GENERAL TERMS AND CONDITIONS
Zenit is a trade name of TimeToMarket B.V, a limited liability company established under Dutch Law with its registered office in Amsterdam, enrolled in de Dutch Chamber of Commerce under no. 34138061.
GENERAL TERMS AND CONDITIONS
These General Terms and Conditions are divided in the following chapters:
I. General conditions
II. Provision of services
III. Development, delivery, installation, and acceptance of software
IV. Usage, support, and service
I. GENERAL CONDITIONS Article 1. Definitions These General Terms and Conditions use the following definitions:
a. Contract value: the sum invoiced by Zenit and the amount paid by the Client to Zenit excluding VAT pursuant to an Agreement, as far as it relates to the hours worked by Zenit’s employees, or the goods or services provided by Zenit;
b. Faults: failure to meet the functional specifications made known by Zenit and, in the case of customized software, non-compliance with the functional specifications expressly agreed in writing.
c. Zenit: the company with limited liability TimeToMarket B.V., established under Dutch Law with its registered office in Amsterdam.
d. Delivery: the delivery according to the Agreement of goods, services, (right of use on) software, cloud services or work or combinations thereof at the agreed place(s) by Zenit;
e. Regular office hours: hours on Monday to Friday – not being public holidays – from 8:00 am to 6:00 pm;
f. Client: any person or legal entity who has requested Zenit for a quotation, or to whom Zenit has sent a quotation or with whom Zenit negotiates the conclusion of an Agreement, or with whom Zenit has entered into an Agreement.
g. Order: an order from the Client.
h. Agreement: any Agreement between Zenit and the Client, to the delivery of goods, the performance of work, the provision of services or the granting of (user) rights in respect of intellectual property, whether or not contained in software or combinations of the above, to which these General Terms and Conditions apply and any addition thereto or modification thereof.
i. Parties: Zenit and Client together.
Article 2. Applicability
2.1. These General Terms and Conditions apply to all quotations, offers and Agreements to which Zenit is a party. The provisions in these General Terms and Conditions cannot be deviated from, unless explicitly agreed in writing. In the event of a conflict between a provision in these General Terms and Conditions and a provision in an Agreement concluded with the Client, the latter will take precedence.
2.2. If one or more provisions of these General Terms and Conditions prove to null and void, voided, or otherwise lose their validity, the remaining provisions remain in force.
Article 3. Quotations and conclusion of the Agreement
3.1. All quotations or offers from Zenit are without obligation and only constitute an invitation to make an Order unless explicitly stated otherwise in the quotation of offer in writing. An Agreement between the Client and Zenit is concluded if, and insofar as, Zenit accepts an Order from the Client in writing.
3.2. If Zenit carries out any work at the request of the Client before full agreement has been reached on the price and payment conditions for that work, the Client shall pay Zenit for this work in accordance with the rates applicable for Zenit at that time.
3.3. Addition(s) to or change(s) of an already concluded Agreement can only be agreed in writing.
Article 4. Third parties
4.1. Zenit is entitled in the execution of the Agreement to engage (employees of) third parties.
4.2. If Zenit engages (employees of) third parties in the execution of the Agreement, Zenit guarantees Client proper compliance with the provisions of the Agreement by third party and/or its employees.
Article 5. Charges
5.1. All charges of Zenit are exclusive of turnover tax (VAT) and other levies imposed by the government.
5.2. Charges can be increased annually on the basis of the consumer price index (CPI) of the Dutch Central Bureau of Statistics (CBS). Changes in cost-increasing factors that occur more than three months after the conclusion of the Agreement will can be passed on to the Client.
5.3. If the Client has a periodic payment obligation, Zenit is entitled to adjust the applicable prices and rates in writing within a period of at least three
months. If the Client does not wish to agree to such an adjustment, the Client is entitled to terminate the Agreement within thirty days of the notification by the date on which the adjustment would take effect.
Article 6. Payment and default
6.1. The Client must pay the invoices of Zenit in accordance with the payment conditions stated in the Agreement and on the invoice. In absence of payment conditions, the Client must ensure payment within 14 days of the invoice date.
6.2. In the event of overdue payment, the Client is in default without any (further) notice of default. In that case, the Client, without prejudice to the (other) rights of Zenit, will owe the statutory commercial interest from the date of default until the day of full payment, as well as a penalty of 15% due on the outstanding amount and with a minimum of € 75.00.
6.3. The Client has no right of offset or suspension of payment and/or the obligations arising from an Agreement or these General Terms and Conditions.
Article 7. Delivery terms
7.1. All Delivery terms stated by Zenit are indicative, non-fatal and based on facts known to Zenit and applicable circumstances at the time of concluding the Agreement. Zenit will comply with the specified Delivery terms as much as possible.
7.2. Zenit is not default on the mere exceeding of a specified Delivery time. Zenit is not bound by Delivery terms that can no longer be met due to circumstances beyond its control that occurred after the conclusion of the Agreement. If there is a risk of exceeding any term, Parties will consult as soon as possible.
7.3. Zenit has the right to execute the Agreement in partial Deliveries.
Article 8. Intellectual or industrial property rights
8.1. All rights of intellectual or industrial property on all goods, services, software, equipment or other materials such as assessments, drawings, designs, documentation, reports, quotations, developed by Zenit under the Agreement or provided by Zenit to the Client, as well as preparatory material thereof, and on everything that has come about as a result of the agreed services, for example software, are held exclusively by Zenit or its licensers. As long as the Agreement continues, the Client will only acquire the user rights with regard to the provided goods, services, software, equipment or other materials under these conditions or otherwise explicitly and otherwise the goods, may not reproduce or make copies of goods, services, software, equipment or other materials or other materials.
8.2. Zenit always has the right to use Third Party Software and/or Open Source Software for the development of a functionality requested by the Client. If the original license terms provide that they are to be respected by the end-user, the Client shall be bound to these, both towards the licensor and Zenit. Zenit ensures that the Client is timely and correctly informed about this.
8.3. The Client declares that all provided goods, services, software, equipment and other materials are exclusively used for the purpose set out in the Agreement and for which they are therefore intended. The Client agrees to impose this specific and exclusive use purpose on all persons working in the organization of the Client, and all (employees of) third parties who use the goods, services, software, equipment and/or other materials.
8.4. The Client is not permitted to remove or change any designation concerning copyrights, brands, trade names or other intellectual or industrial property rights from the goods, goods, services, software, equipment or materials, including indications concerning the confidential nature and confidentiality of the software.
8.5. Zenit is permitted to take technical measures to protect its intellectual or industrial property. The Client is not permitted to remove technical security measures.
8.6. Zenit will, within the limits stated in art. 8.7, indemnify the Client against any legal claim based on the claim that software, equipment or materials developed by Zenit infringe an intellectual or industrial property right, under the condition that the Client – under penalty of loss of any claim against Zenit – immediately informs Zenit in writing about the existence and content of such a claim and that the Client leaves the handling of the case, including any settlements, entirely to Zenit. For this purpose, the Client will grant Zenit the necessary powers of attorney, information and cooperation to defend itself against this legal action, if necessary, in the name of the Client.
8.7. The obligation to indemnify lapses if and as far as the relevant infringement is related to changes that the Client has made to the goods, services, software, equipment, or materials or if the Client has them applied by a third party.
8.8. If it is irrevocably established in court that the goods, services, software, equipment or materials developed by Zenit itself infringe any intellectual or industrial property rights belonging to a third party or if a reasonable chance exists in the opinion of Zenit that such an infringement occurs, Zenit will, at its option, take back the delivered goods on crediting the Contract Value after deduction of a reasonable usage fee, or ensure that the Client can continue to use the delivered or functionally equivalent replacement goods, services, software, equipment or materials undisturbedly. In addition, Zenit will pay the Client a compensation in cash, if the Client appears to be liable for payment of compensation to the entitled party, on the understanding that the compensation to be paid by Zenit will in no case exceed the amount corresponding to the Contract Value, unless there is demonstrable intent or gross negligence on the side of Zenit.
8.9. Any other or further liability or indemnification obligation of Zenit for violation of intellectual or industrial property rights of third parties is excluded, including violations caused by the use of the delivered goods, services, software, equipment and/or materials in conjunction with goods, software, equipment and/or materials not delivered or provided by Zenit or for use other than for which the goods, services, software, equipment and/or materials have been developed or intended.
8.10. The Client guarantees that no rights of third parties oppose Zenit to provide equipment, software or materials with the purpose of usage or editing. The Client guarantees that if the assigned work includes the addition, expansion or change of computer software in use at the Client, that the Client is entitled to have the necessary changes made to the (source of the) software, either as the owner/copyright owner, either on the basis of a power that it has obtained from the owner/copyright owner. The Client shall indemnify Zenit against any action that is based on the assertion that making such use, use or processing available infringes any right of third parties.
Retention of title
9.1. The ownership of goods delivered by Zenit does not transfer to the Client, notwithstanding the actual delivery, after the Client has fully paid all that it owes or will owe to Zenit under the Agreement, including the purchase price, possibly pursuant to these General Terms and Conditions or the Agreement, surcharges, interest, taxes and costs.
9.2. The Client is obliged to keep the goods delivered under retention of title carefully and as identifiable property of Zenit, and to insure them against the usual risks, such as fire, explosion, damage and theft.
Article 10. Cooperation
10.1. The Client must provide Zenit with the necessary equipment, materials, data, information or other means, including licenses for software, for the execution of the Agreement in a timely and proper manner. Explicit reference is hereby made to the provisions in art. 8.9 of these General Terms and Conditions.
10.2. Zenit may, at the request of the Client, purchase specific software or licenses. In absence of any provisions in the Agreement regarding the cost of these specific software or licenses, they will be for the account of the Client.
10.3. The Client is aware that the provided goods, services, software, equipment, and other materials contain confidential information and trade secrets of Zenit or its licensers. The Client undertakes to keep this information and trade secrets confidential, not to disclose it to third parties or to use it and to use it only for the purpose for which it was provided. The Client will also impose this confidentiality on all persons working in the organization of the Client, who use the goods, services, software, equipment and/or other materials.
10.4. The Client is responsible for the use and application in its organization of the equipment, software and of the services to be provided by Zenit, as well as for the control and security procedures and adequate system management. Zenit does not guarantee that on the basis of the services it provides and/or with the goods it delivers it and/or with the software it provides, a certain purpose can be achieved by the client, unless explicitly stated otherwise in the Agreement.
10.5. If it has been agreed that the Client will make software, materials or data available on information carriers, they will comply with the specifications necessary for the performance of the work.
10.6. If information necessary for the execution of the Agreement is not available, not timely or not in accordance with the agreements, or if the Client does not fulfil its obligations in any other way, Zenit shall in any case have the right to suspend the execution of the Agreement and it has the right to charge the costs resulting from this – for example regarding the loss of employees – according to its usual rates.
10.7. The Client may not use the provided items for a purpose other than that for which they have been provided and the Client must return the provided items to Zenit at the end of the Agreement in the same state in which Zenit has provided them, except insofar as the state of the matter has been changed by normal use.
10.8. If the agreed work will be carried out in full or in part at the office of the Client, the Client will ensure free of charge that the staff of Zenit are provided with the necessary space and other resources for the execution of the work. The workplaces made available must comply with the occupational health and safety regulations. The Client shall indemnify Zenit against claims from third parties, including employees of
Zenit, who suffer damage in the execution of the Agreement which is the result of the actions or omissions of the Client or of unsafe situations in its organization.
10.9. The Client is liable for all damage, including any consequential loss and consequential loss, which Zenit, for its recognized persons or companies or any other third party, will suffer or has suffered as a result of a shortcoming that can be attributed to the Client. The Client is in particular liable for all damage resulting from inaccuracies in the data and/or drawings provided by the Client to Zenit or arising from shortcomings in performances of work for the execution the Agreement by the Client or third parties.
10.10. The liability of the Client under this article is limited to the Contract Value, except for intent or gross negligence on the part of the Client.
Article 11. Personnel
11.1. The Client undertakes not to maintain a direct or indirect employment or service relationship with Zenit’s employees nor with Zenit in the context of the present agreement for the duration of the agreement, nor with the third parties engaged by Zenit in the execution of this agreement other than with the prior written consent of Zenit and after payment of a fee to be agreed upon.
11.2. Zenit has the right to replace its employees who are entrusted with carrying out any work for the Client.
Article 12. Confidentiality
12.1. During and after the end of the Agreement, Parties are obliged to keep confidential all confidential information that they have obtained in the context of the execution of the Agreement. Parties will also impose this duty of confidentiality on their subordinates, as well as on the third parties engaged by them.
Article 13. Force majeure
13.1. None of the Parties is obliged to fulfil any obligation if it is prevented from doing so as a result of force majeure. Force majeure is also understood to mean a (possibly) attributable shortcoming of suppliers or other contract partners of Zenit. If the force majeure situation has lasted longer than three months, both Parties have the right to rescind the Agreement in writing. What has already been performed pursuant to the Agreement will then be settled proportionally, without the Parties owing anything else for the remainder.
Article 14. Liability
14.1. Zenit is not obliged to compensate damage or any other performance if Zenit’s shortcoming is not reported to Zenit in writing by the Client after the Client has discovered or should reasonably have discovered the shortcoming. Zenit is also not liable for damages or any other service if Zenit is not served with a written notion of default.
14.2. Liability of Zenit for indirect damage, consequential loss, for example regarding damage suffered by third parties, lost profits, loss due to loss or mutilation of data (files), damage in the form of lost savings, damage due to business interruption and damage due to malfunction of a business process or of an administrative organization or damage due to exceeding a term, and/or bodily injury, is excluded.
14.3. Except for intent or gross negligence on the part of Zenit, in the event of an attributable shortcoming Zenit is only held to, at the option of Zenit:
a. to rectify any Faults;
b. to supply replacement software, items or parts, but only after receipt of the defective software, items or parts or;
c. to pay a financial compensation to be determined in consultation with the Client;
d. repay the received Contract Value, or credit an invoice sent to the Client, this under (partial) dissolution of the agreement, whereby repayment or crediting only has to take place if and as far as the Client demonstrates that the already delivered/performed cannot be used effectively.
14.4. If Zenit remains, without prejudice to the provisions elsewhere in these General Terms and Conditions, obliged to pay a compensation or a fine or any other financial compensation regarding any shortcoming in the fulfilment of the obligations by Zenit or otherwise, the liability of Zenit is at all times limited to a maximum of the Contract Value or up to the sum that is actually covered by insurance on the side of Zenit, and the lowest of these two sums. If the agreement is a (long-term) agreement to perform services or activities that have taken place for more than one year at the time the damage-causing event occurs, the Contract Value is set at the total of the invoices paid to Zenit (excl. VAT) for a maximum of one year.
14.5. The Client indemnifies Zenit against all third-party claims due to product liability because of a defect in a product or system supplied by the Client to a third party which also consisted of equipment, software or other materials supplied by Zenit, unless and as far as the Client proves that the damage was caused by that equipment, software, or other materials.
14.6. Regarding services that have already been delivered correctly in the context of a (long-term) contract concluded between the Parties, a dissolution shall have no effect, unless the Client can demonstrate that the already delivered performance has no effective use as a result of not delivering the remaining performances.
14.7. Zenit may rely on the provisions of an Agreement and the General Terms and Conditions, such as limiting its liability with regard to actions of third parties and the consequences thereof attributed to Zenit. The provisions of this article also apply in favour of all persons and legal entities that Zenit engages to execute the Agreement.
Article 15. Termination
15.1. The Client is in default by operation of law and Zenit is entitled to dissolve the Agreement in whole or in part without further notice of default or legal intervention, this without prejudice to its right to compensation, if the Client is declared bankrupt, if the Client is granted (provisional) suspension of payment, if the Client is admitted to the statutory debt restructuring or if the Client is wholly or partly under administration under guardianship or his assets, or if a request for one of these cases is submitted, if the Clients control over its business or part thereof in whole or in part, if the Client liquidates or halts his business if there is any other way of ceasing the business of the Client or if on goods of the Client or parts thereof, prejudgment or executory attachment. Zenit will never be obliged to pay any compensation because of the termination.
15.2. Zenit is always entitled to terminate the Agreement in the interim, without having to comply with any notice period if the Client grants another IT-expert, not employed by the Client, access to or insight into the software provided to the Client by Zenit. Zenit will never be obliged to pay any compensation to the Client due to such termination.
15.3. Bedragen die Zenit vóór de ontbinding heeft gefactureerd in verband met hetgeen zij reeds ter uitvoering van de Overeenkomst heeft verricht of geleverd, blijven onverminderd verschuldigd en worden op het moment van de ontbinding direct opeisbaar.
15.4. Amounts that Zenit invoiced before dissolution of the Agreement for delivered performances in execution of the Agreement remain due and will become immediately due and payable at the time of the dissolution.
Article 16. Restitution upon termination of the Agreement
16.1. The Client is at the moment of termination of the Agreement, by whatever cause, obliged to return to Zenit without delay all that has been made available by Zenit to the Client, including software, equipment or other materials such as assessments, drawings, designs, documentation, reports, quotations and preparatory material, without the Client being entitled to retain copies thereof. The provisions of the preceding sentence also relate to software that Zenit provides to more than one client or that it uses in the development and/or maintenance of software in the context of its business operations. The provisions of this article – the contractual obligation to restitution – also apply with regard to resources, including software and licenses that Zenit has purchased at the request of the Client and that have been paid in full or in part by the Client. The foregoing is only then not applicable if explicit and unambiguously stated otherwise in the Agreement.
Article 17. Governing law and settlement of disputes
17.1. The Agreement is governed by Dutch law.
17.2. Geschillen voortvloeiende uit of verband houdende met de Overeenkomst waarop deze algemene voorwaarden van toepassing zijn, alsmede geschillen omtrent deze algemene voorwaarden zullen naar keuze van Zenit beslist worden door arbitrage of de bevoegde rechter te Amsterdam.
17.3. Disputes arising from or regarding to the Agreement to which these General Terms and Conditions apply, as well as disputes regarding these General Terms and Conditions, will be settled by arbitration or the competent court in Amsterdam at the option of Zenit.
II. PROVISION OF SERVICES
The provisions mentioned in this chapter ‘Provision of services’ are, in addition to the General Conditions of these General Terms and Conditions, applicable if Zenit provides services, i.e. providing organizational and automation advice, conducting research, executing consultancy activities, offering support or seconding personnel. These provisions are without prejudice to the articles included in the General Conditions concerning specific services, such as the development of software and the usage and maintenance thereof.
Article 18. Execution
18.1. Zenit will make efforts to provide the services with care, in accordance with the written arrangements and procedures with the Client. All Zenit
services are performed on the basis of a best efforts obligation, unless and insofar as Zenit has explicitly promised a result in the Agreement and the result in question has also been described with sufficient determination. As a general rule, Zenit is therefore not responsible for the progress or realization of a project, in particular if the project is in collaboration with employees of the Client.
18.2. If it has been agreed that the services will be provided in stages, Zenit is entitled to postpone the commencement of the services of a following phase until the Client has approved the results of the preceding phase in writing.
18.3. Only if this has been explicitly agreed in writing, Zenit is obliged to comply with the Client’s instructions in a timely and responsible manner during the provision of the service. Zenit is not obliged to follow instructions that change or supplement the content or scope of the agreed service; if, however, such instructions are followed, the relevant activities will be reimbursed in accordance with art. 19.
18.4. If a service agreement is concluded in view of provision by a specific person, Zenit will always be entitled to replace this person by one or more other persons with the same qualifications.
18.5. If the Client cannot prove otherwise from his administration, the times and amounts stated on Zenit’s invoices shall count as correct.
18.6. For overtime, performed on the instructions of and after approval by the Client, an invoice will be made with overtime compensation. Overtime compensation is 25% for work on Monday-Friday, before 12 pm, for work on Tuesday-Friday before 7 am and on Saturday 50% and for work on Sundays and public holidays (until 7 am the next morning) 100% of the hourly rate.
18.7. The normal traveling times and costs for the commuting of the employees of Zenit are included in the agreed price, insofar as secondment takes place in the Netherlands.
18.8. The duration of service agreements is indefinite, unless a specific time is explicitly stipulated. Unless agreed otherwise, a notice period of two calendar months applies. The cancellation must be in writing. Cancellation is only possible before the first day of a calendar month.
Article 19. Additional work
19.1. If Zenit, at the request of or with the prior consent of the Client, has performed activities or other services that fall outside the content or scope of the agreed services, these activities or services shall be reimbursed to Zenit by the Client in accordance with Zenit’s usual rates. However, Zenit is not obliged to comply with such request and may require that a separate written Agreement be concluded for this.
19.2. The Client accepts that activities or performances as referred to in Art.
19.1 can affect the agreed or expected time of completion as well as the mutual responsibilities. Additional work also applies if a system analysis or design is extended or modified.
19.3. In the absence of an explicitly agreed invoicing schedule, all amounts relating to services provided by Zenit are payable once every calendar month.
III. DEVELOPMENT, DELIVERY, INSTALLATION AND ACCEPTANCE OF SOFTWARE
The provisions mentioned in this chapter ‘Development, delivery, installation and acceptance of software’ are applicable, in addition to the General Conditions of these General Terms and Conditions and the special provisions in the chapter ‘Provision of services’, if Zenit develops and possibly installs software on behalf of the Client. The chapter ‘Use and maintenance of software’ also applies to this software, except as provided otherwise in this chapter. The rights and obligations referred to in this chapter exclusively relate to computer software in a form that is readable for data processing equipment and recorded to material readable for such equipment, as well as to the accompanying documentation, all including any new versions to be provided by Zenit. When in the next chapters is referred to software, this also includes websites. This chapter does not relate to the provision of software by Zenit that Zenit provides to more than one client or that Zenit uses in the context of its business operations in the development and/or maintenance of software.
Article 20. Software development
20.1. Parties will specify in writing which software will be developed and in which way this will take place. Zenit will carry out the software development with due care on the basis of the information to be provided by the Client, for the correctness, completeness and consistency of which the Client is responsible.
20.2. Zenit is entitled, but not obliged, to investigate the correctness and completeness of the data or specifications made available to it, and to suspend the agreed work in the event of any defects, until the Client has removed the shortcomings in question.
20.3. The Client obtains the right to use the software in his company or organization. If and insofar as this has been explicitly agreed in writing, the source code of the software and the technical documentation produced during the development of the software can be made available to the Client and the Client is entitled to make changes in this software. Such a provision does not imply a transfer of intellectual property rights.
Article 22. Right of use
Article 21. Delivery, installation and acceptance
21.1. Zenit will deliver the software to be developed to the Client in accordance with the in writing agreed specifications on the agreed type and on the agreed format information carriers and installation, the latter only in case an installation to be carried out by Zenit has been agreed in writing.
21.2. If an acceptance test has been agreed in writing, the test period shall be fourteen days after delivery or, if an installation to be carried out by Zenit has been agreed in writing, after completion of the installation. During this test period, the Client will be able to carry out tests, the outcomes of which will be recorded by the Client in test reports. Employees of Zenit or third parties engaged by Zenit will be given the opportunity to attend the tests. During the test period, the Client is not permitted to use the software for productive or operational purposes. Zenit can always demand, therefore even if this has not been explicitly agreed, that the Client performs a proper test of sufficient scope and depth with (interim) results of the development work with sufficiently qualified personnel and that the test results are reported to Zenit in writing, in a clear and understandable manner.
21.3. The software shall be held between parties as accepted:
a. if no acceptance test has been agreed between Parties: at the time of delivery or, if an installation to be carried out by Zenit has been agreed in writing, at the completion of the installation, or;
b. if an acceptance test has been agreed between the Parties in writing: on the first day after the test period, or;
c. if Zenit receives a test report before the end of the test period: at the moment that the Faults referred to in that test report have been corrected.
Contrary to the foregoing, if the Client uses the software for any productive or operational purposes before the moment of acceptance, the software will apply as fully accepted from the start of that use.
21.4. If, when carrying out the agreed acceptance test, it appears that the software contains Faults that impede the progress of the acceptance test, the client will inform Zenit in detail in writing, in which case the test period will be interrupted until the software has been adjusted in such a way that this impediment is removed.
21.5. If during the execution of the agreed acceptance test it appears that the software contains Faults, the Client will inform Zenit no later than the last day of the test period by means of a written and detailed test report on the Faults. Zenit will – without being able to guarantee repair of the Faults – make efforts to the best of its ability to resolve the reported Faults within a reasonable period of time, this against payment by the Client of the rate applicable at Zenit for the employee who carries out the work, whereby Zenit is entitled to install temporary solutions or workarounds or problem avoiding restrictions in the software. If a fixed price has been agreed the costs of repair will be on the account of Zenit, on the understanding that in that case no further work will be required from Zenit if the costs involved in these activities exceed ten percent of the Contract Value. Costs defined in the previous sentence include the number of worked hours multiplied by the usual hourly rate for the employee or third party engaged by Zenit.
21.6. Acceptance of the software cannot be refrained on grounds other than those which are related to the specifications explicitly agreed between the Parties and furthermore not due to the existence of minor Faults, i.e. Faults that do not reasonably hinder the operational or productive use of the software.
21.7. If the software is delivered and tested in stages and/or parts, the nonacceptance of a particular phase and/or part will not affect the acceptance of an earlier phase and/or another part.
21.8. Acceptance of the software in one of the above-mentioned ways will result in Zenit being fully discharged for the fulfilment of its obligations regarding the development and provision of the software and, if applicable, the installation by Zenit as well, of its obligations. concerning the installation of the software.
VI. USAGE, SUPPORT AND SERVICE
The provisions mentioned in this chapter ‘Usage, support and service of software’ are applicable, in addition to the General Conditions of these General Terms and Conditions and the special provisions in the chapter ‘Provision of services’, to all software provided by Zenit, except as provided otherwise in this chapter. The rights and obligations referred to in this chapter exclusively relate to computer software in a form that is readable for data processing equipment and recorded to material readable for such equipment, as well as to the accompanying documentation, all including any new versions to be provided by Zenit.
22.1. Zenit grants the Client the non-exclusive right to the use of the software on the grounds of the resolutive condition that the Client fulfils his obligations under an Agreement for the use of the software. The Client will always strictly comply with the usage restrictions agreed between the Parties.
22.2. The software may only be used by the Client within its own company or organization and on the processing unit and for the specific number or type of users or connections for which the right of use has been granted.
22.3. The right of use is not transferable. The Client is not permitted to sell, lease, sublicense, alienate or grant limited rights to the software and media on which it is recorded, or make it available to a third party in any way or for any purpose whatsoever, not even if the third party in question uses the software solely for the benefit of the Client.
22.4. The Client will not modify the software other than in the context of the rectification of Faults, and will not use it in the context of the processing of data for the benefit of third parties (timesharing). The source code of the software will not be made available to the Client, unless agreed otherwise in the case of an open source code or shared source code.
22.5. The Client can make back-up copies of the software for its own use, provided that trademarks and copyright notices are not changed.
22.6. The right of use of the Client ends when the Agreement between the Parties terminates, unless provided otherwise in the Agreement.
22.7. The Client is responsible for the management and security of all user names and passwords, or other access data, provided in the context of an Agreement. In the context of purchasing the Services, the Client will act as a professional user and in that context in any case:
a. no improperly, unauthorized, illegal or unintentional use, misuse or use not in accordance with the intended use;
b. no placing of data, scripts or software on Zenit’s servers that may conflict with, or infringe on, or are in violation of the law, good morals, public order, the Agreement and these General Terms and Conditions, the generally accepted standards applicable to the use of internet, the rights of Zenit or third parties, including in addition to the intellectual property rights are understood, all matters that are in violation of the law or good morals, including, but not limited to the placement of (child) porn sites illegal games of chance, peer-to-peer networks or suitable for the exchange of copyrighted or infringing material, or bulletin boards or chat sites intended for that purpose, sexual harassment, discrimination, threats or the otherwise harassing of persons, without permission to penetrate other computers on the internet (hacking) whereby the Client breaks through some security and / or accesses by one technical intervention using false signals and / or false keys or by accepting a false quality, et cetera;
c. no spreading of any viruses, spybots, Spam or other material causing nuisance to internet users;
d. no use of equipment other than those recommended by Zenit or otherwise observing Zenit’s instructions with regard to conditions for use;
e. no permission to third parties to make use of Zenit’s rights of use without its prior written explicit consent;
f. no use of the systems of Zenit, or further designing or
parameterizing so that the system load becomes substantially larger or the stability of the functionality is reduced;
g. no distortion of the functioning of Zenit’s IT infrastructure,
infrastructure of third parties and/or links between infrastructures due to (the content or intensity of) the data traffic or by the actions and/or negligence of the Client and do not perform any actions such as starting up processes/programs on the systems of Zenit, which can be assumed to be capable of causing damage to its systems or other internet users, in the sole opinion of Zenit.
22.8. Zenit explicitly reserves the right to immediately (without a warning) deny the Client access to Zenit´s systems provided to the Client if the Client acts in violation of the previous paragraphs and does not fulfil, completely or properly fulfil its obligations in this respect. In that case, the Client remains liable for the costs arising from the Agreement for the remaining term.
22.9. Zenit is not liable for any damage to third parties, on any basis, arising from the behaviour and/or actions of the Client described in this article. The client indemnifies Zenit against third-party claims on that basis.
22.10. The Client is not permitted to sell, rent out or otherwise transfer or make available its Agreement and/or rights arising from it to third parties, unless Zenit has given its prior written consent.
Article 23. Support .
23.1. Zenit is not obliged to perform any further services towards the Client
than specified in a service level agreement, provided such an agreement is concluded. Zenit does not guarantee that the software will operate without interruption or Faults or that all Faults will be corrected. Any and all liability of Zenit to support lapses if the Client makes changes to the software or causes them to be made without the written permission of Zenit.
Article 24. Service
24.1. If a service level agreement has been concluded for the software neither the Client nor Zenit is obliged to enter into such an Agreement the Client will report to Zenit in detail, in accordance with the agreed procedures or Zenit’s usual procedures, any detected Faults in the software. After receipt of the report, Zenit will try to rectify Faults to the best of its ability under the conditions stated in the service level agreement. Depending on the urgency, the results will be made available to the Client in the manner and period to be determined by Zenit. Zenit is entitled to install temporary solutions or workarounds or problem avoiding restrictions in the software.
24.2. Whenever Zenit must visit the Client for carrying out agreed maintenance work, the Client will owe the call-out costs that Zenit usually uses.
24.3. Zenit can always charge its usual rates and costs. Recovery of corrupted or lost data does not fall under the service terms.
24.4. Zenit will provide to the Client any improved releases of the software that become available, unless agreed otherwise. Three months after a new release is provided, Zenit is no longer obliged to rectify any Faults in the old release or to provide support for this old release regardless of whether the Client has purchased and installed the improved release. To provide a release with new features and functions, Zenit may require the Client to enter into a new Agreement with Zenit and to pay a new fee for the provision. The obligation to provide a new release therefore does not result from the Agreement.
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