1. SCOPE OF AGREEMENT
Affiliates: any entity that is directly or indirectly under the control or otherwise connected to Varias.
Customer: any legal or natural person acting in the exercise of a profession or business to whom Varias delivers the Services.
General terms and conditions: these general terms and conditions of Varias which stipulate under which conditions Varias delivers the Services.
Offer: means a written offer issued by an authorize representative of the Supplier for the provision of Services to the Customer.Services: all services provided by Varias under an agreement, these General Terms and Conditions or any Offer, including but not limited to the development of (custom) software or consultancy services.
Supplier: Varias B.V., having its registered office at Aert van Nesstraat 45, 3012CA Rotterdam, The Netherlands, hereinafter also referred to as ‘Varias’.
Varias: see Supplier.
These General Terms and Conditions apply to all results delivered and Services performed or provided by Varias as Supplier. The General Terms and Conditions are part of any Offer made by Varias or any work performed. An Offer is deemed to have been accepted and is binding on both parties if:
a. Customer signs and returns the Offer or any type of agreement to Varias;
b. Varias begins performance of the Services; or
c. Customer acknowledges the Offer by e-mail, facsimile, or any other commercially reasonable means.
Any Affiliate or subcontractor of Varias will have the right to perform or deliver Services under these General Terms and Conditions.
2. THE SERVICES
Varias develops and delivers custom made software for the Customer based on the Customer requirements. The Offer specifies the Services in further detail and forms an integral part of the agreement between parties.
Varias represents and warrants that the Services will be performed in a professional and workmanlike manner in accordance with the level of professional care customarily observed in the sector.
The hosting, updating or licensing of the software does not form a part of the Services unless explicitly agreed upon in writing between parties.
3. Information and reporting
Customer shall inform Varias of all requirements and provide them with all necessary information to perform and deliver the Services. In the event of any change in the Customer requirements, Customer shall inform Varias without undue delay. Varias will to the best extend possible, incorporate the requested changes or inform Customer of any consequences of such change request.
The parties will provide each other the required information in time in order to deliver the Service as planned and keep each other updated about relevant developments that are going on within their organization.
Varias will report – to the extent necessary- to Customer on a regular basis about the progress. Customer shall designate a contact person for the implementation or delivery of the Service.
Varias shall not be liable for any delay in performance that is beyond its reasonable control or due to changes in the Customer’s requirements. Varias will notify Customer as soon as possible of any such delay. Customer cannot terminate the Services in the event of an delay nor receives the right to compensation.
After delivery of the Service, Customer shall within a period of (10) working days test the Service. Within this period Customer shall let Varias know in writing about any defects or shortcomings in the Service. This notice shall contain detailed and motivated information on the defects or shortcomings. If in this period, Customer has not informed Varias about any defects or shortcomings, the Service is deemed accepted.
Varias will, in cooperation with the Customer, investigate which solutions can be found to resolve any issues brought on by Customer within the acceptance period.
Any notice given by Customer, does not suspend or in any way or form exempt Customer of its duties or obligations.
If after the acceptance period any Services are found to be defective or otherwise not in conformity with the requirements of the agreement or the applicable offer, including any warranties or specifications thereunder, Customer shall inform Varias as soon as possible. Parties shall explore possible solutions in good faith and cooperation however Varias is not obligated to make any repairs, alterations, or restorations free of charge. Customer cannot involve another party for altering, repairing or restoring the Services at cost of Varias. If nevertheless Customer restores, repairs, alters or otherwise adapts the Service or involves any third party to do so, Customer loses any right on guarantees (if explicitly given) or any form of repair by Varias.
5. PRICE AND PAYMENT
Customer shall pay Varias for Services specified in the Offer or otherwise communicated by Varias. Prices and discounts for the Services are firm and without VAT unless otherwise specified.
Unless the Services are provided on a retainer or prepaid basis, Customer shall pay any invoice within fourteen (14) days after the date of invoicing unless otherwise specified in the Offer or Invoice. Varias shall send an invoice after the completion of each sprint or as soon as Varias deems necessary.
If Customer fails to pay an invoice, Customer is in default without a prior written notice.
Invoicing disputes do not suspend the payment obligation of the Customer. Any invoicing disputes shall be made known to Varias within fourteen (14) days after the date of invoice.
Notwithstanding any other provision in the Offer or these General Terms and Conditions, Customer is not entitled to delay or withhold payment or set off any amounts of any sums due and payable to Varias or its Affiliates, in whole or in part, on account of any failure of Varias to perform or deliver the Services.
Varias is entitled to claim legal interest, collection costs or other costs from the Customer if the Customer fails to comply with the obligations contained in these General Terms and Conditions, Offer or agreement, including the obligations related to payment.
Varias is entitled, at any time, to suspend its obligations regarding the Service, including in the event of any non-payment or delayed payment or dispute by the Customer.
Any reasonable doubt on the part of Varias regarding the Customers ability to pay shall entitle Varias to require the Customer to provide sufficient security before Varias commences or continues to execute the Services.
Upon modification of the Offer or requested specifications of the Services by Customer, such modifications can result in an increase of Varias’ pricing and delay in the delivery date. Varias will adjust the time schedules and/or the compensation payable for the Services. Varias is able to decline any changes proposed by Customer.
6. Intellectual Property
Any intellectual property rights arising out of the Services shall become the property of Customer after full payment of the invoices. In the event that an invoice is send after each sprint, the intellectual property will become the property of the Customer after the full payment of the last invoice for the completion of the Services as a whole.
Any intellectual property already existing prior to the development or delivery of the Services shall belong to the party in which the intellectual property was vested and no transfer of intellectual property shall be made between the parties.
Parties shall not use the intellectual property rights, company name of the other party and/or the names of its directors, employees or affiliates in publications and/or advertisements or otherwise without prior permission of the other party.
The foregoing does not limit any rights or possibilities of Varias to use, reuse or further develop any knowledge or platform applied or resulting from the Services for its own benefit, the benefit of other customers or third parties in order to develop software or to deliver other types of services or products comparable to the Services.
7. INDEPENDENT CONTRACTOR; VARIAS PERSONNEL
Varias will perform and deliver the Services as an independent supplier. The Offer or General Terms and Conditions will not be construed to create a partnership, joint venture, agency, employment, or any other relationship between Varias and Customer. Varias will not represent itself to be an employee, representative or agent of Customer or vice versa. Parties will have no authority to enter into any agreement on each other’s behalf or in each other’s name or otherwise bind each other to any agreement or obligation.
During the performances of the Service by Varias and for the term and for one (1) year thereafter, Customer shall not encourage or solicit any employee, independent contractor, vendor, or client of Varias to leave or otherwise terminate its contract or relationship with Varias for any reason. If Customer acts in breach with this clause, Varias can claim an immediately payable penalty of €5.000 (five thousand euro) per event and €500 (five hundred euro) for any day that the breach continues.
Varias will retain:
a) Full control over the manner in which it performs all Services provided to Customer;
b) Exclusive control over its employees, representatives, contractors, subcontractors, and agents;
c) Exclusive control over its labour and employee relations and its policies relating to wages, hours, working conditions and other employment conditions; and
d) Exclusive right to hire, transfer, suspend, lay off, recall, promote, discipline, discharge, and adjust grievances with its personnel.
Customer may request removal or replacement of any of Varias’ personnel providing Services. Varias will to its best endeavours try to accommodate such requests from Customer.
To the extent Varias is performing Services on Customer premises or otherwise accesses or uses such premises, Customer will inform Varias personnel of any rules, restrictions, regulations, policies, procedures and guidelines, including safety, health, environmental that Customer applies to the premises.
8. INSURANCE AND LIABILITY
Varias will, during the delivery of the Services, holds an insurance policy for commercial corporate liability (bedrijfsaansprakelijkheid) and commercial professional liability (beroepsaansprakelijkheid). Varias is allowed to, without informing the Customer, change or alter the insurance conditions.
To the maximum extent permitted by applicable law, Varias shall only be liable for any direct damages which are covered and actually paid out by the insurance company up to €2.500.000 (two million, five hundred thousand euro) for commercial corporate liability (bedrijfsaansprakelijkheid) and €500.000 (five hundred thousand euro) for commercial professional liability (beroepsaansprakelijkheid) per event or series of connected events per year.
To the maximum extent permitted by applicable law, Varias shall not be liable for consequential loss or indirect damages, such as trading losses and loss of profits that may arise from the (non-)performance, negligence or any act or omission of Varias.
To the maximum extent permitted by applicable law, Varias shall in no event be liable for any uninsured damages except for damages caused by intent (opzet) or gross negligence (grove schuld). All other liability that is not expressly assumed in these General Terms and Conditions is excluded.
Customer will defend and hold Varias, including its directors, employees and Affiliates harmless against any allegation or claim that directly or indirectly arises out of or relates to the Services. Customer acknowledges that Varias is building and designing Services based on the Customer requirements and that Varias has no influence on the results or usage of the Services by Customer. Varias is not liable for damages resulting from the misuse of the Services.
Varias develops and delivers the Service to Customer based on the request and bespoke requirements of Customer. Varias is not responsible for compliance with all applicable laws, IP rights, ordinances, regulations, rules, orders, privacy laws in the country of Customer and other requirements (including requirements for licenses, permits or certifications).
Customer shall hold a proper insurance which covers its general liability including insurance for acts and omissions of its employees, including employees working or otherwise are present at Varias’ offices.
9. Force Majeure
Neither party shall be liable for any delay or failure in meeting its obligations under this agreement, Offer or General Terms and Conditions due to any cause outside its reasonable control including (without limitation) acts of god, war, riot, malicious acts of damage, fire, acts of any government authority, failure of the public electricity supply, strike, lock-out or labour.
In the event of force majeure, parties shall inform each other of such event as soon as possible but no later than 72 hours after commencement.
Parties shall keep all information they receive from each other confidential and shall only use the information in relation to de development and delivery of the Services.
Neither party shall disclose any information to a third party that is not a part of de development and delivery of the Services other than their (legal or financial) external counsels.
Parties shall protect the information with reasonable care and shall at least guarantee the same degree of care as it would to prevent unauthorised use and disclosure of its own confidential information.
In the event that any information is disclosed or potentially disclosed, parties shall immediately notify each other.
Neither party shall have the obligation to keep information confidential in the event that such information:
a. Is already in the possession of the receiving party at the time of disclosure by the other party;
b. Becomes publicly available without disclosure by the receiving party;
c. Is independently obtained from another source which is not bound by confidentiality;
d. Is independently developed by the receiving party without use of the information;
e. Is required by law or any competent court to be disclosed. If not prohibited, parties shall inform each other of disclosure required by law or court.
Customer acknowledges that any material breach of its obligations related to maintaining confidentiality would cause Varias irreparable harm for which Varias has no adequate remedies at law. Accordingly, Customer agrees that Varias is entitled to injunctive relief for any such breach, without posting a bond or proving actual damages, and without prejudice to any other remedies that may be available to Varias.
Since the performance and the provision of the Services may involve the processing of personal data, the Customer, as the ‘data controller’, and the Supplier, as the ‘data processor’, must comply with the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (“GDPR”). Customer shall give Varias instructions on how to process the personal data and inform and guide Varias in the event that any other law or regulations apply to the processing of the personal data.
11. TERM AND TERMINATION
The duration of the commitment is stated in the Offer or otherwise communicated by Varias. Within this timeframe, Varias will strive to deliver the Services. If the delivery of the Services is delayed, the term of the agreement is consequently extended for the same duration.
Customer may terminate the agreement for the delivery of the Services, with or without cause, by giving at least one calendar month prior written notice to Varias. Upon any such termination, Customer is obligated and liable to pay for Services already performed, time and material of Varias already spend and time and material that Varias has already reserved for Customer.
Varias may cancel, suspend, terminate or interrupt an Offer or Services upon Customer’s material breach and Customer’s failure to cure such breach within seven (7) days after receipt of written notice to Customer specifying the breach in reasonable detail.
Either party may terminate the Services without prior written notice in the following events:
a) The other party is subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors or goes into voluntary or compulsory liquidation (other than for the purpose of amalgamation or reconstruction) or a receiver or administrator is appointed over its assets;
b) The other party ceases or threatens to cease to carry on all or any substantial part of its business.
Varias may, without the prior written consent of Customer, transfer the rights and/or obligations arising under an agreement, these Generals Terms and Conditions or the Offer (i) to a group entity (ii) under the terms of a sale or the acquisition of all or practically all of the assets of Varias or (iii) pursuant to a financing arrangement, merger or reorganisation of Varias.
If any provision of these General Terms and Conditions or the application thereof to any person, entity, or circumstance will at any time or to any extent be determined to be invalid or unenforceable under any provision of applicable law, this provision will become null and void. The invalid or unenforceable provision will be replaced by a valid provision which comes closest to the intentions of Varias in these General Terms and Conditions. The invalidity of the provision in question will not affect the validity of any other provision or these terms and conditions as a whole.
The General Terms and Conditions and the delivery of the Services in general are governed by the laws of The Netherlands. References to certain terminology and principles under Dutch law have been added between brackets for clarity.
The United Nations Convention on Contracts for the International Sale of Goods will not apply to the General Terms and Conditions.
Any dispute arising under or in connection with the Offer or these General Terms and Conditions shall be resolved exclusively by the competent court in The Netherlands.
The section headings of these General Terms and Conditions are for convenience only and have no interpretive value. Whenever the singular number or word is used in these General Terms and Conditions and when required by the context, the same will include the plural and vice versa.
These General Terms and Conditions, together with the Offer or other written agreements and addenda, constitute the entire agreement between the parties with respect to the Services and supersedes any previous or contemporaneous oral or written agreements, understandings, request for proposals or quotations, and discussions regarding such subject matters.
In the event that any conflict exists between these General Terms and Conditions and the Offer or any other terms and conditions attached to or incorporated by parties, the terms and conditions in the Offer supersede these General Terms and Conditions, hereafter these General Terms and Conditions shall prevail. Any terms and conditions of the Customer are explicitly excluded.