Terms and conditions

General company details

Company Registration Number: HR 27283579
VAT number: NL815504299B01
Bank: ABN AMRO, Amsterdam, The Netherlands
Bank account number: 46.10.19.167
IBAN: NL10ABNA0461019167
BICcode (SWIFT): ABNANL2A

1. Definitions

Colorware general terms and conditions

regard to the current release at that time if expressly agreed between the  

Parties, and as set out in the Offer. 

In these General Terms and Conditions the following definitions will apply: “Agreement” means these General Terms and Conditions, the Offer and  other agreements made between the Parties; 

“Client” means the legal entity identified in the Offer as the client; “Client Induced Incident” means an incident caused by abuse or  misuse of the Software by the Client; 

“Colorware” means Colorware BV, a company incorporated under Dutch  law, with registered offices at Bloemluststraat 36, 2242 VM Wassenaar,  The Netherlands and enterprise number 27283579; 

“Confidential Information” shall mean that confidential and/or  proprietary information of either Party of whatever kind or nature  disclosed to the other party or known by it, whether or not discovered or  developed by a Party through the Agreement; 

“Effective Date” means the effective date as agreed between Parties; “Force Majeure” means a temporary or permanent inability of a Party to  fulfill its obligations, resulting from unavoidable, unforeseeable and  external facts and circumstances reasonably beyond the control of that  Party, including but not limited to war, revolt, fire caused by an outside  calamity, an import or export embargo imposed by the government,  internet or hosting failure, floods, explosion, pandemic, weather  conditions, strike or social action; 

“General Terms and Conditions” means the present General Terms  and Conditions, applicable to all Offers issued by Colorware, combined  with any special terms and conditions (if applicable).  

“License Fee” means the license fee specified in the Offer for the license  of the Software and the provision of Support and Maintenance Services; “Offer” means an offer as agreed upon in writing between the Client and  Colorware, containing a commercial agreement; 

“Party” means a party to the Agreement; 

“Services” means additional services, requested by the Client from  Colorware, and provided at the standard hourly rates as provided by  Colorware to the Client upon request; 

“Software” means Colorware’s proprietary Software made available by  Colorware to the Client as a local installation or as ‘Software as a Service’  (SaaS); 

“Software Assurance Agreement” means a separate agreement for  the purposes of acquiring Software maintenance and support, in addition  to the Support and Maintenance Services provided by Colorware; “Support and Maintenance Services” means the support and  maintenance services related to the Software provided by Colorware to  the Client during one (1) year as of the Effective Date. Such basic support  shall consist of Software updates, fixes, critical patch updates, update  scripts, general maintenance releases, and functionality updates. “User”: those employees, agents and independent contractors and  customers of the Client who are duly authorized to use the Software. 

2. Conclusion of the Agreement

2.1 Colorware shall provide the Software, Service, Support and Maintenance  Services and/or other services as set out in the Agreement.  2.2 Client waives its own general and special terms and conditions. 2.3 These Terms and Conditions also apply to all Users of the Software.  In the event the Software uses services of third parties, the terms of  service and/or privacy policies of those third parties may apply. The Client  shall be notified when such third-party terms of services and/or privacy  policies are applicable. By accessing such third-party service, you agree to  comply with the applicable third-party terms and you acknowledge that  you are the sole party to such terms. Colorware cannot be held liable in  any way with regard to the content of such third parties’ terms or privacy  policy and disclaims to the maximum extend its liability. 

2.4 Colorware reserves the right at any time, and from time to time, with  or without cause to amend these General Terms and Conditions. Any  change will be notified thirty (30) days prior to entering into force. In the  event any change of these General Terms and Conditions is needed to  comply with relevant law, Colorware reserves the right to immediately  enforce the amended General Terms and Conditions without prior notice. 

Right of Use of the Software and provision of Services 

2.5 Subject to the Agreement, Colorware grants to the Client a personal,  restricted, non-exclusive, non-transferrable and non-assignable license to  have access to and use the Software, strictly for its intended purpose as  defined in these General Terms and Conditions and otherwise by  Colorware. Such license shall commence on the Effective Date and shall  remain in effect (i) for the term of the Agreement, or (ii) perpetually with  

2.6 Within the limits of the applicable law, the Client is not permitted to  (i) make the Software available or to sell or rent the Software to any third  parties; (ii) adapt, alter, translate or modify in any manner the Software;  (iii) sublicense, lease, rent, loan, distribute, or otherwise transfer the  Software to any third party; (iv) decompile, reverse engineer,  disassemble, or otherwise derive or determine or attempt to derive or  determine the source code (or the underlying ideas, algorithms, structure  or organization) of the Software; (v) use or copy the Software except as  expressly allowed under these Terms of Use; (vi) use the Software to  conduct or promote any illegal activities; (vi) alter, remove, or obscure  any copyright notice, digital watermarks, proprietary legends or other notice included in the Software; or (vii) remove or in any manner  circumvent any technical or other protective measures in the Software. 

2.7 The Client shall comply with all applicable laws relating to the use of  the Software.  

2.8 Unless explicitly permitted under applicable laws, the Client shall not: a) reproduce, arrange, modify, alter the Software including for the  purpose of correcting errors, or create derivative works based on the  Software or enable a third party to perform such acts; 

1. b) assign, distribute, sub-license, hire, transfer, sell, lease, charge or  otherwise deal in or encumber the Software, or use the Software on  behalf of any third party or make them available to any third party; or 
2. c) remove or alter any copyright or other proprietary notice on any of  the Software. 

2.9 Colorware may assign access or identification codes for the Software  to the Client. The access and identification codes are strictly personal and  are only to be used by the Users authorized by the Client. 2.10 The Client shall and shall have the Users treat the access and  identification codes confidentially, with due care. 

2.11 Colorware shall never be liable for damage or expenses resulting  from misuse of access and identification codes, except for gross  negligence and/or willful misconduct by Colorware or its managers.  2.12 The Client acknowledges and agrees that in order for Colorware to  effectively perform the Software as a Service and/or the Services in a  proper, timely and efficient manner, the Client must cooperate with  Colorware by (i) making available on a timely basis the necessary  management approvals; (ii) at no cost to Colorware, providing timely and  appropriate access to the Client facilities, personnel, equipment, resources  and systems; (iii) providing the necessary technical support when  requested; (iv) obtaining the necessary permits, licenses and permissions  to safely install, accommodate and use the Hardware; and (v) all other  reasonable requests by Colorware. 

3. Intellectual Property Rights

3.1 Colorware is and remains the sole and exclusive proprietary owner of  all intellectual property rights related to the Software, the documentation and any services provided under the Agreement (including any new  versions, updates, customizations, enhancements, modifications, or  improvements made to the Software or documentation). Nothing in the  Agreement shall convey any title or proprietary right or intellectual  property rights in or over the Software and the documentation to the  Client or any third party.  

4. Suspension for breach

4.1 If Colorware becomes aware of any breach of these General Terms  and Conditions, or any other instructions, guidelines or policies issued by  Colorware relating to the Software, then Colorware may suspend or limit  the use and/or the access to the Software. The duration of any suspension  by Colorware will be until you have cured the breach which caused such  suspension or limitation. 

5. Client Data (use and back-up)

5.1 Colorware and its subcontractors (together in this article 5:  “Colorware”) may use such Client Data in furtherance of its obligations  under this Agreement and to improve and develop the Software (as a  Service), provided however that such use is compliant with all applicable  laws. 

5.2 Colorware may only use Client Data which has been aggregated,  meaning that it cannot identify any individual person. To the extent  Colorware anonymizes and/or aggregates Client Data, Colorware warrants  that it fully complies with all applicable data protection legislation, 

CONFIDENTIAL 

including those applicable on Colorware acting as data controller in this  specific case 

5.3 During the Term and after termination of the Agreement for whatever  cause, Colorware has the right to save, store and keep using aggregated  Client Data, to the extent permitted by applicable law. 

5.4 The Client warrants to Colorware that the Client Data when used by Colorware in accordance with the Agreement will not infringe the  intellectual property rights or other legal rights of any person or third  party, and will not breach the provisions of any law, statute or regulation,  in any jurisdiction and under any applicable law. 

5.5 When the Client makes use of the Software as a Service, Colorware  shall back-up and archive Client Data according to its standard back-up  procedure. When the Client makes use of a local installation of the  Software, the Client shall back-up Client Data. Colorware has no  obligation in this respect. 

5.6 In the event of any loss or damage to Client Data when using the  Software as a Service, the Client’s sole and exclusive remedy shall be for  Colorware to use its best efforts to restore the lost or damaged Client Data  from the latest back-up of such Client Data maintained by Colorware.  Colorware shall not be responsible for any loss, destruction, alteration, or  disclosure of Client Data caused by any third party. 

6. Infringements Claims by third parties for the Software 6.1 In the event the Software, in Colorware’s reasonable opinion, is  likely to or become the subject of a third-party infringement claim (as per  article 6.1), Colorware shall have the right, at its sole option and expense,  to: (i) modify the ((allegedly) infringing part of the) Software so that they  become non-infringing while preserving equivalent functionality; (ii)  obtain for the Client a license to continue using the Software in accordance  with the Agreement; or (iii) terminate the relevant license and pay to the  Client an amount equal to a pro rata portion of the License Fee paid to  Colorware hereunder for that portion of the Software which is the subject  of such infringement. This article 6.1 states the Client’s sole remedy for  infringement claims.  
7. Confidential Information

7.1 Parties shall (i) apply the same degree of care with respect to the  Confidential Information, as it takes to preserve and protect its own  confidential information but in no event shall this be less than a reasonable  degree of care (ii) not use any Confidential Information of the other Party,  other than in the performance of the Agreement (iii) not disclose any  Confidential Information without the prior written consent of the other  Party (iv) promptly return all Confidential Information, including any  copies thereof upon the earlier of the request of the other Party or upon  termination of the Agreement. A receiving Party shall not be required to  treat as confidential any information which (i) is already in its possession,  (ii) becomes publicly available other than as a result of any breach of the  Agreement by the receiving party, (iii) which is independently developed  by it, or (iv) which is lawfully obtained from any third party without  restriction on disclosure. Nothing in this section shall prevent a party from  disclosing confidential information were ordered to do so by a court or a  statutory or regulatory body with power to order such disclosure. 

8. Warranty

8.1 Colorware shall provide the Software, Support and Maintenance  Services and/or Services in good faith and in accordance with applicable law, with the expertise, independence and diligence that can be  reasonably expected from a qualified provider. 

8.2 The Client acknowledges and agrees that the Software (as a  Service), Support and Maintenance Services and Services are provided “as  is”, meaning in its current state and condition. Save for the foregoing  warranties, Colorware makes no representations or warranties concerning  any matter under the Agreement, including the Software (as a Service),  Support and Maintenance Services and the Services, and the warranties  set forth in this article are made expressly in lieu of all other  representations and warranties, express or implied, including any implied  warranties of fitness for a particular purpose, merchantability or  otherwise. In this respect Colorware does not warrant that the Software 

(as a Service) shall operate without interruption or is error free. Colorware expressly disclaims any warranty of non-infringement, or accuracy or  completeness, operational criteria or parameters provided by the Client. 

9. Limitation of Liability

9.1 The total liability of Colorware (including any of its affiliates, group,  or subsidiary companies) due to attributable failure in its performance or  

on any ground whatsoever, expressly including any failure in the  performance of a guarantee or indemnification obligation agreed with the  Client, is limited to compensation for damage as defined in this this article 9. 

9.2 Direct damage (monetary or otherwise) is limited to the lesser of  (i.) actual damages incurred or (ii.) the amount of the price stipulated for  the Agreement (excl. VAT). If the Agreement is predominantly a  continuing performance contract with a term of more than one year, the  price stipulated for that Agreement is set at the total of the fees (excl.  VAT) stipulated for one year. Under no circumstances shall the total  aggregated liability of Colorware for direct damage, on whatever legal  basis, exceed ten thousand (10.000,00) euro. 

9.3 To the maximum extent legally permitted under applicable law  Colorware disclaims all liability to the Client for any indirect, punitive,  special consequential or similar damages (including damages for loss of  profit, lost revenue, loss of business, loss or corruption or loss of data,  loss of customers and contracts, loss of goodwill, the cost of procuring  replacement goods or services, and reputational damage) whether arising  from negligence, breach of contract or of statutory duty or otherwise  howsoever, and third parties’ claims.  

9.4 Any limitation of liability for damages defined in these General Terms  and Conditions do not apply in the case of (i) gross negligence; (ii) willful  misconduct or (iii) any fraud committed. 

9.5 For the avoidance of doubt, Colorware disclaims all liability for any  claims resulting from (i) unauthorized use of the Software, (ii) the Client’s  or any third party’s modification of (any parts) of the Software, (iii) the  Client failure to use the most recent version of the Software made  available for local installation or the failure to integrate or install any  corrections to the Software issued by Colorware for local installation, or  (iv) the use of the Software by the Client in combination with any non 

Colorware products or services. 

9.6 Liability only arises if Colorware party has been declared to be in  default forthwith and properly, granting a reasonable period for  performance of at least two (2) weeks, and that Colorware still fails to  perform its obligations after that period. The notice of default must contain  a description of the default that is as detailed as possible. A prerequisite  for the existence of any entitlement to damages is always that the damage  is reported in writing as soon as possible, but no later than three (3)  months after its occurrence. 

9.7 The exclusions and limitations of liability of Colorware defined in this  article 9 do not affect the other exclusions and limitations of liability of  Colorware that are included in these General Terms and Conditions. 

10. Payment Terms

10.1 Unless otherwise explicitly set out in the Offer, and depending on  the chosen Software product configuration, there are two options: (i) the  recurring annual License Fee is to be paid by the Client to Colorware upfront on the Effective Date. The License Fee for any subsequent year is  invoiced and due on each anniversary date of the Effective Date, or (ii) a  fixed License Fee for the full license term is to be paid by the Client to  Colorware upfront on the Effective Date.  

10.2 Unless otherwise explicitly set out in the Offer, an implementation  fee is to be paid by the Client to Colorware upfront on the Effective Date. 10.3 In the event additional Services are requested by the Client additional fees might be due.  

10.4 All payments made by the Client to Colorware hereunder shall be  made free and clear of and without deduction for or in respect of any  taxes, levies, imposts, duties, charges, fees, deductions or withholdings of  any nature imposed, levied, collected, withheld or assessed.  

10.5 Each payment to be made by the Client to Colorware shall be paid  within thirty (30) days of date of invoice. All amounts due hereunder not  paid Licensee within thirty (30) days after receipt of Licensor’s invoice shall  bear interest at the rate of one and one-half percent (1.5%) per month or  such a lesser amount as is the maximum allowed by applicable mandatory  law. 

11. Term & Termination

11.1 The Agreement shall commence on the Effective Date and continue  in effect for either an unlimited period (perpetual license) or for an initial  term agreed between Parties (the “Initial Term”) and shall thereafter  automatically and tacitly renew for successive one-year periods (each a  “Renewal Term“) unless written notice of non-renewal is given by either  Party at least three (3) months prior to the expiration of the Initial Term  or any (subsequent) Renewal Term. 

11.2 Either Party may terminate immediately the whole or any portion of  the Agreement if: (i) the other Party performs a material breach to any 

provision of the Agreement and fails to cure such material breach within  sixty (60) calendar days after receipt of written notice of the material  breach to the breaching Party, (ii) the other Party becomes insolvent, is subject to voluntary or involuntary bankruptcy, insolvency or similar  proceeding or otherwise liquidates or ceases to do business, or (iii) the  other Party breaches article 3 (Intellectual Property Rights) or article 7 (Confidential Information).  

12. Effects of Termination

Upon termination of the Agreement for whatever reason:  a) the Client’s right to use the Software will automatically cease and all  licenses granted to the Client pursuant to the Agreement shall  automatically terminate, except for the perpetual license as expressly  agreed between the Parties; 

1. b) the Support and Maintenance Services shall automatically terminate; c) each Party will return all Confidential Information;  
2. d) the Client shall promptly pay Colorware all fees and amounts due.  
3. Support and Maintenance Services

13.1 As of the Effective Date, for a term of twelve (12) months, and in  consideration of the timely payment by the Client of the License Fees,  Colorware shall provide Support and Maintenance Services (in English) in  relation to the Software. Support and Maintenance Services shall be  available for the current release of the Software and only for the Client’s  production environments. 

13.2 Support on Client Induced Incidents is not included in the Support  and Maintenance Services. Colorware can provide professional services on  Client Induced Incidents or any other out of scope incidents including and  not limited to regulatory maintenance, but such out of scope support is  not included in the License Fee and shall be separately invoiced to the  Client. 

13.3 The Client can opt to conclude a separate Software Assurance  Agreement for a consecutive 12 months period with Colorware or with one  of its local partners. 

14. Software as a Service

14.1 The terms in this article 14 apply when the Software is provided as  ‘Software as a Service’ (SaaS) to the Client. 

14.2 Colorware may engage the services of third parties in rendering  (parts of) the Software as SaaS. 

14.3 Colorware may make changes to (parts of) the Software provided  as a service from time to time.  

14.4 To apply upgrades and other changes to (parts of) the Software as  

a Service, the service may be made temporarily unavailable. To minimize  impact to the Client’s usage of the Software as a Service, Colorware will  attempt to make any outages as short as possible and at a time of day  where the usage is at its minimum. 

15. Miscellaneous

15.1 Entire agreement – The Agreement supersede all prior  agreements, arrangements and undertakings between the Parties and  constitutes the entire agreement between the Parties relating to the  subject matter hereof. Each Party acknowledges and agrees that in  entering into the Agreement, it does not rely on, and shall have no remedy  in respect of, any statement, representation, warranty or understanding  of any person (whether Party to the Agreement or not) other than as  expressly set out in the Agreement as a warranty. If any provision shall  be held to be invalid, illegal, or unenforceable, the validity, legality or  enforceability of the remainder shall not in any way be affected. Any  failure to enforce any provision shall not constitute a waiver thereof or of  any other provision.  

15.2 Survival – The respective obligations of the Parties which are  expressly or by implication intended to continue in force, including,  without limitation, ‘Intellectual Property Rights’, ‘Confidential Information’ 

and ‘Limitation of Liability’ shall survive any termination or cancellation. 15.3 Assignment – the Client shall not assign these General Terms and  conditions without the prior written consent of Colorware. The covenants  and conditions contained in these General Terms and conditions shall  apply to and bind the successors and permitted assigns of the Parties  hereto. 

15.4 Subcontractors – Nothing in the Agreement shall prevent  Colorware from utilizing the services of any subcontractor as it deems  appropriate to perform its obligations under the Agreement. 15.5 Force Majeure – Neither Party will be responsible or liable for any  failure or delay in the performance of its obligations under the Agreement arising out of or caused by Force Majeure.  

15.6 Relationship between the Parties – The relationship between  Colorware and the Client is that of independent contractors. Neither Party  is agent for the other and neither Party has any authority to make any  contracts, whether expressly or by implication, in the name of the other  Party, without that Party’s prior written consent for express purposes  connected with the performance of the Agreement.  

15.7 Applicable law and jurisdiction – The Agreement and/or Offer shall be governed by and construed in accordance with the laws of the  Netherlands and the Parties hereto submit to the exclusive jurisdiction of  the courts of The Hague. The United Nations Convention for the  International Sale of Goods shall not apply to the Agreement and/or the  Offer.