General Terms and Conditions F19 B.V.

Version 1.4 | 25-02-2022

Disclaimer: Our original General Terms and Conditions are established and filed in the Dutch language. This translation in English is not an official version. In the event of a conflict in interpretation or discrepancy between the Dutch and English language, the Dutch language version shall prevail.

 

 

Chapter A. General Provisions

Article 1. Definitions

1.1 The terms and definitions used in the Agreement with an initial capital letter have the meanings given to them in the table included at the end of these General Terms and Conditions, unless otherwise specified.

Article 2. General

2.1 These General Terms and Conditions apply to all (future) offers including Quotations from F19, the execution of activities by or on behalf of F19, and the performance of (future) Agreements.

2.2 The applicability of any purchasing or other conditions of the Customer is expressly excluded. Such conditions apply only if they have been explicitly accepted in writing by F19.

2.3 In case of any inconsistency between applicable documents, provisions, and definitions included in different parts of the Agreement, the following order of precedence applies, with the earlier mentioned document taking precedence over the later mentioned document:
a. Written amendments to the Agreement
b. Quotation
c. Further agreements prepared by or originating from F19 (e.g., service level agreement)
d. Appendices to the above documents
e. Other applicable documents
f. These General Terms and Conditions
g. Further agreements prepared by or originating from the Customer (e.g., processing agreement)
h. Purchasing or other conditions of the Customer signed by F19

Article 3. Establishment of the Agreement

3.1 Each Quotation from F19 is without obligation and valid for a period of fourteen (14) days from the date of the Quotation, unless a different validity period is specified in the Quotation. In the absence of a date, the aforementioned period starts on the day F19 sends the Quotation to the Customer.

3.2 The Agreement is concluded by: a. The (digital) signing of the Quotation by both Parties; or b. The (Written) acceptance of the Quotation by the Customer.

3.3 If the Customer does not explicitly indicate agreement with the Quotation but nonetheless gives the impression of agreeing by requesting F19 to perform activities or deliver products within the description of the Quotation, the Quotation is considered accepted. This also applies when the Customer requests F19 to perform certain activities or deliver products without awaiting a Quotation.

3.4 F19 is only bound to a different acceptance of a Quotation made by the Customer if F19 explicitly accepts the differing acceptance in writing. The above does not affect what is stipulated in Article 2.2.

3.5 The applicability of articles 6:227b paragraph 1 and 6:227c of the Dutch Civil Code is excluded.

Article 4. Duration and Termination of the Agreement

4.1 The duration of the Agreement is established in the Agreement. In the absence thereof, the following applies: a. If no duration is specified for an ongoing agreement, it is entered into for a period of one (1) year and is tacitly renewed each time for the same period. b. If the Agreement relates to a task that ends upon completion, the Agreement ends upon completion.

4.2 An Agreement as referred to in Article 4.1 sub a can be terminated by the Customer at the end of the current term by Written notice, with the Customer having to observe a notice period of at least two (2) months.

4.3 Unless otherwise stipulated, the Agreement cannot be terminated early by the Customer.

4.4 F19 may suspend or terminate the Agreement at any time without notice of default if (i) the Customer is declared bankrupt or has applied for bankruptcy, (ii) suspension of payment has been granted to the Customer, (iii) the Customer’s business is dissolved or liquidated, (iv) assets of the Customer are seized.

4.5 If Parties have already performed activities or received performances at the time of termination or dissolution of the Agreement, these performances and related payment obligations shall not be subject to annulment.

Article 5. Execution of the Agreement

5.1 After the formation of the Agreement, F19 will endeavor to start the execution of the Agreement as soon as possible, observing sufficient care and professionalism. Communicated or agreed (delivery) terms are indicative and do not constitute strict deadlines.

5.2 The Customer will provide F19 with all necessary and desirable support to enable the proper execution of the Agreement. In any case, the Customer will provide F19 with all information F19 indicates is necessary, or which the Customer should reasonably understand is necessary for the execution of the Agreement. F19 has the right, but not the obligation, to check this information for accuracy and completeness.

5.3 If the Customer does not provide the cooperation described above, or if it appears that the information provided by the Customer is incorrect or incomplete, F19 has the right to suspend the Agreement until the Customer has provided the requested cooperation or the necessary information.

5.4 F19 has the right to engage third parties in the execution of the Agreement. Any related costs will only be charged to the Customer if agreed upon. The above does not affect agreements made in the context of engaging third parties for the processing of personal data (from the Customer) on behalf of F19.

5.5 If F19 employees or third parties engaged by F19 perform activities at a location designated by the Customer, the Customer will provide all reasonable support and facilities free of charge.

5.6 Products and/or services from third parties may be part of the Agreement. If so, the terms and conditions of the third party additionally apply to (the use of) those products and/or services.

Article 6. Compensation

6.1 Unless expressly stated otherwise, all prices quoted by F19 are in euros and exclusive of VAT and other government-imposed levies.

6.2 All prices in any Quotation are subject to programming and typing errors. If a price in a Quotation is based on data provided by the Customer and this data proves to be incorrect, F19 has the right to adjust the prices accordingly, even after the Agreement has been concluded.

6.3 Where the Agreement mentions “the applicable hourly rate” or “applicable rates” or similar terms, the rates included in the most current price lists published by F19 are meant.

6.4 F19 is entitled to:
a. Index its rates once per year in accordance with the most applicable services price index (DPI) of the CBS, provided F19 informs the Customer at least one (1) month before the change takes effect;
b. Adjust its rates during the year if the rates of its suppliers, such as power, data center, software, and (public) cloud solutions, necessitate it, provided F19 informs the Customer at least one (1) month before the change takes effect;
c. Adjust its rates during the year for any reason, provided F19 informs the Customer at least two (2) months in advance.

6.5 In the event of a price change based on Article 6.4 sub c, the Customer has the right to terminate the Agreement for the part affected by the price change by giving Written notice, unless it concerns a price reduction. The Customer must observe a notice period of at least one (1) month, after which the termination takes effect from the date the change takes effect.

6.6 Activities are generally performed during Office Hours. If F19 performs activities outside Office Hours at the request of the Customer, these overtime hours will be recorded and charged as follows: a. For overtime on Working Days, 150% of the usual hourly rate of the relevant team member(s) will be charged per hour to the Customer; b. For overtime on non-Working Days, 200% of the usual hourly rate of the relevant team member(s) will be charged per hour to the Customer.

6.7 If F19 has to perform activities at a location other than its usual location (e.g., at the Customer’s location), F19 is entitled to charge the associated additional costs to the Customer. These costs include, among others: travel expenses, (travel) insurance costs, accommodation costs, and costs for food and drinks, which will be invoiced monthly in arrears with a specification. F19 and the Customer will endeavor to agree on such costs in advance.

Article 7. Invoicing and Payment

7.1 Periodically due amounts will be invoiced to the Customer in advance for the relevant period. Hours and projects agreed to be billed at an hourly rate and other variable costs will be invoiced monthly in arrears based on actual costs incurred.

7.2 F19 will send an invoice to the Customer for all amounts due and has the right to invoice electronically.

7.3 All invoices issued by F19 are subject to a payment term of fourteen (14) days from the invoice date.

7.4 If the Customer disputes the amount of an invoice, this does not suspend their payment obligation, but the Parties will consult to reach an amicable solution.

7.5 The Customer is in default by operation of law from the due date of the invoice without prior notice of default. F19 is then entitled to charge the Customer the total amount due, plus interest of 1.0% per month from the due date, or, if higher, the statutory commercial interest.

7.6 Notwithstanding the above, all costs related to collecting outstanding debts, including judicial and extrajudicial costs (including costs for lawyers, bailiffs, and collection agencies), are for the Customer’s account. F19 is entitled to charge extrajudicial costs immediately, amounting to 15% of the outstanding amount, with a minimum of EUR 250 (two hundred and fifty euros).

7.7 F19 is entitled to suspend the Agreement and/or temporarily block the Services if (i) the Customer does not pay an invoice within the due date, or payment remains outstanding after a reminder from F19, (ii) there is a deterioration in the solvency of the Customer that reasonably raises doubts about their payment ability and creditworthiness. During suspension and/or blocking, the Customer remains liable for any periodic amounts due.

7.8 The Customer is not entitled to suspend, set off, or deduct any payment obligation on them against any claim against F19 for any reason.

7.9 If F19 has reasonable doubts about the Customer’s ability to meet their payment obligations, F19 is entitled to require a bank guarantee or surety, or to demand a deposit. The amount will not exceed what the Customer is reasonably expected to owe over six (6) months.

Article 8. Confidentiality

8.1 The Parties will treat Confidential Information disclosed to each other before, during, or after the execution of this Agreement confidentially. The Parties will impose this obligation on their employees and third parties engaged in the execution of the Agreement.

8.2 Both Parties will exercise the same level of care in protecting Confidential Information as the disclosing Party uses for its own Confidential Information, but at least reasonable care.

8.3 This article does not apply to information that:
a. is or becomes publicly available other than through disclosure by the receiving Party in violation of this Agreement;
b. was already in the possession of the receiving Party before being disclosed by or on behalf of the disclosing Party;
c. is made available to the receiving Party by a source other than the disclosing Party, which is not bound to keep that information confidential; or
d. is independently created by the receiving Party before being disclosed by the disclosing Party.

8.4 If the receiving Party is legally required to disclose Confidential Information to third parties, it will immediately inform the other Party in writing so that the other Party can seek a protective order or other appropriate remedy and/or waive compliance with these confidentiality provisions.

Article 9. Personnel

9.1 During the term of the Agreement and up to one (1) year after its termination, the Customer is not allowed to approach employees of F19 to offer them employment, hire them, or otherwise have them work for themselves, directly or indirectly, without prior Written permission from F19. Employees in this context include persons employed by or hired by F19 or a related company of F19, including persons who were employed by or hired by F19 within the past year.

9.2 This prohibition does not apply if the employee demonstrably responded on their own initiative to a job advertisement from the Customer that was publicly available and published through usual channels.

9.3 Unless F19 gives Written permission, the Customer will refrain from developing and/or exploiting services equivalent to those provided by F19 under the Agreement, nor will the Customer attempt to do so during the term of the Agreement and up to one (1) year after its termination.

9.4 If the Customer violates any prohibition in this article, they owe F19 an immediately payable penalty of EUR 2,500 per violation without prior notice of default, plus an immediately payable penalty of EUR 250 for each day the violation continues, without prejudice to F19’s right to claim full compensation and compliance with the provisions of this article.

Article 10. Liability

10.1 The liability of F19 for any attributable shortcoming in the performance of its obligations under the Agreement, tort, or any other reason is limited to compensation for damages suffered by the Customer up to a maximum amount of the fee agreed for the execution of the Agreement for six (6) calendar months (excluding VAT), regardless of the number of events and Agreements between F19 and the Customer. This limitation of liability expressly applies to any warranties provided by F19 in the Agreement or otherwise. In no event shall the total liability of F19 for damages exceed EUR 250,000.

10.2 Notwithstanding the above, F19 is only liable for direct damages suffered by the Customer. Direct damages exclusively mean:
a. Reasonable costs incurred by the Customer to have F19’s performance conform to the Agreement;
b. Reasonable costs incurred to determine the cause and extent of the damage, insofar as the determination relates to direct damage within the meaning of these General Terms and Conditions;
c. Reasonable costs incurred to prevent or limit damage, provided these costs led to the limitation of direct damage within the meaning of these General Terms and Conditions.

10.3 The limitation of liability as referred to in the previous paragraphs of this article does not apply if and to the extent the damage is the result of intentional or deliberate recklessness by F19’s management.

10.4 The liability of F19 for any attributable shortcoming in the performance of an Agreement arises only if the Customer immediately and properly notifies F19 in writing of the default, stating a reasonable period for remedying the shortcoming, and F19 remains in default in performing its obligations even after that period. The notice of default must contain as detailed a description of the shortcoming as possible so that F19 can respond adequately. Any claim for damages by the Customer expires by the mere passage of six (6) months after the claim arises.

10.5 The Customer will indemnify F19 and F19’s employees for claims from third parties (including F19’s employees or intermediaries engaged by F19) who suffer damage in connection with the execution of the Agreement as a result of the Customer’s actions or omissions, the provision of Materials by the Customer, the inaccuracy or incompleteness of data or information provided by or on behalf of the Customer, and/or unsafe situations at a location designated by the Customer where work is performed.

Article 11. Force Majeure

11.1 Neither Party can be held to perform any obligation if a circumstance beyond their control (force majeure) and which could not have been foreseen at the time of the conclusion of the Agreement, nullifies any reasonable possibility of performance. Force majeure includes (but is not limited to):
a. Disruptions in public infrastructure that is normally available to F19 and on which the delivery of the Services depends, but over which F19 has no actual control or can demand performance;
b. Disruptions in infrastructure and/or Services of F19 caused by malicious software, network attacks such as (D)DOS attacks, or attempts to circumvent network or system security, whether successful or not;
c. Failures of suppliers of F19, which F19 could not foresee and for which F19 cannot hold the supplier liable, such as the supplier also experiencing force majeure;
d. Domestic unrest, mobilization, war, terrorism, strikes, fires, and floods;
e. Defects in items, equipment, or other Materials whose use is prescribed by the Customer; and
f. Long-term unavailability of employees of F19 or third parties engaged by F19 due to illness.

11.2 If a force majeure situation persists for longer than ninety (90) days, each Party has the right to terminate the Agreement, without any obligation to compensate for damages on the part of F19.

Article 12. Promotion

12.1 During and after the term of the Agreement, F19 is permitted to describe the customer case of the Client for promotional purposes in the Materials and channels used by F19 (such as its website). The Client’s trade name, image, and word mark may be used for illustrative purposes, in accordance with the confidentiality agreements between the Parties.

12.2 If the Client objects to the manner in which F19 has exercised the aforementioned right, the Client can communicate this in writing to F19. F19 will consider the objection reasonably and may decide to adjust the customer case accordingly.

Article 13. Amendment of the Agreement

13.1 If the Client wishes to amend the Agreement, the Client may submit a request to F19. Such amendments will only apply if expressly accepted in writing by F19.

13.2 Any change in the Client’s name, residence or business address, invoice address, or legal form must be immediately communicated in writing to F19. F19 may impose additional conditions regarding the acceptance of the consequences of such a change.

13.3 F19 reserves the right to unilaterally amend or supplement the Agreement, including the General Terms and Conditions, even concerning existing Agreements. Contractual changes to existing Agreements will take effect thirty (30) days after notification of the change to the Client. The notification will be made in writing, via the Account, or via electronic messaging. If the change significantly negatively affects the Client’s position, the Client has the right to terminate the Agreement in writing, provided that F19 receives this notification no later than fourteen (14) days before the change takes effect. This does not apply to changes as referred to in Article 6.4.

13.4 Minor changes, changes based on the law, and changes beneficial to the Client can be implemented at any time with immediate effect.

Article 14. Final Provisions

14.1 F19 has the right to transfer the Agreement in whole or in part to a company within its group as referred to in Article 2:24b of the Dutch Civil Code, or to a third party that takes over the Service or the relevant business activity of F19.

14.2 The Agreement is governed by Dutch law. All disputes arising from or related to the Agreement will be exclusively submitted to the competent court in the district where F19 is established, unless otherwise prescribed by mandatory legal rules.

14.3 The version of communication, measurements, or other information received or stored by F19 is deemed to be correct, unless proven otherwise by the Client.

14.4 If any provision of the Agreement is found to be null and void or invalid for any reason, the remaining provisions of the Agreement will remain in full force. F19 will replace the invalid provision with a valid provision that aligns as closely as possible with the intent and purpose of the Agreement.

Chapter B. F19 Software

Article 15. Applicability

15.1 The articles in this chapter apply in addition to the above general articles to the use of the F19 Software.

Article 16. Subscription

16.1 To use the F19 Software, the Client must have a Subscription. Subscriptions are provided by F19 to the Client under the conditions and limitations specified in the Agreement.

16.2 A Subscription grants the Client the non-exclusive right to use the F19 Software as an online service (Software-as-a-Service) within their organization for the duration specified in the Agreement and for the intended use. A Subscription does not include access to the source code of the F19 Software or a right to receive a copy thereof.

16.3 Subscriptions and the claims arising from them cannot be transferred to third parties from a property law perspective.

16.4 F19 may implement (technical) measures to protect the F19 Software. The Client is not permitted to bypass or remove such measures.

Article 17. Delivery and Installation

17.1 If the Agreement pertains to providing the standard F19 Software, F19 will endeavor to grant the Client access to the F19 Software as soon as possible after the Agreement is established.

17.2 If the Agreement includes hosting via a Virtual Private Server (VPS), F19 will provide the Client with virtually subdivided hardware, granting the Client a certain amount of dedicated capacity and storage space. If the allocated capacity is no longer sufficient for the Client’s use of the Service, the Parties will consult to scale up accordingly.

17.3 If the Agreement involves granting the Client access to an API offered by F19, paragraph 1 applies correspondingly. The Client is responsible for creating and maintaining the desired connection with the software used by the Client. F19 will provide the Client with relevant API documentation.

Article 18. Accounts

18.1 To use the F19 Software, the Client needs an Account. F19 will provide the Client with login details for an (administrator) Account or offer the possibility to create an Account independently. If agreed, the Client can create sub-Accounts for End Users with their Account. The same conditions apply to such sub-Accounts as to regular Accounts.

18.2 An Account is strictly personal and may not be shared with third parties. Login details must be kept confidential at all times. The Client must use a sufficiently strong password for each Account.

18.3 Unless F19 assumes this task, the Client is responsible for managing End Users, granting or withdrawing rights, creating or deleting Accounts, and all other actions performed by the Client or its End Users within an Account.

18.4 If login details of an Account are lost or leaked, the Client must take all reasonably necessary, desirable, and possible measures to prevent misuse of the Account immediately. These measures may include changing the password. In any case, the Client must notify F19 immediately so that additional measures can be taken to prevent misuse of the Account.

18.5 F19 may rely on all actions performed from an Account being carried out under the Client’s direction and supervision.

18.6 The preceding articles apply correspondingly if the Agreement concerns granting the Client access to an API offered by F19. In particular, the Client must keep obtained API keys strictly confidential and use the API according to the API documentation provided by F19.

Article 19. Usage Rules and Restrictions

19.1 The Client is not allowed to use the Service, particularly the F19 Software, in a manner that violates applicable laws or regulations, the Agreement, and/or guidelines and documentation issued by F19, for example, regarding F19’s APIs.

19.2 Furthermore, the Client is not allowed, regardless of whether it is lawful or not, to offer Materials or distribute information via the Service that, in F19’s opinion, (i) contains harmful content, such as malware; (ii) infringes on the rights of third parties, such as Intellectual Property Rights, or is defamatory, offensive, discriminatory, or incites hatred; (iii) violates the privacy of third parties, including but not limited to the unauthorized distribution of third-party personal data.

19.3 The Client must refrain from hindering other F19 customers or internet users in general or causing damage to the systems or networks of F19 (or its suppliers). If the Client’s actions, in F19’s opinion, cause hindrance, damage, or another danger to the functioning of F19’s systems or networks, particularly due to excessive data transmission, (distributed) denial-of-service attacks, poorly secured systems, or activities of viruses, Trojans, or similar software, F19 is entitled to take all reasonably necessary measures to avert or prevent this danger.

19.4 If a third party notifies F19 that Materials or other information stored or distributed via the systems that are part of the Service, by or on behalf of the Client, infringes on the rights of that third party or is otherwise unlawful, F19 will inform the Client of this notification. The Client must then respond in writing with a motivated rebuttal of the notification or complaint as soon as possible, but no later than within forty-eight (48) hours, after which F19 will independently decide what measures to take. Measures may include permanently removing or restricting access to the Materials or information to which the complaint relates. In cases that F19 deems urgent, F19 may intervene immediately without prior notice to the Client. However, F19 will still endeavor to inform the Client of the measures taken and the reason for them as soon as possible afterward.

19.5 Use of the Service, particularly the F19 Software, may be subject to specific usage restrictions (for example, regarding the maximum number of End Users, network capacity, and/or storage space). These limits are set by F19 or its suppliers and included in the Agreement. If the Parties have not agreed on such limits, a fair use limit applies. F19 determines the fair use limit based on the Subscription purchased and the average usage of other customers. If the Client exceeds the permitted usage under the Agreement, F19 has the right to impose conditions on usage, such as charging an additional fee. If the Client does not agree to pay the additional fee, F19 is entitled to block access to the Service in whole or in part. F19 is not liable if the Service is not accessible or does not function correctly due to the Client exceeding applicable usage limits.

19.6 Under this article, F19 is entitled to take (emergency) measures in certain cases due to non-compliance with the Agreement by the Client. Therefore, F19 will never be liable for any damages suffered by the Client due to measures taken based on this article.

Article 20. Availability and Maintenance

20.1 Only if the F19 Software is provided to the Client through hosting by F19 will F19 endeavor to ensure uninterrupted availability of the Service, associated systems, networks, and stored Client data, but it only guarantees this if agreed upon in the Agreement through a service level agreement. Unless otherwise specified in such a service level agreement, the availability specified in this article applies.

20.2 Unless otherwise agreed, F19 is not responsible for maintaining connections between the Service and the Client’s or third-party software, nor for defects or unavailability due to changes or failures in the connected software. F19 will endeavor to ensure that the Client can use the networks directly or indirectly connected to F19’s network. However, F19 cannot guarantee these networks will be available at any time.

20.3 F19 has the right to temporarily suspend the Service or parts thereof for maintenance, adjustment, or improvement, including maintenance, adjustment, or improvement of the associated software or other facilities. F19 will endeavor to schedule such suspensions outside Office Hours as much as possible and to inform the Client in advance of the suspension.

20.4 If F19 believes that a suspension of the Service – whether during Office Hours or not – is necessary for the proper functioning of the Service, it is entitled to suspend the Service immediately without prior notice to the Client. In such cases, F19 will, at the Client’s request, indicate the reason for the suspension.

20.5 F19 will endeavor to keep the software (web server software) it uses up-to-date. F19 is entitled not to install certain updates or patches for the Client if, in F19’s opinion, this does not benefit the proper delivery of the Service.

20.6 The Client accepts that the Service only contains the functionality and other properties found in the Service at the time of delivery (“as is”), thus with all visible and invisible errors and defects. F19 will endeavor to resolve such problems/defects in the Service but does not guarantee this. If the Client reports a defect in the Service to F19, it will only be addressed if the defect is demonstrable and reproducible.

Article 21. Support

21.1 F19 provides Support only if this is agreed upon when delivering the Service.

21.2 F19 may impose limitations on the use of the offered forms of Support. Additionally, F19 is free to determine and/or change the availability and response times of Support. Further and additional agreements on (different) availability of (telephone) Support and response times can be made by the Parties.

21.3 Restoration of damaged or lost Client data never falls under the Support as defined in this article and will be carried out based on post-calculation at the rates applied by F19 at that time.

Article 22. IP Addresses, Domain Names, and DNS Management

22.1 If the Agreement pertains to applying for IP addresses, domain names, and DNS management, the provisions in this article also apply.

22.2 The application and allocation procedure for IP addresses and domain names is subject to rules and procedures of the relevant registering authorities. As these authorities independently decide whether to approve an application, F19 cannot guarantee that an application will be approved. Regarding domain names, F19 also cannot guarantee the existence or continuity of registered domain names, as third-party rights (e.g., Intellectual Property Rights) may be at stake.

22.3 When using domain names and IP addresses, the Client must comply with all applicable laws and regulations and all conditions set by the registering authorities.

22.4 The IP addresses made available to the Client remain under F19’s management and cannot be transferred or relocated if the Agreement is terminated. F19 has the right to change or reassign the IP addresses made available to the Client at any time.

22.5 If a domain name is terminated by the Client or due to a domain dispute decision, the Client is not entitled to a replacement domain name or refund.

22.6 If the Agreement is terminated, dissolved, or if the Client fails to meet their obligations under the Agreement and does not fully rectify this default within fourteen (14) days of notification by F19, F19 will be entitled to make domain names and IP addresses inaccessible, block them, withdraw them, use them itself, register the domain name in its own name or terminate its registration with the registering authority, without being liable for any resulting damages.

22.7 Unless otherwise agreed, F19 will not grant the Client access to the management panels of a Domain Name System (DNS) for security reasons. When the Client shares certain DNS settings (DNS records) with F19, or when a DNS was (partially) set up by another party before F19, F19 is not responsible for taking over any errors in the DNS settings.

Article 23. Service Changes

23.1 F19 is entitled to periodically adjust the functionalities associated with the Service, particularly the F19 Software, through updates and upgrades. Feedback and suggestions from the Client are always welcome; however, F19 may independently decide whether or not to implement proposed changes. If a change negatively impacts the functioning of a connection realized by the Client with an API offered by F19, F19 will timely release modified API documentation so that theClient can take the necessary measures.

23.2 F19 aims to notify the Client at least five (5) Working Days in advance of any updates or upgrades. F19 cannot be required to maintain an old version of the F19 Software for an individual Client unless otherwise agreed. The Client cannot claim an update or upgrade if it is permanently postponed due to circumstances.

Article 24. Ownership and Backup of Client Data

24.1 All Client data remains the property of the Client. F19 will not claim ownership of Client data. Regarding Client data, the Client grants F19 a limited right to use the data as reasonably necessary for the execution of the Agreement and for the improvement of the Service and future aspects thereof.

24.2 If agreed, F19 will make backups of the Client data stored on F19 systems and provide them to the Client upon request, potentially for an additional fee.

24.3 F19 is entitled to destroy or delete the Client data and any backups immediately after the termination or dissolution of the Agreement. It is the Client’s responsibility to request and obtain a backup in a timely manner in accordance with Article 25 or any other relevant agreements.

Article 25. Exit

25.1 In the event of a lawful termination of the Agreement, F19 will, upon the Client’s request, which must be submitted before or at the time of termination by the Client, endeavor to assist in transferring the Client data to the Client or a service provider designated by the Client. This is always limited to the possibilities offered by F19 at that time.

25.2 For the cooperation mentioned in the previous paragraph, F19 will charge the Client its current hourly rate. All other costs of the transfer to another service provider will also be borne by the Client.

Article 26. Continuity

26.1 The Parties may agree on arrangements to ensure the continuity of the Services provided by F19. Any associated costs will be borne entirely by the Client. An escrow agreement or continuity arrangement may be part of this. An escrow agreement or continuity arrangement will be concluded for the benefit of the Client, with an escrow agent or (other) trusted third party designated by F19. The scope of the escrow or continuity arrangement will be determined in mutual consultation but may include the source code and documentation of the Service.

Article 27. Lifecycle & Warranty

27.1 F19 supports its software to a certain extent. Support is provided based on a specific Major release. With a Major release, the first number of the version number changes (e.g., from 10.1.3.4 to 11.0.0.0), and adjustments to previously developed applications are required to use the new version.

27.2 Each Major release is supported for at least three years, with at least one year of full support and at least two years of Extended support.

27.3 After three years, support may cease, and Applications built on the release may no longer function or need to be taken offline.

27.4 If third-party components, such as Umbraco CMS, are used, it is important to use a supported version of those components. When the used version approaches the end of support, adjustments to the Customization may be necessary to upgrade it. This will be done based on an estimate and in consultation with the Client. If an upgrade is not chosen, F19 may impose conditions on its use.

Chapter C. Development Activities

Article 28. Applicability

28.1 The articles in this chapter apply in addition to the above general articles to the execution of projects, such as the development of software or Materials.

Article 29. Methodology

29.1 Unless otherwise agreed, projects such as software or Material development will be executed based on an agile development methodology. This methodology involves the Parties jointly working to realize the Client’s desired features in parts based on agreed processes and evolving requirements, as opposed to developing based on pre-defined lists of specifications.

29.2 Before F19 undertakes any work on a project for the Client, the Parties will agree in writing on the hourly rate F19 will charge and how these hours will be billed to the Client. Unless otherwise agreed, F19 will invoice the hours spent at the end of each month based on post-calculation.

29.3 Once the Parties have agreed on the hourly rate F19 will charge and how these hours will be billed to the Client, F19 is entitled, based on its professional judgment, to spend hours on activities related to executing the Client’s wishes. These activities may include discussions with the Client, conducting (preliminary) research, programming work, and implementation tasks.

29.4 If the Client has pre-purchased a certain number of hours from F19 or if the Parties have agreed on a maximum number of hours, F19 will stop working once the pre-purchased hours are used up or the maximum number of hours is reached. If the work completed by F19 up to that point does not (fully) meet the Client’s wishes or if the Client has new wishes, the Parties may agree on additional hours for F19 to further develop the project.

Article 30. Planning and Requirements

30.1 This article further details the working method the Parties will use in executing projects. If the Parties employ an agile development methodology as per Article 29.1, the following procedure does not need to be followed in the order described.

30.2 Once the Parties have agreed on the hourly rate F19 will charge and how these hours will be billed to the Client, the Client will appoint a person (‘product owner’) to document and clarify the Client’s wishes for (the developers of) F19. The product owner is also the person authorized to make decisions on behalf of the Client.

30.3 At least two weeks, or longer if agreed, before the week in which F19 will start work, the Client must have communicated relevant information and wishes in writing to F19. Communicating, discussing, and documenting the Client’s wishes is only a means of communication between the Parties. In no case can formulated wishes be interpreted as a final description of what F19 will deliver.

30.4 If the Client has not communicated their wishes to F19 in a timely manner as per the previous paragraph, F19 may:
a. Suspend any planned work and allow the Client to supplement the necessary information and wishes. Once the necessary information is supplemented, the Parties may reschedule when the work will commence; or
b. Begin work based on any incomplete information and wishes provided. In this case, F19 cannot be held to any agreed-upon schedule.
30.5 Before performing any work, F19 may choose to review the Client’s wishes, for example, for complexity and feasibility. Additionally, F19 may choose to spend hours on (technical) research before performing any work.

Article 31. Minimum Viable Product

31.1 The Parties acknowledge that to ensure smooth software development, it is necessary to first develop the simplest possible functional base software, also known as a “Minimum Viable Product” or “MVP,” after which F19 will further develop the MVP based on the Client’s wishes. The Parties acknowledge that the likelihood of delays or additional costs increases if development is not based on the MVP concept.

31.2 The Client allows F19 to develop software based on the MVP concept. In this context, F19 may prioritize the Client’s different wishes at its discretion. If it becomes apparent during development that certain Client wishes are too complex for the MVP, F19 will inform the Client. In good consultation, the Parties will then decide to either remove or simplify certain wishes.

31.3 If F19 is not allowed to develop software based on the MVP concept, F19 will not bear any responsibility or liability. In that case, F19 is also entitled to terminate the Agreement with the Client immediately. Any advance payments made by the Client for services or hours not yet delivered or spent will be refunded upon termination by F19. Fees for already worked hours do not need to be refunded by F19 unless otherwise agreed. The source code does not need to be provided to the Client unless otherwise agreed.

Article 32. Sprints

32.1 The Parties will agree in good consultation on periods (“sprints”) during which F19, possibly in collaboration with the Client, will strive to complete the work. Postponing or canceling planned work is only possible after good consultation with and written approval from F19. F19 may impose conditions on postponing or canceling already scheduled work.

32.2 Before a sprint, F19, possibly in consultation with the Client, will determine which of the Client’s wishes it intends to realize. F19 will then perform the planned work during the sprint.

32.3 If it becomes clear during the work that it is impossible for F19 to realize certain Client wishes, F19 may, at its discretion, stop the development of the respective wish. F19 will then inform the Client, and the Parties will decide in good consultation to either remove or simplify the respective wish.

32.4 Once the sprint has ended, the Parties will discuss the result and determine whether (1) the developed software meets the Client’s previously formulated wishes, (2) the sprint should be extended to improve the developed software, or (3) a new sprint should be scheduled to implement adjustments to the developed software.

Article 33. Intellectual Property Rights

33.1 All Intellectual Property Rights related to the software and Materials developed on behalf of the Client rest with and remain with F19 or its licensors. The Client only obtains a limited, non-exclusive, non-transferable, and non-sublicensable right to use the software and Materials for the duration specified in the Agreement.

33.2 All Intellectual Property Rights resting on the Client’s data or other Materials provided by the Client remain with the Client or its licensors. The Client indemnifies F19 against any third-party claims based on infringement of an Intellectual Property Right or other right related to the Client’s data or Materials originating from the Client or its End Users.

33.3 The Client is not entitled to make changes to the software and Materials provided by F19, unless otherwise agreed.

Chapter D. Processing of Personal Data

Article 34. Definitions and Applicability

34.1 All terms with initial capital letters in this chapter have the meaning given to them in the General Data Protection Regulation (EU) 2016/679 (“GDPR”) and, in the absence thereof, the meaning given in Chapter E.

34.2 The articles in this chapter apply, in addition to the above general articles, to situations where F19 acts as a Processor when Processing Personal Data on behalf of the Client.

Article 35. Purposes of Processing

35.1 F19 undertakes to process Personal Data of Data Subjects on behalf of the Client under the conditions set out in the Agreement. This Processing will only take place in the context of executing the Agreement.

35.2 Unless otherwise specified in this chapter, the Agreement will define the duration, nature, and purpose of the Processing, the types of Personal Data and categories of Data Subjects involved, and the rights and obligations of the Client as the Data Controller.

35.3 F19 has no control over the purpose and means of Processing Personal Data and does not make independent decisions regarding the receipt and use of Personal Data, the provision to third parties, and the duration of the storage of Personal Data, xcept for Written instructions from the Client.

35.4 F19 processes Personal Data under the authority of the Client and solely based on its Written instructions and express final responsibility. F19 will not process the Personal Data for any purpose other than agreed upon between F19 and the Client.

35.5 The Client will inform F19 in Writing of the matters referred to in Article 35.2, to the extent not already included in the Agreement.

35.6 F19 will immediately inform the Client if, in its opinion, an instruction from the Client violates applicable regulations, particularly the GDPR.

Article 36. Allocation of Responsibility

36.1 F19 is responsible for the Processing as specified in the Agreement, following the Client’s instructions and under the Client’s express (final) responsibility. F19 is not responsible for any other Processing of Personal Data, including but not limited to the collection of Personal Data by the Client, Processing for purposes not reported to F19 by the Client, Processing by third parties, or Processing for other purposes than those specified in the Agreement. The responsibility for these rests with the Client.

36.2 The Client guarantees that the content, use, and order to process Personal Data, as specified in the Agreement, are not unlawful and do not infringe on any third-party rights. The Client also guarantees that there is always a legal basis, as referred to in the GDPR, for the Processing of Personal Data by F19 on behalf of the Client. The Client indemnifies F19 against any claims and/or fines from supervisory authorities related to a breach of these obligations.

Article 37. Obligations of F19

37.1 Concerning the Processing carried out under the Agreement, F19 will ensure compliance with the conditions imposed by the GDPR from its role as Processor.

37.2 F19 ensures that all persons authorized by F19 to process Personal Data are contractually or legally obliged to maintain the necessary confidentiality.

37.3 F19 will provide the Client with reasonably possible and legally required cooperation to fulfill the Client’s obligations under Articles 32 to 36 of the GDPR, such as supporting the conduct of a data protection impact assessment (DPIA) or prior consultation of the supervisory authority if necessary. F19 is entitled to charge the Client for support and cooperation provided, based on the applicable rates of F19.

37.4 The obligations of F19 arising from the Agreement also apply to those processing Personal Data under the authority of F19, including but not limited to employees, in the broadest sense of the word.

Article 38. Transfer of Personal Data

38.1 F19 may process Personal Data in countries within and outside the European Economic Area (EEA), provided F19 or its Sub-processors ensure an adequate level of protection in these third countries as intended in Chapter V of the GDPR.

38.2 The Client hereby authorizes F19 to, where necessary, conclude a model contract on its behalf for the transfer of a Data Controller based within the EEA to a Processor in a third country in accordance with the Commission Decision of 5 February 2010 (2010/87/EU) or any subsequent (replacement) decision.

38.3 F19 will inform the Client before processing Personal Data outside the EEA, specifying the third country or countries to which the Personal Data will be transferred, unless applicable law prohibits such notification.

Article 39. Engagement of Sub-processors

39.1 F19 may outsource the Processing of Personal Data to Sub-processors. The Client grants F19 specific permission to engage the Sub-processors listed in the Agreement.

39.2 If F19 intends to engage new Sub-processors not already listed in the Agreement, F19 will inform the Client in advance. The Client can then object in Writing with reasons within fourteen (14) days of the notice. If the Client objects to F19 engaging new Sub-processors, the Parties will consult to reach an amicable solution. If the Parties cannot agree on F19’s intention to engage a new Sub-processor, F19 will still be entitled to engage the Sub-processor. However, the Client then has the right to terminate the Agreement in part (where the Processing by the Sub-processor is concerned) in Writing as of the date the new Sub-processor is engaged.

39.3 If the Client does not object within fourteen (14) days after the announcement, the Client is deemed to have agreed to the engagement of the new Sub-processor.

39.4 F19 ensures that Sub-processors undertake enforceable obligations comparable to those agreed between F19 and the Client.

Article 40. Security and Data Breach

40.1 F19 will endeavor to take sufficient appropriate technical and organizational measures regarding the Processing of Personal Data to prevent loss or any form of unlawful processing (such as unauthorized access, alteration, or disclosure of Personal Data). However, F19 cannot guarantee that security will be effective under all circumstances.

40.2 The (security) measures taken by F19 are included in the Agreement.

40.3 The Client will only provide Personal Data to F19 for Processing if the Client has ensured that the required security measures are in place. The Parties will promptly inform each other of any suspected vulnerabilities in the security of the other Party.

40.4 Upon becoming aware of a Data Breach, F19 will endeavor to inform the Client without undue delay. The Client will then assess whether to inform the Supervisory Authorities or Data Subjects. If required by law or regulation, F19 will cooperate in informing the relevant Supervisory Authorities or Data Subjects.

40.5 Notwithstanding Article 37.3, F19 is only entitled to charge the costs referred to there if the Data Breach is not attributable to F19.

Article 41. Handling Data Subject Requests

41.1 If a Data Subject submits a request to exercise their legal rights, as referred to in Articles 15 to 22 of the GDPR, to F19, F19 will forward the request to the Client. The Client will handle the request independently. F19 may inform the Data Subject that the request has been forwarded to the Client.

41.2 If a Data Subject submits a request directly to the Client to exercise one of their legal rights, F19 will cooperate in fulfilling this request if the Client so desires.

Article 42. Conducting an Audit

42.1 The Client has the right to have audits conducted by an independent auditor bound by confidentiality to verify compliance with the obligations of F19 under the Agreement regarding the Processing of Personal Data.

42.2 The audit may only take place after the Client has requested, reviewed, and provided reasonable arguments that justify a Client-initiated audit in addition to the similar relevant audit reports available at F19. An audit is justified if the available audit reports do not or insufficiently clarify compliance with the obligations referred to in paragraph 1. Nevertheless, a Client-initiated audit may only take place in the event of a concrete and Written suspicion of misuse of Personal Data or non-compliance with the aforementioned obligations communicated to F19, and no earlier than four (4) weeks after the prior announcement. In such cases, F19 will cooperate with the audit and provide all relevant information and support reasonably necessary for the proper execution of the audit. Audit reports and all communication related thereto are considered Confidential Information. The costs associated with the audit are borne by the Client.

42.3 The findings resulting from the audit will be reviewed by the Parties in consultation. As a result, changes may be implemented by one or both Parties.

Article 43. Termination of Processing

43.1 Upon termination of the Processing, and at the Client’s choice, F19 will delete or return all Personal Data to the Client and delete any existing copies unless retention of the Personal Data is legally required for F19. Concerning a request for return or retention based on legal obligation, F19 is entitled to charge the Client for the associated costs based on F19’s applicable rates.

43.2 Notwithstanding the foregoing, F19 is entitled to delete all Personal Data upon the termination of the Agreement, unless the Parties agree otherwise in Writing.

Chapter E. Definitions

• Subscription: The non-exclusive, non-transferable, and non-sublicensable right to use the F19 Software as an online service (Software-as-a-Service).
• Account: The personal account of the Client or End User with which he or she gains access to the Service.
• General Terms and Conditions: The present conditions.
• Application: An application works with content from a specific environment. Applications can be websites or PDF/iXBRL templates, but the F19 Software itself (the CMS) is also an application running in the environment.
• Attachments: All attachments to the Agreement that form an integral part thereof, including but not limited to these General Terms and Conditions.
• Service: The services that F19 will provide to the Client, for example, remotely providing access to the F19 Software (as Software-as-a-Service) and access to F19 APIs, as described in the Agreement.
• End User: The natural person who uses the Service provided by F19 on behalf of the Client.
• Extended Support: Support on critical Bug fixes that F19 designates as such.
• Holidays: Public holidays recognized by the General Term Act.
• F19: The company F19 B.V., registered with the Dutch Chamber of Commerce under registration number 50082574.
• F19 Software: The online content management system that allows the Client to import, format, enrich, and publish content (whether via an API provided by F19 or otherwise) to various channels.
• Intellectual Property Rights: All rights (of intellectual property) including but not limited to copyrights, database rights, domain names, trade name rights, trademark rights, design rights, neighboring rights, patent rights, as well as rights to know-how.
• Office Hours: The hours on a Business Day between 09:00 and 17:00 (Dutch time).
• Client: The natural or legal person acting in the exercise of a profession or business with whom F19 enters into the Agreement.
• Client Data: All data stored by the Client or its End Users on the systems used for providing the Service, including generated results.
• Major Release: A change to the Service that necessitates adjustments to previously developed applications to use the new version.
• Materials: All websites, (web) applications, corporate identities, logos, brochures, leaflets, signage, advertisements, marketing and/or communication plans, concepts, images, texts, sketches, documentation, advice, reports, and (other) creations of the mind, as well as preparatory material and the data carriers on which these materials are located.
• Offer: A Written proposal from F19.
• Agreement: The agreement between F19 and the Client under which F19 will provide the Service to the Client, of which the General Terms and Conditions are an integral part.
• Party/Parties: F19 and the Client together or individually.
• Written: On paper as well as in electronic form, provided the sender’s identity and the message’s integrity are sufficiently established. Where the term Written is used in the context of a notice of default, termination, and dissolution of the Agreement, it refers to on paper for the Client.
• Sub-processor: A legal or natural person, not an employee of F19, engaged by and on behalf of F19 for processing personal data in the context of performing work under the Agreement.
• Support: Providing oral and Written advice by F19’s helpdesk regarding the use and operation of the Service.
• Confidential Information: All non-public information related to one or both Parties that a Party indicates is confidential, or that should be treated as confidential by its nature or the circumstances under which the disclosure occurs, or that is marked as confidential. In particular, the following information is marked as Confidential Information: Offer including Attachments
• Business Day: Monday through Friday, excluding Holidays and days that F19 has notified the Client at least three (3) calendar days in advance that it will be closed.

F19
Klokgebouw 270
5617 AC Eindhoven
The Netherlands
+31 88 111 4500
info@f19.nl

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