Terms and Conditions

These are the General Terms and Conditions of Qmica B.V. established in Schagen and registered at the Chamber of Commerce under number 72079894, hereinafter referred to as “Qmica”. The Terms and Conditions apply if you enter into a (License) Agreement with Qmica.

Depending on which Services and/or Goods you purchase and how you cooperate with Qmica, certain conditions apply. These General Terms and Conditions are therefore divided into two sections:

• Module A: ls you purchase Services and/or Goods for your own use;
• Module B: If you enter into a Partner Agreement with Qmica.

If you purchase Services and/or Goods for your own use, Module A applies.

Module A: General

A.1. Definitions

A.1.1. Annex(es):

Annexes to the Agreement, including the Services Description, Price List and any Partner Level Conditions, of which, subject to the provisions of Article A.3.8, Article A.13.9 - A.13.11 and Article A.21 regarding the amendment of rates and conditions, the most up-to-date version is always valid. The most up-to-date versions of the Appendices can be consulted via Qmica support portal.

A.1.2. Business Partner:

Contractor who is a reseller of the Qmica Services.

A.1.3. Licence Agreement:

the offer by Qmica to supply specific Services to the (end user of the) Business Partner under the conditions of the Business Partner Agreement already concluded and these General Terms and Conditions.

A.1.4. Business Partner Agreement:

Agreement between Qmica and Business Partner.

A.1.5. Contractor:

the natural or legal person with whom Qmica has concluded an Agreement, including Business Partner and a natural or legal person, acting in the execution of profession or business, who concludes an Agreement with Qmica for the direct supply of Services and/or Goods.

A.1.6. Service(s):

the activity(s) to be performed by Qmica for the Contractor, as specified in the Agreement and Service Description.

A.1.7. Services Description:

the description of the Services, as well as any additional or different conditions in respect of those Services, as published on Qmica support portal and handed over as an Annex to the Agreement.

A.1.8. End User:

the natural person or legal entity, where Qmica may assume that these persons act in the exercise of a profession or business, to whom Business Partner resells Services and/or Goods, which Services and/or Goods Business Partner (partly) provides using the Services of Qmica. End users have access to Qmica support portal.

A1.9. User:

the natural person who uses the Service provided by Qmica for the benefit of the Contracting Party. This includes employees of the Contractor.

A.1.10. Goods:

the goods which Qmica delivers or makes available to the Contractor, as specified in the Quotation or the Licence Agreement.

A.1.11. Intellectual Property:

(intellectual) rights to which Qmica or its licensors are entitled and which are part of or deployed for the execution of the Agreement, such as but not limited to the intellectual property rights and related rights, including but not limited to: copyrights (including of course the copyright on software), database rights, trade name rights, trademark rights, design rights, neighbouring rights, patent rights, as well as rights to know-how.

A.1.12. General Terms and Conditions:

the provisions contained in the present document.

A.1.13. Materials:

all websites, data, (web) applications, codes, house styles, logos, folders, brochures, leaflets, lettering, advertisements, marketing and/or communication plans, concepts, images, texts, sketches, documentation, advice and reports in the broadest sense of the word, relating to the Services or made accessible via the Services, as well as preparatory material thereof and the data carriers on which the Materials are located.

A.1.14. Qmica support portal:

the user interface, consultable via https://customer.support.qmica.io , through which Contractor can report malfunctions, submit requests, view communications from Qmica and consult the most up-to-date Appendices.

A.1.15. Quotation:

any offer or quotation by Qmica in the context of provision of Services and/or Goods or under the Contract, including quotations to direct purchasers of Services and/or Goods, the Business Partner Quotation and quotations via Qmica support portal.

A.1.16. Agreement:

a (Licence) agreement between Contractor and Qmica concluded on the basis of an approved Quotation, Licence Agreement or a Business Partner Agreement, of which these General Terms and Conditions form an integral part. This agreement applies to both the direct supply of Goods and/or Services to Customers, the supply of Services to End User via Business Partner via the Licence Agreement, or the partnership between Qmica and Business Partner.

A.1.17. Price List:

Price List means the price list for Qmica’s Goods and/or Services, as published on Qmica support portal and handed over as an Annex to the Agreement.

A.1.18. SLA:

the document, titled Service Level Agreement, in which Qmica has included concrete and measurable service levels, using a number of different levels.

A.1.19. Regulator:

the Dutch authority which by law supervises the manner in which the Contractor complies with its statutory obligations such as, but not limited to, De Nederlandse Bank (DNB), Autoriteit Persoonsgegevens, Autoriteit Consument en Markt and the Autoriteit Financiële Markten.

A.1.20. Qmica:

Qmica B.V., established in Alkmaar and registered in the trade register under number 72079894.

A.1.21. Company Website:

www.Qmica.io

A.2. Applicability, ranking and definitions

A.2.1.

These General Terms and Conditions and the General Module apply to any offer, Quotation or Licence Agreement of Qmica in respect of Services and/or Goods and form an integral part of any (Licence) Agreement.

A.2.2.

Specific modules apply if the form of the Agreement falls within the scope defined in the module. If a specific module applies, it shall prevail over the General Module.

A.2.3.

Provisions or conditions set by Contractor which deviate from or do not appear in these General Terms and Conditions are binding on Amica only if and insofar as they have been expressly accepted by Qmica in writing.

A.2.4.

Definitions of terms written with an initial capital letter can be found at the end of the Module General and apply to all modules.

A.2.5.

In the event of a conflict between provisions in the Agreement, General Conditions or annexes thereto, the following order of precedence shall apply:

1. the Agreement;
2. he Price List;
3. the SLA concluded and any annexes to the SLA;
4. these General Terms and Conditions;
5. the Processor Agreement (if agreed separately)
6. the Service Description;
7. any additional conditions, e.g. the conditions made known when offering the Service via the Website or Qmica support portal;
8. other Annexes.

A.3. Conclusion of the Agreement

A.3.1.

Any offer by Qmica is without obligation, even if a validity period is included.

A.3.2.

A potential Contractor may request an offer. Qmica will then make an offer.

A.3.3.

The Agreement with Contractor is established by acceptance of Qmica’s offer by Contractor and after signature by a signing authorised employee of Qmica.

A.3.4.

Notwithstanding the provisions of article 6:225 paragraph 2 of the Dutch Civil Code, Qmica shall not be bound by a deviating acceptance of an offer of Qmica made by a potential Contracting Party.

A.3.5.

Qmica is not bound to accept a request or acceptance. Grounds for refusal include, but are not limited to:

1. the absence of required information or documents, which unless stipulated otherwise include at least a copy of a valid, lawful means of identification, in the case of representation, sufficient proof of representative authority, such as an extract from the Chamber of Commerce or lawfully signed authorisation;
2. errors in the Offer/Licence Agreement issued;
3. legal incapacity of the Contractor.

A.3.6.

If an application or acceptance is rejected by Qmica, Qmica shall in principle notify Contractor thereof in writing or electronically within fourteen (14) days of receipt of the application or acceptance. Refusal or no response by Qmica shall never lead to liability for damage, directly or indirectly resulting therefrom.

A.3.7.

Any general (purchase) conditions of the Contractor are expressly not applicable.

A.3.8.

The Annexes will be handed over with the Quotation and/or Licence Agreement. After conclusion of the Licence Agreement, the Contractor may derive rights from the Annexes as agreed and provided, including the Quotation and/or Price List, for a period of thirty (30) days. After this period, the most current version of these documents, as published on Qmica support portal, will always apply, all this as further provided concerning (price) changes in these General Terms and Conditions in Article A.13.9 - A.13.11 and Article A.21.

A.4. Execution of the Agreement

A.4.1.

Once the Agreement has been concluded, Qmica will execute it to the best of its ability and with the application of sufficient care and skill. The parties may make specific arrangements in this regard by means of the SLA.

A.4.2.

After delivery of the Service, Qmica will charge the full cost of its Services.

A.4.3.

The Contractor is obliged to do and refrain from doing all that is reasonably necessary and desirable to enable the timely and correct performance of the Agreement. Including, but not limited to ensuring that:

1. all data which Qmica indicates are necessary or which the Contracting Party should reasonably understand are necessary for the performance of the Agreement are provided to Qmica in good time;
2. the systems and networks of the Contractor, insofar as related to the provision of Services, including all relevant equipment and software, at all times comply with the minimum specifications as indicated in writing by Qmica from time to time.

A.4.4.

Deadlines of delivery specified by Qmica shall, unless it is expressly indicated that it is a deadline, always be indicative in nature. Even in the case of an agreed final deadline, Qmica shall not be in default until the Contracting Party has given it written notice of default.

A.4.5.

Completion of each Service and/or each Good shall always be deemed to have been done correctly at the moment that Qmica has not received comments, namely a written overview of reproducible defects, from Contractor within five working days after completion of the Service and/or the Good. For any defects in respect of the Service, Qmica shall endeavour to resolve the defects within a reasonable period of time.

A.5. Duration and termination

A.5.1.

The Agreement is entered into for the duration and with the notice period as indicated in the Agreement. Unless otherwise agreed, the Agreement shall commence on the day of acceptance by the Contractor.

A.5.2.

If the term of the Agreement is not specified, it shall be deemed to have been entered into for a term of 12 months.

A.5.3.

Unless otherwise agreed, if no notice of termination has reached the other party at least two months before the end of the contract term, the Agreement shall always be tacitly renewed for the same contract term.

A.5.5.

If different Services are purchased within a Contract, separate start dates (possibly) apply for these and therefore contract periods may run in parallel and have different renewal periods. In this case, the Agreement shall be regarded as a master agreement. If one Service is terminated under the master agreement, the remaining Services will continue to run.

A.5.6.

Qmica is entitled to terminate, dissolve or suspend the Agreement in full or in part with immediate effect, without notice of default, without judicial intervention, in writing and without any obligation to pay compensation or indemnification, all without prejudice to Qmica’s right to compensation for damage, lost profit and interest, if:

1. Contractor does not, not fully or not on time comply with the obligations under the Agreement, including in any case but not exclusively the obligations of Article A.7.6;
2. due to the delay on the part of Contractor, Qmica can no longer be required to fulfil the Agreement at the original agreed conditions;
3. Contractor dies, applies for suspension of payments or files for bankruptcy;
4. any assets of the Contracting Party are seized;

A.5.7.

Contractor is authorised to terminate the Agreement with immediate effect, without judicial intervention, in writing and without any obligation to pay damages or compensation, if Qmica applies for suspension of payment or files for bankruptcy.

A.5.8.

If the Agreement is terminated or dissolved on the grounds referred to in Clause A.5.6, Qmica’s claims against the Contractor shall be immediately due and payable.

A.5.9.

If Qmica suspends fulfilment of its obligations, it retains its claims under the law and the Agreement.

A.5.10.

On cancellation, termination or dissolution for whatever reason, Qmica is entitled to terminate or suspend the Services, access to Qmica support portal and any accounts associated with that Agreement as of the date on which the Agreement expires, and to delete or make inaccessible all data stored in Qmica’s systems on behalf of the Contracting party. In doing so, Qmica is not obliged to provide the Contractor with a copy of this data of its own accord. Prior to termination, however, the Contracting Party may request a copy. The provisions of Article A.5.3 apply explicitly in this respect.

A.5.11.

The Contractor cannot terminate with retroactive effect (obligation to undo).

A.6. Compliance, continuity and exit arrangement

A.6.1.

Qmica shall endeavour to ensure that the Services comply with applicable laws and regulations at all times.

A.6.2.

If new requirements are imposed on the Contractor or Qmica by the Regulator and affect the mutual performance of the Agreement, Qmica shall provide all reasonable cooperation to the Contractor so that the Contractor complies with these requirements at all times. The costs of such adjustments shall be borne by the Contractor and Qmica shall specify them at the Contractor’s request.

A.6.3.

Qmica shall, in the event of a legally valid termination of the Agreement, and in accordance with the Agreement, at the request of the Contractor, the request of which must be submitted before or at the time of termination, endeavour to provide cooperation to enable transfer to another service provider. For this cooperation, Qmica will apply its then current hourly rate for Contractor. All other costs of the transfer to another service provider shall also be borne by the Contractor.

A.7. Services

A.7.1.

Depending on the Services purchased, the service level of the Services is governed by an SLA and any annexes to the SLA (such as a file of agreements and procedures (“DAP”). Insofar as such SLA and the relevant annexes do not provide otherwise, the provisions of this article shall apply to availability.

A.7.2.

Qmica shall endeavour to achieve uninterrupted availability of its systems and networks, and access to data stored by the Contractor in the Qmica Services, but offers no guarantees in this respect unless otherwise agreed by means of the SLA.

A.7.3.

Qmica never accepts liability in the following situations: a. breakdowns or interruptions in the Qmica Service(s) due to incorrect, inexpert or excessive use of the network or the SaaS Service by Client or End User(s). b. defects, breakdowns or delays in the communication lines or data connections between the Data Centre and the End User(s). c. defects, breakdowns or delays in the communication lines, data connections, computer systems or the network, insofar as managed by the Customer or the End User(s). d. damage related to the use of third-party materials or software prescribed by the Client. e. damage relating to the use of suppliers prescribed by Customer.

A.7.4.

Back-ups will be made of the data on a daily basis. Contractor may, on systems of Qmica stored client data, on request and for a fee, request Qmica to provide backup copies. Insofar as the parties have not agreed otherwise, the fee will be calculated on the basis of the applicable hourly rate.

A.7.5.

With regard to the backups, the Contractor is at all times responsible for the correctness of the data, verification of the backups and any recovery of the backups. The back-ups may be destroyed at any time after termination or dissolution of the Agreement. It is at all times the responsibility of the Contracting Party to request a backup copy upon termination or dissolution.

A.7.6.

Qmica will endeavour to keep the software it uses up-to-date. However, Qmica is dependent on its supplier(s) in this regard. Qmica is entitled not to install certain updates or patches if, in its opinion, this will not benefit a correct delivery of the Service or if, in its opinion, not installing this will not be detrimental to the delivery of the Service.

A.7.7.

The Contractor shall not use the Services and Goods in violation of any laws or regulations including expressly but not exclusively:

1. any use for the purpose of network attacks, including DoS and/or DdoS attacks, or any use that makes the proper functioning of the systems of Qmica or third parties impossible; or allowing the aforementioned use;
2. the storage and/or distribution of Material in violation of provisions of Dutch law, including but not limited to Material that:
   • is libelous, defamatory, insulting, racist, discriminatory or hateful;
   • contains child pornography;
3. infringes the rights of third parties, including but not limited to copyrights, trademark rights and portrait rights;
4. violates the privacy of third parties, including but not limited to the dissemination of personal data of third parties without permission or necessity or repeatedly harassing third parties with unsolicited communications;
5. contains hyperlinks, torrents or similar information that the Contracting Party knows or should know refers to material that infringes third-party rights;
6. contains (by e-mail) unsolicited commercial, charitable or idealistic communication;
7. contains malicious content such as viruses or spyware;
8. enables unauthorised access to systems of Qmica or third parties.

A.7.8.

Contractor shall indemnify Qmica against all legal claims relating to the data, information, website(s) and the like stored by Contractor (see also Clause A.8 for notice and takedown).

A.7.9.

In addition to the obligations under the law, damage caused by incompetence or failure to act in accordance with the above points shall be for the account of the Contractor.

A.7.10.

Contractor hereby grants Qmica an unrestricted licence to distribute, store, transmit or copy all materials distributed by Contractor through Qmica’s systems in any manner deemed appropriate by Qmica, but only to the extent reasonably necessary for Qmica’s performance of the Agreement.

A.7.11.

The Contractor shall not have access to the configurations made by Qmica. Under no circumstances will the configurations be provided by Qmica if the Agreement is terminated. They will be deleted by Qmica. The Contractor is not entitled to a refund of the installation and configuration costs.

A.7.12.

Contractor is (also) responsible for its customers. Any damage caused by or because of a customer of the Contractor will be recovered from the Contractor.

A.7.13.

If in the opinion of Qmica a danger arises for the functioning of the computer systems or the network of Qmica or third parties and/or of the service provision via a network, in particular by excessive sending of e-mail or other data, poorly secured systems or activities of viruses, trojans and similar software, Qmica is entitled to take all measures which it reasonably considers necessary to avert or prevent this danger.

A.8 Notice & Takedown

A.8.1.

Pursuant to the law, Qmica is an “intermediary” with respect to the Material placed on or distributed via the Service by Contractor, Contractor’s customers and possibly also other third parties, including in any case the systems of Qmica or the systems of a supplier of Qmica. Qmica applies in respect of the aforementioned Material the Notice & Takedown policy included herein.

A.8.2.

As soon as the Contractor offers third parties the opportunity to place Material on the systems as part of the Service, or to distribute it via the Service, the Contractor must implement and enforce a Notice & Takedown policy that is at least as strict. The Contractor shall also indicate that its suppliers can and may adopt a corresponding Notice & Takedown policy.

A.8.3.

If Qmica itself detects or is notified by a third party that unlawful Materials are stored or distributed with the use of the Services, or is otherwise acting unlawfully or in breach of the Agreement with the use of the Services, Qmica shall notify Contractor of the complaint or breach as soon as possible. Contractor shall provide a sufficiently reasoned response as soon as possible (no later than 1 working day), after which Qmica will decide how to proceed. In urgent cases, Qmica may intervene immediately (e.g. by removing the Material or blocking all or part of the Services), but Qmica shall make every effort to inform Contractor afterwards as soon as possible.

A.8.4.

If, after the period for response from the Contracting Party as referred to in the previous paragraph, Qmica is of the opinion that unlawful Materials are stored or distributed with the use of the Services, or are otherwise acting unlawfully or in breach of the Agreement with the use of the Services, Qmica will shut down the Services with immediate effect and remove the relevant Materials, without having to make a back-up.

A.8.5.

Also, in the case described under the previous paragraph, Qmica is entitled to provide personal data of the Contractor, or of a third party (such as the customer of the Contractor) to the extent known to Qmica, to the third party or to the competent authority requesting it, if:

1. Qmica is obliged to do so by law or regulation (think for example of an authorised official order); or,
2. Qmica deems that the third party has a real interest in obtaining the personal data, that Qmica deems it plausible that in the concrete case there is no less drastic possibility to retrieve the personal data and Qmica deems that the balancing of the interests involved (insofar as recognisable) entails that the interest of the third party or the competent authorities should prevail.

A.8.6.

In case of potentially criminal Material, Qmica is entitled to report this. In doing so, Qmica may hand over the Material and all relevant information about the Contractor and third parties (including customers of the Contractor) to the competent authorities and perform any other acts that these authorities request Qmica to perform as part of the investigation.

A.8.7.

Qmica shall never be liable for damage of any kind suffered by the Contractor or its customers as a result of the disconnection of the Service or as a result of the removal of Material or the provision of personal data.

A.8.8.

The Contractor indemnifies and shall hold Qmica harmless against any form of claim, charge or lawsuit from a third party in connection with (the content of) the data traffic or the Material posted on or distributed via the Service by the Contractor, the customers of the Contractor and or other third parties.

A.9. Personal data

A.9.1

The conditions relating to the processing of personal data in this Agreement only apply if and insofar as not otherwise agreed between Qmica and Contractor by means of a separate processor agreement.

A.9.2.

In the event that personal data are processed under the Agreement, Qmica will fulfil the role of processor (or sub-processor) within the meaning of applicable data protection laws and regulations, such as the General Data Protection Regulation (hereinafter referred to as “AVG”). The processing will be carried out exclusively within the framework of the Agreement and for any purposes agreed later, on behalf of the Contractor. To the extent required by applicable laws and regulations, the Contractor may request Qmica to agree to additional privacy-related terms. The parties will discuss such requests in good faith. Contractor is responsible for entering into contractual arrangements with its data subjects regarding the processing of their personal data, subject to the agreements between Qmica and Contractor as provided in this Agreement, or as otherwise agreed in writing.

A.9.3.

Contractor shall inform Qmica of the purposes of processing to the extent not already specified in the Agreement. To the extent required by applicable laws and regulations, Contractor shall ensure that prior to the processing of personal data, both parties are aware of the categories of personal data processed by Qmica and the categories of data subjects to which the personal data relates.

A.9.4.

Qmica primarily provides Data Mapping & Publishing Services (ETL). The processing of personal data is incidental to this. Indeed, in principle, Qmica will not access the personal data. In this context, consideration can be given to the Contractor storing data on Processor’s systems. As a result, in many cases Qmica automatically processes all personal data that the Contractor stores through the Services. The categories of data subjects may include at least the following categories:

1. (potential) customers/customers/end users of the Contractor;
2. employees of the Contractor.

A.9.5.

Qmica shall, to the extent within its power, provide reasonably necessary assistance to Contractor to contribute to Contractor’s legal obligations. This includes providing assistance in complying with its obligations under Articles 32 to 36 of the AVG, such as providing assistance in conducting a data protection impact assessment (“DPIA”). Qmica may charge the Contractor reasonable costs for providing such assistance.

A.9.6.

Qmica may process personal data in countries of the European Economic Area. Processing of personal data in countries outside the European Economic Area is permitted where the legal requirements for such processing are met. A.9.7. Under the Agreement, Qmica is authorised to engage third parties (sub-processors). At the request of the Contractor, Qmica shall inform the Contractor of which sub-processors are engaged by Qmica. Qmica will inform Contractor about planned changes in sub-processors, in which case Contractor has the right to object to the proposed change in sub-processors. Any such objection must be received by Qmica in writing within two weeks from the date Qmica notified Contractor of the proposed change in sub-processors. In addition, such objection must be supported by valid and reasonable arguments. If Contractor objects to such change, the parties shall jointly endeavour to find a reasonable solution. If the parties cannot reach a reasonable solution, then Qmica may implement the planned change in the sub-processors used and the Contractor may terminate the Agreement on the date Qmica actually implements the change in the respective sub-processors.

A.9.8.

Where a data subject makes a request to Qmica regarding his or her rights to personal data under Articles 15 to 22 AVG (for example: to see, correct or delete the data, or to receive a copy of the data), Qmica will forward the request to Contractor and the request will then be dealt with by Contractor. Qmica may notify the data subject accordingly. At the request of the Contractor, Qmica will assist in handling such request to the extent necessary and reasonable. Qmica may charge reasonable costs for such assistance.

A.9.9.

Qmica shall endeavour to implement sufficient technical and organisational measures to protect the processing of Personal Data against loss or any form of unlawful processing (such as unauthorised viewing, damage, alteration or making available of the Personal Data).

A.9.10.

Qmica is obliged to keep personal data provided by the Contractor to Qmica confidential. Qmica shall ensure that the persons authorised to process the personal data are contractually obliged to maintain the confidentiality of the personal data of which they have knowledge.

A.9.10.

Upon termination of this agreement, Qmica shall, at the request and expense of the Contractor, return to the Contractor all available personal data in the original format or destroy all personal data as soon as possible.

A.10. Breaches related to personal data

A.10.1.

Qmica shall notify the Contractor, without undue delay, after discovering a personal data breach as described in Article 4 paragraph 12 AVG. Qmica shall take reasonable measures to mitigate the consequences of the personal data breach and to prevent further and future breaches.

A.10.2.

Qmica will assist Contractor, taking into account the nature of the processing and the information available to it, with regard to (new developments about) the relevant personal data breach.

A.10.3.

The notification by Qmica to Contractor shall include, to the extent known at that time:

1. the nature of the personal data breach;
2. the (likely) consequences of the personal data breach;
3. the categories of personal data affected;
4. whether and what security measures have been taken to protect the personal data;
5. the measures taken or proposed to address the personal data breach and to prevent future breaches;
6. the categories of data subjects affected;
7. the estimated number of data subjects; and
8. if necessary, differing contact details to contact regarding demo notification from Qmica.

A.11. Data protection audit

A.11.1.

The Contractor shall have the right to have an independent third party, bound by confidentiality obligations, audit compliance with the provisions relating to personal data of Clause A.9, Clause A.10 and Clause A.11 of this Agreement on an annual basis, in the event of a reasonable and well-founded suspicion of a breach of those provisions.

A.11.2.

If a verification of Qmica’s compliance with its obligations in Clause A.9, Clause A.10 and Clause A.11 of this Agreement is requested by the Contractor, provided that an independent third party has already conducted an audit in that specific year, Qmica may suffice by providing access to the relevant parts of the audit report of that year within the same year.

A.11.3.

Qmica and Contractor shall jointly determine the date, time and scope of the audit.

A.11.4.

All costs of the audit, including all hours incurred by Qmica in connection with the audit, shall be borne by the Contractor.

A.12. Qmica support portal

A.12.1.

Qmica shall grant Contractor, Business Partner and/or Users access to Qmica support portal. Qmica support portal will be accessible by entering a username and password.

A.12.2.

Any action by Contractor or a User, which occurs through Qmica support portal, is deemed to be under the responsibility and risk of Contractor. If Contractor suspects or reasonably should suspect that abuse of the Qmica support portal environment is taking place, Contractor shall report this to Qmica as soon as possible so that the latter can take measures.

A.12.3.

Via Qmica support portal, an Agreement may also be concluded with Qmica or a third party in a manner permitted by Qmica by or on behalf of the Contracting Party. Or an amendment to an existing Agreement may be agreed. For example, the Agreement may be concluded by the Contractor agreeing by means of an electronic form to an agreement offered by Qmica online or the Contractor agreeing online to new or amended agreements with the Contractor in another manner to be determined by Qmica.

A.12.4.

Even before accepting (an amendment to) an Agreement, Contractor is obliged to immediately save the (amended) Agreement in a proper and secure manner on its own data carrier, not being Qmica’s systems, so that:

1. these can later be consulted by Contractor; and
2. they cannot be consulted by unauthorised persons.

A. 12.5.

Article 227b paragraph 1 and Article 227c of Book 6 of the Civil Code do not apply to the agreements concluded or to be concluded between the Contractor and the Qmica.

A.12.6.

Contractor declares that the e-mail address provided to Qmica (e.g. at the conclusion of the Agreement) is correct and under the sole control of Contractor. Furthermore, Contractor declares that he wishes to receive the information surrounding the Agreement at this relevant e-mail address. The e-mail from Qmica is deemed to be received by the Contracting Party at the moment it reached the Contracting Party’s server. The Contracting Party itself is responsible for the configuration of this (mail) server, including but not limited to the spam filter or the authorisations of the e-mail accounts.

A.13. Prices and payment

A.13.1.

Unless expressly stated otherwise, all prices quoted by Qmica are exclusive of turnover tax and other levies imposed by the government.

A.13.2.

All prices in any offer or on Qmica support portal are subject to programming and typing errors.

A.13.3.

If a price is based on information provided by the Contracting party and this information turns out to be incorrect, Qmica has the right to adjust the prices accordingly, even after the Agreement has been concluded.

A.13.4.

Periodic amounts may be charged in advance by Qmica, unless otherwise agreed.

A.13.5.

Where the Agreement mentions “the applicable hourly rate” or “applicable rates” or words to the same effect, the rates as included in the most up-to-date Price Lists provided by Qmica as an Annex or, subject to Clause A.3.8, published on Qmica support portal are meant.

A.13.6.

Unless otherwise agreed, by entering into the Agreement the Contractor grants a SEPA authorisation to Qmica to automatically collect the amounts owed by the Contractor from the Contractor’s bank account.

A.13.7.

In each case, the Contractor shall ensure an adequate balance on the bank account designated for the direct debit. If no debit can take place, the Contractor shall pay the amounts invoiced by Qmica by other means before the end of the due date.

A.13.8.

The due date is (14) days after the invoice date, unless otherwise stipulated in the Agreement.

A.13.9.

Qmica is entitled to increase the prices charged in this Agreement at any time. Qmica will notify Contractor at least two months in advance for this purpose. In the event of a price increase, Contractor has the right to terminate the Agreement, subject to two months’ notice.

A.13.10.

Qmica is entitled to increase the prices used in this Agreement annually, during the month of January, according to the Central Bureau of Statistics (CBS) most recent price index for IT Services (62) https://www.cbs.nl/nl-nl/cijfers/detail/83854NED , without the possibility for Contracting Party to terminate the Agreement. Prices may furthermore be increased by Qmica at any time in the interim if the rates of suppliers of power, data centre, software and (public) cloud solutions increase. The foregoing without the possibility for the Contracting party to terminate the Agreement.

A.13.11.

In the event of a price increase, based on Article A.13.10, the Contracting Party is not permitted to terminate the Agreement prematurely. If Qmica wishes to reduce the applicable prices and rates, Qmica is entitled to implement this reduction immediately, without the possibility of cancellation by the Contracting Party.

A.13.12.

Qmica may impose a maximum on the (quantitative) quantities, such as data traffic, CPU, memory, storage and power per month, that the Contracting Party may use under the Service. If the maximum is exceeded, Qmica may shut down the Service or charge additional costs in accordance with the applicable rates, insofar as this is not further specified in the Agreement. No liability exists for consequences of being unable to send, receive, store or modify data if an agreed limit for storage space, CPU, memory, storage or data traffic has been reached.

A.13.13.

Contractor shall be in default by operation of law from the due date of the invoice, without prior notice of default being required. Qmica shall then be entitled to charge the Contractor the entire amount due as well as interest calculated from the due date on the amount due at 1% per month or, if higher, the statutory commercial interest.

A.13.14.

Without prejudice to the above, all costs associated with the collection of outstanding debts - both judicial and extrajudicial (including the costs of lawyers, bailiffs and collection agencies) - shall be for the account of the Contractor. Qmica is in any case entitled to charge an amount for extrajudicial costs of 15% of the outstanding amount, with a minimum of EUR 250 (two hundred and fifty euros).

A.13.15.

Qmica has the right to suspend and/or temporarily block the use of the Services if:

1. Contracting party withdraws the direct debit authorisation provided by him;
2. Contractor repeatedly fails to pay invoices submitted by Qmica on time;
3. there is a deterioration in the solvency of the Contracting party which gives reasonable cause to doubt the ability to pay and the creditworthiness of the Contracting party;
4. abuse or improper use is established;
5. any obligation under the Agreements or General Terms and Conditions is breached.

A.13.16.

Qmica may charge administrative costs for blocking and possible unblocking. The Contracting Party will continue to owe any amounts due periodically during the blocking.

A.13.17.

Contractor shall not be entitled to set off any payment obligation owed to Contractor against any claim against Qmica on any account whatsoever.

A.13.18.

Qmica shall be entitled to set off Contractor’s claims against Qmica against Qmica’s claims, on any account whatsoever, against Contractor.

A.13.19.

If Qmica has reasonable doubt about the fulfilment of the payment obligations of the Contractor, Qmica is entitled to require a bank guarantee or surety, or to demand a deposit. The amount thereof shall not exceed the amount reasonably owed by the Contractor for six (6) months.

A.14. Retention of title

A.14.1.

If and to the extent the Agreement provides for any transfer of ownership on Goods from Qmica to Contractor, all Goods delivered shall remain the property of Qmica as long as Qmica has not received full payment on the entire amount agreed in respect thereof.

A.14.2.

In the case of intellectual property, including copyrights, no transfer shall ever take place from Qmica to Contractor or from Contractor to Qmica without an additional deed of transfer intended for that purpose.

A.15. Rights of Intellectual Property

A.15.1.

All Intellectual Property rights to all Materials developed by Qmica or made available by Qmica in the context of the Services shall be vested exclusively in Qmica or its licensors. The Agreement shall not be deemed to provide for any transfer of Intellectual Property rights from Qmica to the Contractor, unless the Agreement unequivocally so provides and cannot be construed otherwise.

A.15.2.

Contractor only acquires the rights of use and powers expressly granted in these Terms and Conditions, the Agreement or otherwise in writing and, otherwise, Contractor shall not reproduce or disclose any software or other Materials provided by Qmica or its licensors. Contracting party is not permitted to remove or change any indication concerning copyrights, brands, trade names or other Intellectual Property rights from the Materials of Qmica or its licensors, including indications concerning the confidential nature and secrecy of the Materials of Qmica or its licensors.

A.15.4

Qmica is permitted to take technical measures to protect the Materials. If Qmica has secured the Materials by means of technical protection, the Contracting Party is not permitted to remove or circumvent this security.

A.16. Liability

A.16.1.

Qmica shall not be liable for damage caused as a result of the failure of its Service(s) to function properly or at all unless there is intent or gross negligence on the part of Qmica.

A.16.2.

Under no circumstances shall Qmica be liable for the manner in which the Contractor uses the Service(s) provided by Qmica.

A.16.3.

If Qmica is liable under article A.16.1, which expressly includes any shortcoming in the fulfilment of a guarantee obligation agreed with the Contractor, or as a result of an unlawful act by Qmica, its employees or third parties engaged by it or for any reason whatsoever, Qmica’s liability shall be limited to direct property damage, which expressly excludes loss of turnover and/or profit of the Contractor, which is directly related to this shortcoming. This liability is limited to an amount per event or a series of related events, equal to the amounts paid by Contractor to Qmica under the Agreement in the six months preceding the event causing damage (excluding VAT). However, in no case shall the total compensation for damages exceed EUR 10,000 per event or EUR 10,000 per year (excluding VAT).

A.16.4

The total liability of Qmica for damage due to death or physical injury or for material damage to property shall in no case exceed EUR 500,000 per damaging event, whereby a series of related events shall count as one event.

A.16.5.

The limitations of liability referred to in the Agreement, which here also includes these General Terms and Conditions, will lapse if and insofar as the damage is the result of intent or deliberate recklessness on the part of Qmica’s management or company management.

A.16.6.

Qmica is not liable for damage caused by or related to software applications of third parties, or resulting from use of applications in violation of licence conditions or purposes for which the relevant application is not intended.

A.16.7.

Qmica’s liability for attributable failure in the performance of the Contract shall only arise if the Contracting Party immediately and properly gives Qmica written notice of default, setting a reasonable period to remedy the failure, and Qmica remains attributably in breach of its obligations even after that period. The notice of default should contain as detailed a description as possible of the shortcoming, so that Qmica is able to respond adequately.

A.16.8.

A condition for the creation of any right to compensation is always that the Contracting Party reports the damage in writing to Qmica within 14 days after he could reasonably have discovered the damage.

A.16.9.

Contractor shall indemnify Qmica against all claims by third parties in the context of the Agreement and shall fully compensate Qmica for such claims. Contractor shall also indemnify Qmica against claims concerning non-compliance with obligations by Contractor and/or third parties (including Users and Supervisors) which fall under the responsibility of Contractor.

A.17. Malfunctions and force majeure

A.17.1.

Neither party shall be bound to comply with any obligation if prevented from doing so due to force majeure.

A.17.2.

Force majeure of Qmica means any circumstance independent of the will of Qmica as a result of which the fulfilment of its obligations towards the Contracting Party is prevented in whole or in part or as a result of which the fulfilment of such obligations cannot reasonably be required of Qmica, irrespective of whether that circumstance was foreseeable at the time of entering into the Agreement. Such circumstances include in any case:

1. emergencies(such as extreme weather conditions, fire and lightning strikes);
2. disruptions in telecommunications infrastructure and the internet beyond the control ofQmica, including (d)dos attacks;
3. a disruption in the (power) infrastructure of third parties outside the data centre;
4. failures by parties on whom Qmica is dependent in the provision of the Services;
5. defectiveness of items, equipment, software or Materials the use of whichContractor has prescribed to Qmica;
6. Governmental measures.

A.17.3.

If a force majeure situation lasts longer than four weeks, each of the parties has the right to terminate the Agreement prematurely. What has already been performed under the Agreement will in that case be settled proportionately, without the parties owing each other anything else.

A.17.4.

In the event of force majeure, the contracting party shall not be entitled to any (damage) compensation.

A.18. Staff

A.18.1.

The Contractor shall provide employees of Qmica who perform work at the offices of the Contractor or work on the systems of the Contractor for the provision of Services with all necessary support for the performance of their work.

A.18.2.

For as long as the relationship between the Contractor and Qmica continues, as well as for one year after its termination, the Contractor shall not be permitted to employ employees of Qmica or otherwise have them work for it, directly or indirectly, without Qmica’s prior Written consent. In this respect employees of Qmica shall mean persons who are employed by Qmica or any of its affiliates or who were employed by Qmica or any of its affiliates no longer than 6 (six) months ago.

A.19. Anti-corruption

A.19.1.

Qmica shall not perform, approve or permit any acts, which violate statutory anti-corruption provisions. This obligation extends in particular, but is not limited to, the prohibition of favouring (or having favoured) in any way employees of the Contractor or third parties engaged by the Contractor, government officials and their relations, including their family and friends.

A.19.2.

Qmica shall never offer or accept any sum of money or any performance worth money - directly or indirectly - other than that which results directly from the Agreement or which is customary in the normal course of business (lunch, Christmas package, etc.).

A.19.3.

Qmica shall notify the compliance officer or the contact person of the Contractor known to Qmica as soon as possible if there are or have been indications of any improper influence - in violation of the aforementioned anti-corruption provisions - in the formation of the Agreement.

A.20. Confidentiality

A.20.1.

Parties shall keep confidential any information they provide to each other before, during or after the performance of the Agreement if such information is marked as confidential or if the receiving party knows or should reasonably suspect that the information was intended to be confidential. The parties shall also impose this obligation on their employees as well as third parties engaged by them for the performance of the Agreement.

A.20.2.

Qmica will not take cognisance of data which the Contractor stores and/or distributes via Qmica’s systems, unless this is necessary for the proper performance of the Agreement or Qmica is obliged to do so pursuant to a statutory provision or court order. In this case, Qmica will make every effort to limit the knowledge of the data as much as possible, insofar as this is within its power.

A.20.3

The obligation of confidentiality shall continue to exist even after termination of the Agreement for whatever reason, and for as long as the providing party can reasonably claim the confidential nature of the information.

A.21. Amendment of Agreement & conditions of third parties

A.21.1.

If the Contracting Party wishes to amend the Agreement, it may submit an application to that effect. The procedure and conditions for amendment are the same as those for the establishment of the Agreement, unless otherwise stated. It is possible to make certain changes to the Agreement via the Qmica support portal environment insofar as the functionality within the environment allows the changes and such change also concerns the intended purpose of the functionality.

A.21.2

Any change of name, domicile or registered office, respectively billing address or legal form must be immediately communicated to Qmica via Qmica support portal. Qmica may set additional conditions regarding the acceptance of the consequences of a change of legal form.

A.21.3.

Qmica reserves the right to unilaterally amend or supplement the Services, the Appendices, these General Terms and Conditions and SLAs, insofar as they do not relate to price lists and rates, also in respect of pre-existing Contracts. Contractual changes shall also apply with regard to already concluded Agreements subject to a period of 30 days after notification of the change via Qmica support portal, the Website or by electronic notification. Changes of minor importance, changes pursuant to the law and changes for the benefit of the Contractor may be made at any time.

A.21.4.

If the said change(s) significantly negatively affect (application of) the Services or the position of the Contracting Party, the Contracting Party may terminate the Agreement, provided that the notification to this effect is received by Qmica before the date on which the change takes effect. Contracting party has no right to compensation for damage caused directly or indirectly by the change in the Services.

A.21.5.

Products and/or services of third parties may be part of the Service. If that is the case, the (general) terms and conditions of the relevant third party shall additionally apply to (the use of) those products and/or services.

A.22. Transfer of rights, use by others

A.22.1.

The Contractor is not entitled to transfer the rights and obligations under the Agreement to a third party, including merger or takeover in any form whatsoever, without the written consent of Qmica.

A.22.2.

Contractor gives Qmica the right in advance, without needing the express permission of Contractor, to transfer the Agreement concluded between the parties in its entirety, or parts thereof, to parent, sister, and/or subsidiary companies or a third party in the event of a merger or takeover. Qmica will inform Contractor if such a transfer has taken place.

A.22.3.

If Contractor allows employees or third parties to use the Services, such use shall be considered as use by Contractor for the determination of Contractor’s obligations. Contractor guarantees that the same obligations are imposed on these (legal) persons as are imposed on Contractor and Contractor is fully liable to Qmica for their conduct.

A.23. Final provisions

A.23.1.

The Agreement and all legal relationships arising from or related to it are governed exclusively by Dutch law.

A.23.2.

Insofar as not otherwise prescribed by the rules of mandatory law, all disputes arising from or related to this Agreement shall be submitted to the competent court in Noord-Nederland, location Alkmaar, the Netherlands.

A.23.3.

If any provision of this Agreement is found to be invalid, this shall not affect the validity of the entire Agreement. In that event, the parties shall adopt (a) new provision(s) by way of replacement, which will give shape to the intention of the original Agreement and General Terms and Conditions as much as is legally possible.

A.23.4.

Information and communications on the Website or Qmica support portal are subject to programming and typing errors.

A.23.5.

The version of any communication (including log files) received or stored by Qmica is deemed authentic, subject to evidence to the contrary to be provided by the Contracting Party.

A.23.6.

All legal claims of the Contractor under the Agreement shall - except for provisions of mandatory law - expire after one year, counting from the day on which fulfilment of obligations under the Agreement existing between the parties became due and payable. This Article does not affect the regular limitation period of Qmica’s claims.

A.23.7.

In order to promote its services, Qmica is entitled to show third parties that it provides Services to the Contracting Party, and which ones, unless the reasonable interests of the Contracting Party make this unacceptable or it has been agreed otherwise in writing.

Module B: Business partner

B.1. Scope

B.1.1.

This module applies in addition to module A to Contractors designated by Qmica as Business Partners. If there is a conflict between Module A and B, Module B shall take precedence.

B.2. Business Partner

B.2.1.

Qmica offers Business Partner the opportunity to resell the Qmica Services. Business Partner does not have the exclusive right with respect to the (potential) circle of End Users.

B.2.2.

The Business Partner Agreement describes more specifically the way in which the cooperation with Business Partner is shaped.

B.2.3.

Services and/or Goods purchased as part of the Partnership may possibly be subject to terms and conditions which differ from or supplement the Agreement, these terms and conditions will be agreed at the time of purchase of those Services and/or Goods by means of the Business Partner and the most up-to-date Services Description in the form of an Annex.

B.2.4.

Business Partner is only permitted to communicate to End Users and third parties that it is Business Partner of Qmica in respect of the Services and what the legal scope of this relationship is.

B.3. Business Partner consultation

B.3.1.

Qmica shall appoint a contact person on behalf of Business Partner whose task is to provide Business Partner with a direct point of contact with Qmica for all Business Partner’s queries in connection with the performance of the Business Partner Agreement.

B.3.2.

Similar to the previous paragraph of this Article, Business Partner shall also designate a contact person for the benefit of Qmica.

B.3.3.

Qmica and Business Partner shall consult regularly at operational level on joint processing of the market(s) relevant to the Business Partner Agreement, its progress and all other relevant matters.

B.4. Obligations of Business Partner

B.4.1.

Business Partner shall, for potential purchase of the Qmica Data Mapping & Publishing Services (ETL) by new End Users, treat Qmica as a preferred partner at all times. This means that Business Partner shall at all times recommend Qmica’s Services to potential new End Users and that Business Partner shall consult with Qmica in case of all new End Users or (proposed) amendments of agreements with existing End Users, if the potential new End User or the existing End User does not accept Business Partner’s offer for the provision of Goods and/or Services through Business Partner’s partnership with Qmica. In the latter case, Business Partner shall consult with Qmica and enable Qmica to make a modified offer (via Business Partner).

B.4.2.

In order for the cooperation to be as successful as possible, parties agree that the Business Partner’s employees who are engaged in advice, sales and/or implementation of, inter alia, PIM systems in combination with the Qmica Data Mapping & Publishing Services (ETL) and/or employees who are otherwise involved with the Qmica service (further: relevant employees), have attended and continue to attend the training offered by Qmica.

B.4.3.

In the event that the relevant employees of Business Partner have not (partly) attended the trainings and do not intend to attend the trainings, Qmica reserves the right to dissolve the agreement and suspend the cooperation. Qmica shall make every effort to inform, train and make the relevant employees of Partner comfortable with the Qmica Data Mapping & Publishing Services (ETL). To this end, Qmica will regularly and structurally provide the relevant employees of the Partner with the necessary information, documentation and training in order to enable the relevant employees to advise and perform implementations of the Qmica Services to the customer as independently as possible. Relevant employees of the Partner will obtain access to the Qmica support portal. Here current and sales, advice, implementation information/documentation can be found and incident and service tickets can also be created. Partner and its relevant employees will also have access to the expertise and support of the Qmica Consultants.

B.4.4.

Business Partner will follow Qmica’s processes for reselling the Services for End Users.

B.5. Duration and termination

B.5.1.

If no term has been agreed, the Parties are assumed to have entered into the Agreement for an indefinite period of time. This Business Partner Agreement may be terminated by either Party in writing subject to three months’ notice.

B.5.2.

Acts performed by Parties after termination or cancellation of the Business Partner Agreement cannot be construed as a tacit renewal of the Business Partner Agreement.