Terms & conditions
Terms & Conditions C-Sar Energy / Jules Energy B.V. / Jules Energy LTD
For the following words in these General Terms & Conditions the following definitions apply:
a) ‘Affiliated Company’: a group company of the Licensee in the meaning of Article 24 of Book 2 of the Dutch Civil Code, as well as any other company or partnership in which the Licensee has a controlling interest, by virtue of law, agreement or otherwise;
b) ‘Confidential information’: the confidential information of the Licensee or Licensor, including but not limited to (a) information that is indicated ‘confidential’ in writing, (b) information that is not commonly known, (c) information that has not been made accessible by the party to which the information relates and/or from which the information originates and/or (d) information of which the confidential nature must reasonably be assumed by the other party;
c) ‘Control: the possibility of exercising decisive influence on the activities of a business of a legal entity, by virtue of an agreement or by law.
d) ‘Customer Portal’: the protected part of the website indicated by the Licensor, to which Named Users are given access by means of a User ID issued by Licensor;
e) ‘Defect’: all substantial failures in the Software that prevent the Software from functioning substantially in accordance with the accompanying Documentation. The lack of certain functionality in a new Software Upgrade and/or Update that was present in an earlier Upgrade and/or Update is not considered to be a Defect;
f) ‘Documentation’: the written and/or electronic documentation pertaining to the Software;
g) ‘Employee’: a natural person employed by the Licensor or Licensee, or a natural person authorized to carry out work activities for and/or under the responsibility of the Licensor or Licensee;
h) ‘Licensee’: the natural person or legal entity who entered into an Agreement with the Licensor;
i) ‘Licensor’: C-Sar Energy B.V. and/or one of its subsidiaries acting as a (sub) Licensor;
j) ‘Named User’: the natural person for whom a User ID is created, which User ID gives access to the Software (irrespective if this natural person uses the Software or not) and/or to the Customer Portal;
k) ‘Price list’: the official price list of the Licensor that applies at any given time;
l) ‘Proposal’: the written or electronic document containing the commercial offering of Licensor to Licensee based on which an Agreement is entered into;
m) ‘Software’: the standard executable software of the Licensor that is supplied to the Licensee or made available to the Licensee via the Customer Portal pursuant to the License Agreement as well as all Updates and Upgrades the Licensor has issued to the Licensee. ‘Software’ does not refer to third-party software that is also supplied;
n) ‘Subsidiary’: a legal entity in which the Licensor or one or more of its Subsidiaries, either by agreement with other voters or otherwise, alone or together, can exercise more than half of the voting rights in the general meeting and thus can determine the course of action of the business conduct by that legal entity;
o) ‘System Requirements’: the minimum requirements for Licensee’s computer system with regard to hardware and third party software as prescribed by the Licensor from time to time;
p) ‘Update’ (maintenance release): a version of the Software in which a minor adjustment or a solution to a Defect or an enhancement is made;
q) ‘Upgrade’ (release): a version of the Software in which an important change in the functionality and/or technology is made;
r) ‘User ID’: a code that is exclusive to the Named User, consisting of a user name and password. The User ID may only be used by the Named User;
s) ‘Work Days’: public accepted work days in the country from which maintenance and support services are provided, with the exception of official public holidays;
2. Offer and Agreement
2.1 These General Terms & Conditions apply to all negotiations and offers and to all Agreements pursuant to which the Licensor supplies or could supply goods of any nature and/or provides or could provide services of any nature, even if these goods or services are not further specified in these General Terms & Conditions or in the Agreement, unless agreed otherwise in writing.
2.2 An offer or quotation from the Licensor that is not directed at a specific person or legal entity is free of obligations and is revocable and must be considered an invitation to place an order. The Licensor reserves the right to refuse orders without giving any reasons.
2.3 The Licensor is entitled to unilaterally change the General Terms & Conditions and the Agreement. Where possible the Licensee will be notified of such changes two (2) months before the changes come into effect. The Licensee is entitled to terminate an Agreement within two (2) weeks after the Licensor has announced the changes to the General Terms & Conditions and the Agreements if the changes are material and/or unreasonable onereus for the Licensee. Price increases in accordance with Article 2.2. of the Maintenance Agreement and/or Article 3.2 of the General Terms & Conditions are considered neither to be material nor unreasonably onerous.
In this case the Agreement will terminate at the time the changes come into effect. This termination will not result in reimbursements of license, maintenance and/or any other fees to Licensee. In the absence of a written, express objection against the announced change(s) within the stated period the Licensee is deemed to have accepted the changes.
3. Price and Payment
3.1 All prices and other tariffs are exclusive of VAT and exclusive of any other government levies payable by the Licensee.
3.2 The Licensor is entitled to adjust fees agreed upon with the Licensee on an annual basis. The price changes will be communicated to the Licensee in good time by means of the Customer Portal or some other means. The Licensee expressly declares that he agrees with these price increases, when they are in line with and do not exceed the CBS (Dutch Central Statistics Bureau) Consumer Price Index figure (series: all households 2015 = 100). In the event of price increases that exceed the aforementioned Price Index figure the Licensee is entitled to terminate the Agreement before the Renewal Date by notifying the Licensor accordingly in writing and by certified mail within two (2) weeks after the price increase was announced. If the Licensee does not respond to an announced increase within the aforementioned period of two (2) weeks the Licensee is deemed to have accepted the Licensor’s new price terms.
3.3 The Licensee must make payments in accordance with the payment terms stated on the invoice. If no such terms are mentioned payment must be made in Euros within thirty (30) calendar days after the invoice date. The amount must be paid in full without any deductions or setoffs. The Licensor reserves the right to request full or partial advance payment for the Software and for any services to be provided.
3.4 If the Licensee wholly or in part fails to meet his payment obligations under Article 3.3 of these General Terms & Conditions, or fails to meet his payment obligations on time, the Licensee is in default without any further notice being required. Once in default the Licensee must pay interest of 1.5% per month or part thereof, commencing on the date the payment was due. If, after the payment has become due and the Licensee has not made a payment, the Licensor asks for payment of the principal sum only, this never means that the Licensor waives the aforementioned interest. The Licensee will always be liable to pay interest from the moment the payment first became due.
3.5 All costs, including reasonable attorney fees, incurred by the Licensor, either through the courts or otherwise, as a result of the Licensee not meeting his obligations under an Agreement will be at the expense of the Licensee. The extrajudicial (collection) costs incurred by the Licensor will be set at a minimum of 15% of the principal amount of the claim, with a minimum amount of EUR 250.
3.6 The Licensor is entitled to suspend any obligation pursuant to the General Terms & Conditions and the Agreements until such time as the Licensee has paid all outstanding amounts in full. The (financial) administration of the Licensor serves as full proof.
4.1 Neither party will disclose Confidential Information about the other party or use such information for anything other than the purpose for which the Confidential Information was obtained, unless such use is necessary in the scope of the realization of an Agreement.
4.2 Both parties will take all reasonable precautions to ensure they comply with their confidentiality obligations. None of the provisions included in this Article (4) imposes any restrictions on the receiving party in respect of information or data – either the same or similar to the information or data contained in the Confidential information or otherwise – if this information or data:
(I) was already the legal property of the receiving party before it was obtained from the party in question;
(II) was developed independently by the receiving party without using information or data of the party in question;
(III) is or will be generally known or accessible other than by an act or omission on the part of the receiving party; or
(IV) is disclosed to the receiving party by a third party without an obligation of confidentiality toward the party in question being infringed.
The confidentiality obligations pursuant to this Article 4 also do not apply if the Confidential Information of the other party must be made public pursuant to the law, an ordinance, a court order or a decision by another government agency, on condition that the receiving party makes every effort to limit the scope of the publication and notifies the party concerned in advance of any such intended publication.
4.3 The parties guarantee that their Employees and third parties engaged by the parties will comply with the confidentiality obligations as described above in Articles 4.1 and 4.2
5. Retention of Title
5.1 All items the Licensor has supplied to the Licensee are on loan to the Licensee for the duration of the Agreement. These items remain the full property of the Licensor at all times. The Licensee is prohibited from encumbering, disposing of or renting out the items loaned to him, or making these items available to third parties in any other manner. Upon the expiry of the Agreement the Licensee is obliged to return the items loaned to him to the Licensor within two (2) weeks. Without prejudice to the above statements no (part of any) intellectual property rights or any other rights the Licensor has in respect of the Software are transferred to the Licensee at any time and no such transfer is aimed, meant or may be understood.
5.2 The Licensee must notify the Licensor forthwith when any items or property rights the Licensor has provided to the Licensee pursuant to the Agreement are seized. In the event of such a seizure, or if the Licensee is granted a suspension of payments or if the Licensee is declared bankrupt, the Licensee must notify the process server charged with seizing the items, the trustee, the administrator or the receiver forthwith of the fact that the Licensor is the owner of the items and/or property rights.
6. Cooperation of the licensee
6.1 The Licensee is aware that keeping the Software operational is a continuous process that requires an investment in time, money and energy on the part of all the parties involved. For this reason the Licensee must lend his cooperation to enable the Licensor to comply with its obligations pursuant to an Agreement. The Licensee must always provide the Licensor with all the useful and necessary information and guarantee the correctness of this information.
6.2 The Licensee must notify the Licensor in writing and in due time of any changes to the company details and of any other relevant information.
6.3 The Licensee is responsible for (I) the correct use and application of the licensed Software and services provided by the Licensor; (II) the implementation of the required procedures in his organization; (III) the security of the data, like making backups of data files; and (IV) complying with the System Requirements. The Licensee will also install or have installed all new Updates and/or Upgrades provided by the Licensor correctly and in a timely manner. The Licensee is not allowed to change files, to ad extra files to the Software or, with the exception of the cases outlined in the Software or Documentation, to change files in any other manner.
6.4 If it has been agreed that the Licensee will provide the Licensor with materials or data by means of third-party information carriers, these information carriers must meet the Licensor’s specifications for the activities in question and be free of any hidden risks such as viruses, worms, Trojan horses, logic bombs etc.
6.5 If the Licensee fails to provide the information the Licensor requires in order to meet its obligations pursuant to an Agreement in good time, or if the Licensee fails to meet his obligations pursuant to an Agreement in any other way, the Licensor is entitled to suspend its obligations pursuant to the Agreement and to charge the Licensee an additional fee.
6.6 If the Employees of the Licensor need to perform their work at the Licensee’s premises, the Licensee will ensure that these Employees are able to work undisturbed. The Licensee will comply with all reasonable requests from the Licensor, communicated through these Employees, free of charge. The Licensee will provide the aforementioned Employees with access to all Software, Documentation and other materials, and to any location containing goods supplied by the Licensor.
7. Customer Portal
7.1 The Licensor will provide the Licensee with access to the Customer Portal by means of issuing a User ID.
7.2 From the Customer Portal, amongst other, information can be obtained and Updates and Upgrades can be downloaded. The Customer Portal can also be used to provide the Licensee and its Employees with support.
7.3 The Licensor is at all time entitled to limit or block access to the Customer Portal for an indefinite period of time, without giving reasons, if the Licensor suspects improper use or misuse, whether or not caused by the Licensee or one or more of its Employees.
7.4 The Licensee will ensure that the right granted to him pursuant to Article 7.1 is only delegated to its Employees.
7.5 The Licensee guarantees that its Employees will handle their access to the Customer Portal and the information thus obtained in a responsible manner, while the Licensee retains and/or accepts unconditionally the ultimate responsibility for any information its Employees add to the Customer Portal.
7.6 The Licensee must take care of and is responsible for the User ID. The User ID is not transferable and must not be used outside the Licensee’s organization. The Licensee and its Employees are obliged to observe complete confidentiality with regard to any other in respect of their User ID. The Licensee is responsible for any use of the Customer Portal with his User ID, regardless of whether the Licensee permitted this use. As soon as the Licensee becomes aware of or has reason to suspect that third parties have obtained access to his User ID, the Licensee will notify the Licensor of this fact forthwith, without prejudice to the Licensee’s obligation to immediately take his own measures against these third parties.
8.1 The Licensee must notify the Licensor in writing of any complaints in respect of an incorrect delivery or the performance of an incorrect or deficient service within two (2) weeks after the Licensor has made the licensed Software available or has provided the service in question. Such notification does not suspend the payment obligations of the Licensee toward the Licensor, nor is such notification deemed to constitute an extension of the obligations regarding the functioning of the Licensor’s Software described in the License Agreement. The Licensee is prohibited from returning goods to the Licensor without prior consent from the Licensor.
9. (Delivery) Periods
9.1 The Licensor sets all the (delivery) periods to the best of its knowledge and complies with these periods as much as possible. As soon as the Licensor becomes aware of any circumstance that may prevent the timely delivery of the goods, the Licensor will consult with the Licensee. The Licensee is never entitled to compensation in respect of a late delivery. The Licensor is always entitled to make partial deliveries
10. Termination of the Agreement
10.1 Without prejudice to the provisions in the Service Agreement and Article 3.2 of the General Terms & Conditions, an Agreement can be dissolved in writing and without judicial intervention, if:
a) the party, after having been served the appropriate notice of default, still fails to meet his obligations pursuant to the Agreement thirty (30) days after receipt of the notice of default;
b) a change of Control occurs with respect to the Licensee .
10.2 The Licensor is entitled to terminate an Agreement by operation of law and with immediate effect at the time the Licensee notifies the Licensor that he is no longer able or prepared to meet his payment obligations, or at the time the Licensor must conclude from the circumstances that the Licensee is no longer able to meet his payment obligations, or at the moment the Licensee ceases his activities. An Agreement will terminate by operation of law and with immediate effect if the (company of the) Licensee goes into liquidation, is granted a suspension of payments or is declared bankrupt.
10.3 The Licensor is in no event obliged to pay any damages as a result of the dissolution or termination of an Agreement as described in the preceding paragraphs of this Article.
10.4 Unless the parties explicitly agree otherwise in writing, if an Agreement is terminated all rights, obligations and activities of the parties will cease to exist at the time of termination, with the exception of the provisions in Articles 4, 5, 11, 13 and 17 of the General Terms & Conditions. At the time the License Agreement is terminated the Licensee will immediately cease and not resume all use of the Software, Documentation and other materials supplied by the Licensor and will return the Software, Documentation and other materials to the Licensor in accordance with the provisions in Article 5.1 of these General Terms & Conditions. If an Agreement is terminated, for any reason, the Licensor will not reimburse license and/or maintenance and/or support and/or other fees.
11.1 Unless statutory regulations exclude a limitation to the liability of the Licensor for damages resulting from an intentional act or omission, willful misconduct or gross negligence, the Licensor is only liable for damages as described in the following paragraphs of this Article 11.
11.2 In the event of physical injury, irrespective of whether this injury results in death, the liability of the Licensor is in any case limited to an amount of EUR 250,000 per damage causing incident. In the event of property damage the liability of the Licensor is in any case limited to an amount of EUR 25,000 per damage causing incident. In both cases a series of related events is considered a single incident.
11.3 The Licensor is never liable for indirect damages, lost profits, missed savings, reduced goodwill, damages resulting from operational stagnation, damages resulting from the Licensee not complying with the System Requirements, damages resulting from claims by the Licensee’s clients, corruption or loss of data, damages associated with the use of third-party items, materials or software prescribed to the Licensor by the Licensee, damages associated with the deployment of suppliers prescribed to the Licensor by the Licensee, consequential losses, irrespective of the nature of the action (breach of contract, unlawful act or otherwise), even if the Licensor was notified of the possibility of such damages.
Some countries and/or states and jurisdictions do not allow the exclusion or limitation of special, indirect, incidental or consequential damages, so the above limitation and exclusion may not apply to all Licensees. In that case the liability of the Licensor is limited to the maximum extent possible by law.
11.4 Insofar as the Licensor can not invoke the liability exclusions or limitations described in this Article 11, the Licensor’s liability at any time will be limited to an amount equal to 50% of all amounts, exclusive of VAT, invoiced on the basis of an Agreement with the Licensee in the six (6) months preceding the default after the notice of default. If and to the extent that an agreement provides for periodical payments the Licensor will never owe more than 50% of all amounts invoiced in the three (3) months preceding the default. Insofar as the Licensor is also unable to invoke the limitation referred to in paragraph 4 of this Article 11, the liability of the Licensor is in any case limited to EUR 10,000. The Licensor will deduct the amount of any credit notes to the Licensee from the amounts referred to in paragraph 4 of this Article 11.
11.5 The Licensee acknowledges and accepts that the license fee for the Software has been determined with due observance of the liability limitation referred to in this Article 11 and the provisions referred to in Article 5 of the License Agreement.
11.6 The Licensee acknowledges and accepts that the Software can never be perfect or be 100% free of Defects and that Licensor may not be able to remedy all Defects. Without prejudice to the provisions in Article 5 of the License Agreement the Licensee accepts the Software in the condition it is in on the date of delivery (‘as is’).
11.7 The Licensee indemnifies the Licensor against claims from third parties resulting from or related to the Agreement, unless the Licensee is able to enforce these claims against the Licensor with due observance of the provisions in this Article 11 as if the Licensee had suffered the damage himself.
11.8 Liability on the part of the Licensor with regard to attributable shortcomings in the fulfillment of an Agreement with the Licensee will in any case only exist if the Licensee serves the Licensor with proper notice of default forthwith, whereby a reasonable period must be given for the Licensor to remedy the breach, and the Licensor remains in breach of his obligations even after this period. The notice of default must contain the most complete and detailed description of the breach possible, allowing the Licensor to respond adequately.
11.9 A claim for compensation cannot be considered unless written notice of the loss has been given to the Licensor as soon as possible after it occurs. Any claim for compensation against the Licensor lapses by the mere lapse of time 12 months after the damage has manifested itself.
11.10 Any right to compensation becomes void in any case if the Licensee has neglected to take measures to (I) limit the damage immediately after it occurs; or (II) prevent any other or further damage.
11.11 The above limitations and exclusions apply to their full extent insofar as the applicable law allows, even if the Licensor is unable to remedy problems with the Software.
12. Exclusion/ Disclaimer
12.1 With the exception of provisions that have been expressly included in the Agreement the Licensor does not make any other or further guarantees, promises or conditions in respect of the Software, Documentation, materials or services supplied to the Licensee, and the Licensor hereby rejects all other guarantees, promises or conditions, either explicit, implicit or in pursuant the law (including but not limited to guarantees or conditions relating to salability, non-infringement of other rights or suitability for a specific purpose or resulting from a specific use or commercial use) in respect of the Software, Documentation, materials and services. Some countries and/or states and jurisdictions do not allow the exclusion or implied warranties; thus, the above exclusion may not apply to all Licensees. In that case the minimum warranties as prescribed by the applicable law apply. The warranties contained in the Agreements give Licensee specific legal rights, and Licensee MAY also have other rights, which vary from state to state or jurisdiction to jurisdiction.
13. Intellectual Property Rights
13.1 All copyrights, patent rights, trade name rights, trademark rights, other intellectual and industrial property rights, as well as all similar rights for the protection of information in respect of the Software and Documentation are the exclusive property of the Licensor or its licensor(s). None of the provisions in the Agreement can be interpreted in such a way that it results in the full of partial transfer of these rights to the Licensee and no such transfer is aimed, meant or may be understood.
13.2 The Licensee is prohibited from changing, removing or making unrecognizable any notice in respect of the intellectual property rights of the Licensor on or in the Software or Documentation. The Licensee is prohibited from registering any brand, design or domain name of the Licensor or a similar name that could be associated with the Licensor in any venue anywhere in the world.
13.3 The Licensor indemnifies the Licensee against any compensation and all costs and expenses the Licensee may be ordered to pay as a result of a third-party legal claim for the infringement or assumed infringement of valid patents, copyrights, brands or other rights of third parties in respect of licensed Software issued pursuant to an Agreement or any part thereof that is the result of the Licensee’s use of the Software in accordance with the provisions in the Agreement and the Documentation, provided the Licensee notifies the Licensor in writing of such a legal claim as soon as it is filed and provides the Licensor with all the relevant information.
13.4 If an injunction is imposed on the Licensee prohibiting the use of the Software because of an infringement within the meaning of the previous paragraph or if, in the opinion of the Licensor, there is a chance that the Software will become the subject of a successful claim for infringement, the Licensor is entitled, at its own discretion and own expense, to (I) a obtain the right for the Licensee to continue to use the Software as per the License Agreement; (II) replace the Software or adjust it in such a way that it no longer constitutes an infringement, provided the functionality of the Software remains materially unchanged; or (III) if options (I) and (II) are not reasonably feasible, to terminate the License Agreement together with any rights to the infringing Software that were granted pursuant to the License Agreement and to reimburse the Licensee an amount of money for the infringing Software on the understanding that the amount to be reimbursed is maximum to the total license fees paid by the Licensee for the Software, which total license fees are depreciated on a straight-line basis over a period of three (3) years, commencing on the effective date of the Agreement or from another starting date expressly agreed in writing between the Licensor and the Licensee, which method takes into account the fact that the Licensee effectively used the Software during the period in question.
13.5 Without prejudice to the provisions in Article 13.3, pursuant to this Article 13 the Licensor is not liable toward the Licensee insofar as a claim is based on (I) use of the Software in conjunction with data, equipment or software that was not supplied by the Licensor, whereby the Software would, in itself, not constitute an infringement or otherwise be the subject of the claim; (II) incorrect use of the Software, or use of the Software in a manner not described in the Documentation; (III) an amendment to the Software implemented by a natural person or legal entity other than the Licensor; or (IV) the Licensor’s compliance with strict instructions from the Licensee. The Licensee indemnifies and holds the Licensor harmless against claims as described in points (I) through (IV) of this Article 13.5.
13.6 The Licensee acknowledges and accepts that the full and exclusive liability of the Licensor in respect of infringements of patents, copyrights, brands or other intellectual property rights reads as the provisions in this Article 13 and Article 11.
13.7 The Licensor is entitled to make and maintain technical provisions for the purpose of protecting (the intellectual property rights of) the Software and/or Documentation or with a view to enforcing the agreed restrictions in the use of the Software. The Licensee is prohibited from circumventing or removing such technical provisions.
14. Checking and Inspection
14.1 The Licensor is entitled to perform a check and/or inspection or have such a check and/or inspection performed in order to determine whether the Licensee is complying with the provisions in an Agreement and the General Terms & Conditions, provided such a check and/or inspection is performed during normal office hours, in such a way that the Licensee’s operational activities are not unreasonably obstructed. Such an inspection will be performed by an expert chosen and deployed by the Licensor. This expert will submit a summary outlining his findings in respect of the inspection of the reports delivered by the Licensee and the Licensee’s compliance with the provisions in the Agreements and the General Terms & Conditions, but will never provide the Licensor with any other information apart from the information he becomes aware of during the check and/or inspection. The costs associated with this inspection are at the expense of the Licensor, unless the inspection proves that the Licensee is not complying with the provisions in the Agreements or the General Terms & Conditions, in which case the costs are at the expense of the Licensee.
15. Force Majeure
15.1 Neither party is obliged to comply with a contractual obligation resulting from an Agreement, with the exception of payment obligations, if such compliance is prevented by a situation of force majeure. Force majeure includes but is not limited to: military actions , government actions, the elements, unavailability of or disruptions in telecommunication and Internet connections, delays or inadequacies in the compliance with obligations on the part of suppliers of the Licensor, transport problems and strikes.
15.2 If, at the time the force majeure occurs, the Licensor has already partially met its obligations, or can only partially meet its obligations, the Licensor is entitled to invoice the supplied performance and/or the part of the performance that can be supplied separately, and the other party or the Licensee is obliged to pay this invoice as if it concerns a separate agreement.
16.1 If the Licensor uses telecommunication facilities for the Maintenance and/or Support Services for the Software or other services, all parties are responsible for the selection and prompt installation of the telecommunication equipment or facilities, including Internet connections. The Licensor is not liable for errors in, interception of or loss of data or process results during the transmission of this data through its telecommunication facilities.
17. Non-Competiton Clause
17.1 Each party will refrain from employing or hiring employees or third parties who/that were involved in the execution of an Agreement in the preceding twelve (12) months without prior written consent from the other party. This Article 17.1 ceases to apply if either party is declared bankrupt or if either party is granted a suspension of payments.
17.2 By violating the provisions in Article 17.1 (and without prejudice to the wronged party’s right to seek other forms of compensation) the contravening party is, without any notification, notice of default and/or judicial intervention being required, obliged to pay the other party a penalty of EUR 50,000 in compensation for the investment the other party has made and lost in the training and expertise of the employee or third party in question, notwithstanding the Licensor’s right to seek reimbursement for the full damages suffered.
18. Applicable Law and Disputes
18.1 The Agreement, including these General Terms & Conditions, is governed by Dutch law only. The provisions of the Vienna Sales Convention (CISG) do not apply. However, if the Software was acquired by and supplied to the Licensee outside the Netherlands, and if local law prohibits the use of Dutch law, local law may apply.
18.2 Any and all disputes, disagreements or claims resulting from or associated with the Agreement, or with the non-compliance, termination or invalidity thereof shall be submitted to the competent court in Rotterdam. However if the Software was acquired by and supplied to the Licensee outside the Netherlands and this clause is not valid under local law any dispute, disagreement or claim arising out of or relating to the Agreements, or the breach, termination or invalidity thereof, shall be submitted to the adjudication of the competent court in the capital of the country where the Software was acquired by and supplied to the Licensee.
18.3 The application of part or all of any purchase conditions or other terms and conditions of the Licensee is explicitly rejected, unless the Licensor has explicitly accepted such terms and/or conditions.
19. Third-Party Supplier: General Terms & Conditions and Liability
19.1 If and to the extent that the Licensor’s Software contains software from a third party, or if software of a third party is (sub)licensed to the Licensee, the terms and conditions that apply between the Licensor and the third party in question will also apply between the Licensor and the Licensee. At the Licensee’s first request the Licensee will be provided with a copy of the general terms and conditions in question free of charge. The Licensee declares he has been able to take note of said general terms and conditions in full and in good time.
19.2 More specifically, the terms and conditions of the third party referred to in this Article 19 in respect of (the limitation of) liability and guarantees will apply between the Licensor and the Licensee. It must be stated first and foremost that the Licensor accepts no liability for any damages whatsoever resulting from errors and/or defects in the software of the third party supplier.
20.1 Insofar as with the use of the Software personal data are processed this is done at the full responsibility and liability of the Licensee. The Licensor will only process personal data on the instructions of the Licensee and in accordance with the Licensee’s instructions, also including the provisions in the Agreements. The Licensee guarantees that he will process the personal data in accordance with the law.
20.2 The Licensee indemnifies the Licensor against any claims by third parties relating to an Agreement and/or data processed by the Licensee in the scope of an Agreement as a result of an infringement of the [Dutch] Personal Data Protection Act and/or other legislation related to the processing of personal data that is not attributable to the Licensor.
21. Other Provisions
21.1 The Licensor is entitled to transfer or outsource his rights or obligations pursuant to the Agreement to a Subsidiary or to another third party the Licensor has contracted for this purpose. In the event of the transfer or outsourcing these General Terms & Conditions continue to apply to the Licensee.
21.2 All notifications or other announcements relating to the Agreement must be made in writing and addressed to the other party at the address stated on the applicable agreement or Proposal.
21.3 If any provision in an Agreement or in these General Terms & Conditions is completely or partially void, voidable or conflicts with any law, it is deemed to be isolated and not applicable. In such a case the parties will consult with each other in order to replace the provision in question by a provision with a similar purport that is not completely or partially void, voidable or in conflicts with any law. The other provisions in the Agreement or these General Terms & Conditions remain in full force.
21.4 Delays or omission on the part of the Licensor in respect of enforcing any rights the Licensor has against the Licensee pursuant to the Agreement never constitutes a waiver of the Licensor’s right. If a party waives any right it has pursuant to the Agreement this does not mean that the party in question will or can be obliged to waive this right or any other rights in a subsequent matter.
21.5 The Licensor is permitted to include the name of the Licensee on internal customer lists of the Licensor.
21.6 The Agreement fully reflects everything that has been agreed between the parties and replaces all earlier and concurrent, explicit or implied agreements, contracts, declarations and guarantees, both written and verbal. With the exception of the provisions in Article 2.2 of the Maintenance Agreement and Article 2.3 of the General Terms & Conditions the Agreement can only be amended by means of a written agreement signed by both the Licensee and the Licensor.
21.7 In the event of any disagreement or difference of opinion about or obscurity in respect of the provisions in these General Terms & Conditions and/or an Agreement, the Dutch text prevails over the translation. [in case the T&C are translated from English to another language, the English text prevails over the translation]