Terms and conditions
General Company details
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|ABN AMRO, Amsterdam, The Netherlands
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General terms & conditions
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 Laan van Zuid Hoorn 37, 2289 DC Rijswijk, 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.
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-transferable 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 regard to the current release at that time if expressly agreed between the Parties, and as set out in the Offer.
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;
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 it available to any third party; or
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 that 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, including those applicable to Colorware acting as a data controller in this specific case
5.3 During the Term and after the 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 backup 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 the power to order such disclosure.
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 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) euros.
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 does 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 the 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;
b) the Support and Maintenance Services shall automatically terminate;
c) each Party will return all Confidential Information;
d) the Client shall promptly pay Colorware all fees and amounts due.
13. 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 the impact on 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 when the usage is at its minimum.
15.1 Entire agreement – The Agreement supersedes 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 an 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.