General Terms and Conditions
General Terms and Conditions
OneGlimpse B.V., a private limited liability company registered with the Chamber of Commerce under No 78315654 and located at the address Houtenend 38, 3317MK Dordrecht, The Netherlands.
Below OneGlimpse B.V. is named “OneGlimpse” and you are referred to as “Customer”.
Chapter 1. General Provisions
Article 1. Applicability
1.1 These Terms and Conditions apply to all offers and contracts pursuant to which OneGlimpse delivers goods and/or provides services of any nature whatsoever and under whatever name to Customer.
1.2 Departures from and additions to these terms and conditions shall only be valid if they are agreed between the parties in writing.
1.3 The applicability of Customer's purchasing or other conditions is specifically excluded.
1.4 If any provision of these terms and conditions is null and void or is voided, the other provisions of these terms and conditions shall remain fully in effect. OneGlimpse and Customer shall in this case consult each other for the purpose of agreeing new provisions to replace the null and void or voided provisions.
Article 2. Offers
2.1 All offers and other communications of OneGlimpse are subject to confirmation unless OneGlimpse has indicated otherwise in writing.
Customer guarantees that the information that it has provided or that has been provided on its behalf to OneGlimpse and on which OneGlimpse has based its offer is accurate and complete.
Article 3. Price and payment
3.1 Unless explicitly stated by OneGlimpse all prices stated by OneGlimpse are exclusive of turnover tax (VAT) and other levies imposed by the government. Unless stated in another currency all prices stated are in euros (EUR) and Customer must make all payments in the currency stated.
3.2 Customer may not derive any rights or expectations from a cost estimate or budget issued by OneGlimpse unless the parties have otherwise agreed in writing. An available budget made known to OneGlimpse by Customer shall only apply as a (fixed) price agreed between the parties for the performance to be delivered by OneGlimpse if this has been expressly agreed in writing.
3.3 If, according to the contract concluded between the parties, Customer consists of several natural persons and/or legal entities, each of these natural persons and/or legal entities shall be jointly and severally liable towards OneGlimpse for performance of the contract.
3.4 Information from OneGlimpse's records shall count as conclusive evidence with respect to the performance delivered by OneGlimpse and the amounts owed by Customer for delivery of this performance, without prejudice to Customer's right to produce evidence to the contrary.
3.5 If a periodic payment obligation on the part of Customer applies, OneGlimpse shall be entitled to adjust, in writing and in accordance with the index or other standard included in the contract, the applicable prices and rates to the term specified in the contract. If the contract does not expressly provide for the possibility on the part of OneGlimpse to adjust the prices or rates, OneGlimpse shall always be entitled to adjust, in writing and with due observance of a term of at least two months, the applicable prices and rates. If Customer does not agree to the adjustment in this latter case, Customer shall be entitled to terminate the contract in writing within thirty days following notice of the adjustment, which termination shall take effect on the date on which the new prices and/or rates would take effect.
3.6 The parties shall record the date or dates on which OneGlimpse shall charge Customer for the performance agreed in the contract. Amounts owed must be paid by Customer in accordance with the agreed payment terms or the payment terms stated on the invoice. Customer may not suspend any payment and may also not set off any amounts owed.
3.7 If Customer fails to pay amounts due or fails to do so on time OneGlimpse is entitled to terminate use or downgrade Customer to a free (unpaid) version without prejudice to the obligations of the Customer to pay amounts due.
Article 4. Term of the contract
4.1 If and insofar as the contract concluded between the parties is a continuing performance contract, the contract shall be entered into for the term agreed between the parties. A term of one year shall apply if no term has been agreed.
4.2 The term of the contract shall be tacitly extended, each time by the period of time originally agreed, unless Customer or OneGlimpse terminate the contract in writing with due observance of a notice period of one month prior to the end of the current term.
Article 5. Confidentiality and transfer of personnel
5.1 Customer acknowledges that software originating from OneGlimpse is always confidential in nature and that this software contains trade secrets of OneGlimpse and its suppliers or the producer of the software.
Article 6. Privacy and data processing
6.1 If necessary for the performance of the contract, Customer shall on request inform OneGlimpse in writing about the way in which Customer performs its legal obligations regarding the protection of personal data.
6.2 Customer indemnifies OneGlimpse against claims of persons whose personal data is recorded or processed in the context of a register of personal data that is maintained by Customer or for which Customer is otherwise responsible by law, unless Customer proves that the facts on which a claim is based are attributable to OneGlimpse.
6.3 Customer is fully responsible for the data that it processes in the context of using a service of OneGlimpse. Customer guarantees vis-à-vis OneGlimpse that the content, use and/or processing of the data are not unlawful and do not infringe any right of a third party. Customer indemnifies OneGlimpse against any claim of a third party instituted for whatever reason in connection with this data or the performance of the contract.
Article 7. Security
7.1 If OneGlimpse is obliged to provide for a form of information security under the contract, this security shall meet the specifications agreed in writing between the parties regarding security. OneGlimpse does not guarantee that the information security provided is effective under all circumstances. If the contract does not include an explicitly defined security method, the security provided shall meet a standard that is not unreasonable in terms of the state of the art, the sensitivity of the information and the costs associated with the security measures taken.
7.2 The access or identification codes and certificates provided by or because of OneGlimpse to Customer are confidential and must be treated as such by Customer, and may only be made known to authorized personnel in Customer's own organization. OneGlimpse is entitled to change the access or identification codes and certificates.
7.3 Customer must adequately secure its systems and infrastructure and have active antivirus software protection at all times.
Article 8. Retention of title, reservation of rights and suspension
8.1 All items delivered to Customer shall remain the property of OneGlimpse until all amounts owed by Customer to OneGlimpse under the contract concluded between the parties have been paid to OneGlimpse in full. A Customer that acts as a reseller may sell and supply all items that are subject to OneGlimpse's retention of title insofar as doing so is usual in the context of Customer's ordinary course of business.
8.2 The property-law consequences of the retention of title with respect to an item destined for export shall be governed by the laws of the State of destination if those laws contain provisions that are more favorable to OneGlimpse.
8.3 As and when necessary, rights shall be granted or transferred to Customer subject to the condition that Customer has paid all amounts owed under the contract.
8.4 OneGlimpse may retain all information, documents, software and/or data files received or created in the context of the contract in spite of an existing obligation to hand over or transfer until Customer has paid all amounts owed to OneGlimpse.
Article 9. Risk transfer
9.1 The risk of loss, theft, misappropriation or damage of items, information (including user names, codes and passwords), documents, software or data files that are created, supplied or used in the context of performing the contract shall pass to Customer at the time at which Customer or an auxiliary person of Customer comes into actual possession of the items and information referred to.
Article 10. Intellectual property
10.1 All intellectual property rights to the software, websites, data files, equipment and training, testing and examination materials, as well as other materials like analyses, designs, documentation, reports and offers, including preparatory materials in this regard, developed or made available to Customer under the contract are held exclusively by OneGlimpse, its licensors or its suppliers. Customer shall have the rights of use expressly granted under these terms and conditions, the contract concluded in writing between the parties and the law. A right accorded to Customer is non-exclusive and may not be transferred, pledged or sublicensed.
10.2 Customer may not remove or change any indication concerning the confidential nature of or concerning the copyrights, brands, trade names or any other intellectual property right pertaining to the software, websites, data files, equipment or materials, or have any such indication removed or changed.
10.3 Even if not expressly provided for in the contract, OneGlimpse may always take technical measures to protest equipment, data files, websites, software made available, software to which Customer is granted direct or indirect access, and the like in connection with an agreed limitation in terms of the content or duration of the right of use of these items.
Customer may not remove or bypass such technical measures or have such technical measures removed or bypassed.
10.4 OneGlimpse indemnifies Customer against any claim of a third party based on the allegation that software, websites, data files, equipment or other materials developed by OneGlimpse itself infringe an intellectual property right of that third party, subject to the condition that Customer immediately informs OneGlimpse in writing about the existence and content of the claim and leaves the settlement of the claim, including any arrangements made in this regard, entirely to OneGlimpse. Customer shall provide the powers of attorney and information required to OneGlimpse and assist OneGlimpse to defend itself against such claims. This obligation to indemnity shall not apply if the alleged infringement concerns (i) materials made available to OneGlimpse by Customer for use, modification, processing or maintenance or (ii) changes made or commissioned by Customer in the software, website, data files, equipment or other materials without OneGlimpse's written permission. If it is irrevocably established in court that software, websites, data files, equipment or other materials developed by OneGlimpse itself is or are infringing any intellectual property right held by a third party, or if, in the opinion of OneGlimpse, there is a good chance that such an infringement is occurring, OneGlimpse shall if possible ensure that Customer can continue to use, or use functional equivalents of, the software, websites, data files, equipment or materials supplied. Any other or further obligation to indemnify on the part of OneGlimpse due to infringement of a third party's intellectual property right is excluded.
10.5 OneGlimpse is never obliged to perform data conversion unless doing so has been expressly agreed in writing with Customer.
Article 11. Obligations to cooperate
11.1 The parties acknowledge that the success of work in the field of information and communications technology depends on proper and timely cooperation between the parties.
Customer shall always extend, in a timely manner, the cooperation reasonably required by OneGlimpse.
11.2 Customer bears the risk of selecting the items, goods and/or services to be provided by OneGlimpse. Customer must always exercise the utmost care to guarantee that the requirements that OneGlimpse's performance must meet are accurate and complete. Measurements and particulars given in drawings, images, catalogues, websites, offers, advertising material, standardization sheets and the like are not binding for OneGlimpse unless expressly stated otherwise by OneGlimpse.
11.3 Customer shall itself install, organize, parameterize and tune the software and support software required on its own equipment and, if necessary, modify the equipment, other software and support software and operating environment used in this regard, and effect the interoperability that it desires.
Article 12. Obligations to provide information
12.1 To enable proper performance of the contract by OneGlimpse, Customer shall always provide information reasonably required by OneGlimpse to OneGlimpse in a timely manner.
12.2 Customer guarantees that the information, designs and specifications that it has provided to OneGlimpse is or are accurate and complete. If the information, designs or specifications provided by Customer contain inaccuracies apparent to OneGlimpse, OneGlimpse shall contact Customer to make enquiries about the matter.
12.3 In connection with continuity, Customer shall designate a contact person or contact persons who shall act in that capacity for the duration of OneGlimpse's work. Customer's contact persons shall have the experience required, specific knowledge of the subject matter and a proper understanding of the objectives that Customer wishes to achieve.
12.4 OneGlimpse is only obliged to periodically provide information concerning the performance of the work to Customer through the contact person designated by Customer.
Article 13. Terms
13.1 OneGlimpse shall make reasonable efforts to comply to the greatest extent possible with the terms and delivery periods and/or dates and delivery dates, whether or not these are firm deadlines and/or dates, that it has specified or that have been agreed between the parties. The interim dates and delivery dates specified by OneGlimpse or agreed between the parties shall always apply as target dates, shall not bind OneGlimpse and shall always be indicative.
13.2 If a term is likely to be exceeded, OneGlimpse and Customer shall consult with each other about the consequences of the term being exceeded in relation to further planning.
13.3 In all cases, therefore also if the parties have agreed firm deadlines and delivery periods or dates and delivery dates, OneGlimpse shall only be in default as a result of a period of time being exceeded after Customer has declared OneGlimpse to be in default in writing and a reasonable term that Customer granted to OneGlimpse to remedy the breach has passed. The notice of default must describe the breach as comprehensively and in as much detail as possible in order to give OneGlimpse the opportunity to respond adequately.
13.4 If it has been agreed that the work under the contract is to be performed in phases, OneGlimpse shall be entitled to postpone the start of a phase's work until Customer has approved the results of the preceding phase in writing.
13.5 OneGlimpse shall not be bound by a date or delivery date or term or delivery period, whether or not final, if the parties have agreed an amendment to the content or scope of the contract (additional work, a change of specifications and so on) or a change in approach with respect to performance of the contract, or if Customer fails to fulfil its obligations arising from the contract or fails to do so on time or in full. The need for or occurrence of additional work during performance of the contract shall never constitute a reason for Customer to give notice of termination or to rescind (in Dutch: 'ontbinden') the contract.
Article 14. Termination and cancellation of the contract
14.1 Each party shall only be authorized to rescind the contract due to an attributable failure in the performance of the contract if the other party, in all cases after a written notice of default that is as detailed as possible and that grants a reasonable term to remedy the breach has been issued, is culpably failing to fulfil essential obligations under the contract. Customer's payment obligations and all obligations of Customer or a third party engaged by Customer to cooperate and/or provide information apply in all cases as essential obligations under the contract.
14.2 If, at the time of rescission, Customer has already received goods or services in the performance of the contract, these goods or services and the associated payment obligations shall not be undone unless Customer proves that OneGlimpse is in default with respect to the essential part of such goods or services. With due regard to the stipulation of the preceding sentence, amounts invoiced by OneGlimpse prior to rescission in connection with what it already properly performed or delivered in the performance of the contract shall remain payable in full and shall become immediately due and payable at the time of termination.
14.3 A contract which, due to its nature and content, does not end in completion and which has been entered into for an indefinite period of time may be terminated by either of the parties in writing following consultation between the parties. Reasons for the termination must be stated.
If a notice period has not been agreed between the parties, a reasonable period must be observed when notice of termination is given. OneGlimpse is never obliged to pay any compensation due to termination.
14.4 Customer may not terminate a contract of engagement that has been entered into for a definite period of time.
14.5 Either of the parties may terminate the contract in writing, in whole or in part, without notice of default being required and with immediate effect, if the other party is granted a moratorium, whether or not provisional, a petition for bankruptcy is filed for the other party or the company of the other party is liquidated or dissolved other than for restructuring or a merger of companies. OneGlimpse may also terminate the contract, in whole or in part, without notice of default being required and with immediate effect, if a direct or indirect change occurs in the decisive control of Customer's company. OneGlimpse is never obliged to repay any amount in money already received or pay any amount in compensation due to termination as referred to in this paragraph. If Customer goes irrevocably bankrupt, its right to use the software, websites and the like made available to it shall end, as shall its right to access and/or use OneGlimpse's services, without termination by OneGlimpse being required.
Article 15. Liability of OneGlimpse
15.1 OneGlimpse's total liability due to an attributable failure in the performance of the contract or on any legal basis whatsoever, expressly including each and every failure to fulfil a warranty obligation agreed with Customer, shall be limited to compensation for direct loss up to a maximum of the price stipulated for the contract concerned (excluding VAT). If the contract is mainly a continuing performance contract with a term of more than one year, the price stipulated for the contract shall be set at the total amount of the payments (excluding VAT) stipulated for one year. OneGlimpse's total liability for direct loss, on any legal basis whatsoever, shall never amount to more than EUR 500.000 (five hundred thousand euros), however.
15.2 OneGlimpse's liability for indirect loss, consequential loss, loss of profits, lost savings, reduced goodwill, loss due to business interruption, loss as a result of claims of Customer's clients, loss arising from the use of items, materials or software of third parties prescribed by Customer to OneGlimpse and loss arising from the engagement of suppliers prescribed by Customer to OneGlimpse is excluded. OneGlimpse's liability for corruption, destruction or loss of data or documents is likewise excluded.
15.3 The exclusions and limitations of OneGlimpse's liability described paragraphs 15.1 up to and including 15.3 are entirely without prejudice to the other exclusions and limitations of OneGlimpse's liability described in these terms and conditions.
15.4 The exclusions and limitations referred to in paragraphs 15.1 up to and including 15.4 shall cease to apply if and insofar as the loss is the result of deliberate intent or recklessness on the part of OneGlimpse's management.
15.5 Unless performance by OneGlimpse is permanently impossible, OneGlimpse shall only be liable due to an attributable failure in the performance of a contract if Customer declares OneGlimpse to be in default in writing without delay and grants OneGlimpse a reasonable term to remedy the breach, and OneGlimpse culpably fails to fulfil its obligations also after this term has passed.
The notice of default must describe the breach as comprehensively and in as much detail as possible in order to give OneGlimpse the opportunity to respond adequately.
15.6 For there to be any right to compensation, Customer must always report the loss to OneGlimpse in writing as soon as possible after the loss has occurred. Each claim for compensation against OneGlimpse shall be barred by the mere expiry of a period of 24 months following the inception of the claim unless Customer has instituted a legal action for damages prior to the expiry of this period.
15.7 Customer indemnifies OneGlimpse against any and all claims of third parties due to product liability as a result of a defect in a product or system that Customer supplied to a third party and that consisted in part of equipment, software or other materials supplied by OneGlimpse, unless and insofar Customer is able to prove that the loss was caused by the equipment, software or other materials referred to.
15.8 The provisions of this article and all other limitations and exclusions of liability referred to in these terms and conditions shall also apply for the benefit of all natural persons and legal entities that OneGlimpse engages in the performance of the contract.
Article 16. Force majeure
16.1 None of the parties shall be obliged to fulfil any obligation, including any statutory and/or agreed warranty obligation, if it is prevented from doing so by force majeure. Force majeure on the part of OneGlimpse means, among other things: (i) force majeure on the part of OneGlimpse, (ii) the failure to properly fulfil obligations on the part of suppliers that were prescribed to OneGlimpse by Customer, (iii) defects in items, equipment, software or materials of third parties the use of which was prescribed to OneGlimpse by Customer, (iv) government measures, (v) power failures, (vi) Internet, data network or telecommunication facilities failures, (vii) war and (viii) general transport problems.
16.2 Either of the parties shall have the right to rescind the contract in writing if a situation of force majeure persists for more than 60 days. In such an event, that which has already been performed under the contract shall be paid for on a proportional basis without the parties owing each other anything else.
Article 17. Changes and additional work
17.1 If, at the request or prior consent of Customer, OneGlimpse has performed work or supplied goods or services that is or are outside the scope of the agreed work and/or provision of goods or services, Customer shall pay for this work or provision of goods or services in accordance with the agreed rates or, if no rates have been agreed between the parties, in accordance with OneGlimpse’s usual rates.
OneGlimpse is not obliged to honor such a request and may require that a separate contract be concluded in writing for the purpose.
17.2 Insofar as a fixed price has been agreed for the provision of services, OneGlimpse shall on request inform Customer in writing about the financial consequences of the additional work or additional provision of goods or services as referred to in this article.
Article 18. Transfer of rights and obligations
18.1 Customer may not sell, transfer or pledge its rights and obligations under a contract to a third party.
18.2 OneGlimpse is entitled to sell, transfer or pledge its claims to payment of amounts owed to a third party.
Article 19. Applicable law and disputes
19.1 Contracts between OneGlimpse and Customer are governed by Dutch law.
The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply.
19.2 Disputes that arise by reason of the contract concluded between the parties and/or by reason of any further contracts deriving from it shall be resolved by the District Court in Rotterdam or – if such provision is contrary to mandatory law – the court competent where the Customer resides.
Chapter 2. Provision of services
The provisions of this chapter shall apply in addition to other applicable provisions of these terms and conditions if OneGlimpse performs services of whatever nature for Customer, whether or not set out in more detail in one of the other chapters of these terms and conditions.
Article 20. Performance
20.1 OneGlimpse shall perform its services with care to the best of its ability, if applicable in accordance with the agreements and procedures agreed in writing with Customer. All services by OneGlimpse shall be performed on the basis of an obligation to use reasonable endeavors unless and insofar as OneGlimpse has expressly promised a result in the written contract and the result concerned has also been defined with sufficient determinability in the contract.
20.2 OneGlimpse shall not be liable for loss or costs that are the result of the use or misuse of access or identification codes or certificates unless the misuse is the direct result of deliberate intent or recklessness on the part of OneGlimpse's management.
20.3 If the contract has been entered into with a view to performance by one specific person, OneGlimpse shall always be entitled to replace this person with one or more persons who have the same and/or similar qualifications.
20.4 OneGlimpse is not obliged to follow Customer's instructions in the performance of its services, particularly not if these instructions change or add to the content and scope of the agreed services. If such instructions are followed, however, payment shall be made for the work concerned in accordance with OneGlimpse's usual rates.
Article 21. Backups
21.1 OneGlimpse is not responsible for making data backups. If the services provided to Customer under the contract specifically include the making of backups of Customer's data, OneGlimpse shall make a backup of Customer's data in its possession in accordance with the periods agreed in writing or once a week if such periods have not been agreed. OneGlimpse shall retain the backup for the duration of the agreed term or for the duration of OneGlimpse's usual term if agreements have not been made in this regard. OneGlimpse shall retain the backup with due care.
21.2 Customer remains responsible for the fulfilment of all administrative and retention obligations that apply to it by law.
Chapter 3. Software
The provisions of this chapter shall apply in addition to other applicable provisions of these terms and conditions if OneGlimpse The provisions of this chapter shall apply additionally if OneGlimpse makes software available to Customer for use, whether or not set out in more detail on one of the other chapters of these terms and conditions.
Article 22. Right of use and restrictions on use
22.1 OneGlimpse shall make the agreed computer programs and agreed user documentation, hereinafter referred to as the 'software', available to Customer for use for the duration of the contract on the basis of a license for use. The right to use the software is non-exclusive and may not be transferred, pledged or sublicensed.
22.2 OneGlimpse's obligation to make available and Customer's right of use extend only to the software's object code. Customer's right of use does not extend to the software's source code. The software's source code and technical documentation prepared during the development of the software shall not be made available to Customer, not even if Customer is prepared to pay a financial amount for the source code and technical documentation.
22.3 Customer shall always strictly comply with the agreed restrictions on the use of the software, regardless of the nature or content of these restrictions.
22.4 If the parties have agreed that the software may only be used in combination with certain equipment, Customer shall in the event of any malfunction of this equipment be entitled to use the software on other equipment with the same qualifications during the time that the original equipment remains defective.
22.5 OneGlimpse may require that Customer only start using the software after having received one or more codes needed for use from OneGlimpse, OneGlimpse's supplier or the producer of the software. OneGlimpse is always entitled to take technical measures to protect the software against unlawful use and/or against use in a manner or for purposes other than the manner or purposes agreed between the parties. Customer shall never remove or bypass technical measures intended to protect the software or have such technical measures removed or bypassed.
22.6 Customer may only use the software in and for its own company or organization and only insofar as doing so is necessary for the intended use. Customer shall not use the software for third parties, for example in the context of Software as a Service (SaaS) or outsourcing.
22.7 Customer may never sell, rent out, dispose of or grant limited rights to, or make available to third parties the software and the carriers on which the software is or will be recorded, in any way whatsoever for whatever purpose or under whatever title. Customer may also not grant, whether or not remotely (online), a third party access to the software or place the software with a third party for hosting, not even if the third party concerned only uses the software for Customer.
22.8 If so requested, Customer shall cooperate without delay in an investigation into compliance with the agreed restrictions on use carried out by or for OneGlimpse. Should OneGlimpse so demand, Customer shall grant OneGlimpse access to its buildings and systems. Insofar as such information does not concern the use of the software itself, OneGlimpse shall treat all confidential business information that it obtains from Customer or at Customer's business location in the context of an investigation as confidential.
22.9 The parties maintain that the contract concluded between the parties, insofar as the object of this contract is the making available of software for use, shall never be deemed to be a purchase contract.
22.10 OneGlimpse is not obliged to maintain the software and/or provide support to users and/or administrators of the software. If, contrary to the foregoing, OneGlimpse is asked to perform maintenance work and/or provide support with respect to the software, OneGlimpse may require that Customer enter into a separate, written contract for the purpose.
Article 23. Notice and Take Down
23.1 Customer shall at all times act with due care and lawfully towards third parties, particularly by respecting the intellectual property rights and other rights of third parties and the privacy of third parties, by refraining from disseminating information in a manner that is contrary to the law, from granting unauthorized access to systems and from spreading viruses or other harmful programs or data, and by refraining from committing criminal acts and violating any other legal obligation. OneGlimpse is entitled and Customer acknowledges this right to report any possible illegal activities with police and judicial authorities.
23.2 To prevent liability towards third parties or limit the consequences thereof, OneGlimpse is always entitled to take measures with respect to an act or omission of or at the risk of Customer. Should OneGlimpse so demand in writing, Customer shall delete data and/or information from OneGlimpse's systems without delay. If Customer fails to do so, OneGlimpse shall be entitled at its own discretion to delete the data and/or information itself or make it impossible to access the data and/or information. In addition, in the event of a breach or an imminent breach of the provisions of these terms and conditions, OneGlimpse shall be entitled to deny Customer access to OneGlimpse's systems with immediate effect and without prior notice. The foregoing shall be without prejudice to any other measures or the exercise of other legal and contractual rights by OneGlimpse against Customer. OneGlimpse shall in this case also be entitled to terminate the contract with immediate effect without being liable towards Customer for doing so.
23.3 OneGlimpse cannot be expected to form an opinion on the merits of the claims of third parties or Customer's defense, or be involved in any way whatsoever in a dispute between a third party and Customer. Customer shall deal with the third party concerned regarding the matter and inform OneGlimpse in writing. The information provided in this context must be properly substantiated by supporting documents.
Article 24. Delivery and installation
24.1 At its discretion, OneGlimpse shall deliver the software on the agreed type of data carrier or, if no agreements have been made in this regard, on a type of data carrier determined by OneGlimpse, or shall make the software available to Customer online. At OneGlimpse's discretion, any agreed user documentation shall be made available in printed or digital form in a language determined by OneGlimpse.
24.2 OneGlimpse shall only install the software at Customer's business location if this has been agreed between the parties. If no agreements have been made for the purpose, Customer shall itself install, organize, parameterize, tune and, if necessary, modify the equipment and operating environment used.
Article 25. Acceptance
25.1 Customer accepts the software in the state that it is in when delivered (‘as is, where is'), therefore with all visible and invisible errors and defects, without prejudice to OneGlimpse's obligations under the guarantee scheme as set out in Article 28. In the aforementioned case, the software shall be deemed to have been accepted by Customer upon delivery or, if installation by a supplier has been agreed in writing, upon completion of installation.
Article 26. Availability
26.1 OneGlimpse shall make the software available within a reasonable term following the conclusion of the contract.
26.2 Following the end of the contract, Customer shall return all copies of the software in its possession to OneGlimpse without delay. If it has been agreed that Customer must destroy the copies concerned at the end of the contract, Customer shall report the destruction of the copies to OneGlimpse in writing without delay. At or following the end of the contract, OneGlimpse shall not be obliged to provide assistance for the purpose of a data conversion desired by Customer.
Article 27. Payment for the right of use
27.1 Customer must pay the amount owed for the right of use at the agreed times or, if a time has not been agreed, when the software is delivered and/or subsequently at the start of each new right of use term.
27.1 Baring exceptions provided for by law, Customer may not change all or part of the software without the prior written permission of OneGlimpse. OneGlimpse is entitled to refuse or attach conditions to such permission. Customer shall bear the entire risk of all changes that it makes or changes made by third parties on its instructions, whether or not with OneGlimpse's permission.
Article 28. Guarantee
28.1 OneGlimpse shall strive to the best of its ability to fix errors within a reasonable term if these errors are reported in writing in a detailed manner to OneGlimpse within a period of three months following delivery or, if an acceptance test was agreed, within three months following acceptance. OneGlimpse does not guarantee that the software is suitable for actual use and/or the intended use. OneGlimpse also does not guarantee that the software will operate without interruption and/or that all errors will always be fixed.
Fixing work shall be carried out free of charge unless the software was developed on the instructions of Customer other than for a fixed price, in which case OneGlimpse shall charge for the costs of fixing in accordance with its usual rates.
28.2 OneGlimpse may charge for the costs of fixing in accordance with its usual rates if such work is required as a result of user errors or improper use on the part of Customer, or as a result of causes that cannot be attributed to OneGlimpse. The obligation to fix errors shall cease to apply if Customer makes changes in the software or has such changes made without OneGlimpse's written permission.
28.3 The fixing of errors shall take place at a location and in a manner determined by OneGlimpse. OneGlimpse is entitled to install temporary solutions, program bypasses or problem-avoiding limitations in the software.
28.4 OneGlimpse is never obliged to recover data that has been corrupted or lost.
28.5 OneGlimpse does not have any obligation whatsoever, of whatever nature or content, with respect to errors reported after the end of the guarantee period referred to in Article 28.1.
Article 29. Software of suppliers
29.1 If and insofar as OneGlimpse makes third-party software available to Customer, the license terms of the third parties concerned shall apply in the relationship between OneGlimpse and Customer with respect to the software instead of the provisions of these terms and conditions that differ from those license terms, provided that the applicability of the license terms of the third party concerned was reported to Customer by OneGlimpse in writing and, in addition, a copy of the applicable license terms was made available to Customer prior to the conclusion of the contract. In derogation from the provisions of the preceding sentence, Customer shall not be entitled to invoke failure on the part of OneGlimpse to fulfil the aforementioned obligation to provide information if Customer is a party as referred to in Section 235, subsection 1 or subsection 3 of Book 6 of the Dutch Civil Code.
29.2 If and insofar as, for whatever reason, the terms of third parties referred to above are deemed not to apply or are declared inapplicable in the relationship between Customer and OneGlimpse, the provisions of these terms and conditions shall apply in full.
OneGlimpse B.V., a private limited liability company registered with the Chamber of Commerce under No 78315654 and located at the address Houtenend 38, 3317MK Dordrecht, The Netherlands.
Below OneGlimpse B.V. is named “OneGlimpse” and you are referred to as “Customer”.
Chapter 1. General Provisions
Article 1. Applicability
1.1 These Terms and Conditions apply to all offers and contracts pursuant to which OneGlimpse delivers goods and/or provides services of any nature whatsoever and under whatever name to Customer.
1.2 Departures from and additions to these terms and conditions shall only be valid if they are agreed between the parties in writing.
1.3 The applicability of Customer's purchasing or other conditions is specifically excluded.
1.4 If any provision of these terms and conditions is null and void or is voided, the other provisions of these terms and conditions shall remain fully in effect. OneGlimpse and Customer shall in this case consult each other for the purpose of agreeing new provisions to replace the null and void or voided provisions.
Article 2. Offers
2.1 All offers and other communications of OneGlimpse are subject to confirmation unless OneGlimpse has indicated otherwise in writing.
Customer guarantees that the information that it has provided or that has been provided on its behalf to OneGlimpse and on which OneGlimpse has based its offer is accurate and complete.
Article 3. Price and payment
3.1 Unless explicitly stated by OneGlimpse all prices stated by OneGlimpse are exclusive of turnover tax (VAT) and other levies imposed by the government. Unless stated in another currency all prices stated are in euros (EUR) and Customer must make all payments in the currency stated.
3.2 Customer may not derive any rights or expectations from a cost estimate or budget issued by OneGlimpse unless the parties have otherwise agreed in writing. An available budget made known to OneGlimpse by Customer shall only apply as a (fixed) price agreed between the parties for the performance to be delivered by OneGlimpse if this has been expressly agreed in writing.
3.3 If, according to the contract concluded between the parties, Customer consists of several natural persons and/or legal entities, each of these natural persons and/or legal entities shall be jointly and severally liable towards OneGlimpse for performance of the contract.
3.4 Information from OneGlimpse's records shall count as conclusive evidence with respect to the performance delivered by OneGlimpse and the amounts owed by Customer for delivery of this performance, without prejudice to Customer's right to produce evidence to the contrary.
3.5 If a periodic payment obligation on the part of Customer applies, OneGlimpse shall be entitled to adjust, in writing and in accordance with the index or other standard included in the contract, the applicable prices and rates to the term specified in the contract. If the contract does not expressly provide for the possibility on the part of OneGlimpse to adjust the prices or rates, OneGlimpse shall always be entitled to adjust, in writing and with due observance of a term of at least two months, the applicable prices and rates. If Customer does not agree to the adjustment in this latter case, Customer shall be entitled to terminate the contract in writing within thirty days following notice of the adjustment, which termination shall take effect on the date on which the new prices and/or rates would take effect.
3.6 The parties shall record the date or dates on which OneGlimpse shall charge Customer for the performance agreed in the contract. Amounts owed must be paid by Customer in accordance with the agreed payment terms or the payment terms stated on the invoice. Customer may not suspend any payment and may also not set off any amounts owed.
3.7 If Customer fails to pay amounts due or fails to do so on time OneGlimpse is entitled to terminate use or downgrade Customer to a free (unpaid) version without prejudice to the obligations of the Customer to pay amounts due.
Article 4. Term of the contract
4.1 If and insofar as the contract concluded between the parties is a continuing performance contract, the contract shall be entered into for the term agreed between the parties. A term of one year shall apply if no term has been agreed.
4.2 The term of the contract shall be tacitly extended, each time by the period of time originally agreed, unless Customer or OneGlimpse terminate the contract in writing with due observance of a notice period of one month prior to the end of the current term.
Article 5. Confidentiality and transfer of personnel
5.1 Customer acknowledges that software originating from OneGlimpse is always confidential in nature and that this software contains trade secrets of OneGlimpse and its suppliers or the producer of the software.
Article 6. Privacy and data processing
6.1 If necessary for the performance of the contract, Customer shall on request inform OneGlimpse in writing about the way in which Customer performs its legal obligations regarding the protection of personal data.
6.2 Customer indemnifies OneGlimpse against claims of persons whose personal data is recorded or processed in the context of a register of personal data that is maintained by Customer or for which Customer is otherwise responsible by law, unless Customer proves that the facts on which a claim is based are attributable to OneGlimpse.
6.3 Customer is fully responsible for the data that it processes in the context of using a service of OneGlimpse. Customer guarantees vis-à-vis OneGlimpse that the content, use and/or processing of the data are not unlawful and do not infringe any right of a third party. Customer indemnifies OneGlimpse against any claim of a third party instituted for whatever reason in connection with this data or the performance of the contract.
Article 7. Security
7.1 If OneGlimpse is obliged to provide for a form of information security under the contract, this security shall meet the specifications agreed in writing between the parties regarding security. OneGlimpse does not guarantee that the information security provided is effective under all circumstances. If the contract does not include an explicitly defined security method, the security provided shall meet a standard that is not unreasonable in terms of the state of the art, the sensitivity of the information and the costs associated with the security measures taken.
7.2 The access or identification codes and certificates provided by or because of OneGlimpse to Customer are confidential and must be treated as such by Customer, and may only be made known to authorized personnel in Customer's own organization. OneGlimpse is entitled to change the access or identification codes and certificates.
7.3 Customer must adequately secure its systems and infrastructure and have active antivirus software protection at all times.
Article 8. Retention of title, reservation of rights and suspension
8.1 All items delivered to Customer shall remain the property of OneGlimpse until all amounts owed by Customer to OneGlimpse under the contract concluded between the parties have been paid to OneGlimpse in full. A Customer that acts as a reseller may sell and supply all items that are subject to OneGlimpse's retention of title insofar as doing so is usual in the context of Customer's ordinary course of business.
8.2 The property-law consequences of the retention of title with respect to an item destined for export shall be governed by the laws of the State of destination if those laws contain provisions that are more favorable to OneGlimpse.
8.3 As and when necessary, rights shall be granted or transferred to Customer subject to the condition that Customer has paid all amounts owed under the contract.
8.4 OneGlimpse may retain all information, documents, software and/or data files received or created in the context of the contract in spite of an existing obligation to hand over or transfer until Customer has paid all amounts owed to OneGlimpse.
Article 9. Risk transfer
9.1 The risk of loss, theft, misappropriation or damage of items, information (including user names, codes and passwords), documents, software or data files that are created, supplied or used in the context of performing the contract shall pass to Customer at the time at which Customer or an auxiliary person of Customer comes into actual possession of the items and information referred to.
Article 10. Intellectual property
10.1 All intellectual property rights to the software, websites, data files, equipment and training, testing and examination materials, as well as other materials like analyses, designs, documentation, reports and offers, including preparatory materials in this regard, developed or made available to Customer under the contract are held exclusively by OneGlimpse, its licensors or its suppliers. Customer shall have the rights of use expressly granted under these terms and conditions, the contract concluded in writing between the parties and the law. A right accorded to Customer is non-exclusive and may not be transferred, pledged or sublicensed.
10.2 Customer may not remove or change any indication concerning the confidential nature of or concerning the copyrights, brands, trade names or any other intellectual property right pertaining to the software, websites, data files, equipment or materials, or have any such indication removed or changed.
10.3 Even if not expressly provided for in the contract, OneGlimpse may always take technical measures to protest equipment, data files, websites, software made available, software to which Customer is granted direct or indirect access, and the like in connection with an agreed limitation in terms of the content or duration of the right of use of these items.
Customer may not remove or bypass such technical measures or have such technical measures removed or bypassed.
10.4 OneGlimpse indemnifies Customer against any claim of a third party based on the allegation that software, websites, data files, equipment or other materials developed by OneGlimpse itself infringe an intellectual property right of that third party, subject to the condition that Customer immediately informs OneGlimpse in writing about the existence and content of the claim and leaves the settlement of the claim, including any arrangements made in this regard, entirely to OneGlimpse. Customer shall provide the powers of attorney and information required to OneGlimpse and assist OneGlimpse to defend itself against such claims. This obligation to indemnity shall not apply if the alleged infringement concerns (i) materials made available to OneGlimpse by Customer for use, modification, processing or maintenance or (ii) changes made or commissioned by Customer in the software, website, data files, equipment or other materials without OneGlimpse's written permission. If it is irrevocably established in court that software, websites, data files, equipment or other materials developed by OneGlimpse itself is or are infringing any intellectual property right held by a third party, or if, in the opinion of OneGlimpse, there is a good chance that such an infringement is occurring, OneGlimpse shall if possible ensure that Customer can continue to use, or use functional equivalents of, the software, websites, data files, equipment or materials supplied. Any other or further obligation to indemnify on the part of OneGlimpse due to infringement of a third party's intellectual property right is excluded.
10.5 OneGlimpse is never obliged to perform data conversion unless doing so has been expressly agreed in writing with Customer.
Article 11. Obligations to cooperate
11.1 The parties acknowledge that the success of work in the field of information and communications technology depends on proper and timely cooperation between the parties.
Customer shall always extend, in a timely manner, the cooperation reasonably required by OneGlimpse.
11.2 Customer bears the risk of selecting the items, goods and/or services to be provided by OneGlimpse. Customer must always exercise the utmost care to guarantee that the requirements that OneGlimpse's performance must meet are accurate and complete. Measurements and particulars given in drawings, images, catalogues, websites, offers, advertising material, standardization sheets and the like are not binding for OneGlimpse unless expressly stated otherwise by OneGlimpse.
11.3 Customer shall itself install, organize, parameterize and tune the software and support software required on its own equipment and, if necessary, modify the equipment, other software and support software and operating environment used in this regard, and effect the interoperability that it desires.
Article 12. Obligations to provide information
12.1 To enable proper performance of the contract by OneGlimpse, Customer shall always provide information reasonably required by OneGlimpse to OneGlimpse in a timely manner.
12.2 Customer guarantees that the information, designs and specifications that it has provided to OneGlimpse is or are accurate and complete. If the information, designs or specifications provided by Customer contain inaccuracies apparent to OneGlimpse, OneGlimpse shall contact Customer to make enquiries about the matter.
12.3 In connection with continuity, Customer shall designate a contact person or contact persons who shall act in that capacity for the duration of OneGlimpse's work. Customer's contact persons shall have the experience required, specific knowledge of the subject matter and a proper understanding of the objectives that Customer wishes to achieve.
12.4 OneGlimpse is only obliged to periodically provide information concerning the performance of the work to Customer through the contact person designated by Customer.
Article 13. Terms
13.1 OneGlimpse shall make reasonable efforts to comply to the greatest extent possible with the terms and delivery periods and/or dates and delivery dates, whether or not these are firm deadlines and/or dates, that it has specified or that have been agreed between the parties. The interim dates and delivery dates specified by OneGlimpse or agreed between the parties shall always apply as target dates, shall not bind OneGlimpse and shall always be indicative.
13.2 If a term is likely to be exceeded, OneGlimpse and Customer shall consult with each other about the consequences of the term being exceeded in relation to further planning.
13.3 In all cases, therefore also if the parties have agreed firm deadlines and delivery periods or dates and delivery dates, OneGlimpse shall only be in default as a result of a period of time being exceeded after Customer has declared OneGlimpse to be in default in writing and a reasonable term that Customer granted to OneGlimpse to remedy the breach has passed. The notice of default must describe the breach as comprehensively and in as much detail as possible in order to give OneGlimpse the opportunity to respond adequately.
13.4 If it has been agreed that the work under the contract is to be performed in phases, OneGlimpse shall be entitled to postpone the start of a phase's work until Customer has approved the results of the preceding phase in writing.
13.5 OneGlimpse shall not be bound by a date or delivery date or term or delivery period, whether or not final, if the parties have agreed an amendment to the content or scope of the contract (additional work, a change of specifications and so on) or a change in approach with respect to performance of the contract, or if Customer fails to fulfil its obligations arising from the contract or fails to do so on time or in full. The need for or occurrence of additional work during performance of the contract shall never constitute a reason for Customer to give notice of termination or to rescind (in Dutch: 'ontbinden') the contract.
Article 14. Termination and cancellation of the contract
14.1 Each party shall only be authorized to rescind the contract due to an attributable failure in the performance of the contract if the other party, in all cases after a written notice of default that is as detailed as possible and that grants a reasonable term to remedy the breach has been issued, is culpably failing to fulfil essential obligations under the contract. Customer's payment obligations and all obligations of Customer or a third party engaged by Customer to cooperate and/or provide information apply in all cases as essential obligations under the contract.
14.2 If, at the time of rescission, Customer has already received goods or services in the performance of the contract, these goods or services and the associated payment obligations shall not be undone unless Customer proves that OneGlimpse is in default with respect to the essential part of such goods or services. With due regard to the stipulation of the preceding sentence, amounts invoiced by OneGlimpse prior to rescission in connection with what it already properly performed or delivered in the performance of the contract shall remain payable in full and shall become immediately due and payable at the time of termination.
14.3 A contract which, due to its nature and content, does not end in completion and which has been entered into for an indefinite period of time may be terminated by either of the parties in writing following consultation between the parties. Reasons for the termination must be stated.
If a notice period has not been agreed between the parties, a reasonable period must be observed when notice of termination is given. OneGlimpse is never obliged to pay any compensation due to termination.
14.4 Customer may not terminate a contract of engagement that has been entered into for a definite period of time.
14.5 Either of the parties may terminate the contract in writing, in whole or in part, without notice of default being required and with immediate effect, if the other party is granted a moratorium, whether or not provisional, a petition for bankruptcy is filed for the other party or the company of the other party is liquidated or dissolved other than for restructuring or a merger of companies. OneGlimpse may also terminate the contract, in whole or in part, without notice of default being required and with immediate effect, if a direct or indirect change occurs in the decisive control of Customer's company. OneGlimpse is never obliged to repay any amount in money already received or pay any amount in compensation due to termination as referred to in this paragraph. If Customer goes irrevocably bankrupt, its right to use the software, websites and the like made available to it shall end, as shall its right to access and/or use OneGlimpse's services, without termination by OneGlimpse being required.
Article 15. Liability of OneGlimpse
15.1 OneGlimpse's total liability due to an attributable failure in the performance of the contract or on any legal basis whatsoever, expressly including each and every failure to fulfil a warranty obligation agreed with Customer, shall be limited to compensation for direct loss up to a maximum of the price stipulated for the contract concerned (excluding VAT). If the contract is mainly a continuing performance contract with a term of more than one year, the price stipulated for the contract shall be set at the total amount of the payments (excluding VAT) stipulated for one year. OneGlimpse's total liability for direct loss, on any legal basis whatsoever, shall never amount to more than EUR 500.000 (five hundred thousand euros), however.
15.2 OneGlimpse's liability for indirect loss, consequential loss, loss of profits, lost savings, reduced goodwill, loss due to business interruption, loss as a result of claims of Customer's clients, loss arising from the use of items, materials or software of third parties prescribed by Customer to OneGlimpse and loss arising from the engagement of suppliers prescribed by Customer to OneGlimpse is excluded. OneGlimpse's liability for corruption, destruction or loss of data or documents is likewise excluded.
15.3 The exclusions and limitations of OneGlimpse's liability described paragraphs 15.1 up to and including 15.3 are entirely without prejudice to the other exclusions and limitations of OneGlimpse's liability described in these terms and conditions.
15.4 The exclusions and limitations referred to in paragraphs 15.1 up to and including 15.4 shall cease to apply if and insofar as the loss is the result of deliberate intent or recklessness on the part of OneGlimpse's management.
15.5 Unless performance by OneGlimpse is permanently impossible, OneGlimpse shall only be liable due to an attributable failure in the performance of a contract if Customer declares OneGlimpse to be in default in writing without delay and grants OneGlimpse a reasonable term to remedy the breach, and OneGlimpse culpably fails to fulfil its obligations also after this term has passed.
The notice of default must describe the breach as comprehensively and in as much detail as possible in order to give OneGlimpse the opportunity to respond adequately.
15.6 For there to be any right to compensation, Customer must always report the loss to OneGlimpse in writing as soon as possible after the loss has occurred. Each claim for compensation against OneGlimpse shall be barred by the mere expiry of a period of 24 months following the inception of the claim unless Customer has instituted a legal action for damages prior to the expiry of this period.
15.7 Customer indemnifies OneGlimpse against any and all claims of third parties due to product liability as a result of a defect in a product or system that Customer supplied to a third party and that consisted in part of equipment, software or other materials supplied by OneGlimpse, unless and insofar Customer is able to prove that the loss was caused by the equipment, software or other materials referred to.
15.8 The provisions of this article and all other limitations and exclusions of liability referred to in these terms and conditions shall also apply for the benefit of all natural persons and legal entities that OneGlimpse engages in the performance of the contract.
Article 16. Force majeure
16.1 None of the parties shall be obliged to fulfil any obligation, including any statutory and/or agreed warranty obligation, if it is prevented from doing so by force majeure. Force majeure on the part of OneGlimpse means, among other things: (i) force majeure on the part of OneGlimpse, (ii) the failure to properly fulfil obligations on the part of suppliers that were prescribed to OneGlimpse by Customer, (iii) defects in items, equipment, software or materials of third parties the use of which was prescribed to OneGlimpse by Customer, (iv) government measures, (v) power failures, (vi) Internet, data network or telecommunication facilities failures, (vii) war and (viii) general transport problems.
16.2 Either of the parties shall have the right to rescind the contract in writing if a situation of force majeure persists for more than 60 days. In such an event, that which has already been performed under the contract shall be paid for on a proportional basis without the parties owing each other anything else.
Article 17. Changes and additional work
17.1 If, at the request or prior consent of Customer, OneGlimpse has performed work or supplied goods or services that is or are outside the scope of the agreed work and/or provision of goods or services, Customer shall pay for this work or provision of goods or services in accordance with the agreed rates or, if no rates have been agreed between the parties, in accordance with OneGlimpse’s usual rates.
OneGlimpse is not obliged to honor such a request and may require that a separate contract be concluded in writing for the purpose.
17.2 Insofar as a fixed price has been agreed for the provision of services, OneGlimpse shall on request inform Customer in writing about the financial consequences of the additional work or additional provision of goods or services as referred to in this article.
Article 18. Transfer of rights and obligations
18.1 Customer may not sell, transfer or pledge its rights and obligations under a contract to a third party.
18.2 OneGlimpse is entitled to sell, transfer or pledge its claims to payment of amounts owed to a third party.
Article 19. Applicable law and disputes
19.1 Contracts between OneGlimpse and Customer are governed by Dutch law.
The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply.
19.2 Disputes that arise by reason of the contract concluded between the parties and/or by reason of any further contracts deriving from it shall be resolved by the District Court in Rotterdam or – if such provision is contrary to mandatory law – the court competent where the Customer resides.
Chapter 2. Provision of services
The provisions of this chapter shall apply in addition to other applicable provisions of these terms and conditions if OneGlimpse performs services of whatever nature for Customer, whether or not set out in more detail in one of the other chapters of these terms and conditions.
Article 20. Performance
20.1 OneGlimpse shall perform its services with care to the best of its ability, if applicable in accordance with the agreements and procedures agreed in writing with Customer. All services by OneGlimpse shall be performed on the basis of an obligation to use reasonable endeavors unless and insofar as OneGlimpse has expressly promised a result in the written contract and the result concerned has also been defined with sufficient determinability in the contract.
20.2 OneGlimpse shall not be liable for loss or costs that are the result of the use or misuse of access or identification codes or certificates unless the misuse is the direct result of deliberate intent or recklessness on the part of OneGlimpse's management.
20.3 If the contract has been entered into with a view to performance by one specific person, OneGlimpse shall always be entitled to replace this person with one or more persons who have the same and/or similar qualifications.
20.4 OneGlimpse is not obliged to follow Customer's instructions in the performance of its services, particularly not if these instructions change or add to the content and scope of the agreed services. If such instructions are followed, however, payment shall be made for the work concerned in accordance with OneGlimpse's usual rates.
Article 21. Backups
21.1 OneGlimpse is not responsible for making data backups. If the services provided to Customer under the contract specifically include the making of backups of Customer's data, OneGlimpse shall make a backup of Customer's data in its possession in accordance with the periods agreed in writing or once a week if such periods have not been agreed. OneGlimpse shall retain the backup for the duration of the agreed term or for the duration of OneGlimpse's usual term if agreements have not been made in this regard. OneGlimpse shall retain the backup with due care.
21.2 Customer remains responsible for the fulfilment of all administrative and retention obligations that apply to it by law.
Chapter 3. Software
The provisions of this chapter shall apply in addition to other applicable provisions of these terms and conditions if OneGlimpse The provisions of this chapter shall apply additionally if OneGlimpse makes software available to Customer for use, whether or not set out in more detail on one of the other chapters of these terms and conditions.
Article 22. Right of use and restrictions on use
22.1 OneGlimpse shall make the agreed computer programs and agreed user documentation, hereinafter referred to as the 'software', available to Customer for use for the duration of the contract on the basis of a license for use. The right to use the software is non-exclusive and may not be transferred, pledged or sublicensed.
22.2 OneGlimpse's obligation to make available and Customer's right of use extend only to the software's object code. Customer's right of use does not extend to the software's source code. The software's source code and technical documentation prepared during the development of the software shall not be made available to Customer, not even if Customer is prepared to pay a financial amount for the source code and technical documentation.
22.3 Customer shall always strictly comply with the agreed restrictions on the use of the software, regardless of the nature or content of these restrictions.
22.4 If the parties have agreed that the software may only be used in combination with certain equipment, Customer shall in the event of any malfunction of this equipment be entitled to use the software on other equipment with the same qualifications during the time that the original equipment remains defective.
22.5 OneGlimpse may require that Customer only start using the software after having received one or more codes needed for use from OneGlimpse, OneGlimpse's supplier or the producer of the software. OneGlimpse is always entitled to take technical measures to protect the software against unlawful use and/or against use in a manner or for purposes other than the manner or purposes agreed between the parties. Customer shall never remove or bypass technical measures intended to protect the software or have such technical measures removed or bypassed.
22.6 Customer may only use the software in and for its own company or organization and only insofar as doing so is necessary for the intended use. Customer shall not use the software for third parties, for example in the context of Software as a Service (SaaS) or outsourcing.
22.7 Customer may never sell, rent out, dispose of or grant limited rights to, or make available to third parties the software and the carriers on which the software is or will be recorded, in any way whatsoever for whatever purpose or under whatever title. Customer may also not grant, whether or not remotely (online), a third party access to the software or place the software with a third party for hosting, not even if the third party concerned only uses the software for Customer.
22.8 If so requested, Customer shall cooperate without delay in an investigation into compliance with the agreed restrictions on use carried out by or for OneGlimpse. Should OneGlimpse so demand, Customer shall grant OneGlimpse access to its buildings and systems. Insofar as such information does not concern the use of the software itself, OneGlimpse shall treat all confidential business information that it obtains from Customer or at Customer's business location in the context of an investigation as confidential.
22.9 The parties maintain that the contract concluded between the parties, insofar as the object of this contract is the making available of software for use, shall never be deemed to be a purchase contract.
22.10 OneGlimpse is not obliged to maintain the software and/or provide support to users and/or administrators of the software. If, contrary to the foregoing, OneGlimpse is asked to perform maintenance work and/or provide support with respect to the software, OneGlimpse may require that Customer enter into a separate, written contract for the purpose.
Article 23. Notice and Take Down
23.1 Customer shall at all times act with due care and lawfully towards third parties, particularly by respecting the intellectual property rights and other rights of third parties and the privacy of third parties, by refraining from disseminating information in a manner that is contrary to the law, from granting unauthorized access to systems and from spreading viruses or other harmful programs or data, and by refraining from committing criminal acts and violating any other legal obligation. OneGlimpse is entitled and Customer acknowledges this right to report any possible illegal activities with police and judicial authorities.
23.2 To prevent liability towards third parties or limit the consequences thereof, OneGlimpse is always entitled to take measures with respect to an act or omission of or at the risk of Customer. Should OneGlimpse so demand in writing, Customer shall delete data and/or information from OneGlimpse's systems without delay. If Customer fails to do so, OneGlimpse shall be entitled at its own discretion to delete the data and/or information itself or make it impossible to access the data and/or information. In addition, in the event of a breach or an imminent breach of the provisions of these terms and conditions, OneGlimpse shall be entitled to deny Customer access to OneGlimpse's systems with immediate effect and without prior notice. The foregoing shall be without prejudice to any other measures or the exercise of other legal and contractual rights by OneGlimpse against Customer. OneGlimpse shall in this case also be entitled to terminate the contract with immediate effect without being liable towards Customer for doing so.
23.3 OneGlimpse cannot be expected to form an opinion on the merits of the claims of third parties or Customer's defense, or be involved in any way whatsoever in a dispute between a third party and Customer. Customer shall deal with the third party concerned regarding the matter and inform OneGlimpse in writing. The information provided in this context must be properly substantiated by supporting documents.
Article 24. Delivery and installation
24.1 At its discretion, OneGlimpse shall deliver the software on the agreed type of data carrier or, if no agreements have been made in this regard, on a type of data carrier determined by OneGlimpse, or shall make the software available to Customer online. At OneGlimpse's discretion, any agreed user documentation shall be made available in printed or digital form in a language determined by OneGlimpse.
24.2 OneGlimpse shall only install the software at Customer's business location if this has been agreed between the parties. If no agreements have been made for the purpose, Customer shall itself install, organize, parameterize, tune and, if necessary, modify the equipment and operating environment used.
Article 25. Acceptance
25.1 Customer accepts the software in the state that it is in when delivered (‘as is, where is'), therefore with all visible and invisible errors and defects, without prejudice to OneGlimpse's obligations under the guarantee scheme as set out in Article 28. In the aforementioned case, the software shall be deemed to have been accepted by Customer upon delivery or, if installation by a supplier has been agreed in writing, upon completion of installation.
Article 26. Availability
26.1 OneGlimpse shall make the software available within a reasonable term following the conclusion of the contract.
26.2 Following the end of the contract, Customer shall return all copies of the software in its possession to OneGlimpse without delay. If it has been agreed that Customer must destroy the copies concerned at the end of the contract, Customer shall report the destruction of the copies to OneGlimpse in writing without delay. At or following the end of the contract, OneGlimpse shall not be obliged to provide assistance for the purpose of a data conversion desired by Customer.
Article 27. Payment for the right of use
27.1 Customer must pay the amount owed for the right of use at the agreed times or, if a time has not been agreed, when the software is delivered and/or subsequently at the start of each new right of use term.
27.1 Baring exceptions provided for by law, Customer may not change all or part of the software without the prior written permission of OneGlimpse. OneGlimpse is entitled to refuse or attach conditions to such permission. Customer shall bear the entire risk of all changes that it makes or changes made by third parties on its instructions, whether or not with OneGlimpse's permission.
Article 28. Guarantee
28.1 OneGlimpse shall strive to the best of its ability to fix errors within a reasonable term if these errors are reported in writing in a detailed manner to OneGlimpse within a period of three months following delivery or, if an acceptance test was agreed, within three months following acceptance. OneGlimpse does not guarantee that the software is suitable for actual use and/or the intended use. OneGlimpse also does not guarantee that the software will operate without interruption and/or that all errors will always be fixed.
Fixing work shall be carried out free of charge unless the software was developed on the instructions of Customer other than for a fixed price, in which case OneGlimpse shall charge for the costs of fixing in accordance with its usual rates.
28.2 OneGlimpse may charge for the costs of fixing in accordance with its usual rates if such work is required as a result of user errors or improper use on the part of Customer, or as a result of causes that cannot be attributed to OneGlimpse. The obligation to fix errors shall cease to apply if Customer makes changes in the software or has such changes made without OneGlimpse's written permission.
28.3 The fixing of errors shall take place at a location and in a manner determined by OneGlimpse. OneGlimpse is entitled to install temporary solutions, program bypasses or problem-avoiding limitations in the software.
28.4 OneGlimpse is never obliged to recover data that has been corrupted or lost.
28.5 OneGlimpse does not have any obligation whatsoever, of whatever nature or content, with respect to errors reported after the end of the guarantee period referred to in Article 28.1.
Article 29. Software of suppliers
29.1 If and insofar as OneGlimpse makes third-party software available to Customer, the license terms of the third parties concerned shall apply in the relationship between OneGlimpse and Customer with respect to the software instead of the provisions of these terms and conditions that differ from those license terms, provided that the applicability of the license terms of the third party concerned was reported to Customer by OneGlimpse in writing and, in addition, a copy of the applicable license terms was made available to Customer prior to the conclusion of the contract. In derogation from the provisions of the preceding sentence, Customer shall not be entitled to invoke failure on the part of OneGlimpse to fulfil the aforementioned obligation to provide information if Customer is a party as referred to in Section 235, subsection 1 or subsection 3 of Book 6 of the Dutch Civil Code.
29.2 If and insofar as, for whatever reason, the terms of third parties referred to above are deemed not to apply or are declared inapplicable in the relationship between Customer and OneGlimpse, the provisions of these terms and conditions shall apply in full.
OneGlimpse B.V., a private limited liability company registered with the Chamber of Commerce under No 78315654 and located at the address Houtenend 38, 3317MK Dordrecht, The Netherlands.
Below OneGlimpse B.V. is named “OneGlimpse” and you are referred to as “Customer”.
Chapter 1. General Provisions
Article 1. Applicability
1.1 These Terms and Conditions apply to all offers and contracts pursuant to which OneGlimpse delivers goods and/or provides services of any nature whatsoever and under whatever name to Customer.
1.2 Departures from and additions to these terms and conditions shall only be valid if they are agreed between the parties in writing.
1.3 The applicability of Customer's purchasing or other conditions is specifically excluded.
1.4 If any provision of these terms and conditions is null and void or is voided, the other provisions of these terms and conditions shall remain fully in effect. OneGlimpse and Customer shall in this case consult each other for the purpose of agreeing new provisions to replace the null and void or voided provisions.
Article 2. Offers
2.1 All offers and other communications of OneGlimpse are subject to confirmation unless OneGlimpse has indicated otherwise in writing.
Customer guarantees that the information that it has provided or that has been provided on its behalf to OneGlimpse and on which OneGlimpse has based its offer is accurate and complete.
Article 3. Price and payment
3.1 Unless explicitly stated by OneGlimpse all prices stated by OneGlimpse are exclusive of turnover tax (VAT) and other levies imposed by the government. Unless stated in another currency all prices stated are in euros (EUR) and Customer must make all payments in the currency stated.
3.2 Customer may not derive any rights or expectations from a cost estimate or budget issued by OneGlimpse unless the parties have otherwise agreed in writing. An available budget made known to OneGlimpse by Customer shall only apply as a (fixed) price agreed between the parties for the performance to be delivered by OneGlimpse if this has been expressly agreed in writing.
3.3 If, according to the contract concluded between the parties, Customer consists of several natural persons and/or legal entities, each of these natural persons and/or legal entities shall be jointly and severally liable towards OneGlimpse for performance of the contract.
3.4 Information from OneGlimpse's records shall count as conclusive evidence with respect to the performance delivered by OneGlimpse and the amounts owed by Customer for delivery of this performance, without prejudice to Customer's right to produce evidence to the contrary.
3.5 If a periodic payment obligation on the part of Customer applies, OneGlimpse shall be entitled to adjust, in writing and in accordance with the index or other standard included in the contract, the applicable prices and rates to the term specified in the contract. If the contract does not expressly provide for the possibility on the part of OneGlimpse to adjust the prices or rates, OneGlimpse shall always be entitled to adjust, in writing and with due observance of a term of at least two months, the applicable prices and rates. If Customer does not agree to the adjustment in this latter case, Customer shall be entitled to terminate the contract in writing within thirty days following notice of the adjustment, which termination shall take effect on the date on which the new prices and/or rates would take effect.
3.6 The parties shall record the date or dates on which OneGlimpse shall charge Customer for the performance agreed in the contract. Amounts owed must be paid by Customer in accordance with the agreed payment terms or the payment terms stated on the invoice. Customer may not suspend any payment and may also not set off any amounts owed.
3.7 If Customer fails to pay amounts due or fails to do so on time OneGlimpse is entitled to terminate use or downgrade Customer to a free (unpaid) version without prejudice to the obligations of the Customer to pay amounts due.
Article 4. Term of the contract
4.1 If and insofar as the contract concluded between the parties is a continuing performance contract, the contract shall be entered into for the term agreed between the parties. A term of one year shall apply if no term has been agreed.
4.2 The term of the contract shall be tacitly extended, each time by the period of time originally agreed, unless Customer or OneGlimpse terminate the contract in writing with due observance of a notice period of one month prior to the end of the current term.
Article 5. Confidentiality and transfer of personnel
5.1 Customer acknowledges that software originating from OneGlimpse is always confidential in nature and that this software contains trade secrets of OneGlimpse and its suppliers or the producer of the software.
Article 6. Privacy and data processing
6.1 If necessary for the performance of the contract, Customer shall on request inform OneGlimpse in writing about the way in which Customer performs its legal obligations regarding the protection of personal data.
6.2 Customer indemnifies OneGlimpse against claims of persons whose personal data is recorded or processed in the context of a register of personal data that is maintained by Customer or for which Customer is otherwise responsible by law, unless Customer proves that the facts on which a claim is based are attributable to OneGlimpse.
6.3 Customer is fully responsible for the data that it processes in the context of using a service of OneGlimpse. Customer guarantees vis-à-vis OneGlimpse that the content, use and/or processing of the data are not unlawful and do not infringe any right of a third party. Customer indemnifies OneGlimpse against any claim of a third party instituted for whatever reason in connection with this data or the performance of the contract.
Article 7. Security
7.1 If OneGlimpse is obliged to provide for a form of information security under the contract, this security shall meet the specifications agreed in writing between the parties regarding security. OneGlimpse does not guarantee that the information security provided is effective under all circumstances. If the contract does not include an explicitly defined security method, the security provided shall meet a standard that is not unreasonable in terms of the state of the art, the sensitivity of the information and the costs associated with the security measures taken.
7.2 The access or identification codes and certificates provided by or because of OneGlimpse to Customer are confidential and must be treated as such by Customer, and may only be made known to authorized personnel in Customer's own organization. OneGlimpse is entitled to change the access or identification codes and certificates.
7.3 Customer must adequately secure its systems and infrastructure and have active antivirus software protection at all times.
Article 8. Retention of title, reservation of rights and suspension
8.1 All items delivered to Customer shall remain the property of OneGlimpse until all amounts owed by Customer to OneGlimpse under the contract concluded between the parties have been paid to OneGlimpse in full. A Customer that acts as a reseller may sell and supply all items that are subject to OneGlimpse's retention of title insofar as doing so is usual in the context of Customer's ordinary course of business.
8.2 The property-law consequences of the retention of title with respect to an item destined for export shall be governed by the laws of the State of destination if those laws contain provisions that are more favorable to OneGlimpse.
8.3 As and when necessary, rights shall be granted or transferred to Customer subject to the condition that Customer has paid all amounts owed under the contract.
8.4 OneGlimpse may retain all information, documents, software and/or data files received or created in the context of the contract in spite of an existing obligation to hand over or transfer until Customer has paid all amounts owed to OneGlimpse.
Article 9. Risk transfer
9.1 The risk of loss, theft, misappropriation or damage of items, information (including user names, codes and passwords), documents, software or data files that are created, supplied or used in the context of performing the contract shall pass to Customer at the time at which Customer or an auxiliary person of Customer comes into actual possession of the items and information referred to.
Article 10. Intellectual property
10.1 All intellectual property rights to the software, websites, data files, equipment and training, testing and examination materials, as well as other materials like analyses, designs, documentation, reports and offers, including preparatory materials in this regard, developed or made available to Customer under the contract are held exclusively by OneGlimpse, its licensors or its suppliers. Customer shall have the rights of use expressly granted under these terms and conditions, the contract concluded in writing between the parties and the law. A right accorded to Customer is non-exclusive and may not be transferred, pledged or sublicensed.
10.2 Customer may not remove or change any indication concerning the confidential nature of or concerning the copyrights, brands, trade names or any other intellectual property right pertaining to the software, websites, data files, equipment or materials, or have any such indication removed or changed.
10.3 Even if not expressly provided for in the contract, OneGlimpse may always take technical measures to protest equipment, data files, websites, software made available, software to which Customer is granted direct or indirect access, and the like in connection with an agreed limitation in terms of the content or duration of the right of use of these items.
Customer may not remove or bypass such technical measures or have such technical measures removed or bypassed.
10.4 OneGlimpse indemnifies Customer against any claim of a third party based on the allegation that software, websites, data files, equipment or other materials developed by OneGlimpse itself infringe an intellectual property right of that third party, subject to the condition that Customer immediately informs OneGlimpse in writing about the existence and content of the claim and leaves the settlement of the claim, including any arrangements made in this regard, entirely to OneGlimpse. Customer shall provide the powers of attorney and information required to OneGlimpse and assist OneGlimpse to defend itself against such claims. This obligation to indemnity shall not apply if the alleged infringement concerns (i) materials made available to OneGlimpse by Customer for use, modification, processing or maintenance or (ii) changes made or commissioned by Customer in the software, website, data files, equipment or other materials without OneGlimpse's written permission. If it is irrevocably established in court that software, websites, data files, equipment or other materials developed by OneGlimpse itself is or are infringing any intellectual property right held by a third party, or if, in the opinion of OneGlimpse, there is a good chance that such an infringement is occurring, OneGlimpse shall if possible ensure that Customer can continue to use, or use functional equivalents of, the software, websites, data files, equipment or materials supplied. Any other or further obligation to indemnify on the part of OneGlimpse due to infringement of a third party's intellectual property right is excluded.
10.5 OneGlimpse is never obliged to perform data conversion unless doing so has been expressly agreed in writing with Customer.
Article 11. Obligations to cooperate
11.1 The parties acknowledge that the success of work in the field of information and communications technology depends on proper and timely cooperation between the parties.
Customer shall always extend, in a timely manner, the cooperation reasonably required by OneGlimpse.
11.2 Customer bears the risk of selecting the items, goods and/or services to be provided by OneGlimpse. Customer must always exercise the utmost care to guarantee that the requirements that OneGlimpse's performance must meet are accurate and complete. Measurements and particulars given in drawings, images, catalogues, websites, offers, advertising material, standardization sheets and the like are not binding for OneGlimpse unless expressly stated otherwise by OneGlimpse.
11.3 Customer shall itself install, organize, parameterize and tune the software and support software required on its own equipment and, if necessary, modify the equipment, other software and support software and operating environment used in this regard, and effect the interoperability that it desires.
Article 12. Obligations to provide information
12.1 To enable proper performance of the contract by OneGlimpse, Customer shall always provide information reasonably required by OneGlimpse to OneGlimpse in a timely manner.
12.2 Customer guarantees that the information, designs and specifications that it has provided to OneGlimpse is or are accurate and complete. If the information, designs or specifications provided by Customer contain inaccuracies apparent to OneGlimpse, OneGlimpse shall contact Customer to make enquiries about the matter.
12.3 In connection with continuity, Customer shall designate a contact person or contact persons who shall act in that capacity for the duration of OneGlimpse's work. Customer's contact persons shall have the experience required, specific knowledge of the subject matter and a proper understanding of the objectives that Customer wishes to achieve.
12.4 OneGlimpse is only obliged to periodically provide information concerning the performance of the work to Customer through the contact person designated by Customer.
Article 13. Terms
13.1 OneGlimpse shall make reasonable efforts to comply to the greatest extent possible with the terms and delivery periods and/or dates and delivery dates, whether or not these are firm deadlines and/or dates, that it has specified or that have been agreed between the parties. The interim dates and delivery dates specified by OneGlimpse or agreed between the parties shall always apply as target dates, shall not bind OneGlimpse and shall always be indicative.
13.2 If a term is likely to be exceeded, OneGlimpse and Customer shall consult with each other about the consequences of the term being exceeded in relation to further planning.
13.3 In all cases, therefore also if the parties have agreed firm deadlines and delivery periods or dates and delivery dates, OneGlimpse shall only be in default as a result of a period of time being exceeded after Customer has declared OneGlimpse to be in default in writing and a reasonable term that Customer granted to OneGlimpse to remedy the breach has passed. The notice of default must describe the breach as comprehensively and in as much detail as possible in order to give OneGlimpse the opportunity to respond adequately.
13.4 If it has been agreed that the work under the contract is to be performed in phases, OneGlimpse shall be entitled to postpone the start of a phase's work until Customer has approved the results of the preceding phase in writing.
13.5 OneGlimpse shall not be bound by a date or delivery date or term or delivery period, whether or not final, if the parties have agreed an amendment to the content or scope of the contract (additional work, a change of specifications and so on) or a change in approach with respect to performance of the contract, or if Customer fails to fulfil its obligations arising from the contract or fails to do so on time or in full. The need for or occurrence of additional work during performance of the contract shall never constitute a reason for Customer to give notice of termination or to rescind (in Dutch: 'ontbinden') the contract.
Article 14. Termination and cancellation of the contract
14.1 Each party shall only be authorized to rescind the contract due to an attributable failure in the performance of the contract if the other party, in all cases after a written notice of default that is as detailed as possible and that grants a reasonable term to remedy the breach has been issued, is culpably failing to fulfil essential obligations under the contract. Customer's payment obligations and all obligations of Customer or a third party engaged by Customer to cooperate and/or provide information apply in all cases as essential obligations under the contract.
14.2 If, at the time of rescission, Customer has already received goods or services in the performance of the contract, these goods or services and the associated payment obligations shall not be undone unless Customer proves that OneGlimpse is in default with respect to the essential part of such goods or services. With due regard to the stipulation of the preceding sentence, amounts invoiced by OneGlimpse prior to rescission in connection with what it already properly performed or delivered in the performance of the contract shall remain payable in full and shall become immediately due and payable at the time of termination.
14.3 A contract which, due to its nature and content, does not end in completion and which has been entered into for an indefinite period of time may be terminated by either of the parties in writing following consultation between the parties. Reasons for the termination must be stated.
If a notice period has not been agreed between the parties, a reasonable period must be observed when notice of termination is given. OneGlimpse is never obliged to pay any compensation due to termination.
14.4 Customer may not terminate a contract of engagement that has been entered into for a definite period of time.
14.5 Either of the parties may terminate the contract in writing, in whole or in part, without notice of default being required and with immediate effect, if the other party is granted a moratorium, whether or not provisional, a petition for bankruptcy is filed for the other party or the company of the other party is liquidated or dissolved other than for restructuring or a merger of companies. OneGlimpse may also terminate the contract, in whole or in part, without notice of default being required and with immediate effect, if a direct or indirect change occurs in the decisive control of Customer's company. OneGlimpse is never obliged to repay any amount in money already received or pay any amount in compensation due to termination as referred to in this paragraph. If Customer goes irrevocably bankrupt, its right to use the software, websites and the like made available to it shall end, as shall its right to access and/or use OneGlimpse's services, without termination by OneGlimpse being required.
Article 15. Liability of OneGlimpse
15.1 OneGlimpse's total liability due to an attributable failure in the performance of the contract or on any legal basis whatsoever, expressly including each and every failure to fulfil a warranty obligation agreed with Customer, shall be limited to compensation for direct loss up to a maximum of the price stipulated for the contract concerned (excluding VAT). If the contract is mainly a continuing performance contract with a term of more than one year, the price stipulated for the contract shall be set at the total amount of the payments (excluding VAT) stipulated for one year. OneGlimpse's total liability for direct loss, on any legal basis whatsoever, shall never amount to more than EUR 500.000 (five hundred thousand euros), however.
15.2 OneGlimpse's liability for indirect loss, consequential loss, loss of profits, lost savings, reduced goodwill, loss due to business interruption, loss as a result of claims of Customer's clients, loss arising from the use of items, materials or software of third parties prescribed by Customer to OneGlimpse and loss arising from the engagement of suppliers prescribed by Customer to OneGlimpse is excluded. OneGlimpse's liability for corruption, destruction or loss of data or documents is likewise excluded.
15.3 The exclusions and limitations of OneGlimpse's liability described paragraphs 15.1 up to and including 15.3 are entirely without prejudice to the other exclusions and limitations of OneGlimpse's liability described in these terms and conditions.
15.4 The exclusions and limitations referred to in paragraphs 15.1 up to and including 15.4 shall cease to apply if and insofar as the loss is the result of deliberate intent or recklessness on the part of OneGlimpse's management.
15.5 Unless performance by OneGlimpse is permanently impossible, OneGlimpse shall only be liable due to an attributable failure in the performance of a contract if Customer declares OneGlimpse to be in default in writing without delay and grants OneGlimpse a reasonable term to remedy the breach, and OneGlimpse culpably fails to fulfil its obligations also after this term has passed.
The notice of default must describe the breach as comprehensively and in as much detail as possible in order to give OneGlimpse the opportunity to respond adequately.
15.6 For there to be any right to compensation, Customer must always report the loss to OneGlimpse in writing as soon as possible after the loss has occurred. Each claim for compensation against OneGlimpse shall be barred by the mere expiry of a period of 24 months following the inception of the claim unless Customer has instituted a legal action for damages prior to the expiry of this period.
15.7 Customer indemnifies OneGlimpse against any and all claims of third parties due to product liability as a result of a defect in a product or system that Customer supplied to a third party and that consisted in part of equipment, software or other materials supplied by OneGlimpse, unless and insofar Customer is able to prove that the loss was caused by the equipment, software or other materials referred to.
15.8 The provisions of this article and all other limitations and exclusions of liability referred to in these terms and conditions shall also apply for the benefit of all natural persons and legal entities that OneGlimpse engages in the performance of the contract.
Article 16. Force majeure
16.1 None of the parties shall be obliged to fulfil any obligation, including any statutory and/or agreed warranty obligation, if it is prevented from doing so by force majeure. Force majeure on the part of OneGlimpse means, among other things: (i) force majeure on the part of OneGlimpse, (ii) the failure to properly fulfil obligations on the part of suppliers that were prescribed to OneGlimpse by Customer, (iii) defects in items, equipment, software or materials of third parties the use of which was prescribed to OneGlimpse by Customer, (iv) government measures, (v) power failures, (vi) Internet, data network or telecommunication facilities failures, (vii) war and (viii) general transport problems.
16.2 Either of the parties shall have the right to rescind the contract in writing if a situation of force majeure persists for more than 60 days. In such an event, that which has already been performed under the contract shall be paid for on a proportional basis without the parties owing each other anything else.
Article 17. Changes and additional work
17.1 If, at the request or prior consent of Customer, OneGlimpse has performed work or supplied goods or services that is or are outside the scope of the agreed work and/or provision of goods or services, Customer shall pay for this work or provision of goods or services in accordance with the agreed rates or, if no rates have been agreed between the parties, in accordance with OneGlimpse’s usual rates.
OneGlimpse is not obliged to honor such a request and may require that a separate contract be concluded in writing for the purpose.
17.2 Insofar as a fixed price has been agreed for the provision of services, OneGlimpse shall on request inform Customer in writing about the financial consequences of the additional work or additional provision of goods or services as referred to in this article.
Article 18. Transfer of rights and obligations
18.1 Customer may not sell, transfer or pledge its rights and obligations under a contract to a third party.
18.2 OneGlimpse is entitled to sell, transfer or pledge its claims to payment of amounts owed to a third party.
Article 19. Applicable law and disputes
19.1 Contracts between OneGlimpse and Customer are governed by Dutch law.
The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply.
19.2 Disputes that arise by reason of the contract concluded between the parties and/or by reason of any further contracts deriving from it shall be resolved by the District Court in Rotterdam or – if such provision is contrary to mandatory law – the court competent where the Customer resides.
Chapter 2. Provision of services
The provisions of this chapter shall apply in addition to other applicable provisions of these terms and conditions if OneGlimpse performs services of whatever nature for Customer, whether or not set out in more detail in one of the other chapters of these terms and conditions.
Article 20. Performance
20.1 OneGlimpse shall perform its services with care to the best of its ability, if applicable in accordance with the agreements and procedures agreed in writing with Customer. All services by OneGlimpse shall be performed on the basis of an obligation to use reasonable endeavors unless and insofar as OneGlimpse has expressly promised a result in the written contract and the result concerned has also been defined with sufficient determinability in the contract.
20.2 OneGlimpse shall not be liable for loss or costs that are the result of the use or misuse of access or identification codes or certificates unless the misuse is the direct result of deliberate intent or recklessness on the part of OneGlimpse's management.
20.3 If the contract has been entered into with a view to performance by one specific person, OneGlimpse shall always be entitled to replace this person with one or more persons who have the same and/or similar qualifications.
20.4 OneGlimpse is not obliged to follow Customer's instructions in the performance of its services, particularly not if these instructions change or add to the content and scope of the agreed services. If such instructions are followed, however, payment shall be made for the work concerned in accordance with OneGlimpse's usual rates.
Article 21. Backups
21.1 OneGlimpse is not responsible for making data backups. If the services provided to Customer under the contract specifically include the making of backups of Customer's data, OneGlimpse shall make a backup of Customer's data in its possession in accordance with the periods agreed in writing or once a week if such periods have not been agreed. OneGlimpse shall retain the backup for the duration of the agreed term or for the duration of OneGlimpse's usual term if agreements have not been made in this regard. OneGlimpse shall retain the backup with due care.
21.2 Customer remains responsible for the fulfilment of all administrative and retention obligations that apply to it by law.
Chapter 3. Software
The provisions of this chapter shall apply in addition to other applicable provisions of these terms and conditions if OneGlimpse The provisions of this chapter shall apply additionally if OneGlimpse makes software available to Customer for use, whether or not set out in more detail on one of the other chapters of these terms and conditions.
Article 22. Right of use and restrictions on use
22.1 OneGlimpse shall make the agreed computer programs and agreed user documentation, hereinafter referred to as the 'software', available to Customer for use for the duration of the contract on the basis of a license for use. The right to use the software is non-exclusive and may not be transferred, pledged or sublicensed.
22.2 OneGlimpse's obligation to make available and Customer's right of use extend only to the software's object code. Customer's right of use does not extend to the software's source code. The software's source code and technical documentation prepared during the development of the software shall not be made available to Customer, not even if Customer is prepared to pay a financial amount for the source code and technical documentation.
22.3 Customer shall always strictly comply with the agreed restrictions on the use of the software, regardless of the nature or content of these restrictions.
22.4 If the parties have agreed that the software may only be used in combination with certain equipment, Customer shall in the event of any malfunction of this equipment be entitled to use the software on other equipment with the same qualifications during the time that the original equipment remains defective.
22.5 OneGlimpse may require that Customer only start using the software after having received one or more codes needed for use from OneGlimpse, OneGlimpse's supplier or the producer of the software. OneGlimpse is always entitled to take technical measures to protect the software against unlawful use and/or against use in a manner or for purposes other than the manner or purposes agreed between the parties. Customer shall never remove or bypass technical measures intended to protect the software or have such technical measures removed or bypassed.
22.6 Customer may only use the software in and for its own company or organization and only insofar as doing so is necessary for the intended use. Customer shall not use the software for third parties, for example in the context of Software as a Service (SaaS) or outsourcing.
22.7 Customer may never sell, rent out, dispose of or grant limited rights to, or make available to third parties the software and the carriers on which the software is or will be recorded, in any way whatsoever for whatever purpose or under whatever title. Customer may also not grant, whether or not remotely (online), a third party access to the software or place the software with a third party for hosting, not even if the third party concerned only uses the software for Customer.
22.8 If so requested, Customer shall cooperate without delay in an investigation into compliance with the agreed restrictions on use carried out by or for OneGlimpse. Should OneGlimpse so demand, Customer shall grant OneGlimpse access to its buildings and systems. Insofar as such information does not concern the use of the software itself, OneGlimpse shall treat all confidential business information that it obtains from Customer or at Customer's business location in the context of an investigation as confidential.
22.9 The parties maintain that the contract concluded between the parties, insofar as the object of this contract is the making available of software for use, shall never be deemed to be a purchase contract.
22.10 OneGlimpse is not obliged to maintain the software and/or provide support to users and/or administrators of the software. If, contrary to the foregoing, OneGlimpse is asked to perform maintenance work and/or provide support with respect to the software, OneGlimpse may require that Customer enter into a separate, written contract for the purpose.
Article 23. Notice and Take Down
23.1 Customer shall at all times act with due care and lawfully towards third parties, particularly by respecting the intellectual property rights and other rights of third parties and the privacy of third parties, by refraining from disseminating information in a manner that is contrary to the law, from granting unauthorized access to systems and from spreading viruses or other harmful programs or data, and by refraining from committing criminal acts and violating any other legal obligation. OneGlimpse is entitled and Customer acknowledges this right to report any possible illegal activities with police and judicial authorities.
23.2 To prevent liability towards third parties or limit the consequences thereof, OneGlimpse is always entitled to take measures with respect to an act or omission of or at the risk of Customer. Should OneGlimpse so demand in writing, Customer shall delete data and/or information from OneGlimpse's systems without delay. If Customer fails to do so, OneGlimpse shall be entitled at its own discretion to delete the data and/or information itself or make it impossible to access the data and/or information. In addition, in the event of a breach or an imminent breach of the provisions of these terms and conditions, OneGlimpse shall be entitled to deny Customer access to OneGlimpse's systems with immediate effect and without prior notice. The foregoing shall be without prejudice to any other measures or the exercise of other legal and contractual rights by OneGlimpse against Customer. OneGlimpse shall in this case also be entitled to terminate the contract with immediate effect without being liable towards Customer for doing so.
23.3 OneGlimpse cannot be expected to form an opinion on the merits of the claims of third parties or Customer's defense, or be involved in any way whatsoever in a dispute between a third party and Customer. Customer shall deal with the third party concerned regarding the matter and inform OneGlimpse in writing. The information provided in this context must be properly substantiated by supporting documents.
Article 24. Delivery and installation
24.1 At its discretion, OneGlimpse shall deliver the software on the agreed type of data carrier or, if no agreements have been made in this regard, on a type of data carrier determined by OneGlimpse, or shall make the software available to Customer online. At OneGlimpse's discretion, any agreed user documentation shall be made available in printed or digital form in a language determined by OneGlimpse.
24.2 OneGlimpse shall only install the software at Customer's business location if this has been agreed between the parties. If no agreements have been made for the purpose, Customer shall itself install, organize, parameterize, tune and, if necessary, modify the equipment and operating environment used.
Article 25. Acceptance
25.1 Customer accepts the software in the state that it is in when delivered (‘as is, where is'), therefore with all visible and invisible errors and defects, without prejudice to OneGlimpse's obligations under the guarantee scheme as set out in Article 28. In the aforementioned case, the software shall be deemed to have been accepted by Customer upon delivery or, if installation by a supplier has been agreed in writing, upon completion of installation.
Article 26. Availability
26.1 OneGlimpse shall make the software available within a reasonable term following the conclusion of the contract.
26.2 Following the end of the contract, Customer shall return all copies of the software in its possession to OneGlimpse without delay. If it has been agreed that Customer must destroy the copies concerned at the end of the contract, Customer shall report the destruction of the copies to OneGlimpse in writing without delay. At or following the end of the contract, OneGlimpse shall not be obliged to provide assistance for the purpose of a data conversion desired by Customer.
Article 27. Payment for the right of use
27.1 Customer must pay the amount owed for the right of use at the agreed times or, if a time has not been agreed, when the software is delivered and/or subsequently at the start of each new right of use term.
27.1 Baring exceptions provided for by law, Customer may not change all or part of the software without the prior written permission of OneGlimpse. OneGlimpse is entitled to refuse or attach conditions to such permission. Customer shall bear the entire risk of all changes that it makes or changes made by third parties on its instructions, whether or not with OneGlimpse's permission.
Article 28. Guarantee
28.1 OneGlimpse shall strive to the best of its ability to fix errors within a reasonable term if these errors are reported in writing in a detailed manner to OneGlimpse within a period of three months following delivery or, if an acceptance test was agreed, within three months following acceptance. OneGlimpse does not guarantee that the software is suitable for actual use and/or the intended use. OneGlimpse also does not guarantee that the software will operate without interruption and/or that all errors will always be fixed.
Fixing work shall be carried out free of charge unless the software was developed on the instructions of Customer other than for a fixed price, in which case OneGlimpse shall charge for the costs of fixing in accordance with its usual rates.
28.2 OneGlimpse may charge for the costs of fixing in accordance with its usual rates if such work is required as a result of user errors or improper use on the part of Customer, or as a result of causes that cannot be attributed to OneGlimpse. The obligation to fix errors shall cease to apply if Customer makes changes in the software or has such changes made without OneGlimpse's written permission.
28.3 The fixing of errors shall take place at a location and in a manner determined by OneGlimpse. OneGlimpse is entitled to install temporary solutions, program bypasses or problem-avoiding limitations in the software.
28.4 OneGlimpse is never obliged to recover data that has been corrupted or lost.
28.5 OneGlimpse does not have any obligation whatsoever, of whatever nature or content, with respect to errors reported after the end of the guarantee period referred to in Article 28.1.
Article 29. Software of suppliers
29.1 If and insofar as OneGlimpse makes third-party software available to Customer, the license terms of the third parties concerned shall apply in the relationship between OneGlimpse and Customer with respect to the software instead of the provisions of these terms and conditions that differ from those license terms, provided that the applicability of the license terms of the third party concerned was reported to Customer by OneGlimpse in writing and, in addition, a copy of the applicable license terms was made available to Customer prior to the conclusion of the contract. In derogation from the provisions of the preceding sentence, Customer shall not be entitled to invoke failure on the part of OneGlimpse to fulfil the aforementioned obligation to provide information if Customer is a party as referred to in Section 235, subsection 1 or subsection 3 of Book 6 of the Dutch Civil Code.
29.2 If and insofar as, for whatever reason, the terms of third parties referred to above are deemed not to apply or are declared inapplicable in the relationship between Customer and OneGlimpse, the provisions of these terms and conditions shall apply in full.