Date: 04 February 2023
Article 1. Definitions
1.1 The terms indicated with an initial capital letter in these General Terms and Conditions have the meanings assigned to them in this article.
|The provision of access data for the Services to the User;
|The substantial, demonstrable and reproducible non-compliance of the SBC Management System with the functional specifications made known in writing by SBR Powerhouse;
|The documents attached to the Agreement. The Appendices form an integral part of the Agreement;
|The data (including personal data) of the User that is hosted and made available by SBR Powerhouse in the context of the Service(s);
|Has the meaning as described in Article 2.2;
|The organization that purchases the SBC Management System;
|Means any natural person / employee of the User who is entitled to use the SBC Management System, provided that (a) User remains responsible for the correct use of the SBC Management System and (b) the person/employee is bound by confidentiality and has been subject to restrictions that are at least as strict as those in the Agreement;
|The user license as described in Article 3.1;
|Intellectual property rights
|Copyrights, trademark rights, database rights, and any other intellectual or industrial property rights as well as similar rights for the protection of information;
|Means the intended use of the SBC Management System by the User as known or should reasonably be known to SBR Powerhouse at the time of signing the Proposal;
|The agreement as described in Article 2.1; The Agreement relates to all Services described in Article 2.2 that are purchased by the User during the term of the Agreement;
|A cause beyond the reasonable control of a Party that cannot be prevented by reasonable diligence, including natural disasters, terrorism, cybercrime, riot, embargoes, acts of civil or military authorities, rejection of or delay in processing of applications for export licenses, fire, floods, earthquakes, accidents, strikes, default by a Supplier or an oil crisis. Force majeure also includes interruptions or malfunctions in the power and/or telecommunications facilities;
|User and/or SBR Powerhouse;
|The prices charged by SBR Powerhouse for Licenses and Services, the current version of which is always published on the website of SBR Powerhouse;
|SBC Management System
|Standard Business Compliance (SBC) Management System from SBR Powerhouse;
|SBR Powerhouse e.g., developer and holder of the intellectual property rights of the SBC Management System, established in The Hague and registered with the Chamber of Commerce under number 27196930;
|Providing telephone, written and/or electronic support regarding the use of the SBC Management System;
|Means the activities to be performed by SBR Powerhouse and its Suppliers aimed at using, repairing and/or improving the SBC Management System insofar as the intellectual property accrues to SBR Powerhouse or the Parties have agreed to this;
|A working combination of ICT infrastructure, internet connection / telecommunication facilities and the SBC Management System;
|Third parties who provide products and services to SBR Powerhouse and which SBR Powerhouse can use to provide its Services;
|The training of End Users in the use of the SBC Management System;
|A new version of the SBC Management System, in which Application Errors have been removed in whole or in part and / or changes and / or extensions of the functionality have taken place;
|Means non-public information, including technical, marketing, financial, planning and other data that is designated as confidential or that the receiving party should reasonably know to be confidential and also includes the terms of these Terms and Conditions. Confidential information shall in any case be regarded as all materials (including methods, software applications), documents, ideas, data, products subject to intellectual property rights or other information. Confidential Information does not include: (a) information lawfully collected or created by the receiving party independently of the disclosing party’s Confidential Information without separation from the duty of confidentiality; or (b) information that becomes public without breach of any duty of confidentiality. Personal data as referred to in the General Data Protection Regulation explicitly fall under the term “Confidential Information”.
|The proposal on the basis of which the User is entitled to use the SBC Management System. The Proposal forms an integral part of the Agreement;
Article 2. Scope and Scope Agreement
2.1 The Agreement consists of:
- The proposal;
- Terms and Conditions;
- Processing Agreement
In case of inconsistency, the higher-mentioned document takes precedence over the lower-mentioned document.
2.2 SBR Powerhouse will:
- make the SBC Management System available to the User remotely via the internet or otherwise as a SAAS service (Software As A Service), without the SBC Management System being made available to the User on a physical carrier;
- host the Data for the User; and
- provide Standard Maintenance, Support and Training to the User.
(i), (ii) and (iii) collectively, the “Services”.
2.3 These General Terms and Conditions apply to all agreements, by whatever name, that relate to the provision of Services by SBR Powerhouse that have been purchased or purchased by the User during the term of SBR Powerhouse.
Article 3. User license
3.1 SBR Powerhouse grants the User a non-exclusive, non-transferable, limited and revocable right to use the SBC Management System as a Service (as described in Article 2.2 sub (i)) within its own company, subject to the conditions and restrictions of the Agreement (the “Use License”). This User License is limited to the use of the SBC Management System as a Service as made available to the User by SBR Powerhouse and for which it is intended.
3.2 The User is not permitted to sell, rent, provide, alienate or grant limited rights to the User License or make it available in any way or for any purpose whatsoever to a third party, or to a third party (other than an End User) whether or not to provide remote access to the SBC Management System as a Service, not even if the relevant third party uses the SBC Management System as a Service exclusively for the benefit of the User. The User shall not change the SBC Management System.
Article 4. Delivery
4.1 SBR Powerhouse will provide the User with information required for access to the Services.
4.2 The User is responsible for the ICT infrastructure and internet connection / telecommunication facilities of the User with which access to the Services is obtained. The User will ensure that its ICT infrastructure and internet connection / telecommunication facilities enable the use of the SBC Management System as a SAAS service.
Article 5. Usage
5.1 The End User is obliged to keep the used authentication data (user names and passwords) secret. SBR Powerhouse is not responsible for misuse of authentication data and may assume that the End User who logs on to the Service is actually the End User. The User must immediately inform SBR Powerhouse if the User suspects that authentication data has come into the hands of unauthorized persons. SBR Powerhouse has the right, at its discretion, to take appropriate measures in such cases.
5.2 The User determines which Data is stored and/or exchanged using the SBC Management System. SBR Powerhouse has no knowledge of this information. The User is responsible that the Data does not infringe the rights of third parties. SBR Powerhouse does not accept any liability for the Data stored and/or exchanged using the Service. The User indemnifies SBR Powerhouse against claims from third parties based on the statement that the Data stored and/or exchanged by the User using the SBC Management System is unlawful.
5.3 Should SBR Powerhouse become aware of or determine that the Data that the User has stored and/or exchanged using the SBC Management System is unlawful, SBR Powerhouse will immediately remove the Data or block access to it. Under no circumstances will SBR Powerhouse be liable for damage resulting from such actions.
5.4 The User shall always immediately inform SBR Powerhouse electronically of any changes in name, e-mail addresses and other data that are important for the performance of the Services by SBR Powerhouse.
5.5 SBR Powerhouse reserves the right to temporarily decommission the SBC Management System for maintenance, adjustment or improvement. SBR Powerhouse will endeavor to ensure that such decommissioning takes place outside office hours as much as possible and inform the User in a timely manner of the planned decommissioning. SBR Powerhouse will never be obliged to pay any damage to the User due to such decommissioning.
5.6 SBR Powerhouse has the right to adjust the SBC Management System from time to time to improve the functionality and to correct errors. If an adjustment leads to a significant change in functionality, SBR Powerhouse will inform the User prior to the change.
5.7 If relevant legislative changes occur, SBR Powerhouse will adapt the SBC Management System to these legislative changes as soon as possible. If possible, they have realized this at the moment of entry into force, or if the amendment to the law provides for a transitional period at the moment that the transitional period expires.
5.8 If such Updates require an adjustment of the User’s System, SBR Powerhouse will inform the User of this in a timely manner by means of an updated version of the system requirements as referred to in Article 4.2. SBR Powerhouse is not responsible or liable for the (un)availability of the Services as a result of the User not or not timely adjusting the System.
5.9 SBR Powerhouse has the right to no longer update or maintain components of the SBC Management System.
Article 6. Backup and recovery
6.1 SBR Powerhouse will ensure that the data is backed up as part of the Services.
6.2 Costs will be charged for any restore or recovery of the Data at the request of the User.
Article 7. Training and Support
7.1 SBR Powerhouse will familiarize the End User with the use of the SBC Management System. The nature, scope and duration of the Training and/or Support are laid down in the Proposal.
7.2 The Training and/or Support will be provided by experts who are competent and suitable for this purpose.
7.3 During the term of the Agreement, SBR Powerhouse is prepared and able to provide User’s personnel with additional Training and/or Support for the use of the SBC Management System on the basis of the applicable conditions and rates.
Article 8. Documentation
8.1 SBR Powerhouse provides the User with manuals, training materials, documentation and other data that are necessary to enable the User to use the Services made available effectively and efficiently.
8.2 In the case of Services and/or Apps from Suppliers, SBR Powerhouse can suffice with the documentation made available (or to be made) by the relevant Supplier.
Article 9. Audit
9.1 At the request of a User, SBR Powerhouse will cooperate in an audit provided that the safety and availability of SBR Powerhouse are not compromised. The User will only carry out such an investigation (or have it carried out) after a prior written notification of at least 30 days to SBR Powerhouse.
The internal and out-of-pocket costs will be charged to the User unless the audit shows that SBR Powerhouse does not comply with its legal obligations.
Article 10. Personnel and Suppliers
10.1 SBR Powerhouse will keep (or have made available) sufficient qualified personnel to be able to provide the Services. SBR Powerhouse will work with its own personnel or personnel of its Suppliers, while maintaining the full responsibility of SBR Powerhouse.
Article 11. Processing agreement and confidentiality
11.1 SBR Powerhouse acts as a processor of personal data for the User within the meaning of the General Data Protection Regulation, whereby the User is regarded as the controller. For this reason, the Parties conclude a processing agreement. SBR Powerhouse is affiliated with the TTP of MYOBI B.V.
11.2 Parties will take all reasonable care to prevent Confidential Information of the other Party from becoming known or in the hands of third parties (excluding Suppliers) and will take all security measures that they observe for their own information of the same type. Neither Party shall disclose the other Party’s Confidential Information except to its End Users who have a need to know such information and are bound by conditions of confidentiality, or as required by law upon prompt notice of such obligation to the other Party. This provision does not apply if the designated Party demonstrates that certain information is already publicly known, other than through breach of this confidentiality obligation.
11.3 The restrictions on use, disclosure and reproduction of Confidential Information referred to in the previous paragraph are perpetual with respect to Confidential Information that constitute a trade secret and personal data and will remain in full force and effect with respect to other Confidential Information during the term of the Agreement and for three years after termination of the Agreement.
Article 12. Compensation and payment
12.1 The fees to be paid by the User for the agreed Services are stated in the SBC Management System Price List. The fees are stated in euros, excluding VAT.
12.2 The license fees are invoiced annually at the beginning of the year of use. Any other costs will be billed monthly.
12.3 The fees arising from the Agreement must be paid within 14 days of the invoice date.
12.4 SBR Powerhouse is entitled, from the expiry of the term referred to in the previous paragraph, to charge the User interest, calculated on an annual basis, equal to the statutory interest, on the amount still due to SBR Powerhouse.
12.5 In the event of late payment, in addition to the amount due and the interest due, the User is obliged to pay full compensation for both extrajudicial and judicial collection costs, including the costs for lawyers, bailiffs and collection agencies.
12.6 The claim for payment is immediately due and payable if the User is declared bankrupt or applies for suspension of payment.
12.7 SBR Powerhouse is entitled to adjust its rates and fees for Services every twelve (12) months. The rate adjustment may deviate by a maximum of five (5)% from the applicable CBS index for commercial services. Price increases take effect on January 1 of each increasing year. If SBR Powerhouse wishes to make use of this option, it will inform the User about this two months before the end of the year.
Article 13. Fix Application Errors
13.1 SBR Powerhouse does not guarantee that the Services will function without Application errors, interruptions or other defects. SBR Powerhouse will use its best efforts to repair Application Errors in the Services within a reasonable period of time. SBR Powerhouse can charge the costs of repair according to its usual rates in the event of user errors or injudicious use by the User or other causes not attributable to SBR Powerhouse.
13.2 SBR Powerhouse is at all times entitled to introduce program bypasses, problem-avoiding restrictions or temporary solutions in the Services.
Article 14. Internet Disclaimer
14.1 The Services provided by SBR Powerhouse use the internet. SBR Powerhouse does not warrant that such Services will be uninterrupted, error-free or completely secure. SBR Powerhouse has no control over the data flow to or from SBR Powerhouse’s network or that of the User and other parts of the internet. Such flow is highly dependent on internet services provided or controlled by third parties. The acts or omissions of such third parties may disrupt User’s internet connections (or parts thereof). Therefore, SBR Powerhouse disclaims all liability in connection with such events.
Article 15. Intellectual property rights
15.1 All Intellectual Property Rights with regard to the SBC Management System belong exclusively to SBR Powerhouse and/or its Suppliers. The User retains all Intellectual Property Rights relating to the Data.
15.2 Nothing in the Agreement extends to the full or partial transfer of the Intellectual Property Rights of SBR Powerhouse to the User. SBR Powerhouse and its Suppliers reserve all Intellectual Property Rights not expressly granted to the User. Any changes, modifications, improvements or new modules made or developed in relation to the SBC Management System whether or not (a) created or developed at the request of the User, (b) created or developed in collaboration with the User, or (c) created or developed by the User shall be the sole property of SBR Powerhouse or its Suppliers; The User expressly acknowledges these rights and declares that it is prepared to cooperate with the required formalities at SBR Powerhouse’s first request if necessary.
15.3 User undertakes not to take any steps to generate a source code equivalent of the SBC Management System (for example by disassembling, decompiling or reverse engineering the SBC Management System) nor to allow a third party to do so.
15.4 SBR Powerhouse guarantees to the User that the Services and the use thereof permitted to the User do not infringe the Intellectual Property Right or similar rights of third parties, and that it is fully authorized to grant the rights referred to in the Agreement. SBR Powerhouse indemnifies the User against all damage resulting for the User from alleged infringement of such rights of third parties, provided that the User reports an alleged infringement to SBR Powerhouse as soon as possible and, if SBR Powerhouse so desires, the defense against such allegation entirely to SBR Powerhouse and provides it with all required cooperation and information. If the User does not leave the defense against such an allegation to SBR Powerhouse, the costs of legal assistance will be borne by the User.
15.5 In the event of an infringement or alleged infringement as referred to above, SBR Powerhouse and/or its Suppliers are entitled to replace or change the Services in such a way that the infringement is removed thereby and the functional properties of the SBC Management System are not affected. .
Article 16. Privacy and personal data
16.1 SBR Powerhouse will provide the Services in accordance with the General Data Protection Regulation. SBR Powerhouse will only process the Data on behalf of the User and for the performance of the Services. SBR Powerhouse will process the Data exclusively as a processor for the benefit of the User (the controller).
16.2 SBR Powerhouse will protect Data against unwanted destruction, loss, alteration, disclosure, access or other unlawful processing.
16.3 SBR Powerhouse will ensure that End Users who, on the authorization of SBR Powerhouse, have access to the personal data processed for the User, will process it under the same conditions as those imposed on SBR Powerhouse under the Agreement or the law.
16.4 For the Services and the Data, SBR Powerhouse will only use data centers that are located in the European Union and fall exclusively under the jurisdiction of the EEA.
16.5 SBR Powerhouse may make use of Suppliers that can be characterized as “Sub-processor” in the performance of the Services. Where appropriate, SBR Powerhouse will enter into written agreements with Sub-processors that contain the same or comparable material standards with regard to the processing of personal data as those included in these General Terms and Conditions.
16.6 SBR Powerhouse will immediately notify the User of any breach of the security of the Services that may have adverse consequences for the protection of the Data.
Article 17. Duration and Termination
17.1 Parties enter into the Agreement for a period of sixty months. If the Parties agree on a different period, this will be included in the Proposal.
17.2 The Agreement enters into force on the date of acceptance of the Proposal. The date of acceptance of the Proposal can be evidenced by the date of sending of the relevant electronic message in which the User expresses or indicates acceptance or the date of signature of the Proposal if the latter is before the date of sending of the relevant electronic message .
17.3 Either Party may terminate the Agreement by written notice at the end of any current period. Each of the Parties shall observe a notice period of at least two months for such termination.
17.4 Unless the Agreement is terminated in accordance with the other provisions of Article 19, the Agreement will be tacitly renewed each time for the duration of sixty months or the agreed deviating period.
17.5 Either Party may terminate the Agreement in whole or in part with immediate effect by written notice if the (other) Party:
- (a) applies for (provisional) suspension of payments;
- (b) files for its own bankruptcy;
- (c) is declared bankrupt unless that bankruptcy is lifted or dissolved within two weeks;
- (d) materially breaches these Terms and Conditions or any Attachment and fails to remedy such violation or fails to remedy it in breach within a reasonable time after being served notice of such violation by the terminating Party (see Article 20.1), of a material violation only exists if the violation is of such importance that it justifies the consequences of a dissolution;
- (e) infringes the intellectual property rights of the terminating Party and fails to remedy that infringement within ten (10) business days after being notified of such infringement by the terminating Party;
- (f) if a force majeure situation has lasted longer than ninety (90) days, the Parties have the right to terminate the Agreement by written dissolution. In that case, what has already been performed under the Agreement will be settled pro rata, without the Parties owing each other anything else.
17.6 Immediate termination of the Agreement shall not affect the rights and obligations of the Parties under any other Modules performed by the Parties prior to such termination or expiration and all such Modules shall remain in full force and effect unless terminated in accordance with these terms and conditions.
Article 18. Orderly Transition
18.1 Except in the event of termination due to or in connection with a material breach by the User of the Agreement or infringement of the intellectual property rights of SBR Powerhouse or its Supplier, the User shall have access to the SBC Management System for 30 days for the sole purpose of secure, copy and/or migrate to an environment or platform that is new to the User. During this period, the functionality of the Services may be limited. After this period, SBR Powerhouse will remove the Data from its systems. For 30 days after termination or expiration of the Agreement:
- (a) the User License will continue along with User’s obligation to pay fees;
- (b) SBR Powerhouse will cooperate with the User for an orderly transition;
- (c) pay the User fees to SBR Powerhouse for services performed by SBR Powerhouse during that period at the usual rates. Unless expressly set forth in this Article 20, SBR Powerhouse shall be released from its obligations to provide Services to the User immediately upon termination or expiration of the Agreement.
- (d) SBR Powerhouse will return to the User, within a reasonable period of time, all Data and other data that belong to the User and that have been made available to SBR Powerhouse in the context of the Agreement or that have otherwise become available to the SBR Powerhouse, or provide assistance to the User so that he can download the Data.
- (e) SBR Powerhouse, at the request of the User, and at the rates included in the SBC Management System Price List, reasonably cooperate in providing a copy of all Data to the User.
Article 19. Liability
19.1 If one of the Parties falls short in the fulfillment of one or more of its obligations under the Agreement, the other Party will give it notice of default, unless compliance with the relevant obligations is permanently impossible, in which case the defaulting Party shall immediately be in default. is. The notice of default will be given in writing, whereby the negligent Party will be given a reasonable period of time to still fulfill its obligations. This period has the character of a strict deadline. The notice of default must contain a description of the shortcoming that is as complete and detailed as possible, so that the negligent Party is able to respond adequately.
19.2 The Party that imputably fails to fulfill its obligation(s) is liable to the other Party for the direct damage suffered or to be suffered by the other Party, insofar as this damage is the result of the attributable shortcoming.
19.3 The total cumulative liability of the Parties under, in connection with or in connection with this Agreement is limited to (a) the total (license) fees paid by the User to SBR Powerhouse (less any refunds or credits) for the Service(s) to which the claim relates, during the 3 months prior to the date of the claim, as applicable, which is based on breach of contract or tort. Liability for damage based on any other basis is excluded. The compensation amounts to a maximum of € 25,000.
19.4 Under no circumstances will SBR Powerhouse be liable to the User under or in connection with the Agreement for indirect damage or damage for consequential damage, including, but not limited to, loss of turnover, loss of profit or loss of goodwill, loss of data.
19.5 The Parties acknowledge that the above restrictions are an express condition for their entering into the Agreement.
Article 20. Force majeur
20.1 Except where there is an obligation to pay a monetary compensation, a Party shall not be liable to the other Party for any shortcoming or delay as a result of Force Majeure. Such failure or delay shall not constitute a material breach of the Agreement.
Article 21. Change Terms and Conditions
21.1 SBR Powerhouse may amend these General Terms and Conditions and the Appendices. New General Terms and Conditions and/or Annexes and other mentioned documents will be communicated via e-mail and via the website.
21.2 New General Terms and Conditions and the Appendices will take effect thirty (30) calendar days after notification.
Article 22. Other
22.1 Any changes or amendments to these General Terms and Conditions agreed between the Parties must be recorded in writing or electronically by the Parties.
22.2 If one or more of the provisions of these Terms and Conditions are invalid, contrary to law or unenforceable, this shall not affect the validity of the remaining provisions. The parties will negotiate in good consultation about a new provision to replace the invalid or unenforceable provision, which follows the purport of the invalid or unenforceable provision as closely as possible.
22.3 The User guarantees that the person entering into the Agreement on behalf of the User is authorized to legally bind the User.
Article 23. Assessment
23.1 SBR Powerhouse reserves the right to have an assessment carried out by a third party selected by SBR Powerhouse (not being a competitor of the User), to check whether the use is in accordance with the Agreement or whether there has been any other violation. The User is obliged to provide full cooperation for such an assessment, insofar as this can reasonably be required. The assessment will in all cases be strictly confidential and the User is entitled to demand the signing of the confidentiality statement from the third party in advance. The costs of such an assessment will be borne by the User if it is demonstrated that the User’s actions are inconsistent. If irregularities are found during the assessment, the User undertakes to remedy these irregularities. The costs for remedying the irregularities shall be borne by the User.
Article 24. Applicable Law and Choice of Forum
24.1 Dutch law applies to the Agreement and all disputes arising from it. The applicability of the Vienna Sales Convention 1980 is excluded.
24.2 All disputes that may arise as a result of the Agreement will first be resolved by the Parties in mutual consultation. If that fails, disputes will be submitted to the competent court in the district of The Hague.