General Terms and Conditions of TiQiT
Article 1: Definitions
In these general terms and conditions, the following terms, also those conjugated in plural or singular, are used in the following meaning, unless the nature or scope of the provisions indicates otherwise.
1. General terms and conditions: this document “General Terms and Conditions of TiQiT.”
2. Authentication means: the (combination of) data and/or means by which an employee of the Client can authenticate themselves with TiQiT B.V., such as the combination of username/password, unique codes generated with or without tools (PIN codes), etc.
3. TiQiT B.V.: the user of these general terms and conditions, located at (2595 CA) The Hague, Juliana van Stolberglaan 45, registered in the Trade Register under Chamber of Commerce (KvK) number: 74987577.
4. Service: the provision and maintenance by TiQiT B.V. of the Software remotely, via the internet or otherwise, including the granted License.
5. Documentation: the user documentation provided by TiQiT B.V. to the Client regarding the Software.
6. First Level Support: first-line support for Clients, providing answers to questions about the general operation of the Software.
7. Usage Period: a period agreed upon during the sale between the Client and TiQiT B.V. or its Reseller in which the Software can be used, failing which that period will be two years.
8. Intellectual Property Rights: all rights of intellectual property, including but not limited to copyright, domain names, database rights, trade name rights, trademark rights, know-how rights, patent rights, design rights, and neighboring rights.
9. Office hours: the hours between 9:00 and 17:00 CET & CEST on Monday through Friday, excluding weekends, nationally recognized holidays in the Netherlands, and days on which TiQiT B.V. has indicated in advance (whether through its website or email) that it is closed.
10. Client: a legal entity, i.e., a legal person with its own Chamber of Commerce (KvK) number, which has purchased license(s) from TiQiT B.V. or its Reseller, including its employees.
11. License: the right granted by TiQiT B.V. to the Client to load, execute, and use the Software.
12. License Agreement: the agreement between TiQiT B.V. and the Client under which TiQiT B.V. grants the Client a license to use the Software.
13. Premium Support: additional first-line support, providing answers to questions from Clients regarding the content, modeling, and implementation of the goods flow in the software.
14. Product: tangible items such as hardware, including smart cameras, sensors, and other IoT solutions.
15. Project: a building (possibly in multiple design variants) for which the goods flow is included in the Software.
16. Second Level Support: second-line support offered by TiQiT B.V. to the Reseller in cases where Client’s questions cannot be resolved at First Level Support.
17. Server: a computer managed by or on behalf of TiQiT B.V. accessible from the internet, with web server software and the Software installed on it.
18. Software: the TiQiT software developed by TiQiT B.V., including the Documentation and all Updates and/or Upgrades of the Software.
19. Support: First Level Support and/or Second Level Support for our Software.
20. Update: an improved version of the Software (e.g., from version 1.1 to version 1.2) in which a potential error is corrected.
21. Upgrade: a new version of the Software that includes changes in functionality or new features (e.g., from version 1.0 to version 2.0).
22. Reseller: an official reseller/distributor of the Software and Product of TiQiT B.V.
Article 2: Applicability of General Terms and Conditions and Formation of License Agreement
1. These General Terms and Conditions apply to all requests, quotations, offers, assignments, orders, order confirmations related to the use of the Software, as well as the License Agreement.
2. Deviation and/or supplementation of these General Terms and Conditions can only be agreed upon in writing.
3. General terms and conditions of the Client, under whatever denomination, are explicitly not applicable.
4. In case the License Agreement deviates in content from the content of these General Terms and Conditions, the content of the License Agreement prevails.
5. The invalidity of a provision in the License Agreement and/or these General Terms and Conditions does not affect the validity of the other provisions of the License Agreement and these General Terms and Conditions.
6. The License Agreement is concluded by the acceptance of the offer or quotation by the Client.
7. If the Client does not explicitly indicate agreement with the offer or quotation but nevertheless agrees or gives the impression that TiQiT B.V. is performing work falling within the description of the offered Services, then the offer is considered accepted. This also applies when the Client requests specific work to be done by TiQiT B.V. without waiting for a formal offer.
8. Each offer by TiQiT B.V. is entirely non-binding and valid for thirty (30) days from the date on which the offer was submitted, unless stated otherwise in the quotation.
9. The License Agreement starts from the moment the License Agreement is accepted as intended in this article, unless a different commencement date is agreed upon in writing.
Article 3: Grant of Usage Rights and Conditions
1. Provided the Client fully complies with the License Agreement and General Terms and Conditions, TiQiT B.V. will grant the Client a non-exclusive, non-transferable, and non-sublicensable right to use the Service. After the conclusion of the License Agreement, TiQiT B.V. will make the Service available to the Client during the Usage Period, via a secure internet connection or an SSL connection running over the internet. To this end, TiQiT B.V. will provide the Client with Authentication means.
2. The Client is only allowed to use the Service within their own company or organization for their own employees. Unless otherwise agreed upon in writing in the License Agreement, payment according to Article 6 entitles the Client to a maximum of twenty-five (25) user accounts for one Project during the Usage Period. The Service can only be used within the Usage Period and when the License is activated (an internet connection is required for this). The Authentication means provided by TiQiT B.V. must be kept confidential. TiQiT B.V. is not liable for any misuse and may assume that a user logging in with the Authentication means linked to a specific employee is indeed that employee.
3. TiQiT B.V. will execute the Service in a professional manner and make efforts to ensure that the Service complies with applicable laws and regulations.
4. TiQiT B.V. is only responsible for the Service remaining connected to the direct internet, not for any other communication lines and/or network infrastructure. The Client is responsible for their internal infrastructure.
5. The Software and all (Client) data are stored and processed on the Server. The Server belongs to TiQiT B.V. or a third party designated by TiQiT B.V.
6. The Client remains solely responsible for complying with its (legal) administrative obligations and creating a periodic backup of the data stored using the Service.
7. The Client is not allowed to distribute, sell, license, copy, or otherwise transfer the Service to third parties or in any other way lose control over the Service or the relevant License(s).
8. Notwithstanding Article 3, Section 2, the Client is allowed to provide (temporary) user accounts to external parties for the parts of the Service related to uploading and consulting planned transports, calling for building materials/equipment, and providing evidence for a sustainability certificate (e.g., CO2 certification). The Service can be temporarily provided to these third parties as long as the maximum number of user accounts mentioned in Article 3, Section 2 is not exceeded.
9. The Client is at all times fully responsible for the use they make of the Service and all other forms of data processing performed by or on behalf of them within and outside the Service. The Client is responsible for not processing unlawful data or otherwise infringing on the rights of third parties in the Service.
10. If TiQiT B.V. is notified that any information stored by the Client through the Service is unlawful, TiQiT B.V. reserves the right to immediately remove that information or make it inaccessible. In no case shall TiQiT B.V. be liable for damages resulting from such action.
11. When providing the Service, TiQiT B.V. may set a maximum for the amount of storage space, bandwidth, and/or data traffic the Client may use per month.
12. Regarding the amount of data storage and data traffic that the Client and/or user(s) may use via the Service, TiQiT B.V. applies a “fair use” limit. Excessive use is not allowed.
13. In case of excessive use, TiQiT B.V. may warn the Client and/or user(s). If the Client and/or the relevant user(s) do not take action after this warning, TiQiT B.V. can impose usage restrictions or restrict access to the Service. In urgent cases, TiQiT B.V. can intervene immediately (without warning).
Article 4: Maintenance, Updates, and Upgrades
1. TiQiT B.V. will only maintain the latest (current) version of the Software to the best of its ability and will do its utmost to correct any errors and provide Updates. Moreover, TiQiT B.V. may, as it deems appropriate and desirable, develop Upgrades to the Software.
2. TiQiT B.V. reserves the right to temporarily disable the Service for maintenance, adjustment, or improvement of the Service. TiQiT B.V. and/or the Reseller will inform the Client about Updates and/or Upgrades and use the provided (electronic) contact details of the Client for this purpose.
3. TiQiT B.V. has the right to adjust the Service from time to time to improve functionality and correct any errors.
Article 5: Support
1. TiQiT B.V. and/or its Reseller will provide Support to the Client. Unless otherwise agreed upon in writing, payment according to Article 6 entitles the Client to a maximum of two (2) hours of Support per month. If the Client requires more than two (2) hours of Support, TiQiT B.V.’s normal hourly rate applies. If the License is obtained through a Reseller, the Client is entitled to First Level Support from this Reseller. In all other cases, the Client can obtain First and Second Level Support from TiQiT B.V. If a problem cannot be resolved at First Level Support, the Client will be referred to Second Level Support provided by TiQiT B.V.
2. Support and Premium Support are only provided for the latest version of the Software and all other versions of the Software released in the twelve (12) months preceding the Client’s request for assistance.
3. While TiQiT B.V. and/or the Reseller will do their best to resolve any issues, Support and Premium Support are provided “as is” and without any warranties. TiQiT B.V. and/or the Reseller cannot guarantee the accuracy of the provided answers.
4. Clients can use Premium Support if they have a separate subscription for this with TiQiT B.V. and/or the Reseller.
5. Support and Premium Support are provided via email during normal office hours of TiQiT B.V. and/or the Reseller.
Article 6: Price and Payment
1. In order to use the Service, the Client owes TiQiT B.V. a fee as agreed upon in the License Agreement. All amounts are exclusive of VAT and any applicable government levies.
2. Unless otherwise agreed upon, the periodic fee for accessing the Service is due in advance by paying an invoice sent by TiQiT B.V. The payment term of the invoice is 30 days from the invoice date.
3. In case TiQiT B.V. expands the Service with extra optional functionality, TiQiT B.V. may charge the Client a separate fee for the Client’s chosen use of this extra functionality. This fee will be communicated to the Client by TiQiT B.V. when the extra functionality is offered. The agreements regarding the optional extra functionality used by the Client, the start date, the applicable fee(s), and the invoicing method will be confirmed in writing by TiQiT B.V. to the Client and will be an integral part of the License Agreement.
4. Annually on January 1st, the agreed fees will automatically increase, first on January 1st of the calendar year following the start date of the License Agreement. This automatic increase is limited to a maximum of the (potential) increase of the price index for the aggregate “J: information and communication” as included in the table “Service prices; commercial service index (2010=100)” published by the Central Bureau of Statistics (CBS). This increase is calculated according to the calculation method published on the CBS website.
5. If the amounts referred to in paragraphs 1 and/or 3 of this article are not paid at the time mentioned in paragraph 2, the Client is in default by operation of law and is required to pay statutory commercial interest pursuant to Article 6:119a of the Dutch Civil Code, starting on the day these payments were due until the day of payment.
6. TiQiT B.V. is entitled to charge the Client all necessary extrajudicial and judicial collection costs for the price and other amounts mentioned in this article. Extrajudicial collection costs are due from the moment the Client is in default.
7. Payments to TiQiT B.V. will first be used to settle the due interest, then any judicial and extrajudicial costs incurred by TiQiT B.V., and finally any damages suffered by TiQiT B.V., only after which they will be deducted from the oldest outstanding invoice.
Article 7: Intellectual Property and Indemnification
1. All Intellectual Property Rights in the Software, Documentation, and Product exclusively belong to TiQiT B.V., its licensors, or its suppliers. The Client is only granted rights for use as explicitly specified in these General Terms and Conditions and the License Agreement, and under the conditions stated in the License Agreement and General Terms and Conditions.
2. The Client is not allowed to remove or modify any indications regarding copyrights, trademarks, trade names, or any other rights of intellectual or industrial property when using the Service, Product, Software, or Documentation.
3. The Client is not allowed to make changes to the Software, Product, or parts thereof. The Client is further not allowed to reverse engineer or decompile the Software, Product, or parts thereof, except in situations where this is allowed under mandatory copyright law and provided that the Client has obtained prior written consent from TiQiT B.V. TiQiT B.V. is allowed to attach conditions to such consent.
4. TiQiT B.V. and/or the Reseller on behalf of TiQiT B.V. are allowed to take technical measures to protect the Software or with regard to the agreed-upon (usage) restrictions concerning the License. The Client is not allowed to remove or circumvent such technical measures.
5. In the event that it is irrevocably established in court that the Software, Documentation, or other materials developed by TiQiT B.V. and provided to the Client infringe on any third-party Intellectual Property Rights, TiQiT B.V. will, at its sole discretion:
a. Modify the Software so that there is no longer an infringement of the Intellectual Property Rights of those third parties;
b. Offer the Client similar software with comparable functionality that does not infringe on such third-party rights;
c. Obtain a license from these third parties at its expense, with the aim of enabling the Client to continue using the Software;
d. Or offer any other reasonable solution to the Client’s choice entirely at the discretion of TiQiT B.V.
6. Any other or further liability of TiQiT B.V. for the infringement of a third party’s Intellectual Property Rights is completely excluded.
Article 8: Processing of Personal Data
1. Providing the Service involves the processing of personal data of employees of the Customer and potentially other natural persons. The General Data Protection Regulation (hereinafter referred to as the Privacy Regulation) applies to these processing activities.
2. TiQiT B.V. acts as the processor in this context. In this capacity, TiQiT B.V. will comply with all legal obligations imposed on it by the Privacy Regulation and process personal data in accordance with the specific instructions and directions of the Customer. The Customer acts as the data controller in this regard. By entering into the License Agreement, the Customer instructs TiQiT B.V. to process personal data on its behalf in the context of providing the Service. TiQiT B.V. will only carry out other processing of personal data on the instruction of the Customer or if there is a legal obligation to do so.
3. TiQiT B.V. makes efforts to implement technical and organizational measures to protect personal data received from the Customer. The Customer provides personal data to TiQiT B.V. for processing only if it has ensured that the necessary security measures have been taken.
4. The Customer guarantees that all personal data provided to TiQiT B.V. has been obtained lawfully, provided to TiQiT B.V. in a lawful manner, and that the personal data does not infringe upon any third-party rights. The Customer indemnifies and holds TiQiT B.V. harmless against all claims or actions by public authorities and/or individuals against TiQiT B.V. arising from any infringement by the Customer of third-party rights or obligations arising from applicable privacy laws.
5. TiQiT B.V. may process personal data in countries within the European Economic Area. Processing personal data outside the European Economic Area is allowed in compliance with applicable legal provisions. TiQiT B.V. will inform the Customer upon request about the countries in which the personal data is processed. The Customer hereby grants TiQiT B.V. permission, in the context of the License Agreement and the data processing referred to in these General Terms and Conditions, to engage subcontractors (sub-processors). TiQiT B.V. will inform the Customer upon request about the subcontractors it engages.
6. If TiQiT B.V. intends to engage new subcontractors for the processing of personal data, TiQiT B.V. will inform the Customer in advance. The Customer then has two weeks to raise written objections to TiQiT B.V.’s intention. If the Customer does not object within the mentioned two-week period, the Customer is deemed to agree.
7. If the Customer objects within the aforementioned period to TiQiT B.V.’s intention to engage a new subcontractor, both parties will make reasonable efforts to come to a reasonable solution through good-faith discussions.
8. If the parties cannot reach an agreement on TiQiT B.V.’s intention, TiQiT B.V. is entitled to engage the new subcontractor in question, and the Customer is entitled to terminate the License Agreement as of the date on which the new subcontractor is engaged.
9. TiQiT B.V. endeavors to impose substantially the same obligations on engaged subcontractors as agreed between the Customer and TiQiT B.V., to the extent possible.
10. TiQiT B.V., unless otherwise indicated, uses certified servers in the Netherlands for providing the Service. These servers adhere to very high standards in terms of security and quality, including ISO9001 and ISO27001. Given the (generic) nature of the (cloud) platform, TiQiT B.V. is not able to implement Customer-specific (security) measures. The Customer hereby agrees to the use of the aforementioned servers and acknowledges that the Customer cannot provide specific (security) instructions to TiQiT B.V. related to (the use of) the platform.
11. In the event of a data breach (defined as a breach of security that leads to accidental or unlawful destruction, loss, alteration, unauthorized disclosure, or unauthorized access to transmitted, stored, or otherwise processed personal data), TiQiT B.V. will promptly, but at least within 72 hours of becoming aware of the breach, inform the Customer. Based on TiQiT B.V.’s notification, the Customer will assess whether to inform the data subject(s) and/or the relevant supervisory authority(ies).
12. At the Customer’s request and if necessary, TiQiT B.V. will reasonably assist in informing data subjects and/or relevant supervisory authorities. TiQiT B.V.’s notification to the Customer will include the fact that a data breach has occurred, as well as:
a. the date of the data breach (if an exact date is not known: the period within which the data breach occurred);
b. the (presumed) cause of the data breach and its (currently known and/or anticipated) consequences;
c. the number of individuals whose data has been breached (if an exact number is not known: the minimum and maximum number of individuals whose data has been breached);
d. a description of the group of individuals whose data has been breached, including the types of personal data leaked;
e. whether the data has been encrypted, hashed, or otherwise rendered unintelligible or inaccessible to unauthorized individuals;
f. the intended and/or undertaken measures to address the breach and mitigate its consequences;
g. contact information for follow-up on the notification.
13. Based on the Privacy Regulation, the Customer has obligations towards data subjects (individuals whose personal data is processed by TiQiT B.V. on behalf of the Customer). These obligations include providing information, granting access to personal data, correcting personal data, and erasing personal data. The responsibility for fulfilling these obligations rests with the Customer. TiQiT B.V. will provide reasonable assistance to comply with the obligations to be fulfilled by the Customer.
14. Without prejudice to the provisions of this article, TiQiT B.V. is entitled to process (personal) data regarding the use of the Service for the purpose of managing and maintaining the Service and generating anonymized statistics regarding the use of the Service as long as these processes fall within the scope of the purpose description of the processing assignment by the Customer.
15. The Customer has the right to conduct audits by an independent third party bound by confidentiality to verify compliance with all points in this provision and everything directly related to it. This audit may take place once a year. At least two weeks prior to the planned audit, the Customer will inform TiQiT B.V. about it.
16. TiQiT B.V. will cooperate with the audit and provide all reasonably relevant information, including supporting data such as system logs, and employees, as promptly as possible.
17. The findings of the conducted audit will be mutually reviewed and, as a result, may or may not be implemented by one of the parties or jointly by both parties.
18. The costs of the audit will be borne by the Customer. Possible costs incurred by TiQiT B.V. as a result of the audit, such as providing advice or adjusting the Service, will be paid by the Customer.
19. To the extent within its power, TiQiT B.V. will provide assistance to the Customer for conducting data protection impact assessments (also known as ‘Data Protection Impact Assessments’ or ‘DPIAs’). The reasonable costs incurred or to be incurred by TiQiT B.V. in connection with this assistance will be reimbursed by the Customer.
20. Additionally, TiQiT B.V.
will cooperate in a prior consultation with the relevant supervisory authority. The reasonable costs incurred or to be incurred by TiQiT B.V. in connection with this assistance will be reimbursed by the Customer.
21. Once the License Agreement, for any reason and in any manner, is terminated, TiQiT B.V. – at the option of the Customer – will either return all personal data in its possession to the Customer or delete this personal data and any copies thereof.
22. If the Customer chooses to have personal data returned, TiQiT B.V. may reasonably charge the costs it incurs for doing so to the Customer.
Article 9: Duration, Termination, and Consequences of Termination
1. The License Agreement is entered into for the duration of the Usage Period and commences when the Customer accepts the offer from TiQiT B.V.
2. Without prejudice to TiQiT B.V.’s other rights, TiQiT B.V. is entitled to terminate the License Agreement immediately in writing, without any notice of default and without any obligation to pay damages, or to suspend the (further) performance of the License Agreement, if:
a. The Customer is declared bankrupt or the Customer is granted a suspension of payments, and/or when the Customer’s business is placed under the supervision of a receiver or administrator, whether voluntarily by the Customer or otherwise;
b. The Customer is liquidated/dissolved or enters into an arrangement with creditors;
c. The Customer fails to fulfill its obligations under the License Agreement, or fails to fulfill them properly or in a timely manner;
d. TiQiT B.V. becomes aware of circumstances that give it good reason to fear that the Customer will not fulfill its obligations, will not do so on time, or will not do so fully;
e. An event of force majeure lasts for more than 2 weeks.
3. The License Agreement ends automatically when the Usage Period expires.
4. Upon termination of the License Agreement – for any reason and on any grounds – all rights granted to the Customer under the License Agreement will automatically expire, and the Customer is obligated to remove or destroy the Software and the License(s) from its computer(s). Any pre-existing payment obligations of the former Customer will remain valid and payable.
5. In the event of a valid termination of the License Agreement, and in accordance with the License Agreement, upon written request from the Customer submitted prior to or at the time of termination, TiQiT B.V. will make efforts to cooperate in facilitating the transfer of Customer data to another service provider or providing it directly to the Customer. The above is limited at all times to the options provided by TiQiT B.V.
6. For the cooperation mentioned in the previous paragraph, TiQiT B.V. will make a separate offer to the Customer. All costs associated with transferring to another service provider or providing Customer data will be borne by the Customer. TiQiT B.V. is not obligated to make such an offer.
7. Unless otherwise agreed, the Customer is not allowed to employ personnel employed by TiQiT B.V., directly or indirectly, during or within the first year after the end of the Usage Period, or to have these personnel perform work for the Customer in any other capacity or approach these personnel for employment elsewhere.
Article 10: Liability
1. Without prejudice to other provisions regarding the liability of TiQiT B.V., the total liability of TiQiT B.V. for attributable breaches of the License Agreement and/or tortious acts towards the other party is limited to compensation for direct damages up to the amount of the license fees paid by the Customer up to the moment when the damages occurred, based on the License Agreement. In no event shall the total compensation for direct damages exceed €10,000.00 (ten thousand Euros). Direct damages shall be exclusively understood as:
a. reasonable costs that the Customer would have to incur to have the performance of TiQiT B.V. under the License Agreement meet the requirements; this replacement damage, however, will not be compensated if the License Agreement is terminated by or at the request of the Customer;
b. reasonable costs incurred for determining the cause and extent of the damage, to the extent that the determination relates to direct damage within the meaning of these conditions;
c. reasonable costs incurred for the prevention or mitigation of damage, to the extent that the Customer demonstrates that these costs have led to the limitation of direct damage within the meaning of these conditions.
2. Liability of TiQiT B.V. for consequential damages, lost profits, missed savings, reduced goodwill, damages due to business interruption, damages resulting from claims by customers of the Customer, mutilation or loss of data, and all other forms of damage not mentioned in Article 10, Section 1, is excluded.
3. Liability of TiQiT B.V. for attributable breaches of obligations under the License Agreement shall arise in all cases only if the Customer promptly and properly notifies TiQiT B.V. in writing of the default, allowing a reasonable period for remedying the breach, and TiQiT B.V. continues to fail to fulfill its obligations after this period. The notice of default shall contain a description of the breach that is as complete and detailed as possible, so that TiQiT B.V. can adequately respond.
4. A condition for the existence of any right to compensation is that the Customer reports the damage to TiQiT B.V. in writing as soon as possible after its occurrence. Any claim for damages against TiQiT B.V. will expire simply by the passage of three (3) months after the claim arises.
5. The liability limitation of Section 1 of this article shall lapse if the damage is caused by willful intent or gross negligence on the part of TiQiT B.V.
6. The application of Articles 6:271 et seq. of the Dutch Civil Code is excluded. This means that, if the License Agreement is terminated, any services performed over and above each other will not be undone.
7. Our liability for Products under the warranty is limited to free repair of a defective Product or (provided it has not been consumed, processed, or alienated) to replacement
of the whole or part thereof, at our discretion.
a. TiQiT’s liability under the warranty shall lapse if the damage is the result of use contrary to the possibly provided instructions for use, the nature of the Product, and/or incorrect interpretations and/or damage, inexpert repair, or maintenance by the Customer or third parties.
b. The warranty shall only apply if the Customer has fully complied with its obligations under the Agreement itself or has provided sufficient security for this.
Article 11: Force Majeure
TiQiT B.V. is not obligated to fulfill any obligation if it is prevented from doing so as a result of force majeure. Force majeure shall also be understood to mean any external cause beyond TiQiT B.V.’s control, including, but not limited to, the following circumstances: power failure, disruption of internet and/or telecommunication connections, strikes, non-compliance with obligations by suppliers of TiQiT B.V. or third parties engaged by TiQiT B.V., outbreaks of strikes, hostilities, war, terrorist attacks, civil unrest, revolution, pandemic, government intervention or failure to intervene, fire, explosions, floods, earthquakes, other natural disasters, disruptions due to computer crime, such as (D)DoS attacks, defects in goods, equipment, software, or other source materials prescribed for use by the Customer, unavailability of employees/seconded staff (due to illness or otherwise), transport problems, domestic disturbances, and any other situation over which TiQiT B.V. has no (decisive) control.
Article 12: Product: Transfer of Ownership and Risk
1. As long as the Customer has not fulfilled all payment obligations, including the obligation to pay additional costs and interest, or has not otherwise adequately fulfilled its obligations towards TiQiT due to attributable breach, TiQiT retains ownership of all delivered Products.
2. Unless otherwise specified in this article, the risk for rented Products will transfer to the Customer upon delivery. Products shall be deemed to have been delivered at the time of actual transfer of possession, such as upon placement or upon receipt of a receipt upon shipment.
3. From the moment of rental or purchase of a Product, the Customer assumes full risk of damage to or loss of a Product.
4. Rented Products shall at all times remain the property of TiQiT. Conversion shall occur if the Customer intentionally appropriates the rented item. The Customer is responsible for the costs of loss or damage to rented Products. The Customer shall take out insurance for this at its own expense.
5. The Agreement will not be extended by the Customer’s failure to return the rented item on time, although the risk shall remain entirely with the Customer.
6. If TiQiT has reasonable doubts about the Customer’s ability to pay, TiQiT shall be entitled to postpone the delivery of Products pursuant to Section 9 of this Article in these Terms and Conditions until the Customer has provided security for the payment. The Customer shall be liable for the damage suffered by TiQiT due to this delayed delivery.
7. The Products supplied by TiQiT may only be used within the framework of normal business operations. The Customer is not authorized to alienate the Products to third parties unless the Customer sells, pledges, rents, or otherwise uses the relevant Products as a Reseller with the written permission of TiQiT.
8. The Customer shall immediately inform TiQiT in writing if a Product is seized or any claim is made on (any part of) a Product. If the Customer becomes aware of a possible seizure of a Product, the Customer shall notify TiQiT accordingly. Furthermore, the Customer shall, upon first request, inform TiQiT where the relevant Product is located.
9. In the event of seizure of (part of) the Products, provisional suspension of payment, or the Customer’s bankruptcy, the Customer shall immediately notify the bailiff, administrator, or curator seizing the attachment of TiQiT’s (property) rights.
10. If there are good reasons to believe that the Customer will not fulfill its obligations, the Customer shall, at the first request of TiQiT, promptly provide sufficient security in the form desired by TiQiT and supplement it if necessary to fulfill all its obligations. As long as the Customer has not complied with this, TiQiT shall be entitled to suspend the fulfillment of its obligations.
11. The Customer hereby authorizes TiQiT, irrevocably and in advance, to enter any location where the Customer has authority, power, or control in order to take possession of the Products.
12. If the Products were to be held by a third party, the Customer hereby authorizes those third parties, irrevocably and in advance, to hand over the Products to TiQiT.
13. If third parties wish to establish or establish any rights to the Products subject to retention of title or seize or take possession of them, the Customer shall not cooperate with this, or make objections to this, and shall inform TiQiT as soon as can reasonably be expected.
14. Upon first request from TiQiT, the Customer shall:
a. Insure the Products delivered subject to retention of title at its own expense and keep them insured against the risks of loss or damage, and upon request of TiQiT, provide the policy of this insurance to TiQiT for inspection;
b. Pledge its claims against insurers with regard to the Products delivered subject to retention of title to TiQiT in the manner prescribed in Art. 3:329 of the Dutch Civil Code;
c. Pledge the claims that the Customer obtains from its customers when reselling Products delivered subject to retention of title by TiQiT (in the context of its normal business operations) in the manner described in Art. 3:239 of the Dutch Civil Code;
d. Indicate that the Products delivered subject to retention of title are the property of TiQiT and cooperate in all measures that TiQiT wishes to take to protect its ownership rights to the Products and which unreasonably hinder the Customer in the normal conduct of its business.
15. If TiQiT delays shipment at the Customer’s request, the Products shall remain at the Customer’s risk until the Products have been delivered to and received by the Customer.
Certainly, here’s the translation of the provided text:
Article 13: Third-Party Clause
1. The Customer declares to be aware of and, if necessary, agrees that the ownership of the leased Product may reside with a third party or that the Product may be (or become) encumbered to a third party.
2. The Parties entirely exclude the applicability of Articles 7:226 and 7:227 of the Civil Code.
3. The third-party clause as mentioned in paragraphs 1 and 2 above cannot be revoked by either the Customer or TiQiT.
Article 14: Warranty
1. The Software, including Updates and Upgrades, are provided to the Customer “as is”. TiQiT B.V. does not guarantee that the Software, including Updates and Upgrades, will function without interruption, be free of errors, suitable for any specific purpose, or that errors or other issues will be fixed in Updates and/or Upgrades.
2. TiQiT guarantees that the Products it delivers are free from design, material, and manufacturing defects for a period of six months from delivery or execution. This warranty does not apply to Products that are naturally subject to regular replacement or are intended for one-time use.
Article 15: Product Rental
1. For the rental of Products, the other provisions of these Terms apply unless:
a. They exclusively relate to the sale of Products, repair, or maintenance; and
b. They deviate from what is stipulated regarding the rental. In this case, the rental provisions take precedence over the other provisions of these Terms.
2. The Products rented by TiQiT are equipped and furnished for normal use. The Customer must use the Products in accordance with their intended standard use and return them to TiQiT in good condition and complete at the end of the rental term.
3. Moving, as well as the installation and retrieval of Products on location, are at the expense and risk of the Customer, unless expressly agreed otherwise.
4. TiQiT is not liable for any damage of any kind that may arise for the Customer or third parties due to possible delayed availability of Products, usage, or possible defects in the Products. The Customer indemnifies TiQiT against possible claims from third parties.
5. Unless prior written consent from TiQiT is obtained, the Customer is not allowed to perform repairs on the Products themselves or have them performed by third parties.
6. Repairs resulting from incorrect use by the Customer, including use contrary to any provided instructions, the nature of the Product, and/or customary practices, as well as damage, inexpert repair, or maintenance by the Customer or third parties, are at the expense of the Customer. If such repairs are carried out during the rental period, the rental period continues until the repair is completed, and the Customer owes rent for that period. The Customer is obliged to have the repair carried out by TiQiT unless TiQiT grants prior written permission to have the repairs carried out by third parties.
7. If maintenance advice is not followed during the rental period, any resulting damage will be charged to the Customer.
8. If TiQiT’s service department needs to resolve a technical malfunction caused by the Customer’s negligence, this service will be charged.
9. The rental period starts on the day the Product is made available to the Customer or delivered to the Customer.
10. The rental for an indefinite period can only be terminated in writing by the Customer. The notice period to be observed by the Customer is one calendar month.
11. In case of a dispute about whether the rented Products have been returned in good condition or the correct quantity by the Customer, the burden of proof rests explicitly with the Customer. Products must be returned complete. If the items are not complete, TiQiT will charge the Customer for costs.
12. Rented items are inspected by TiQiT upon return. Costs of replacement and repair are borne by the Customer. The Customer is liable for all damage to and disappearance of the rented items occurring during the rental period, regardless of whether the Customer is at fault.
13. If the rented items are not returned to TiQiT at the end of the agreed rental period, or if the Customer fails to report theft, the Customer will be given the opportunity to return the rented items within 5 working days after detection or to report the theft. The rental period ends in this case when the rented items are returned or at the time of the report. If the Customer has not returned the rented items or reported theft after the specified period has elapsed, the Customer is in default. In addition to the rent, the Customer is also liable to TiQiT for the new value of the non-returned Product (or part thereof) in this case.
14. If the Customer fails to report theft or fails to hand over a police report of theft to TiQiT, the theft is considered embezzlement, and the Customer is obliged to reimburse TiQiT for the new value. For missing Products for which TiQiT has already charged the new value to the Customer and which are later found and returned by the Customer, the Customer owes the rent up to the date of return.
15. Subleasing and making available to third parties by the Customer is only permitted with the express written consent of TiQiT.
16. The Customer is obliged to perform daily maintenance on the rented items. Only the materials prescribed by TiQiT for assistance and maintenance may be used by the Customer. The Customer is not allowed to carry out repairs themselves.
17. The Customer must insure the Products at their own expense against loss or damage. In case of imminent loss or damage to the Product, the Customer will immediately notify TiQiT.
18. The Customer bears the risk of loss or damage to the rented Product during the entire rental period, including during transport.
19. Building, assembling, and dismantling are done by the Customer and at the Customer’s expense and risk.
20. The Customer must take all measures to prevent storm damage. If damage occurs to TiQiT’s Products during the rental period, the Customer is fully responsible for that damage.
Article 16: Product Placement Conditions
1. The following placement conditions apply when TiQiT builds, assembles, installs, sets up, dismantles, and/or disassembles Products sold or rented by TiQiT.
2. The Customer must ensure the necessary permits and exemptions and provide accurate information to TiQiT about the location of underground cables in the case of Products connected to their own power generator. The Customer indemnifies TiQiT against claims from third parties related to or arising from the non-fulfillment or improper fulfillment of these obligations.
3. Except for our power-free Products, the location within 15 meters of the desired location of the Products must have a power outlet.
4. Unless expressly agreed otherwise, the following is not an obligation of TiQiT and is not included in the price:
a. Moving material and/or tools;
b. Providing fuel such as electricity and/or auxiliary materials for the attachment of Products necessary for carrying out the work;
c. Work necessary to restore damaged parts of the Products on the job, unless that damage was caused by TiQiT personnel.
5. The Customer must ensure that the facilities described in paragraph 4 above are provided in a timely manner to avoid delays in the placement work to be carried out by TiQiT.
6. Delays caused by unforeseen circumstances or the Customer’s failure to fulfill its obligations, resulting in additional costs, will be compensated for on the basis of offsetting.
7. TiQiT may postpone the planned execution date of the work to be performed by TiQiT if weather conditions warrant it, without TiQiT being obliged to any compensation.
8. The Customer must provide a flat, sturdy, dry surface with sufficient space for placing the Products. This particularly applies to Products with their own power generator.
9. TiQiT is not liable for damage caused by wind force 8 or higher, nor for damage to persons and/or objects in any form caused by the toppling and/or breaking of parts of the Products.
Article 17: Confidentiality
The Parties will make every effort to prevent the confidential information of the other party from coming to the knowledge or possession of third parties. This does not apply if the disclosing party can prove that certain information is already publicly known, other than through a breach of this confidentiality obligation, or if a party is forced to disclose confidential information by a competent (judicial) authority.
Article 18: Other Provisions
1. The invalidity of a provision in the License Agreement and/or these General Terms and Conditions does not affect the validity of the other provisions of the License Agreement and these General Terms and Conditions.
2. This License Agreement and the General Terms and Conditions constitute the entire agreement between the parties.
3. The Customer shall not transfer its obligations under the License Agreement and the General Terms and Conditions to third parties without the prior written consent of TiQiT B.V. TiQiT B.V. is entitled to assign its rights and obligations under the License Agreement and the General Terms and Conditions to any third party. The Customer accepts such transfer by TiQiT B.V. and will provide all necessary cooperation thereto.
4. The provisions of the License Agreement and the General Terms and Conditions do not affect the rights of TiQiT B.V. under the law.
5. Provisions of the License Agreement and the General Terms and Conditions that are inherently intended to remain in force after the termination of the agreement shall remain valid after termination of the agreement.
Article 19: Disputes and Applicable Law
1. All disputes that may arise between the parties, including those considered as such by only one party, in connection with or arising from the License Agreement or agreements that result from it and the General Terms and Conditions, which cannot be resolved amicably, shall be submitted to the competent court in the district of The Hague.
2. Only Dutch law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods, applies to the relationship between TiQiT B.V. and the Customer.
Appendix 1: Specification of Personal Data & Data Subjects
Appendix 1 Specification of Personal Data & Data Subjects
TiQiT B.V. will process the following categories of personal data on behalf of the Customer of the categories mentioned below:
Categories of Personal Data
TiQiT B.V. primarily provides ICT services. Processing of personal data is incidental to this. In principle, TiQiT B.V. will not actively view or otherwise use personal data.
In this context, it can be thought of that the Customer stores/hosts data on TiQiT B.V. (or its suppliers’) systems and provides the Customer with other ICT services, such as creating backups.
As a result, TiQiT B.V. automatically processes various personal data that the Customer processes via TiQiT B.V.’s ICT services. In this context, the Customer can indicate that the following personal data is processed in any case:
– IP addresses;
– Personal information (e.g., address details);
– Contact details (e.g., phone numbers and email addresses).
Categories of Data Subjects
Given the above, the Customer can indicate that the personal data of the following categories of data subjects are processed in any case:
– Customers of the Customer;
– Employees of Customers of the Customer (both employed and external);
– Customers of Customers of the Customer;
– Subcontractors of Customers of the Customer;
– Subcontractors of Subcontractors of Customers of the Customer;
– Suppliers of Subcontractors;
– Employees of Subcontractors (both employed and external);
– Employees of Suppliers (both employed and external);
– Partners of the Customer;
– Employees of the Customer (both employed and external);
– Suppliers of the Customer.