooperation will be granted. The costs of such a review are to be borne by the Client.
Managed Services are always entered into for a period of a maximum of one year (up to the end of the calendar year). Managed Services may only be terminated one month before the end of the calendar year. The Client must observe a notice period of one month in this regard.

10 Force Majeure

If, due to force majeure or any other cause beyond Protify’s control—such as strikes, delays, lockouts, fire, riots, civil commotion, and the like—Protify is unable to commence, complete or continue one or more of its obligations arising from the assignment or a maintenance contract, the execution of the relevant part of the assignment or maintenance contract will be suspended. Protify will inform the Client as soon as possible of such a fact or circumstance.

Unforeseen circumstances relating to persons and/or materials that Protify uses or generally uses for the execution of the assignment, which are of such a nature that the execution of the assignment becomes impossible or is rendered so burdensome and/or disproportionately costly that prompt compliance cannot reasonably be expected, are considered equivalent to force majeure. Such circumstances include, but are not limited to: government measures, traffic and transport disruptions, delivery failures of products and tools, labour conflicts, and unforeseen complications on the part of both parties.

11 Termination

If the Client fails to meet payment or any other obligation under the assignment, the licence agreement, or the maintenance contract, Protify will issue a notice of default and grant the Client a reasonable term to still comply with its obligations. If the Client does not comply even after receiving this notice of default, the Client shall be in default, and Protify shall be entitled—without judicial intervention and without prejudice to any obligation of the Client to pay damages—to fully or partially terminate the agreement, as well as to reclaim the delivered goods or deactivate the software.

The aforementioned right of termination and reclaiming of goods also applies if the Client passes away, is placed under guardianship, enters into liquidation, is declared bankrupt, is granted provisional suspension of payments, or if any seizure is levied against the Client.

12 Intellectual Property

Models, techniques, instruments, including the PCT software, used in the execution of the assignment and included in the advice or research results, are and shall remain the property of Protify. Publication and further use may therefore only take place with the prior consent of Protify. The Client is, of course, entitled to reproduce documents for use within its own organisation, insofar as this is consistent with the purpose of the assignment. In the event of early termination of the assignment, the above shall apply accordingly.

13 Confidentiality and Non-Disclosure

Protify is obliged to maintain confidentiality towards third parties with respect to all information and data of the Client. In the context of the assignment, Protify shall take all possible precautions to protect the Client’s interests. Without Protify’s consent, the Client shall not disclose to third parties any information regarding Protify’s approach, methods, or similar matters, nor make the provided report(s) available.

14 Violations

In the event of a breach of the provisions in Article 12, the Client shall owe an immediately payable penalty of €10,000.00, without prejudice to Protify’s right to claim compensation for any damages it has suffered as a result of the breach.

In the event of a breach of the provisions in Article 13, the breaching party shall owe the other party an immediately payable penalty of €10,000.00, without prejudice to the other party’s right to claim compensation for any damages it has suffered as a result of the breach.

15 Liability

Protify shall be liable for any shortcomings in the execution of the assignment, insofar as these are the result of not observing the care, expertise, and professionalism that may reasonably be expected in the context of the assignment.

Liability for damage caused by such shortcomings shall be limited to direct damages and to the amount of the fee Protify has received for its work in connection with that assignment. For assignments with a duration of more than six months, this liability shall further be limited to the total amount invoiced over the last six months. Any claims by the Client under this provision must be submitted within one year after the discovery of the damage, failing which the Client forfeits its rights.

The Client cannot hold Protify liable for any damages related to the certification (or failure to obtain certification) of the company.

In the event of an attributable failure in the delivery of the PCT, Protify shall only be liable to the Client for direct damages. Protify shall under no circumstances be liable for any indirect or consequential damages, or damages due to lost revenue or profits, delays, loss of data, or temporary unavailability of the PCT.

Any liability of Protify for damages is limited to a maximum of the fee the Client has paid to Protify under the Agreement in the past twelve (12) months (excluding VAT).

Without prejudice to the provisions in the preceding articles, Protify shall never be liable if it fails to meet its obligations due to force majeure. In addition to the definitions provided by law and case law, force majeure includes circumstances beyond reasonable control that impede normal functioning of people, equipment and/or technology.

All offers and agreements are governed by Dutch law. Disputes arising from or relating to an offer to or agreement with the Client shall – with the exception of those disputes that fall within the exclusive jurisdiction of the subdistrict court (kantonrechter) – be submitted to the competent court in Utrecht under ordinary jurisdiction.

The conditions as defined under the GENERAL section of these General Terms and Conditions also apply to the provision and use of Managed Services, unless expressly stated otherwise.

17 Managed Services

Protify may issue a quotation for a Managed Services contract. A Managed Services contract is always tailored to the Client’s situation.

18 Termination

Unless otherwise stated in the quotation, Managed Services contracts are entered into for a maximum period of 1 year (always until the end of the calendar year). Termination is only possible at the end of the term, subject to a notice period of 1 month. Managed Services contracts that are not (timely) terminated shall be tacitly renewed for a period of 1 year.

19 Fee

Unless explicitly stated otherwise in the quotation, a fixed amount per month will be charged for the services. In the event of a tacit renewal of the Managed Services contract, Protify reserves the right to increase the monthly fee of the Managed Services contract in connection with interim changes in wage levels and costs. Protify shall notify any change in the monthly fee at least thirty (30) days in advance.

The conditions as defined under the GENERAL section of these General Terms and Conditions also apply to the delivery and use of software, unless expressly stated otherwise.

20 Delivery of software usage service

Protify advises on monitoring and managing related activities. As part of the service, the Client may use Protify’s Software as a Service (SaaS) solution, the ProActive Compliance Tool (“Service”).

Protify (through a group company) holds a licence for the Service developed by ISO2HANDLE. Protify grants the Client a non-exclusive right of use for the Service.

The right of use referred to in this article also includes all future updates to the Service.

Protify shall make the Service available via the internet (cloud). The Client is responsible for providing an internet connection. Unless expressly agreed otherwise, Protify is not obliged to perform any data conversion.

Upon registration, Protify shall create a username and password for the Client. The Client is aware that the loss of login credentials may result in unauthorised access to the Service. The Client shall therefore protect the login credentials from unauthorised persons. The Client is responsible for all actions carried out via the Service, whether or not by End Users, within its Account.

In addition to the above, the Client shall ensure that all End Users are aware of the restrictions on the use of the Service as set forth in these General Terms and Conditions.

21 Licence fee

The fee for making the Service available shall be stated separately in the quotation and also specified separately on invoices. Protify (through a group company) procures the Service from ISO2HANDLE and is bound by the pricing applied by ISO2HANDLE. If ISO2HANDLE implements a price increase, Protify is entitled to pass on this price increase without the Client having the option to prematurely terminate the agreement relating to the Service (termination at the end of the licence term remains possible, of course). Protify shall notify any change to the fee at least thirty (30) days in advance.

22 Availability and maintenance
Protify (and/or ISO2HANDLE) takes technical and organisational measures to ensure that the Service remains available. However, Protify (and/or ISO2HANDLE) cannot guarantee that these measures will always be effective. The Client is aware that the Service depends on a stable internet connection at the location where the Client uses the Service. Protify (and/or ISO2HANDLE) has no control over the internet connection, network, equipment, or any other services/devices not supplied by Protify (and/or ISO2HANDLE).

Protify (and/or ISO2HANDLE) reserves the right to temporarily suspend access to the Service, associated websites, or parts thereof for the purpose of maintenance, adjustments or improvements, as well as for the maintenance, adjustment or improvement of the associated software or other facilities. Protify (and/or ISO2HANDLE) shall make every effort to schedule such suspensions outside office hours. In cases where Protify (and/or ISO2HANDLE) deems suspension of the Service – whether during or outside office hours – necessary for the proper functioning of the Service, it is entitled to suspend the Service immediately without prior notice to the Client. However, Protify (and/or ISO2HANDLE) shall never be obliged to compensate any damage arising from such suspension.

23 Warranties and modifications

The Client accepts that the Service only contains the functionality and other features as found in the Service at the time of delivery (“as is”), thus with all visible and invisible errors and defects.

Protify (and ISO2HANDLE) does not guarantee that the software will operate without interruptions or defects. Protify uses the ISO2HANDLE platform and is therefore dependent on the availability and security (as described at www.iso2handle.nl) of ISO2HANDLE. ISO2HANDLE aims to make the server available seven (7) days a week and twenty-four (24) hours a day, except during times of regular, corrective and preventive maintenance. ISO2HANDLE aims for a server availability rate of at least ninety-nine and a half (99.5) percent during the aforementioned days.

Protify cannot be held liable by the Client for any damage, in particular business or other consequential damage, arising from or related to the use or inability to use the software.

The manner in which maintenance is carried out is determined by Protify (or ISO2HANDLE). The Client shall provide Protify and ISO2HANDLE, during normal office hours, with all cooperation necessary to perform the maintenance, such as access to the system and insight into the input and output related to the maintenance.

Protify (and/or ISO2HANDLE) will remedy the reported issues and/or defects during the next update of the Service. In the case of urgent problems and/or defects, ISO2HANDLE will make reasonable efforts to make the update available to the Client as soon as possible.

Protify (and/or ISO2HANDLE) may, from time to time, modify the functionality of the Service. While feedback and suggestions from the Client are welcome, Protify (and/or ISO2HANDLE) is under no obligation to implement them, and changes shall never be aimed at custom development. The Client can under no circumstances continue to use an older version of the Service.

24 User conduct rules

The Client is prohibited from violating Dutch or other applicable laws or regulations, applicable to the Client or to Protify (and/or ISO2HANDLE), or from infringing upon the rights of others through the use of the Service.

The Client must refrain from hindering or causing damage to other customers of Protify (and/or ISO2HANDLE) or internet users, or from harming the systems or networks of Protify (and/or ISO2HANDLE) or other customers. The Client is prohibited from initiating processes or programs, whether or not via the systems of Protify (and/or ISO2HANDLE), which the Client knows or can reasonably suspect may hinder or damage Protify (and/or ISO2HANDLE), its customers or internet users.

If, in the opinion of Protify (and/or ISO2HANDLE), any hindrance, damage or other danger arises for the functioning of the computer systems or the network of Protify (and/or ISO2HANDLE) or third parties and/or of the internet services, particularly due to excessive sending of email or other data, (distributed) denial-of-service attacks, poorly secured systems or activities of viruses, trojans and similar software, Protify (and/or ISO2HANDLE) is entitled to take all measures it reasonably deems necessary to avert or prevent this danger. Protify (and/or ISO2HANDLE) may recover the reasonably necessary costs incurred by these measures from the Client.

The Client is liable for, and fully indemnifies Protify (and/or ISO2HANDLE) against, any damage and costs suffered by Protify (and/or ISO2HANDLE) as a result of non-compliance with the provisions of article 23, unauthorised use of the Service, modifications to the Service and/or unlawful data storage. The foregoing sentence shall remain in effect after termination of the Agreement.

25 Personal data

The Service may involve the processing of personal data. In this context, Protify (and/or ISO2HANDLE) acts as a processor within the meaning of the General Data Protection Regulation; the Client is thereby considered the controller.

The personal data Protify receives from the Client is only used for the performance of the Agreement, including but not limited to the provision of the Service. In connection with the use of the Service, ISO2HANDLE acts as a sub-processor. A sub-processing agreement has been concluded between Protify and ISO2HANDLE.

Protify shall process the personal data in accordance with applicable laws and regulations, including but not limited to the General Data Protection Regulation.

Personal data will be irreversibly deleted when no longer necessary, unless retention is required by law.

26 Documentation

Protify shall provide documentation for the use of the software.

27 Intellectual property rights to the software

All intellectual or industrial property rights relating to the software are held exclusively by ISO2HANDLE. Protify holds a non-exclusive licence to the software and the right to grant sublicences.

The Client only obtains the rights of use and authorities explicitly granted in these General Terms and Conditions or otherwise in writing. The Client is not permitted to reproduce or disclose this Service. Under no circumstances shall the Client be entitled to receive the source code of the Service.

All intellectual or industrial property rights relating to the content included by Protify (whether or not using the template editor) in the software, such as frameworks, standards, analyses, designs, documentation, reports, as well as preparatory materials thereof, are held exclusively by Protify. The Client is not permitted to provide or disclose this content to third parties.

28 Transferability

The right of use of the software is non-transferable.

29 Support

Protify provides all its clients with telephone support at the following times: Monday to Friday between 09:00 and 17:00. The Client may choose to make separate arrangements with Protify for extended support (i.e. outside of the stated hours).

30 Termination of ongoing licence agreements

Unless otherwise stated in the quotation, Licence Agreements are entered into for a period of 1 year. The date on which the licence agreement is entered into (activation date) is stated by Protify on the invoice. Termination is only possible at the end of the term, with a notice period of 1 month (30 days). Licence Agreements that are not (timely) terminated shall be tacitly renewed for a period of 1 year.

Either party may terminate the Agreement with immediate effect if the other party:

• is in default with regard to a material obligation;
• files for bankruptcy or third parties file for the party’s bankruptcy;
• has applied for suspension of payments;
• or proceeds to liquidation.

If the Agreement is terminated or dissolved, Protify’s claims against the Client become immediately due and payable.

Thirty (30) days after termination of the Agreement, Protify (and/or ISO2HANDLE) will delete the Account and the data stored through the Service from its servers.of ISO2HANDLE) het Account en de middels de Dienst opgeslagen data verwijderen van haar servers.