IT Development General Terms and Conditions

Article 1 – General
•    These IT Development General Terms and Conditions apply to all agreements between Motivaction International B.V. (hereinafter: “the Agency”) and a potential or actual client (hereinafter: “the Client”) pertaining to software (hereinafter: “the Software”) to be developed by the Agency  and/or the services to be provided with respect to this. The Client and Agency will in a written agreement (hereinafter: “the Assignment”) record the Software to be developed and/or services to be provided.
•    These IT Development General Terms and Conditions supplement the General Terms and Conditions of Motivaction International B.V. and the General Terms and Conditions of the MarktOnderzoekAssociatie (Dutch Market Research Association) (hereinafter: “the MOA Terms and Conditions”) and also apply as such to the Agency’s quotations and the Assignment consisting of the development of Software and/or the provision of services.
•    If (i) the IT Development General Terms and Conditions apply to an Assignment and (ii) provisions in these IT Development General Terms and Conditions deviate from and/or are inconsistent with provisions in Motivaction International B.V.’s General Terms and Conditions and the MOA Terms and Conditions, then the provisions in these IT Development General Terms and Conditions will prevail.
•    The Agency may draw up additional user or other terms and conditions concerning the Software, which will be applied by the Client in using the Software and/or imposed on its end users.

Article 2 – Development
•    The Agency will develop the Software with due care in accordance with the requirements and specifications as agreed in writing by the Client and Agency in the Assignment (hereinafter: “the Specifications”). The development work will always be performed by the Agency pursuant to a best-efforts obligation.
•    The Client understands and acknowledges that the Specifications are drawn up based on the information furnished by the Client. The Client warrants that, to the best of its knowledge, it furnished all the information essential to the drawing up of the Specifications and Assignment. The Agency is not liable for any damage resulting or arising from the lack of any information necessary and/or desirable for the drawing up of the Specifications.
•    In performing the development work, the Agency does not have to follow the Client’s instructions. Insofar as the Agency does follow those instructions, it may charge a fee for this in accordance with its hourly rate in effect at that time. The Client understands that implementing instructions may affect the final result and the turnaround time for the project.

Article 3 – Licence
•    Subject to the terms and conditions of the agreement for the Assignment, the Agency will grant a non-exclusive, non-transferable and non-sub-licensable restricted right to use the Software for the duration of the agreement, solely in and for its own company or organisation and solely for the intended use as agreed in the Assignment.
•    The Client will always strictly adhere to the restrictions agreed by the parties regarding the right to use the Software. The Client realises that violating an agreed use restriction constitutes both a breach of the Assignment as well as an infringement of Intellectual Property Rights, as defined in Article 8, for the Software. The Client must ensure that it acts in accordance with the restrictions on the user rights.
•    Access to and use of the Software is only permissible for (i) the number of end users agreed by the parties (ii) who have also created a user account. A user account is personal to the end user concerned. Other end users or third parties may not therefore be allowed to use the user account. The Client is responsible and liable for any use of the Software through a user account associated with it.
•    Upon request, the Client will immediately lend its full cooperation to an investigation to be conducted by or for the Agency regarding the Client's compliance with the agreed use restrictions. On the Agency’s request, the Client will provide the Agency with access to its buildings and systems. The Agency will treat as confidential any corporate information considered as confidential which the Agency obtains from or at the Client in connection with such an investigation, insofar as this information does not relate to use of the programs themselves.
•    If the Client exceeds the agreed number of users, the Agency may charge the Client for the costs for the extra number of users.
•    Additional use restrictions may likewise be stated by the Agency concerning:
(i) the type or kind of hardware for which the Software is intended and/or
(ii) the maximum number of processing units for which the Software is intended and/or
(iii) certain persons – designated or not by name or title – within the Client’s organisation
who are allowed to use the Software and/or
(iv) the location at which the Software may be used and/or
 (v) specific forms of use and purposes of use (for instance, business use or use for private purposes) and/or
(vi) any other quantitative or qualitative restriction.
•    The Client grants the Agency a non-exclusive, non-transferable and non-sub-licensable right to use any content, data or information which it furnishes to the Agency to perform the Assignment. The Client warrants that it is entitled to furnish this licence. The Client will indemnify the Agency against any damage and costs ensuing from alleged or actual infringements of Intellectual Property Rights or other rights of third parties by the content, data or information furnished by the Client.

Article 4 – Delivery and installation
•    The Agency will deliver the Assignment to the Client in the agreed manner. Delivery occurs by sending a user name and password, as well as link to the Software developed. Notwithstanding the provisions in Article 5.1 of the MOA Terms and Conditions, dates and times for partial and full completion are merely indicative and shall never be considered strict deadlines.
•    If this has expressly been agreed by the parties in the Assignment, the Agency will install the Software at the Client. The Client will provide its full cooperation for the installation, including granting the Agency, on request, access at all times to locations and hardware.
•    The Client itself is responsible for the procurement and/or proper operation of the infrastructure and appropriate telecom facilities (including Internet connections) necessary for performing the Assignment and the use of the Software. The Agency will never be responsible or liable for costs ensuing from the use of telecommunications charged by the telecom provider.
•    The Agency will never be required to provide the Client with a physical carrier with the Software or the source code for the Software.

Article 5 – Acceptance
•    After delivery and any installation referred to in Article 2, the Client will test the Software for errors within one (1) week. “Error” means substantial and reproducible non-conformity with the Specifications. During this test period, the Client may not use the Software for remunerative or operational purposes.
•    The Client will perform the aforementioned test on  the Software with sufficiently qualified personnel and with sufficient scope and depth.
•    At the end of the aforementioned period, the Client will let the Agency know in writing whether it accepts the Software. The Software will also be deemed to have been accepted if the Client puts the Software into operation after the aforementioned test period lapses.
•    Acceptance of the Software may not be withheld for reasons that do not relate to the Specifications and which are merely subjective and/or cosmetic in nature. Furthermore, acceptance may not be withheld because of the existence of minor errors which do not reasonably preclude the use of the Software.
•    Insofar as acceptance does not occur, the Client will, within one week after the end of the test period, inform the Agency in writing about the observed errors in a clear, comprehensible, complete and sufficiently specific manner.
•    The Agency will use its best efforts to correct the errors indicated (including minor errors) within a reasonable period, with the Agency being entitled to install temporary solutions, program bypasses or problem-avoiding restrictions in the Software.
•    Acceptance of the Software discharges the Agency from liability for the performance of its obligation concerning the development and installation – insofar as applicable – of the Software, without prejudice to the Client's rights, as agreed in appropriate cases, with respect to the maintenance referred to in Article 6.

Article 6 – Maintenance
•    The Agency need only provide maintenance for the Software insofar as agreed in a separate Service Level Agreement (hereinafter: “SLA”). The Agency may – but is never obliged to – correct errors in the Software on the Client's request. The Agency may charge the Client for the costs of the correction work at the hourly rates in effect then.

Article 7 – Payment
•    Insofar as the Assignment pertains to development of the Software, the Client will owe a one off development fee for the Assignment as agreed in the Assignment. The instalment scheme set out in Article 5 of Motivaction International B.V.’s General Terms and Conditions applies to this fee.
•    In addition to the one-off development fee, the Client will owe an annual licensing fee for the use of the Software as further agreed in the Assignment.

Article 8 – Intellectual property rights
•    Notwithstanding the provisions in Article 9 of the MOA Terms and Conditions and as a supplement to Article 4 of Motivaction International B.V.’s General Terms and Conditions, all intellectual property rights and related rights, including, but not limited to, copyrights, trade mark rights, patent rights, design rights, trade name rights, database rights and neighbouring rights, as well as rights to know-how and performance on a par with patentable inventions (hereinafter: “Intellectual Property Rights”) regarding the Assignment, including the Software and all documents, hardware, programs, data, information, reports, matrices and other materials (except insofar as these come from the Client) are vested in the Agency, its licensors or its suppliers.
•    The Agency will indemnify the Client against damage and costs resulting from a claim by third parties that the Software infringes those third parties’ Intellectual Property Rights. Such indemnification will cease to apply if the Client has adjusted or modified the Software in any way or uses or has used it in a manner inconsistent with the intended use of the Software.
•    The Client may not sell, lease out or dispose of the Software, grant restricted rights to it, or provide it to a third party in whatever way or for whatever purpose. Nor may the Client give a third party access – whether remote or not – to the Software, except as envisaged by and for the number agreed in the Assignment.
•    The Agency may put technical measures into place to protect the Software in connection with an agreed restriction on the content or the duration of the right to use these objects. The Client may not remove or bypass such technical measures (or cause this to occur).
•    The Client may not remove or change any designation concerning the confidential nature or the relevant Intellectual Property Rights from the Assignment, Software, programs, hardware, documents and/or other materials.
•    Unless otherwise agreed in writing and subject to exceptions provided by mandatory law, the Client may not modify the Software in whole or in part and/or have third parties perform correction work on the Software without the Agency's prior written consent.
Article 9 – Privacy
•    It is possible that, as part of the Assignment, the Agency will process personal data for the Client within the meaning of the Dutch Personal Data Protection Act. Supplementary to the provisions in Article 12.2 of the MOA Terms and Conditions, the Client guarantees that it complies, in full, with all applicable laws and regulations and that it is entitled to engage the Agency to process the personal data concerned.
•    Supplementary to the provisions of Article 12.4 of the MOA Terms and Conditions, the Client will fully indemnify the Agency against any third-party claims which in any way ensue from or relate to the Agency's processing of personal data and/or result from a breach of the aforementioned guarantees by the Client.

Article 10 – Guarantees and Indemnification
•    The Agency hereby specifically excludes express and tacit indemnities, promises and warranties of whatever nature, including, but not limited to, guarantees, promises and indemnities concerning the quality, safety, lawfulness, integrity, availability and correctness of the Assignment, unless otherwise explicitly agreed in writing.
•    The Agency does not warrant that the Software will be accessible at all times and without interruptions or breakdowns. Unless otherwise agreed in writing, the Agency will not in any way be liable to the Client or obliged to pay it compensation for any damage ensuing or resulting from the temporary or other unavailability or early or other failure of the Software.
•    The Client is responsible for managing the use of the Software, including control mechanisms, as well as for the way in which the results generated through the Software are used. In addition, the Client is responsible for the use of the Software by the users, regardless of whether there is a relationship of authority between the Client and these users.
•    The Client warrants that the Software will not be used by the end users or others:
•    in such a way that infringes the Agency's or third parties' rights, including, without any limitation, Intellectual Property Rights or rights relating to privacy protection;
•    in an unlawful manner with respect to the Agency and/or third parties;
•    contrary to applicable laws or regulations and/or
•    contrary to the provisions in the Assignment or one of the terms or conditions applicable to it.

Article 11 – Liability
•    Supplementary to the provisions in Article 4.2 of the MOA Terms and Conditions, the Agency’s liability for damage on any account whatsoever will be limited to direct damage and to the amount paid out under its liability insurance in the particular case.
•    ‘Direct damage’ solely means:
•    reasonable costs which the Client would have to incur to have the Agency’s performance conform to the Assignment. This alternative damage will not be reimbursed if the agreement is terminated;
•    reasonable costs incurred to determine the cause and scope of the damage, insofar as the determination relates to direct damage within the meaning of this provision;
•    reasonable costs incurred to avoid or limit damage, insofar as these costs limited direct damage within the meaning of this provision.
•    Supplementary to Article 4.3 of the MOA Terms and Conditions, any liability of the Agency for damage other than direct damage ("indirect damage”), including, but not limited to, consequential damage, loss of and/or damage to information, lost profits and lost turnover, lost savings, reduced goodwill and damage due to business interruptions, is excluded. Any liability of the Agency is likewise excluded for the mutilation, destruction or loss of information, data and/or documents and/or damage due to delays in the transmission of data traffic.

Article 12 – Duration
•    The agreement for the Assignment consists of developing, delivering, making available and/or installing the Software in accordance with the provisions in Articles 2 and 4, as well as the licence granted to the Client pursuant to Article 3.
•    The part of the Assignment relating to developing, delivering and installing the Software automatically ends after the Software has been accepted in accordance with the provisions in Article 5.
•    With respect to the licence, the Assignment will continue for a 12-month period after acceptance of the Software and will automatically be extended each time for 12 months. Unless otherwise agreed, the Client and Agency may, after acceptance and subject to a three-month notice period, terminate the agreement early each time.

Article 13 – Consequences of termination
•    If, for whatever reason, the Assignment is terminated, the licence furnished to the Client in Article 4 will automatically expire. From the time of termination, the Client will cease and desist from any use of the Software and accompanying documentation. After the Assignment ends for whatever reason, the Agency may block the Client’s and all its end users’ access to the Software.
•    Within thirty (30) days after the end of the Assignment, the Client may ask the Agency to provide it with its data that the Agency has in its possession. The Agency must comply with any reasonable request by the Client. The Agency may always charge the usual rates then applicable. The data will solely be furnished in the format selected by the Agency.

Article 14 – Force majeure
•    Supplementary to the provisions in Article 11 of the MOA Terms and Conditions, “force majeure” will include, but is not limited to:
•    a delay to or cancellation of the delivery to the party of parts, goods or services ordered from third parties, interruptions in the Internet connection or
•    restrictions imposed by the government, law or regulations.



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