Algemene Voorwaarden

Acceptance of Terms

These are the Terms and Conditions of Delivery of repower EMS BV, located at Helmkruidstraat 1, 6841BZ in Arnhem and registered with the Chamber of Commerce under registration number 95966080 (hereinafter referred to as “ Supplier ”).

These Terms of Delivery consist of the following modules:

• Module A - Definitions.
• Module B – General.
• Module C – Software-as-a-Service.
• Module D – Hardware

Module A - Definitions

This module contains the definitions used in these terms of delivery/service.

• Account : Any user interface through which the Client, after entering login details, can manage and configure (certain aspects of) the Services.
• Service(s) : The services or products, including Hardware and Software, which are supplied by Supplier to the Client under the Agreement.
• Hardware : All (physical) items supplied by Supplier to Client under the Agreement.
• Commissioning : The actions performed and necessary to be able to use the Services, as specified in Article 7.2 and the Agreement.
• Intellectual Property Rights : All intellectual property rights and related rights, including but not limited to copyrights, portrait rights, database rights, domain name rights, trade name rights, know-how rights, trademark rights, model rights, neighbouring rights and patent rights.
• Office Hours : The hours on a Working Day between 09:00 and 17:30 (Dutch time).
• Customer Data : All data stored by the Client (or the end users of the Services) on the Supplier's systems used for the provision of Services.
• Terms of Delivery : These terms of delivery.
• Materials : All physical and digital goods, software, licenses, websites and applications, documentation, manuals, advice, brochures, images, texts and (other) intellectual products, as well as preparatory material thereof and the data carriers on which such materials are located.
• Additional work : Additional work or services that fall outside the agreed Services.
• Client : The other party to an Agreement with the Supplier.
• Agreement : An agreement between Supplier and Client for the provision of Services and of which these Terms of Delivery form an integral part.
• Party(ies) : Supplier and the Client individually or jointly.
• Written : On paper as well as communication by e-mail, provided that the identity of the sender and the integrity of the content are sufficiently established.
• Software : The software to which the Client is provided access 'as-a-service' under the Agreement.
• Confidential Information : Non-public information relating to one or both Parties and information that a Party designates as confidential or that, by virtue of the nature of the information or the circumstances of its disclosure, should be treated as confidential.
• Working day(s) : Monday to Friday, with the exception of official Dutch public holidays and other days on which the Supplier has notified the Client in advance that they will be closed.

Module B - General

This section contains the provisions that apply to every Agreement, regardless of the nature of the Services provided.

• Article 1 : Applicability and order of precedence
  
  1. These Terms of Delivery apply to all offers made by Supplier and to all Agreements resulting therefrom, including extensions or amendments to existing Agreements, and any future Agreements to be concluded between the Parties, even if Supplier fails to declare these Terms of Delivery applicable again.
  2. The Terms of Delivery consist of several modules. A specific module applies to the extent that the Services fall within the scope described in that module.
  3. Deviations from and additions to the Terms of Delivery are only valid if they have been agreed in writing between the Parties.
  4. Any purchasing or other terms and conditions of the Client do not apply to the Agreement and are explicitly rejected (in advance) by the Supplier. However, if the Supplier has accepted their applicability, which acceptance can only be done explicitly and in writing, the order of precedence as stated below applies.
  5. The Agreement may consist of various parts and documents, in which case the parts will, in principle, apply in addition to each other. In the event of any conflict, the part listed first below will always prevail over the part listed later.
     
     • offer from Supplier, whether or not in the form of a formal agreement or a quotation;
     • any additional written agreements;
     • Terms of delivery;
     • Client's purchasing conditions (if applicable).
  6. In the event of any conflict between provisions contained in the Agreement, the more specific provisions shall prevail in each case.
  7. Third-party products, services, and/or software may be part of the Services. If so, the terms and conditions of the relevant third party will apply to (the use of) the relevant products, services, and/or software, thereby overriding any deviating terms from these Terms of Delivery or other sections referred to in Article 1.5.
• Article 2. Formation of the Agreement
  
  1. The Agreement is concluded when the Client accepts the Supplier's offer. Acceptance is informal and can be made either orally or in writing. In the event of oral acceptance, the Supplier may request written confirmation before commencing performance of the Agreement.
  2. All offers and quotations from the Supplier are non-binding. A written offer, whether in the form of a quotation or a formal agreement, is valid for a period of fourteen (14) days from the date of issue, unless otherwise stated in the offer or upon submission of that offer. If the Client accepts a quotation or other offer after the expiration of the validity period, an Agreement will only be concluded if the Supplier subsequently accepts and confirms the acceptance in writing.
  3. If the Client does not formally accept an offer from the Supplier but gives the impression of doing so, for example, by having the Supplier perform certain Services that are part of the offer, the offer will be considered fully accepted. This also applies if the Client requests the Supplier to perform certain work or provide certain services without waiting for a quote.
  4. By way of exception to the provisions of Article 6:225 paragraph 2 of the Dutch Civil Code, the Supplier shall only be bound by an acceptance made by the Client that deviates from an offer made by the Supplier, whether or not on minor points, if the Supplier expressly accepts the deviating acceptance in writing.
  5. If, after the Agreement has been concluded, it appears that an offer from the Supplier was based on incorrect or incomplete information provided by the Client, the Supplier shall have the right to adjust the Agreement accordingly without further consent from the Client being required.
  6. The application of Articles 6:227b, paragraph 1, and 6:227c of the Civil Code is excluded.
• Article 3 : Duration and termination of the Agreement
  1. An Agreement for ongoing service provision (a “Continuing Agreement”) is entered into for the duration stated in the Agreement. Unless otherwise stated in the Agreement, the Continuing Agreement is deemed to have been entered into for a fixed term of sixty (60) months. The Continuing Agreement (such as a subscription for use of the Software) commences at the time of Commissioning or one (1) month after the conclusion of the Agreement, whichever occurs first.
  2. If a long-term agreement has been entered into for a fixed term, it will be tacitly extended after that term for periods of one (1) year, unless otherwise agreed. Long-term agreements entered into for a fixed term cannot be terminated prematurely, unless otherwise provided in the Agreement. Either Party may prevent the extension of a long-term agreement by giving written notice of termination at the end of the relevant term, taking into account the agreed notice period. If no notice period has been agreed, a notice period of three (3) months applies.
  3. If a long-term agreement has been entered into or extended for an indefinite period, it can be terminated in writing by either Party, observing the agreed notice period. If no notice period has been agreed, a notice period of three (3) months applies.
  4. An Agreement for the provision of a one-time Service or assignment that, by its nature, ends upon completion, is entered into until the Agreement has been fully performed. Such an Agreement cannot be terminated (prematurely) unless the Parties have agreed otherwise in writing.
  5. The Parties agree that Article 7:408, paragraphs 1 and 2, of the Dutch Civil Code do not apply to the Agreement.
  6. Supplier may immediately terminate, suspend or dissolve the Agreement in whole or in part in writing, without notice of default being required and without being liable for any resulting damage, if (a) the Client files for bankruptcy or is declared bankrupt, (b) the Client applies for or is granted a suspension of payments, (c) the Client's activities are terminated or the Client's company is liquidated, or (d) part of the Client's assets are seized.
  7. If, at the time of termination of the Agreement, the Parties have already performed or received services in execution thereof, then these services and related payment obligations will not be subject to cancellation, notwithstanding Article 6:271 et seq. of the Dutch Civil Code.
• Article 4. Execution of the Agreement
  1. The Supplier will use its best efforts to provide the Services in accordance with the Agreement, unless the Supplier has expressly and in writing promised a specific and sufficiently specific result or guarantee. In such a case, the specific nature of the promise will apply to that obligation.
  2. Any (interim) delivery dates specified by the Supplier or agreed upon between the Parties shall always be considered target dates and are indicative only. Such deadlines shall only be final if the Parties have expressly agreed to them in writing, deviating from and specifically referring to this article.
  3. The Client is entitled to give the Supplier instructions regarding the performance of the Services, but the Supplier may decide for itself whether or not to follow up on such instructions.
  4. The Supplier has the right to engage third parties in the performance of the Agreement. This includes, but is not limited to, subcontractors, suppliers, technical experts, or other service providers relevant to fulfilling the obligations under the Agreement. Any associated unexpected additional costs will only be borne by the Client if this has been agreed upon in writing between the Parties in advance. If the Client has reasonable objections to the engagement of specific third parties, the Client will immediately notify the Supplier in writing. Both Parties will then attempt to reach a solution in good faith, taking into account the interests of both Parties and the performance of the Agreement. Ultimately, the Supplier has the right to determine whether it will continue to use the third party in question, and remains responsible at all times for the proper performance of the Agreement, regardless of whether third parties have been engaged.
  5. The (correct) functioning of the Software and Hardware is partly dependent on the Client's infrastructure or hardware. The Supplier is not liable for the (correct) functioning of the Software and/or Hardware due to errors and/or malfunctions in the Client's infrastructure or hardware.
• Article 5. Cooperation
  1. The Client will provide the Supplier with all necessary and desirable support to enable proper performance of the Agreement. In any event, the Client will provide the Supplier in a timely manner with all information or access to locations and spaces that the Supplier indicates is necessary, or that the Client should reasonably understand is necessary for the performance of the Agreement. The Client guarantees the accuracy and completeness of the information provided by the Client. The Supplier has the right to verify the information, but is not obligated to do so.
  2. If the Client fails to provide the agreed cooperation, or if the information provided by the Client proves to be incorrect or incomplete, the Supplier has the right to suspend the Agreement until the Client has provided the requested cooperation or the necessary information. Furthermore, the Supplier has the right to charge the Client for any reasonable additional costs necessary to provide the Services as a result of incorrect or incomplete information.
  3. If the Supplier's employees or third parties engaged by the Supplier are required to perform work at a location designated by the Client, the Client will provide all reasonable support and facilities required free of charge. At the Client's request, the Supplier will instruct the relevant individuals to comply with the applicable regulations on site.
• Article 6. Rules of use
  1. The Client warrants that the (results of the) Services will not be used for activities that violate applicable laws or regulations. Furthermore, the Client warrants that all end users (whether or not employees of the Client or third parties/individuals) to whom it grants access to the (results of the) Services will not use the (results of the) Services for activities that violate applicable laws or regulations, and that these individuals will comply with the usage rules as set out in this article or as may be made available (further) by the Supplier.
  2. The Client shall refrain from causing damage to the systems or networks of the Supplier (or its suppliers) when using the Service(s). If, in the Supplier's opinion, the Client's actions cause or could cause hindrance, damage, or other danger to the correct and/or secure functioning of the systems or networks used for the Services, particularly as a result of excessive data transmission, (distributed) denial-of-service attacks, poorly secured systems, or the activities of viruses, Trojans, or similar software, the Supplier is entitled to take all measures it reasonably deems necessary to avert or prevent this danger.
  3. Client shall indemnify and hold Supplier harmless from and against any claim, suit or action from a third party arising out of or in connection with any breach by Client of the provisions of this article.
  4. Supplier is entitled to deny the Client access to the Services in part or in full if Supplier has established that the Client has acted in violation of the applicable usage rules and the Client, after notification by Supplier, has failed to take measures to end the violation in question.
• Article 7. Installation and Commissioning
  1. Before the Services can be used, the Hardware must be installed. In accordance with Article 28, the Client is responsible for installing the Hardware.
  2. After the Hardware installation is complete, the Services must be Commissioned. Unless otherwise agreed, the Supplier is responsible for Commissioning, which may consist of the following actions:
     • connecting the Hardware to existing hardware (components) (such as heat pumps, inverters, etc.);
     • configuring the (settings of) the Software;
     • changing (settings of) Hardware or existing hardware (components);
     • Providing access to the Software.
  3. After completion of the Commissioning by Supplier, Client will have the right to test the Services for five (5) Business Days.
  4. The Commissioning of the Services shall be deemed to have been accepted by the Client:
     • On the first day after the test period as specified in the previous paragraph; or
     • If Supplier has been notified in writing before the end of the test period of any errors in the Commissioning of the Services, Supplier will use its best efforts to remedy the errors within a reasonable period of time, after which the Commissioning of the Service will be deemed to have been fully accepted after correction of these errors.
  5. Acceptance may not be withheld on the grounds of minor errors, being errors that do not reasonably impede the operation or productive use of the Services.
  6. The costs for the Commissioning are included in the Agreement. If no costs are specified, the Supplier is entitled to charge its (reasonable) usual rates. If the Commissioning requires actions not included in the Agreement or for which no compensation has been agreed, the Supplier is entitled to perform those actions and charge the Client for the costs (at its (reasonable) usual rates).
  7. If, during the installation or Commissioning of the Services, it appears that systems, connections, equipment, software, and/or the ICT infrastructure of the Client, or any third parties engaged by the Client, need to be modified in order to implement the Services, the Supplier will consult with the Client about this, and the Parties will make additional agreements in this regard. Any additional hours or costs incurred by the Supplier in this regard will be borne by the Client, unless the Parties agree otherwise in writing.
• Article 8. Support
  1. The Supplier will provide a reasonable level of support for questions about the Services. For support that does not address questions about the Services (such as those related to Commissioning, changes to hardware or software settings, etc.), the Supplier is entitled to charge reasonable fees.
  2. The Services may be linked to software, hardware, databases, or systems of third parties or the Client. To the extent these are available, the Supplier will endeavor to ensure that these links are available and functioning correctly. However, the availability and correct functioning of a link is partly dependent on the provider of the system or software with which a link is or will be established, and the Supplier cannot offer any guarantees in this regard. The Supplier is not responsible for any content made available to the Client through the links.
• Article 9. Data and backups
  1. Only if agreed in writing will the Supplier make backup copies of Customer Data stored by the Client on the Supplier's systems, and provide these to the Client upon request, possibly for an additional fee.
  2. The Supplier is entitled to delete the Customer Data and any backup copies thereof immediately upon termination of the Agreement, regardless of the reason for termination. It is the Client's responsibility to request and obtain a copy of the Customer Data in a timely manner in accordance with Article 10 or any other agreements between the Parties in this regard.
• Article 10. Exit
  1. In the event of a valid termination of the Agreement by the Client, the Supplier will, at the request of the Client, which request must be submitted in writing before or upon termination by the Client, endeavor to cooperate in enabling the migration and/or transfer of Customer Data to the Client or a service provider designated by the Client. The foregoing is at all times limited to the options offered by the Supplier at that time.
  2. For the cooperation referred to in the previous paragraph, the Supplier will apply its then-current rates. Costs associated with transferring the service to another service provider will also be borne by the Client.
• Article 11. Additional work
  
  1. If the Client requests Additional Work, the Parties will consult on the matter, and the Supplier may submit a supplementary offer. The Supplier will only perform the Additional Work after the Client accepts the offer. The Supplier reserves the right to refuse a request for Additional Work.
  2. For Additional Work that the Supplier can demonstrate is reasonably necessary to fulfill the Agreement, or when such necessity reasonably follows from the Client's instructions, the Supplier does not require further permission. Such work will then be performed at the Supplier's standard rates applicable at the time of performance of the work in question, unless the Parties have agreed otherwise.
• Article 12. Compensation
  
  1. All prices stated by the Supplier are in euros and exclusive of sales tax and other government levies.
  2. All prices stated are subject to programming and typing errors.
  3. Where the Agreement refers to "the applicable hourly rate" or "applicable rates" or similar terms, this refers to the Supplier's standard rates applicable at the time the relevant work is performed, unless the Parties have agreed otherwise. The Supplier will provide the standard rates upon request of the Client.
  4. No rights or expectations can be derived by the Client from a preliminary calculation or estimate issued by the Supplier, or a budget issued by the Client, and it cannot be regarded as a fixed price, unless the Parties have expressly agreed in writing on a fixed price for the relevant Service.
  5. The Supplier will, in principle, perform work during Office Hours. If the Supplier performs work outside Office Hours on behalf of the Client, these overtime hours will be recorded and charged as follows: (a) if the overtime occurs outside Office Hours on Working Days not covered by (c), a surcharge of 50% of the applicable hourly rate will apply; (b) if the overtime occurs on non-Working Days not covered by (c), a surcharge of 100% of the applicable hourly rate will apply; (c) if the overtime occurs between 00:00 and 06:00 on Working Days or non-Working Days, a surcharge of 150% of the applicable hourly rate will apply.
  6. If the Supplier is required to perform work at a location other than the Supplier's usual location (for example, at the Client's location), the Supplier is entitled to invoice the Client separately for any additional costs incurred. These costs may include, but are not limited to, travel expenses, travel time, (travel) insurance, accommodation, and food and beverages. Such costs, including a breakdown, will be invoiced retrospectively. The Parties will endeavor to agree on the nature and scope of such costs in advance as much as possible.
  7. With regard to agreed fees, the Supplier is entitled to change these once a year. In the event of a change, the Supplier will send written notice to the Client no later than one (1) month before the change takes effect. If the Client does not agree with the change, the Client has the right to object to the price change within seven (7) days. If, after timely receipt of the objection, the Supplier informs the Client that it will implement the previously communicated price change, the Client has the right to terminate the Agreement in writing with effect from the date on which the price change takes effect. Notice of termination must be received by the Supplier no later than seven (7) days before the effective date of the change. The Supplier may implement a price reduction at any time without the Client having the option to terminate the Agreement.
  8. In addition to the provisions of the previous paragraph, the Supplier is entitled to reasonably change the agreed fees at any time, up to a maximum of 20% per year, if the rates of its suppliers of, for example, electricity, data center, software, and (public) cloud solutions reasonably warrant such change. In the event of a change based on this paragraph, the Supplier will send written notice to the Client no later than one (1) month before the change takes effect. A change based on this paragraph does not entitle the Client to terminate the Agreement.
• Article 13. Invoicing
  1. The Agreement stipulates when the Supplier will invoice the Client for the agreed Services. Unless specific agreements have been made, the Supplier is entitled to invoice periodic or one-time fees in advance and fees calculated on a post-calculation basis each calendar month in arrears.
  2. Supplier will send the Client an (electronic) invoice for the agreed fees to the Client's (email) address known to Supplier.
  3. The payment term for an invoice is fourteen (14) days after the invoice date, unless the Parties have agreed in writing on a different payment term or if a longer payment term is stated on the relevant invoice.
  4. If the Client objects to the amount of an invoice, this does not suspend its payment obligation, but the Parties will enter into consultations to reach an amicable solution.
  5. If the Client fails to pay, the Client will be in default by operation of law from the invoice due date, without prior notice of default being required. The Supplier is then entitled to charge the Client the entire amount due, as well as the statutory interest for commercial transactions calculated on the amount due from the due date.
  6. Notwithstanding the foregoing, all costs associated with the collection of outstanding claims – both judicial and extrajudicial costs (including any reasonable costs for lawyers, bailiffs and debt collection agencies engaged for this purpose) – shall be borne by the Client.
  7. The Client is not entitled to offset any payment obligation resting on the Client against any claim against the Supplier on any grounds whatsoever.
  8. The Supplier has the right to suspend the Agreement in whole or in part without liability for any adverse consequences if the Client has not paid an invoice in full within the due date, or if full payment is not received after a voluntary reminder from the Supplier. During the suspension, any periodic fees remain due.
  9. If, at the request of the Client, an invoice is sent to a third party, this does not in any way release the Client from its obligations.
• Article 14. Intellectual Property Rights
  1. All Intellectual Property Rights relating to the Services and Materials developed or made available by the Supplier under the Agreement shall remain the exclusive property of the Supplier or its suppliers. Nothing in the Agreement shall be construed as a transfer of any Intellectual Property Rights, in whole or in part, to the Client. The Client shall acquire only the rights and powers thereto expressly granted by the Supplier in the Agreement or otherwise in writing. Rights are non-exclusive, non-transferable, and non-sublicensable, unless otherwise agreed in writing.
  2. The Supplier may take (technical) measures to protect the Services and Materials. If the Supplier has taken such security measures, the Client is not permitted to circumvent or remove these security measures.
  3. The Client is not permitted to remove or alter any notices concerning copyrights, trademarks, trade names, or other intellectual property rights from Materials originating from the Supplier or Services provided, including any notices regarding their confidential nature. Furthermore, the Client is not permitted to discover the source code of any Software provided by the Supplier under the Agreement through reverse engineering, decompilation, or otherwise, except to the extent this cannot be prohibited by mandatory law.
  4. All Intellectual Property Rights relating to Customer Data and Materials that the Client provides to the Supplier, or makes available (whether or not for connection with the Services), shall remain with the Client or its suppliers. The Client hereby grants the Supplier a right of use to all Customer Data, information, and Materials provided by the Client to the Supplier, which right the Supplier may exercise in the context of the performance of the Agreement and for conducting analyses to improve its services. The Client warrants that it has all rights and permissions necessary for the use of the Customer Data, information, and Materials (whether or not for connection with the Services) that the Client provides to the Supplier, or that the Client itself stores or distributes using the Services, and indemnifies the Supplier against any claims from third parties in this regard.
  5. The Supplier is permitted, during the term and after the termination of the Agreement, to describe the collaboration with and/or customer case concerning the Client for promotional purposes in the Supplier's channels (such as its website), using the Client's trade name, logo, and word mark for illustrative purposes. If the Client objects to the manner in which the Supplier has exercised the aforementioned right, the Client may notify the Supplier in writing, and the Supplier will reasonably consider the objection and may or may not make any adjustments.
• Article 15. Confidentiality
  1. The Parties shall treat Confidential Information received from the other Party before and during the performance of this Agreement as confidential for the duration of the Agreement. The Parties shall also impose this obligation on their employees and any third parties engaged by them for the performance of the Agreement.
  2. Both Parties shall exercise the same degree of care in protecting Confidential Information as the disclosing Party uses for protecting its own Confidential Information, but in any event not less than reasonable care.
  3. This Article does not apply to information that:
     • is or becomes generally accessible to the public through causes other than disclosure by the receiving Party in violation of this Agreement;
     • was already in the possession of the receiving Party prior to being disclosed to it by or on behalf of the disclosing Party;
     • is made available to the receiving Party on a non-confidential basis by a source other than the disclosing Party, who is not required to keep that information secret; or
     • was created by the receiving Party itself before it was provided by the providing Party to the receiving Party.
  4. If a receiving Party is legally obliged to disclose Confidential Information to third parties, it shall promptly notify the other Party in writing, unless prohibited by law, so that such Party can request a conservatory attachment or other appropriate remedy and/or waive any reliance on compliance with these confidentiality provisions.
• Article 16. Liability
  1. The Supplier's liability for an attributable failure to perform the Agreement, an unlawful act or on any other grounds, is limited to what is stipulated in this article.
  2. The Supplier's total liability to the Client for damages or other claims per event (whereby a series of related events is considered a single event) is limited to a maximum of the amount of the agreed fee for the performance of the Agreement (excluding VAT). If the Agreement is primarily a long-term agreement with a term of one (1) year or more, the fee agreed for one (1) year will be used. In no event, however, will the Supplier's total annual liability, on any legal basis whatsoever, exceed €10,000. This limitation of liability also expressly applies to any guarantees or indemnification obligations provided by the Supplier.
  3. The Supplier's liability for indirect damages is generally excluded. In this context, the Parties define indirect damages as: lost profits, lost savings, reduced goodwill, and damage due to business interruption.
  4. The Supplier's liability for an attributable failure to perform the Agreement shall arise only if the Client notifies the Supplier in writing as soon as possible, and in any event within fourteen (14) days of discovery, setting a reasonable period for remedying the failure, and the Supplier continues to fail to perform its obligations after that period. The notice of default must contain as detailed a description of the failure as possible, so that the Supplier is able to respond adequately.
  5. Any agreed limitation of liability shall lapse if and to the extent that the damage is the result of intent or deliberate recklessness on the part of the Supplier's management.
  6. Any claim for damages by the Client shall lapse by the mere passage of twelve (12) months after the claim arose, unless the Client has instituted legal proceedings for compensation for the damage suffered during this period.
  7. The Client shall indemnify the Supplier, as well as its employees and any assistants engaged by it, against claims by third parties who suffer damage in connection with the performance of the Agreement as a result of the actions or omissions of the Client, the provision of Materials by the Client, the inaccuracy or incompleteness of data or information provided by or on behalf of the Client and/or unsafe situations at a location designated by the Client where work is being carried out.
• Article 17. Force Majeure
  1. Neither Party shall be held to fulfill any obligation if a circumstance beyond the Parties' control (force majeure) that could not or should not have been foreseen at the time of entering into the Agreement, nullifies any reasonable possibility of fulfillment. Force majeure includes, but is not limited to: (a) disruptions of public infrastructure that is normally available to the Supplier and on which the Supplier is dependent in the performance of the Agreement, but over which the Supplier has no actual control; (b) disruptions within the Supplier's own infrastructure caused by malicious software, network attacks such as (D)DOS attacks, or successful or unsuccessful attempts to circumvent network security or system security; (c) shortcomings of the Supplier's suppliers that the Supplier could not foresee and for which the Supplier cannot hold its supplier liable, for example because the supplier in question is experiencing force majeure; (d) government measures, internal unrest, war, terrorism, strikes, and floods; (e) defects in goods, equipment or other Material the use of which has been prescribed by the Client to the Supplier; and (f) long-term unavailability of employees of the Supplier or third parties engaged by it due to illness.
  2. If a force majeure situation has lasted longer than ninety (90) days, each of the Parties shall have the right to terminate the Agreement in writing.
• Article 18. Amendment
  1. If the Client wishes to amend the Agreement, the Client may submit a request to the Supplier. Such amendments will only apply if expressly accepted and confirmed in writing by the Supplier.
  2. The Supplier reserves the right to unilaterally amend or supplement these Terms of Delivery, including with respect to existing Agreements. In the event of any amendment, the Supplier will notify the Client in writing. Amendments will not take effect until thirty (30) days after notification. If the proposed amendment demonstrably significantly negatively impacts the Client's position, the Client will be entitled to terminate the Agreement in writing, provided that the Supplier receives notice no later than fourteen (14) days prior to the effective date of the amendment. Minor amendments, amendments based on legislation, and amendments to the Client's advantage may be implemented at any time with immediate effect without notice and without the Client having the right to terminate the Agreement.
• Article 19. Miscellaneous
  1. The Agreement shall be governed exclusively by Dutch law.
  2. All disputes arising from or related to the Agreement shall be brought exclusively before the competent court in the district where the Supplier is statutorily established, unless otherwise prescribed by mandatory law, provided that the Supplier is also entitled to submit a dispute to a competent court on other grounds.
  3. If any provision of the Agreement proves to be void or voidable, or becomes or becomes invalid in whole or in part for any other reason, the remaining provisions of the Agreement will remain in full force and effect. The Supplier will replace the invalid provision with a valid provision whose legal consequences, given the content and scope of this Agreement, correspond as closely as possible to those of the invalid provision.
  4. The Supplier has the right to transfer the Agreement, in whole or in part, to a company belonging to the group as referred to in Article 2:24b of the Dutch Civil Code, or to a third party that takes over the relevant business activity of the Supplier, or to another third party, without any further cooperation from the Client. The Client shall grant the Supplier prior consent to do so, to the extent required. The Supplier shall notify the Client if such a transfer has occurred.
  5. The Client's rights and obligations under the Agreement may not and cannot be transferred, alienated, or pledged by the Client to third parties without the Supplier's written consent. The Supplier shall not withhold such consent unreasonably.
  6. The version of any communication received or stored by the Supplier, as well as any log files maintained by the Supplier or measurements performed in relation to the Services, shall be deemed authentic evidence, unless the Client provides evidence to the contrary.
  7. Any change of name, place of residence or registered office, or billing address or legal form must be communicated to the Supplier in writing by the Client as soon as possible.

Module C - Software-as-a-Service

This section contains specific provisions that apply to the extent the Agreement relates to the provision of access to Supplier's software applications via the Internet.

• Article 20. Operation and configuration of Software
  1. Client acknowledges that the Software can only function properly if the infrastructure requirements set by Supplier are met, and if Client has installed the required Hardware at the correct location.
  2. In addition to Commissioning, the Supplier may, in collaboration with the Client, arrange for the configuration or adjustment of the delivered Software. The Supplier is entitled to charge the Client for any support in this regard.
  3. If the Client independently wishes to make a change to the settings or configuration of the supplied Software, this is done entirely at the Client's own risk and responsibility.
• Article 21. Accounts and access
  1. The Supplier will provide the necessary access tools to access the Software, such as login credentials for an Account, or enable the Client to select these themselves. Access tools are personal and may not be shared with third parties, unless otherwise agreed.
  2. Unless otherwise agreed, the Client is responsible for end-user management, granting or revoking rights and creating or removing access resources.
  3. The Client is obliged to use a sufficiently strong password for Accounts and to immediately change any default password supplied by the Supplier.
  4. The Client is responsible for any use, with or without permission, of the Services and the access means made available to the Client. The Supplier is not responsible for misuse of access means. The Supplier may rely on and assume that all actions performed via a particular access means are carried out under the direction, supervision, and with the approval of the Client.
  5. If access means are (suspected of being) lost or leaked, the Client will immediately take all measures reasonably necessary, desirable, and possible to prevent misuse of the access means. These measures may include, for example, changing the password associated with an Account. In any case, the Client will immediately report this to the Supplier, so that the Supplier is able to take any additional measures to prevent (further) misuse of the Services.
  6. The Supplier is entitled to change the means of access to the Services from time to time at its sole discretion. The Supplier will notify the Client in a timely manner of any changes.
  7. At the request of the Client, the Supplier will block certain means of access. In addition, the Supplier is also entitled to block means of access without notice if the Supplier suspects or is aware of unauthorized use of the relevant means of access. The Supplier is not liable for any damage that the Client, its users, or third parties may suffer as a result.
• Article 22. Usage limits
  1. The Supplier may apply certain usage limits to the Services, which the Client may not exceed. If no specific agreements have been made between the Parties, a limit based on fair use applies. Fair use means that the Client may use a maximum of twice as much of the relevant unit as the average usage of other customers of the Supplier. This does not apply in situations where the Client has purchased a specific volume of a unit. In such cases, the separate agreements and conditions, as set out in the Agreement, apply.
  2. If the Client consumes more than is permitted under the Agreement, the Supplier has the right to subsequently charge an additional amount in accordance with the Supplier's usual rates.
  3. Supplier shall not be liable if the Services are inaccessible or do not function properly if the applicable usage limits are exceeded.
• Article 23. Right of use
  1. Supplier grants to Client, for the duration of the Agreement (and under any conditions included in the Agreement), the non-exclusive, non-transferable right to use the Services for the purpose of its own energy management.
  2. The right of use referred to in the previous paragraph also includes all future updates of the Services.
  3. Unless otherwise agreed in writing, the Client and its end users are not permitted to:
     • Sublicense or make the Services available to third parties, by means of rental, Software-as-a-Service constructions or otherwise;
     • Make changes to the Services;
     • To access or to provide themselves or others with access to the source code of the Services; and
     • To remove or make illegible any designation of Supplier or its licensors as rights holder(s) in the Services or parts thereof.
• Article 24. Availability, maintenance and guarantees
  1. Supplier will make every effort to achieve the highest possible availability of the Services.
  2. The Supplier has the right to temporarily disable its Services or parts thereof for maintenance, modification, or improvement of the Services, and/or maintenance, modification, or improvement of the associated software or other facilities. The Supplier will endeavor to schedule such discontinuations whenever possible at times when the Services are least used and to notify the Client in advance of any planned discontinuation.
  3. If the Supplier believes that a suspension of the Services is necessary for the proper functioning of the Services, it is entitled to immediately suspend the Services without prior notice to the Client. In such cases, the Supplier will, at the Client's request, indicate the reason for this. If agreed upon, the Supplier will provide the Client with a certain level of support during the provision of the Services. The Supplier may impose reasonable restrictions on the use of the offered forms of support, even if this has not been expressly agreed upon in advance. Furthermore, the Supplier is free to determine and/or change the availability and response times of the support.
  4. The Supplier will make every effort to resolve any problems/defects in the Services. However, the Supplier provides no guarantees in this regard, unless otherwise agreed.
  5. The Client must independently verify the calculations or processing of Customer Data performed by the Services. The Supplier does not guarantee that all calculations and/or processing are error-free at all times.
• Article 25. Changes to Services
  1. The Supplier may modify the functionality of the Services from time to time. Feedback and suggestions from the Client are welcome, but the Supplier ultimately determines which changes will be implemented. The Supplier endeavors, but is not obligated to do so, to provide at least two (2) weeks' notice of updates. The Client may not continue to use the old version of the Services or claim an announced update that has not been implemented due to circumstances.

Module D - Hardware

This section contains specific provisions that apply to the extent the Agreement relates to the purchase of Hardware.

• Article 26. General
  1. The parties agree that the Vienna Sales Convention does not apply.
  2. The parties expressly agree that Title 1 of Book 7 of the Dutch Civil Code does not apply.
• Article 27. Delivery
  1. The Hardware will be delivered by Supplier “Ex Works” as defined in the Incoterms 2020. Any packaging and shipping costs may be charged separately to the Client.
  2. The Client must inspect the delivered Hardware for any damage or other defects as soon as possible, but in any case within fourteen (14) days after delivery and commissioning of the Services. If the Client discovers any damage or other defects, it must immediately report this to the Supplier in writing. When reporting the damage or defects, the Client must provide sufficient reasons for the damage or defects and provide sufficient evidence to the Supplier to assess the validity of the report.
  3. If the Client does not report any damage or defect to the Supplier within the period referred to in the previous paragraph, the Hardware is deemed to have been delivered without damage or defects.
• Article 28. Installation
  1. Unless otherwise agreed, the Client is responsible for installing the Hardware after delivery. The Client must strictly follow all instructions provided by the Supplier and any instructions or documentation supplied with the Hardware. The Client will only have the Hardware installed by sufficiently skilled and competent persons (third parties or its own personnel) at a location that is easily and safely accessible. The Supplier is not liable for the Services not functioning (correctly) if the Hardware is not installed correctly.
  2. Only if expressly agreed in writing will the Supplier install the Hardware at a location and in a manner specified in the Agreement. The Supplier is entitled to refuse installation of Hardware at a specific location if, in its professional opinion, the location is not feasible, or the proper functioning of the Hardware at the location in question cannot be guaranteed.
  3. The Supplier has the right to engage third parties to install the Hardware as referred to in the previous paragraph. The Client will grant the Supplier or the third party(s) engaged by the Supplier access to the designated location and provide the necessary cooperation for the installation of the Hardware.
  4. The Client is responsible for providing the correct power supply and network connections. If the aforementioned facilities are not available, the Supplier may not be able to perform a correct and complete installation.
• Article 29. Warranty
  1. The Supplier provides a 24-month warranty (commencing upon delivery) on delivered Hardware. This warranty stipulates that the Supplier will repair any defects that prevent normal operational use of the Hardware. Alternatively, the Supplier may choose to provide a replacement.
  2. The warranty described above does not apply to damage or defects (1) resulting from improper use, (2) unrelated to the defectiveness of the materials used and/or the manufacturing process, (3) resulting from incorrect storage or safekeeping of the Hardware, or (4) resulting from climatic or other influences.
  3. The warranty provided in this article applies only if the Client reports the defect immediately after discovering it, including a detailed description of the defect. The customer is responsible for the costs and risk of transporting the Hardware to the Supplier, unless otherwise agreed.
• Article 30. Returns
  1. Returns of Hardware are only possible after prior consent from the Supplier.
  2. Any costs associated with returning the hardware will be borne by the Client. The Client is responsible for adequately packaging the hardware and must return it via insured shipping. Returning the hardware is at the Client's risk.
  3. The Client is obligated to return the Hardware to the Supplier in undamaged condition, except for normal wear and tear. If the Supplier determines that the Client has made changes to the Hardware without the Supplier's written permission, or if the Hardware has been damaged or lost, any costs for replacement or repair will be borne entirely by the Client.

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