General Terms and Conditions

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These Terms and Conditions, relating to the use by the Client of Agile Cockpit Agile Project Management Tool, are drawn up by Agile Cockpit B.V., a company having its office in Delft, The Netherlands, registered under number 62062719 doing business as “Agile Cockpit” and hereinafter referred as “Agile Cockpit”.

GENERAL

 

  1. Application of the terms and conditions

1.1 These terms and conditions of Agile Cockpit shall apply to all offers and order confirmations (hereinafter “Agreement(s)”) between Agile Cockpit and Clients of Agile Cockpit Agile Project Management Tool.

1.2 If any part of the general section of these terms and conditions conflicts or is incompatible with any of the provisions of any specific section of these terms and conditions agreed between Agile Cockpit and the Client, then the provisions of the specific section shall prevail.

1.3 Any changes or modifications to these terms and conditions must be in writing and signed by both parties.

1.4 The applicability of any of the Client’s purchasing or other conditions is expressly rejected.

 

  1. Offers

2.1 All offers and other statements issued by Agile Cockpit shall be subject to contract, except where specified otherwise in writing by Agile Cockpit. Agile Cockpit shall have no obligation to enter into an Agreement with the Client and it is entitled to refuse to enter into an Agreement without being obliged to specify the reasons for such refusal.

 

  1. Price and Payment

3.1 Agile Cockpit shall invoice the Client in accordance with the invoicing schedule laid down in Agreement. All prices are exclusive of Value Added Tax (“VAT”) and other levies that may be imposed. Except where agreed otherwise, all prices are in US Dollar and the Client must effect all payments online while using a credit card or Ideal payment services and in US Dollar.

3.2 If the Client consists of more than one natural and/or legal persons, each of these persons shall be joint and severally liable in respect of payment of the amounts due on the basis of the Agreement.

3.3 The relevant documents and information from Agile Cockpit’s administration or systems shall be conclusive evidence of the service provided by Agile Cockpit and the amounts payable by the Client in return for this service, without prejudice to the Client’s right to submit evidence to the contrary.

3.4 In the Agreement the parties shall set out the date or dates on which Agile Cockpit shall invoice the fee for the agreed services to the Client in the Agreement. Amounts due shall be paid by the Client in accordance with the payment terms that have been agreed or that are stated on the invoice. If no specific arrangements have been made, the Client shall effect payment within ten working days of the date of invoice. The Client shall not be entitled to suspend any payments or to offset any amounts due.

3.5 If the Client fails to pay the amounts due or to pay the amounts due in a timely manner, statutory commercial interest shall be payable by the Client on the outstanding amount without a demand or notice of default being required. If the Client still fails to pay the amount owed after receiving a demand or notice of default, Agile Cockpit may refer the debt for collection, in which case the Client shall also be obliged to pay all incourt and out-of-court expenses in addition to the total amount due, including all costs charged by external experts.

3.6 Delivery of services by Agile Cockpit shall first commence when payment is made. In the event that the Client reverse or cancel payment Agile Cockpit is entitled to immediately suspend the delivery of services.

3.7 All prices are applicable for the period of 1 January until 31 December of the same calendar year. Changes in prices for the following year shall be made available to the client no later than one month prior to the expiry of the calendar year. Prices agreed for the services at the commencement of the Agreement shall apply for the duration of the Agreement to the services purchased in that Calendar year. In the event that the Client purchases additional services during the term of the Agreement but after the 1st of January then the prices applicable as of the 1st of January shall apply.

  1. Confidentiality

4.1 The Client and Agile Cockpit shall ensure that all information received from the other party that is known or should reasonably be known to be of a confidential nature is kept secret. The party that receives such confidential information shall only use this information for the purpose for which it has been provided. Information shall in any event be regarded as confidential if it is designated as such by one of the parties.

  1. Intellectual Property

5.1 All intellectual property rights to the software, websites, data files, hardware or other materials such as analyses, designs, documentation, reports, quotations and related preliminary material developed or made available to the Client on the basis of the Agreement shall remain exclusively vested in Agile Cockpit, its licensors or its own suppliers. The Client shall only acquire those rights of use that are explicitly granted in the Agreement and by law. Any rights of use granted to the Client shall be non-exclusive, non-transferable to third parties and nonsublicensable.

5.2 The Client shall not be permitted to remove or amend any details in relation to the confidential nature or in relation to copyrights, brand names, trade names or any other intellectual property right from the software, websites, data files, hardware or materials.

5.3 Even if the Agreement does not explicitly provide for such authority, Agile Cockpit shall be permitted to install technical provisions for the purpose of protecting the software, hardware, data files, websites and suchlike in relation to an agreed restriction on the content or the term of the right to use these objects. The Client shall under no circumstances be permitted to remove or circumvent such technical provisions or to arrange for this to be carried out.

5.4 Agile Cockpit shall indemnify the Client against any legal claims from third parties based on the assertion that software, websites, data files, hardware or other materials developed by Agile Cockpit itself infringe an intellectual property right of the third party in question, under the condition that the Client notifies Agile Cockpit immediately in writing of the existence and content of the legal claim and leaves the disposal of the case, including any settlements effected, entirely to Agile Cockpit. To this end, the Client shall provide Agile Cockpit with the powers of attorney, information and cooperation that it requires in order to defend itself, where necessary in the name of the Client, against these legal claims. This obligation to indemnify shall not apply if the alleged infringement relates to (i) materials made available to Agile Cockpit by the Client for the purpose of use, adaptation, processing or incorporation, or (ii) changes made by Agile Cockpit, or by a third party on behalf of the Client, to the software, website, data files, hardware or other materials, without Agile Cockpit’s prior written consent. If it is irrevocably established in court that the software, websites, data files, hardware or other materials developed by Agile Cockpit itself constitute an infringement of any intellectual property right vested in a third party or if Agile Cockpit believes that there is a good chance that such an infringement may occur, Agile Cockpit shall, where possible, ensure that the Client can continue to use the software, websites, data files, hardware or materials delivered, or functionally similar alternatives. All other or further-reaching obligations to indemnify on the part of Agile Cockpit shall be excluded.

5.5 The Client warrants that no rights of third parties preclude the provision to Agile Cockpit of software, hardware, material intended for websites (visual material, text, music, domain names, logos, hyperlinks etc.), data files or other materials, including draft materials, for the purpose of use, adaptation, installation or incorporation (e.g. in a website). The Client shall indemnify Agile Cockpit against all claims by third parties based on the assertion that such provision, use, adaptation, installation or incorporation constitutes an infringement of any rights of the third party in question.

  1. Cooperation

6.1 The parties acknowledge that the success of activities in the field of information and communication technology generally depends on proper and timely mutual cooperation. In order to facilitate the proper execution of the Agreement by Agile Cockpit, the Client shall at all times provide Agile Cockpit with all data or information that Agile Cockpit deems to be useful, necessary and desirable and to give its full cooperation in Terms of Service a timely manner. If the Client deploys its own personnel and/or agents within the context of providing cooperation in the execution of the Agreement, these personnel and agents shall have the necessary knowledge, expertise and experience.

6.2 The Client shall bear the risk of the selection, the use, the application and the management within its organization of the software, hardware, websites, data files and other products and materials and of the services to be provided by Agile Cockpit. The Client itself shall arrange for the correct installation, assembly and commissioning and for the application of the correct settings to the hardware, software, websites, data files and other products and materials.

6.3 If the Client fails to make the data, documents, hardware, software, materials or employees that Agile Cockpit deems useful, necessary or desirable for the purpose of executing the Agreement available to Agile Cockpit, to make these available in good time or in accordance with the Agreement, or if the Client fails to meet its obligations in any other way, Agile Cockpit shall be entitled to suspend the execution of the Agreement in part or in full and shall also be entitled to invoice the resulting costs in accordance with its standard rates, without prejudice to Agile Cockpit’s right to exercise any other statutory and/or agreed right.

6.4 If use is made of computer, data or telecommunication facilities, including the internet, during the execution of the Agreement, the Client shall be responsible for selecting the correct resources required for this purpose and for ensuring that these are available in full and in a timely manner, with the exception of those facilities that fall under the direct use and management of Agile Cockpit. Agile Cockpit shall under no circumstances be liable for losses or costs arising as a result of transmission errors, breakdowns or the non-availability of these facilities, unless the Client is able to demonstrate that these losses or costs are the result of intentional acts or deliberate recklessness on the part of Agile Cockpit’s management

  1. Termination of the Agreement

7.1 Agile Cockpit may at any point in time immediately terminate the Agreement for any reasons or whatsoever upon written notice to the Client. Agile Cockpit shall have no obligation to state the reasons for such termination. Should such termination take place prior to the expiry of the Agreement, then Agile Cockpit shall refund the costs for the months that remain until the original expiry date of the Agreement. The Client remains liable for payments made for services that are already delivered.

7.2 Either parties to the Agreement shall only be authorized to terminate the Agreement as a result of an attributable failure to perform the Agreement if the other party, in all cases following written notice of default providing as many details as possible and setting a reasonable term in which the breach can be remedied, attributably fails to meet its fundamental obligations arising from the Agreement. The Client’s payment obligations and all other obligations to cooperate imposed on the Client or on a third party to be engaged by the Client shall in all cases be regarded as fundamental obligations arising from the Agreement.

7.3 If the Client has already received services for the purpose of executing the Agreement at the time of termination as referred to in article 7.1, these services and the related payment obligation cannot be revoked unless the Client is able to demonstrate that Agile Cockpit is in default in respect of a substantial part of these services. Any amounts that Agile Cockpit has invoiced before termination in connection with services that it has duly provided for the purpose of executing the Agreement, shall remain due in full, subject to due observance of the provisions of the preceding sentence, and shall become immediately due and payable at the time of termination.

7.4 The Client shall under no circumstances be entitled to terminate an Agreement regarding the provision of services that has been entered into for a fixed term before the end of the term.

7.5 Agile Cockpit shall be entitled to terminate the Agreement in part or in full, with immediate effect, in writing without notice of default if the Client is granted a moratorium of payments, provisionally or otherwise, if a winding-up petition is filed in respect of the Client, if the Client’s company is wound up or terminated for reasons other than reconstruction or the merger of companies, or if there is a change in the individual or board that has decisive control over the Client’s company. Agile Cockpit shall under no circumstances be obliged to reimburse any Terms of Service sums of money that have already been received or to pay any compensation in the event of such termination. If the Client becomes bankrupt or is liquidated, the right of use of the software, websites and suchlike made available to the Client shall terminate by operation of law.

  1. Liability

8.1 The total liability of Agile Cockpit due to an attributable failure to perform the Agreement or due to any other reason, explicitly including any failure to comply with a guarantee obligation agreed with the Client, shall be limited to compensation of the direct damage or loss not exceeding the sum stipulated for the delivery of services for the duration of one year (exclusive of VAT). This limitation of liability shall apply mutatis mutandis to Agile Cockpit’s obligation to indemnify referred to in article 5.4 of this General section. The total liability of Agile Cockpit for direct damage or loss, for any reason whatsoever, shall, however, under no circumstances exceed the price paid for the delivery of services for the period of the then running year.

8.2 The liability of Agile Cockpit for indirect damage or loss, resulting loss, loss of profit, loss of savings, reduced goodwill, loss due to business interruption, loss as a result of claims from the Client’s customers, loss in connection with the use of items, materials or software provided by third parties that Agile Cockpit is instructed to obtain by the Client and loss in connection with the engagement of secondary suppliers by Agile Cockpit at the Client’s instructions and any punitive or like damages shall be excluded. The liability of Agile Cockpit due to the scrambling, destruction or loss of data or documents shall also be excluded.

8.3 The exclusions and restrictions of liability shall no longer apply if and in so far as the loss is the result of intentional acts or deliberate recklessness on the part of Agile Cockpit’s management.

8.4 Except where performance by Agile Cockpit is permanently impossible, Agile Cockpit shall only be liable as a result of an attributable failure to perform an Agreement if the Client gives Agile Cockpit immediate notice of default in writing, setting a reasonable term in which the breach can be remedied, and Agile Cockpit still attributably fails to meet its obligations after this period. The notice of default must contain as comprehensive and detailed a description of the breach as possible, in order to ensure that Agile Cockpit has the opportunity to respond adequately.

8.5 A condition for the existence of any right to compensation shall in all cases be that the Client notifies Agile Cockpit in writing of the loss or damage as soon as possible after it occurs. Any claims for damages against Agile Cockpit shall expire by the mere passage of twenty four months from the date on which the claim arose.

8.6 The provisions of this article and all other restrictions and exclusions of liability referred to in these general terms and conditions shall also apply in favor of all (legal) persons that Agile Cockpit engages to execute the Agreement.

  1. Force Majeure

9.1 If either party is prevented from fulfilling its obligations by reason of any supervening event beyond its control (including but not by way of limitation legislative and/or political constraints relating to the manufacture , distribution and/ or sale of the Licensed Products, war, national emergency, flood, earthquake, strike or lockout (other than a strike or lockout induced by the party so incapacitated)) the party unable to fulfil its obligations shall immediately give notice of this to the other party and shall do everything in its power to resume full performance.

9.2 On such notice being given neither party shall be deemed to be in breach of its obligations under the Agreement.

9.3 If and when the period of incapacity exceeds three months then the Agreement shall automatically terminate unless the parties first agree otherwise in writing.

  1. Additional work

10.1 If Agile Cockpit has carried out work or performed other services that fall outside of the content or scope of the agreed work and/or services at the request or with the prior consent of the Client, such work or services shall be paid for by the Client in accordance with the agreed rates. If no Terms of Service rates have been agreed, Agile Cockpit’s standard rates shall apply. Agile Cockpit shall under no circumstances be obliged to comply with such a request, and where it does comply, it may require the Client to enter into a separate written agreement for this purpose.

  1. Miscellaneous

11.1 The Client shall not be entitled to sell and/or transfer the rights and/or obligations arising from the Agreement to a third party.

11.2 In the event that any provision of these terms and conditions and/or the Agreement is declared to be void, illegal or otherwise unenforceable such provision shall be severed and shall not affect the validity of the remaining provisions and the parties shall negotiate about an amendment of the terms and conditions and/or the Agreement in good faith in line with the spirit of the Agreement and/or these terms and conditions.

  1. Amendment of the terms and conditions

12.1 Agile Cockpit may at any time amend these terms and conditions. Amendments to these terns and conditions will be promptly communicated to the Client. In the event that the Client does not agree to the amended terms and conditions it may terminate the Agreement upon three months written notice to Agile Cockpit during which term the old terms and conditions will continue to apply, The notice of termination must be served within ten days of the notification of the amendment of the terms and conditions,

12.2 The Client will remain liable for payment of services until the end of the Agreement. Should the contract end prior to the expiry of the Agreement, then Agile Cockpit shall refund the costs for the months that remain until the original expiry date of the Agreement.

  1. Governing law & disputes

13.1 The Agreements between Agile Cockpit and the Client shall be governed by the laws of the Netherlands. The application of the Convention on Contracts for the International Sale of Goods 1980 is excluded.

13.2 Any disputes arising out of or in connection with the Agreement shall be exclusively referred to the court of Rotterdam.

 

SOFTWARE AS A SERVICE

 

  1. Definitions

14.1 The term ‘Software as a Service’ shall be understood to refer to: the ‘remote’ placing and maintaining at the disposal of the Client of software by Agile Cockpit via the internet or another network, without providing the Client with a physical data medium on which the software in question is stored.

14.2 The term ‘Computer Service’ shall be understood to refer to: the automatic processing of data using software and hardware managed by Agile Cockpit.

  1. Software as a Service

15.1 Agile Cockpit shall provide the Client with the service specified in the Agreement in the field of Software as a Service, as well as the other services agreed between the parties. Agile Cockpit shall not be responsible for the purchase and/or correct functioning of the Client’s infrastructure.

15.2 Except where agreed otherwise in writing, the Client shall be responsible for the management, which includes monitoring settings, the use of the service and the manner in which the results obtained through the use of the software are used. The Client shall also be responsible for training given to and use by users, regardless of whether or not there is a relationship of authority between the Client and these users. If no explicit agreements have been made in this regard, the Client itself shall install, set up, parameterize and tune the (auxiliary) software required on its own Terms of Service hardware and adapt the hardware used, other (auxiliary software) and operating environment where necessary, as well as achieving the interoperability desired by the Client.

15.3 Except where agreed otherwise in writing, Agile Cockpit shall not be obliged to carry out data conversion.

15.4 If the Agreement stipulates that the service provided to the Client shall also include the provision of support to users, Agile Cockpit shall issue advice by telephone or e-mail on the use and operation of the software referred to in the Agreement and on the use of the service. Agile Cockpit may impose conditions in relation to the qualifications and the number of contacts who are eligible for support. Agile Cockpit shall deal with properly substantiated requests for support within a reasonable period of time. Agile Cockpit cannot guarantee the accuracy, completeness or timeliness of responses or support provided. Except where agreed otherwise in writing, support shall only be provided on working days during Agile Cockpit’s standard business hours.

15.5 Agile Cockpit is not responsible of the creation of backups of data. The Client is exclusively responsible for creation of backups of data. 15.6 Agile Cockpit shall only be obliged to have a backup center or other backup facilities if this has been explicitly agreed in writing.

  1. Method of service

16.1 Agile Cockpit shall make every effort to ensure that the services are provided with due care and in accordance with the arrangements and procedures agreed in writing with the Client where applicable. Agile Cockpit shall provide all services on the basis of a best efforts obligation, unless and in so far as Agile Cockpit has explicitly undertaken in the written Agreement to achieve a specific result and the result in question is sufficiently determined.

16.2 Agile Cockpit shall only perform the service on behalf of the Client. If Agile Cockpit carries out work relating to the Client’s data or that of its employees or users pursuant to a request or an authorized order from a government agency or in connection with a statutory obligation, the Client shall be invoiced for all of the associated costs.

16.3 Agile Cockpit may make adjustments to the content or scope of the service. If such adjustments result in a change in the procedures that apply to the Client, Agile Cockpit shall notify the Client as soon as possible and the costs of this change shall be borne by the Client. In this case, the Client may terminate the Agreement in writing with effect from the date on which the change takes effect, unless this change is related to changes in relevant legislation or other regulations issued by competent authorities, or if Agile Cockpit bears the costs of this change.

16.4 Agile Cockpit may continue to provide the service using a new or amended version of the software. Agile Cockpit shall not be obliged to maintain, change or add certain features or functionalities of the service or the software specifically for the Client.

16.5 Agile Cockpit may temporarily suspend the service in full or in part for the purpose of carrying out preventive, corrective or adaptive maintenance (“Service Window”). Such Service Windows may take place: (a) any time in weekends; and (b) from Monday to Friday between 04.00 AM and 08.00 AM Central European Time. Save for preventive, corrective or adaptive maintenance in case of emergencies, Agile Cockpit shall give a minimum of twenty four hours advance notice to the Client of such Service Windows. Agile Cockpit shall not suspend the service for longer than necessary.

16.6 If Agile Cockpit is providing services on the basis of information to be provided by the Client, this information shall be prepared and supplied by the Client in accordance with the conditions to be imposed by Agile Cockpit. The Client shall bring the data to be processed to, and collect the results of the processing from, the location at which Agile Cockpit is providing the service. Transport and transmission, in any form whatsoever, shall take place at the risk and expense of the Client, even if this is carried out or organized by Agile Cockpit. The Client shall at all times guarantee that all materials, information, software, procedures and instructions that it makes available to Agile Cockpit for the purpose of providing the services is accurate and complete and that all data carriers issued to Agile Cockpit meet Agile Cockpit’s specifications

16.7 All hardware, software and items used by Agile Cockpit in providing the service shall remain the property or the intellectual property of Agile Cockpit or its own suppliers, even if the Client pays a fee in respect of the development or purchase of these by Agile Cockpit.

16.8 Agile Cockpit shall under no circumstances be obliged to provide the Client with a physical data carrier containing the software to be made and kept available to the Client within the context of Software as a Service.

  1. Help Desk

17.1 Support will be delivered by the helpdesk (“Helpdesk”) on a best effort basis. The standard service hours of the Helpdesk are [08.00 AM and 5.00 PM Central European Time] (“Support Hours”) on working days in the Netherlands.

17.2 The Helpdesk can be reached at the Support Hours at: Email: support@agilecockpit.com

17.3 If the Agreement includes Premium Support, the Client will get: (a) ten (10) hours of Premium Support to be delivered during Support Hours: (b) a dedicated email address to send requests for Premium Support to.

17.4 Any and all time spent by the Premium Support service will be deducted from the Premium Support Budget with a minimum of fifteen minutes per request for support. On the 1st Day of the month the Client will be informed by email about the remaining balance for Premium Support.

17.5 Non Customer specific incidents at Agile Cockpit are outside the scope of any form of support and will be resolved by Agile Cockpit at its own cost.

17.6 The entitlement to support or Premium Support ends at the same day that the Agreement expires and/or is terminated. The Client is not entitled to seek reimbursement of any budget for Premium Support that remains at the day that the Agreement expires and/or is terminated. Remaining budget for (Premium) Support will not be restituted.

  1. Duration

18.1 The service shall be delivered for the term of one year from the date set out in the Agreement. The term of the Agreement shall be extended automatically by the term of the original period each time, unless the Client terminates the Agreement in writing with due observance of a notice period of one month prior to the expiry of the Agreement.

18.2 In the event that the Client purchases additional services during the term of the Agreement the Agreement for these additional services will expire on the date referred to under 18.1 above.

  1. Warranty

19.1 Agile Cockpit does not warrant that the software to be made and kept available to the Client within the context of Software as a Service is free of defects and will operate without interruptions. Agile Cockpit shall endeavor to fix any defects in the software within a reasonable period of time and Agile Cockpit has received detailed notification in writing of the defects in question. As and when necessary, Agile Cockpit may postpone the fixing of defects until such time as a new version of the software is brought into use. Agile Cockpit shall be entitled to install temporary solutions, program bypasses or problem-avoiding restrictions in the software.

19.2 Agile Cockpit shall not be responsible for checking the accuracy and completeness of the results of the service and the data generated through the use of the service. The Client itself shall regularly check the results of the service and the data generated through the use of the service.

19.3 Under no circumstances shall Agile Cockpit be responsible for the recovery of scrambled or lost data.

19.4 Agile Cockpit shall not guarantee that the software to be made and kept available to the Client within the context of Software as a Service will be adapted according to changes in relevant legislation and regulations in a timely manner.

  1. Personal data

20.1 The Client shall guarantee that all of the requirements in respect of the lawful processing of personal data input by the Client in the software to be made and kept available to the Client within the context of Software as a Service, and the software used by Agile Cockpit, are met.

20.2 Without prejudice to the provisions of the General section, full responsibility for the data processed through the use of the service by the Client shall rest with the Client. The Client shall guarantee Agile Cockpit that the data is not illegal and does not infringe the rights of third parties. The Client shall indemnify Agile Cockpit against claims by thirds parties, of whatever nature, in relation to the processing of this data or the execution of the Agreement.

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